States Failed to State Claim For Relief In Action Seeking to Prescribe Army Corps Response to Threat of Asian Carp In Great Lakes.

Five states bordering the Great Lakes and an Indian tribe filed an action for injunctive relief based upon the assertion that Asian carp were about to invade the Great Lakes and that they were poised to inflict billions of dollars of damage on the ecosystem. Believing that the U.S. Army Corps of Engineers (Corps) and the Metropolitan Water Reclamation District of Greater Chicago (District) had failed in their task of protecting the Great Lakes, the plaintiffs asked the court to impose measures against the defendants to ensure that the carp were forever blocked from the Lakes. The district court dismissed the action under Fed. R. Civ. P. 12(b)(6), finding that the action failed to state a claim for which relief could be granted. On appeal, the Seventh Circuit Court of Appeals affirmed, finding that the complaint did not plausibly alleged that the Corps and the District were creating a current or imminent public nuisance by their manner of operating the Chicago Area Waterway System (CAWS). The court found that there was a notable lack of factual allegations that Asian carp were passing the barriers that the Corps had established, and that the complaint did not plausibly allege that the Corps could not or would not respond to more urgent threats if and when they would arise. To the contrary, the allegations tended to show that the Corps was taking its stewardship over the CAWS and the carp problem seriously. The states were free to return to court based upon changed circumstances.  Michigan v. United States Army Corps of Eng'rs, No. 12-3800, 2014 U.S. App. LEXIS 13349 (7th Cir. Jul. 14, 2014).