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US opposes waterways disruption

The federal government, saying that it, too, is worried about an invasive species of fish making its way into Lake Michigan and is doing something about it, urged the Supreme Court on Tuesday to turn down the state of Michigan’s new plea for major Court-ordered steps to head off that migration.  It also implied that the Court should not allow Michigan to go ahead with its underlying lawsuit in the Court against Illinois and others, arguing that the proper place for the dispute is in a lower federal court, if anywhere.  The new federal document can be found here.

For now, the Michigan case, filed Dec. 21, is in the form of a plea to reopen a decades-old “Original” lawsuit — that is, a lawsuit filed directly and tried in the Supreme Court with no prior lower court activity.  Thus, Michigan’s latest maneuver is on the Court’s docket with the same Original numbers of the prior water-rights litigation — Nos. 1, 2 and 3, from the 1966 Term.  (The filings in the new Michigan case are available at this link on the Court’s website.)

Michigan has contended that the Asian carp, an imported species with a huge appetite that threatens the survival of other aquatic varieties, is making its way toward Lake Michigan through a series of rivers, shipping channels, and a “sanitary canal” around the Chicago area.  It has asked the Court to order a series of temporary measures, including closing down navigation locks in the waterways until there are better ways to head off the carp’s migration.  Those requests were made in a motion for a preliminary injunction against Illinois, the U.S. Army Corps of Engineers, and Chicago and its local water and sewer district.

Those are the requests the federal government opposed in Tuesday’s filing.  While U.S. Solicitor General Elena Kagan said the government agreed that allowing the Asian carp to enter Lake Michigan would bring “grave and irreparable harm,” she said it is only “speculative” at this point that the harm will occur “imminently.”

“By contrast,” Kagan added, “closing the locks and sluices [on area waterways] and hastily constructing a new structure in the Little Calumet [River] would have significant immediate consequences, as well as possible effects on flood control, public safety, and other important considerations that are sufficiently grave to counsel against taking such a step in the absence of appropriate study.”

While Kagan’s response was technically an opposition memo targeting the state’s plea for temporary orders, she also went further, contending that Michigan was trying to start a completely new Original case in the Court without getting the Court’s permission to do so, and was trying to use an old case about water flows and allotments to litigate an entirely different, environmental  protection issue.

“Michigan ,” the document said, “has brought before this Court an entirely new dispute about keeping invasive species from entering Lake Michigan, in the guise of a motion to reopen a decades-old decree about how much water may be removed from Lake Michigan.” (emphasis in original)

“This case is altogether unlike the decades-old interstate dispute about water rights that Michigan purportedly seeks to reopen,” Kagan wrote. “Instead, this case is an attempt to obtain judicial review of the ongoing actions of a federal agency, the Corps [of Engineers] — but to do so under a novel theory of federal common law [maintaining a nuisance], without respecting the well-established principles governing judicial review of agency action.”

The Corps is taking a number of actions to deal with the threat that it, too, perceives from Asian carp in Lake Michigan, and has not yet made any final decision to reject any of Michigan’s proposals for dealing with the problem, the document insisted.  If the Corps does reject those proposals, Michigan could then go to a U.S. District Court to make a conventional challenge to agency action, it added.

Michigan’s plea for prompt action by the Court is preliminary to its underlying legal claims against the Corps of Engineers, Chicago, the local water and sewer agency, and the state of Illinois.  (Kagan’s opposition argued that Illinois was brought into the case only to make it an interstate dispute to fit within the Court’s usual category for Original cases.)

The Court probably will not act on the preliminary injunction plea until after it hears from Illinois, Chicago and the local agency, and then gets a reply from Michigan.  The challenge by Michigan has lately drawn the support of neighboring states; Minnesota and Ohio have already joined in, and Indiana has said that it plans to do so.

The options open to the Court, if it agrees with the federal government’s views on Michigan’s underlying legal claims, include simply denying the motion to reopen the old litigation, treating the case as a motion for permission to file a new Original complaint and then denying it, or leaving Michigan free to formally file a new motion for leave to file.

If it should decide (even apart from the preliminary injunction issue) to allow Michigan to go forward with its Original lawsuit, the case presumably would be sent to a Court-appointed Special Master to recommend what action, if any, the Court should ultimately take.