City of Rock Island et al v. United States of America et al

Filing 15

ORDER entered by Judge Sara Darrow on September 24, 2014. Defendant's 10 Motion to Dismiss is GRANTED. The Clerk is directed to enter judgment, closing the case. (SC, ilcd)

E-FILED

Wednesday, 24 September, 2014 11:58:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
CITY OF ROCK ISLAND, an Illinois
municipal corporation, and VILLAGE OF
MILAN, an Illinois municipal corporation,

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Plaintiffs,
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v.
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UNITED STATES OF AMERICA, UNITED )
STATES DEPARTMENT OF THE ARMY, )
CORPS OF ENGINEERS, and
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LIEUTENANT GENERAL THOMAS P.
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BOSTICK, Chief of Engineers, sued in his
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official capacity only,
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Defendants.
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Case No. 4:13-cv-04047-SLD-JEH

ORDER
Plaintiff Cities of Rock Island and Milan seek preliminary and permanent injunctions
against Defendants United States of America, Army Corps of Engineers, and Lieutenant General
Thomas P. Bostick (collectively, “the Corps”) under the federal facilities provision of the Clean
Water Act (“CWA”), 33 U.S.C. § 1323(a), the citizen suit provision of the CWA, 33 U.S.C.
§ 1365, the federal facilities provision of the Safe Drinking Water Act (“SDWA”), 42 U.S.C.
§ 300j-6(a)(2), and the citizen suit provision of the SDWA, 42 U.S.C. § 300j-8. Plaintiffs ask
that the Corps be permanently enjoined to maintain the Mill Creek South Slough, where it has
periodically operated a flood control project. The Corps now moves to dismiss Plaintiffs’
Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and, alternatively,
moves for a judgment on the pleadings pursuant to Rule 12(c). Defs.’ Mot. Dismiss, ECF No.

10. For the following reasons, Defendants’ Motion to Dismiss, or, Alternatively, for Judgment
on the Pleadings, ECF No. 10, is GRANTED.
BACKGROUND1
The federal government built the Illinois and Mississippi Canal in 1895. The canal
blocked the connection of Mill Creek, near Milan, to the Rock River. Mill Creek was diverted to
connect instead to the South Slough. In response to flooding in Milan between 1895 and 1929,
Congress authorized the Mill Creek South Slough Project (“MCSS Project”), which abated
flooding in Milan by: constructing spillways where Mill Creek used to run into the Rock River;
placing levees on both sides of Mill Creek; and dredging and realigning both Mill Creek and the
South Slough, where a new channel, which ran more directly to the Mississippi River than its
predecessor, was cut. In order to make these improvements, the Corps acquired real estate
easements and property in an area extending both upstream and downstream from the former
mouth of Mill Creek.
In 1951, the Illinois and Mississippi Canal was closed, and in 1963 the Corps diverted
Mill Creek back to its original outlet into the Rock River. The Corps continued to maintain the
levees and channels in the MCSS Project, however, because they were needed to manage the risk
of flooding in Milan. In 1984, the Corps ceased regular maintenance of the MCSS Project, and
in 1987, completed and turned over to the City of Milan a new comprehensive flood risk
management project, the Local Flood Prevention Project (“LFPP”). The South Slough, the new
MCSS channel, and the creeks that feed it were dredged to manage the risk of flooding in nearby
residential areas of Milan. The Corps retains its real estate interests and operational authority for
1

In a motion to dismiss, all well-pleaded allegations in the complaint are taken as true and viewed in the light most
favorable to the plaintiff. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012)
(citation omitted). Accordingly, the material set forth here is based on allegations in the Complaint, ECF No. 1, and
the Exhibits appended thereto. See Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1998) (stating that “the
district court is entitled to consider exhibits attached to the complaint as part of the pleadings”).

the MCSS Project to the present day. Maintenance actions performed by the Corps in the past on
the MCSS Project have included “clearing,” “snagging,” and dredging.2
The levees operated by the City of Milan along the banks of Mill Creek have gates that
close when the water level of Mill Creek is high, and when it is not, remain open to permit
drainage of runoff from the City of Milan. The water level of Mill Creek has risen, however,
requiring that the city keep the levee gates shut, which causes the impounded runoff to run into
the City’s sanitary sewers. Plaintiffs maintain that such “[i]nflow or infiltration of the
impounded runoff water into the Milan sanitary sewer going to the Milan [Sewage Treatment
Plant, (“STP”)] will likely hydraulically overload it and cause it to discharge inadequately treated
sewage into the Rock River . . . .” Compl. ¶32. Such sewage would be harmful to the
environment. The emission of inadequately treated sewage would also cause the Milan STP to
violate its National Pollutant Discharge Elimination System (“NPDES”) permit for the emission
of effluent.
When the Mississippi River floods, the water level in the South Slough rises. When the
floodwater recedes into the Mississippi River, it does so through the old slough channel and the
MCSS Project channel. Receding floodwaters leave behind debris and sediment in these
channels, impeding their ability to drain water back into the Mississippi River and causing water
levels in the South Slough to rise. Water has ponded in regions of the Milan LFPP, hindering its
ability to prevent flooding. Water has also ponded over a concrete pipe, the Southwest
Interceptor, owned and operated by the City of Rock Island. The line carries wastewater from
Rock Island to the Rock Island Southwest Sewage Treatment Plant (“Southwest STP”), which

2

According to the Complaint, “clearing and snagging” involves removing woody debris from the channel, such as
downed trees and beaver dams.” Compl., Ex. D at 17.

discharges, pursuant to an NPDES permit, into Mill Creek.3 The ponding has submerged 1,245
linear feet of the Southwest Interceptor, which, Plaintiffs claim, has resulted in the “likelihood”
that there will be a break in the Interceptor. Compl. ¶ 44. This would lead to various possible
pollution scenarios, including an “open rupture,” which would release “approximately 400,000
gallons of raw sewage into the water around the line break per day.” Id. Alternatively, Plaintiffs
maintain, the Southwest Interceptor “may collapse in on itself,” which “would cause a back-up
resulting in upstream overflows.” Id. ¶ 46. Such ruptures would require repair, and result in
Rock Island’s STP violating the terms of its NPDES effluent emission permit.
Approximately two miles of Rock Island’s municipal water main are also submerged.
There is a “likelihood” that there will be a break along this water main, resulting in
contamination of the water in the main, shutoff of the main while repairs are performed, and
interruption of sanitary sewer service in the area. Compl. ¶ 105.
In 2009, Congress authorized $482,000 for operation and maintenance of the MCSS
Project. In 2011, drawing from these funds, the Corps undertook a one-time action to ameliorate
high water conditions in the Mill Creek, lowering the water level to the point “where Milan does
not have to keep the flood gates closed to prevent the high water from entering its sewer system
during non-flood stage periods.” Compl. ¶ 28. The Corps was to recommence these efforts in
fall or winter of 2013–2014, id. ¶ 29, and continue until funding was exhausted. Plaintiffs
estimate that the effects of this action are temporary and will last between one and five years, at
the end of which time sedimentation, logs, and beaver dams will cause Mill Creek to suffer from
high water levels once more, in turn requiring Plaintiffs to keep the levee gates closed and
3

It is unclear from the Complaint whether the Southwest STP discharges into the South Slough area, or the restored
channel of Mill Creek that discharges into the Rock River. The “1930 Flood Damage Reduction Project Appraisal
of Resumption of Operation and Maintenance Rock Island/Milan, Illinois,” appended to the Complaint as Exhibit D,
identifies a “Wastewater Treatment Plant” belonging to the City of Rock Island, located in the South Slough area.
See Compl., Ex. D at 2, 13, 14.

submerging, or continuing to submerge, the Southwest Interceptor and water main. Various
pollution scenarios at either STP, the Southwest Interceptor, or the water main would, Plaintiffs
claim, result in violations, variously, of NPDES permits and municipal and Illinois law, which
would result in violations of the Clean Water and Safe Drinking Water Acts.
On May 24, 2013, Plaintiffs filed the instant suit, seeking a permanent injunction
compelling the Corps to maintain the Mill Creek South Slough.4 In the motion now before the
Court, Defendants move to dismiss the Complaint, or obtain judgment on the pleadings, on the
basis of lack of subject matter jurisdiction. Defs.’ Mot. Dismiss 1, ECF No. 10.
DISCUSSION
I.

The Corps’s Motion to Dismiss
Defendants argue that the Complaint should be dismissed because Plaintiffs have failed

to establish standing, as they must for this Court to have subject matter jurisdiction. In the
alternative, Defendants argue that this Court should enter judgment on the pleadings against
Plaintiffs on all counts, because Plaintiffs’ claims do not fall within any exceptions to the
sovereign immunity of the United States. Because the Court finds that it lacks subject matter
jurisdiction, it does not reach Defendants’ remaining arguments.
II.

Legal Framework
A plaintiff has the burden of demonstrating that he has standing for each separate form of

relief sought. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). To carry this burden
a plaintiff must provide “competent proof” in support of the allegations, meaning that the

4

The Complaint does not distinguish between MCSS Project property and easements in the South Slough and those
on the portion of Mill Creek that was re-diverted to flow into the Rock River. Reference in the Complaint is
continuously to “Mill Creek.” The “1930 Flood Damage Reduction Project Appraisal of Resumption of Operation
and Maintenance Rock Island/Milan, Illinois” states that “[f]loods in recent years near the outlet of Mill Creek into
the Rock River are not associated with the MCSS as these two streams are no longer connected.” Compl., Ex. D at
10.

plaintiff must show “by a preponderance of the evidence, or proof to a reasonable probability,
that standing exists.” Zamecnik v. Indian Prairie Sch. Dist. No. 207 Bd. of Educ., No. 07-cv1586, 2009 WL 805654, at *1 (N.D. Ill. 2009) (quoting Retired Chi. Police Ass’n v. City of
Chicago, 76 F.3d 856, 862 (7th Cir. 1996)) (internal citations omitted). A court is “free to weigh
the evidence to determine whether jurisdiction has been established.” Id. (quoting United
Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other
grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012)).
In reviewing a motion to dismiss, a court must accept as true all well-pleaded facts in the
complaint, and draw all reasonable inferences in favor of the plaintiff. Scanlan v. Eisenberg, 669
F.3d 838, 841 (7th Cir. 2012).
For this Court to have jurisdiction under Article III of the Constitution, the case before it
must rise to the “irreducible constitutional minimum of standing.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). “[T]o satisfy Article III’s standing requirements, a plaintiff
must show (1) that he has suffered an ‘injury in fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw
Environmental Servs., 528 U.S. 167, 180–81 (2000).
When a plaintiff seeks injunctive relief, past or present injury in fact is insufficient for
standing purposes: she must show she is “under threat of an actual and imminent injury in fact.”
Schirmer v. Nagode, 621 F.3d 581, 585 (7th Cir. 2010). The injury must be “certainly
impending”—“‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty
Int’l USA, 133 S.Ct 1138, 1147 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158

(1990)) (emphasis in original). The “imminence” requirement ensures that the alleged injury is
not too speculative. Defenders of Wildlife 504 U.S., at 565 n.2. The threat of injury is too
speculative where “the plaintiff alleges only an injury at some indefinite future time, and the acts
necessary to make the injury happen are at least partly within the plaintiff’s control.” Id.
Courts are limited to cases and controversies by Article III partly to limit their power to
review actions taken by other branches of government:
Article III of the Constitution restricts [the judicial power] to the traditional role
of Anglo-American courts, which is to redress or prevent actual or imminently
threatened injury to persons caused by private or official violations of law.
Except when necessary in the execution of that function, courts have no charter to
review and revise legislative and executive action.
Summers, 555 U.S. at 492. Article III standing thus, among other functions, serves as a check on
judicial overreach into regions properly entrusted to the legislative or executive branches.
Article III “serves to prevent the judicial process from being used to usurp the power of the
political branches.” Clapper, 133 S.Ct. at 1146.
III.

Standing Analysis
In order to establish standing to seek an in injunction, a plaintiff must allege a threat of

future injury in fact. Schirmer, 621 F.3d at 585. Harms Plaintiffs suffered in the past are
therefore insufficient to support standing to seek an injunction. Pls.’ Resp. to Mot. Dismiss 5,
ECF No. 14 (claiming injuries such as “Milan has been injured by virtue of the need to pump
water over the closed floodgates”). As for future harm, Plaintiffs fail to allege certainly
impending injury in fact with respect to the Milan STP and to the Rock Island STP, Southwest
Interceptor, and water main.

A. Milan STP and the Levees
Plaintiffs claim that in 2011, the Corps undertook a “one-time action” to maintain the
MCSS Project, and state that as a consequence of this action, the water level in Mill Creek has
been lowered to the point where Milan does not have to keep the flood gates to Mill Creek
closed. Compl. ¶ 28. However, Plaintiffs also claim that the Corps planned to re-commence
work in fall or winter of 2013–2014, and continue “until the current funding is depleted.” Id.
¶ 29. Thus, Plaintiffs assert, the Corps recommenced last fall or winter the work—maintaining
the slough—that Plaintiffs wish them to continue permanently. The harm Plaintiffs seek to avert
will follow one to five years after the Corps ceases to maintain the slough. Id. ¶ 30. Plaintiffs
make no representation about how long the Corps is likely to be able to maintain the MCSS
Project, or whether the Corps will seek or receive additional funding to do so. Rather, Plaintiffs
argue that, “at some indefinite future time,” Defenders of Wildlife, 504 U.S. at 565, n.2., the
Corps will cease to maintain the South Slough, and years after that, flooding, high water level,
and clogged drainage channels will again occur.
In other words, Plaintiffs will only be injured if a series of contingencies occur: (1) The
Corps runs through the money already allocated, (2) does not acquire a new or different source
of funding in the interim, (3) and ceases work on the MCSS Project. Next, (4) one to five years
elapse without change in the Corps’s funding or activity, (6) the levees are closed against rising
water in Mill Creek, (7) and water backs up in Milan’s sanitary sewer to the extent that (8) the
Milan STP “hydraulically overload[s].” Compl. ¶ 32. Although Plaintiffs argue that closing the
levees and pumping would amount to harm, the injuries they seek to enjoin against, and from
which their cause of action arises, are the violations of the Clean Water and Safe Drinking Water

Acts that would flow only from the ultimate contingency, “hydraulic overload.”5 This injury
only occurs if each of eight different contingencies—many or all determined by actors and forces
outside of the Corps’ control—fall exactly into place. In light of this chain of required
contingencies and influence of outside forces, the likelihood that the predicted harms will occur
is merely speculative. See Defenders of Wildlife 504 U.S., at 565, n.2. For the same reasons, it
would be a stretch to find any such future injuries “fairly traceable” to the Corps’ conduct. See
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).
Furthermore, Plaintiffs do not overcome evidence in their own exhibits and pleadings
supporting an inference that the Corps will continue to maintain the MCSS project area. The
Corps’s 2011 report ends by recommending “that maintenance of the MCSS channel should be
resumed.”6 Compl., Ex. D at 43. As in Clapper v. Amnesty International USA, the final
supposed harm alleged by Plaintiffs appears at the end of “a highly attenuated chain of
possibilities,” and is thus both too speculative to be certainly impending and not fairly traceable
to Defendants’ actions. Clapper, 133 S.Ct. at 1149.
The potential harm to the City of Milan and its STP also fail to confer Article III standing
on Plaintiffs because the proposed injunction amounts to a proscribed “usurp[ation of] the
powers of the political branches.” Clapper, 133 S.Ct. at 1149; see Summers, 555 U.S. at 492–
493. Effectively, Plaintiffs seek to enjoin Defendants to continue work, not just until funding for
the project runs out, but indefinitely, whether or not funding has been approved by Congress.
Plaintiffs seek by this means to enjoin, via judicial process, a permanent action by the executive

5

Additionally, Plaintiffs do not explain why hydraulic overload and “discharge of inadequately treated sewage into
the Rock River in violation of applicable effluent standards” would “likely” transpire if water backed up in the
sanitary sewer system, as this has not occurred in the past. See Compl. ¶ 32.
6
As noted supra, n.4, the Complaint does not appear to distinguish between Mill Creek, the waterway that
discharges into the Rock River, and the MCSS Project channel in the South Slough, which is the topic of the Corps
report attached to the Complaint as Exhibit D.

branch, in the form of the Corps, and the legislative branch, in the form of Congressional
appropriation, where the forecasted harm is simply the future possibility of no government action
being taken. Such review and revision of executive and legislative action, where no harm is
clearly impending, is beyond the Constitutional limitations placed on the power of courts by
Article III. See Summers, 555 U.S. at 492.
B. Rock Island STP, the Southwest Interceptor, and Rock Island Water Main
Plaintiffs allege that 1,245 linear feet of the Southwest Interceptor are underwater as a
consequence of the Corps’s failure to perform maintenance on the MCSS Project. Compl. ¶ 40.
Plaintiffs further state that the Interceptor is likely to break as a result of its submerged state,
resulting in the release of 400,000 gallons of raw sewage per day and a violation of Rock Island
STP’s NPDES permit, the Illinois Environmental Protection Act, Illinois Pollution Control
Board rules, and the Clean Water Act. Id. ¶ 43, 44, 76. Plaintiffs also allege that roughly two
miles of water main is underwater because of the Corps’s failure to perform maintenance work
on the MCSS Project. Id. ¶ 103. Plaintiffs state that the water main is likely to break, require
repair, result in pollution of drinking water, or result in disruption of drinking water service in
the City of Rock Island. ¶¶ 105–112.
But, as already discussed, the Complaint states that the Corps performed maintenance
work in 2011, id. ¶ 28, and planned to resume that work in the fall or winter of 2013–2014. Id.
¶ 29. If this maintenance work has not abated the conditions over the Interceptor and the water
main—and the Complaint’s use of the present tense to describe the submersion of the Southwest
Interceptor and water main suggests that it has not—then there is no reason to believe the Corps
will be able to alleviate this condition by continuing their “ineffective” maintenance activities, as
requested by Plaintiffs. If, alternatively, the Corps’s actions have alleviated the flooding of the

Southwest Interceptor, it is unclear both (1) why the Interceptor and water main are repeatedly
depicted in the Complaint as being underwater and (2) what certainly-impending injury Plaintiffs
seek to forestall by this Court’s grant of a permanent injunction.
Assuming that Plaintiffs seek to forestall future flooding of the Southwest Interceptor and
water main, they fail to establish “certainly impending” injury in fact for the same reason that the
danger to the Milan STP is insufficiently imminent to furnish standing. The proposed injury
depends upon a highly attenuated chain of contingencies: (1) The Corps runs through the money
already allocated, (2) does not acquire a new or different source of funding in the interim, (3) and
ceases work on the MCSS Project. Next, (4) one to five years elapse without change in the
Corps’s funding or activity, (6) water once more ponds over the Southwest Interceptor or water
main, (7) a break in one of those mains occurs, and (8) a pollution event occurs in violation of
municipal, state, or local law. 7 Only if all of these events occur as a consequence of each other
could any violations of the CWA and CDWA fairly traceable to the Corps’s actions result. This
likelihood, like the likelihood of a malfunction at the Milan STP, is too remote to qualify as
“certainly impending.” See Clapper at 1147.
Plaintiffs argue in their Response that “where the statute in question proscribes both a
particular action and the threat of such action, it is the imminence of the proscribed threat (not
the threatened injury) that is considered for purposes of standing analysis,” Resp. at 6, original
emphasis, and rely on Citizens for a Better Environment v. Caterpillar, Inc., 30 F.Supp.2d 1053,
1054-65 (CD. Ill. 1998) for the proposition that only the “threat” need be “certainly impending.”
Id. at 1064. Plaintiffs thus argue that an event with some remote possibility of occurrence is

7

Additionally, the Court notes with interest that although not described therein as the “Southwest Interceptor,” the
Corps’s report, Exhibit D, makes reference to an “underground sewer pipe,” 1,245 feet of which is underwater.
Compl., Ex. D at 29. The Corps report goes on to state that “[t]he sewer line has no history of breakages and has
been excluded from this [extensive cost-benefit] analysis.” Id.

“threatened” by virtue of its remote possibility of occurrence, and therefore a remote possibility
of occurrence is a sufficiently concrete injury wherever a threat is itself proscribed by law.
Whether a “threat” is “certainly impending,” however, necessarily depends on the likelihood of
the threatened event’s occurrence. Here, the considerations that render the likelihood of
Plaintiffs’ predicted injuries too speculative—the attenuated causal chain and unpredictable
decisions by outside actors—similarly provide no grounds for finding that even a threat of such
injuries is imminent. See Lujan, 504 U.S. at 564, n.2 (“Although ‘imminence’ is concededly a
somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the
alleged injury is not too speculative for Article III purposes.”) The injuries postulated in the
Complaint are too speculative for Article III purposes.
Accordingly, the Court finds that Plaintiffs lack standing to sue for injunctive relief, and
as this is the only relief they seek, outside of related attorney’s fees and costs, their Complaint
must be dismissed.
CONCLUSION
Defendants’ Motion to Dismiss, or, Alternatively, for Judgment on the Pleadings, ECF
No. 10, is GRANTED. All claims against the United States of America, United States of
America, Army Corps of Engineers, and Lieutenant General Thomas P. Bostick are dismissed.
The Clerk is directed to close the case.

Entered this 24th day of September, 2014.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE