Seventh Circuit -- State of Michigan v. United States

State of Michigan v. United States

No abuse of discretion in District Court declining to issue injunction requiring Corps of Engineers to close some Great Lakes waterways to prevent Asian Carp invasion.  Current regulatory efforts, though not enough to displace, effectively TKO a judicial solution -- an injunction would just muddy the waters.

Federal common law (public nuisance) extends to passive carp-enablement.

Genuine question as to whether the US as sovereign is vulnerable to a public nuisance suit.

APA Waiver of sovereign immunity obtains.

Current level of legislation not enough to displace common law solution.

Likely success on merits, given magnitude of hams.

Injunctive relief sought is vague.

Error for District Court to assess harms at the same time as success on the merits when deciding the injunciton.

Balance of harms favors deft.