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Michigan Seeks Supreme Court Review of Army Decision on Asian Carp

The Asian Carp.  It is an ugly fella.  Should the federal government be required to install block nets to stop these beasties from invading the Great lakes?  We'll see if the Supreme Court thinks that is a question it should be asking.

Photo courtesy of the National Park Service.

The Asian Carp is an invasive fish species that is spreading from the Mississippi River basin towards the Great Lakes.  I've posted earlier on various attempts to halt the spread of the fish from the rivers to the lakes.  (here and here).  The states bordering the Great Lakes were not satisfied with the federal government (particularly the Army Corps of Engineers) response to the threat of a carp invasion.  So, several states brought suit in federal court seeking an injunction to accelerate the study of the problem and adopt interim measures to stop the fish pending a permanent remedy.

The States attempt to obtain an injunction was rejected by the district court and the Seventh Circuit Court of Appeals.  The Court of Appeals decision is here.

The States recently filed a Petition for a Writ of Certiorari.  The petition is here.  The Questions Presented by the petition are:

This multi-sovereign dispute involves the imminent invasion of Asian carp into the Great Lakes ecosystem. Although the Seventh Circuit Court of Appeals concluded that catastrophic harm has a “good” or “perhaps even a substantial” likelihood of occurring, Pet. App. 4a–5a, it affirmed the district court’s denial of even the plaintiffs’ most modest requests for injunctive relief. The Seventh Circuit’s opinion raises two questions for this Court’s review:

1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested.

2. Whether a party’s statement that it is “considering” implementing the relief requested in a motion for injunction is a ground for denying the injunction.

Interestingly, in justifying why the Supreme Court should review the denial of the injunction, the States assert that this is a common law case of nuisance between several states (Michigan, Minnesota, Ohio, Wisconsin and Pennsylvania) on one hand, and the United States Army Corps of Engineers and "an instrumentality of Illinois" on the other hand.

The second asserted justification is the immense importance of the natural resources at stake: namely the Great Lakes ecosystem.

The third asserted justification is that cases involving migratory wildlife are "uniquely justiciable" in the original jurisdiction context.

Tough arguments to justify Supreme Court review.  Stay tuned.

New Maritime Insurance Case from Seventh Circuit - Egan Marine Corp. v. Great American Insur. Co.

New maritime insurance case from the Seventh Circuit Court of Appeals.  The case involves a pollution insurance policy and coverage for an oil spill following a vessel explosion in Chicago.  The case is Egan Marine Corp. v. Great American Insur. Co., 2011 U.S. App. LEXIS 23369 and the original opinion can be found here.

The facts underlying the original incident are simple.  A barge laden with oil exploded resulting in a salvage and cleanup effort.  An insurance policy provided the insured with coverage for pollution cleanup activities. 

The first part of the opinion addressed the insured's appeal.  The insured was hired by the insurance company to coordinate the cleanup activities at an agreed upon 80% of normal rates, presumably to only pay for costs not profit.  The parties disagreed as to whether the remaining 20% constituted an agreement as to the amount of cost (vs. profit) or whether the carrier had the ability to review and approve only the actual cost.  The opinion continues to analyze the policy language in light of claims for costs after federal liability ended, then briefly discussing a bad faith allegation against the insurer.

On cross-appeal, the insurer argued that its policy only covered the tug vessel and not the barge carrying the oil, ergo no coverage.  The appeals court found that since the barge was not capable of propulsion without the tug, treating them as distinct vessels would lead to a "curious result."  The remaining issues on appeal dealt with specific reimbursements for costs and the oral contract regarding the 20% reduction.

Interesting case involving oil spills and oil pollution policies.  Definitely one to keep handy for mishaps.