Bloomberg News

Great Lakes States’ Asian Carp Case Toss by U.S. Court

December 03, 2012

States surrounding the Great Lakes lost a lawsuit that sought to force the U.S. Army Corps of Engineers to stop Asian carp from possibly migrating into the lakes from the Mississippi River basin.

U.S. District Judge John Tharp in Chicago today dismissed the suit filed two years ago by Michigan, Wisconsin, Minnesota, Ohio and Pennsylvania, ruling their demand to sever the lakes from the basin was trumped by federal laws that require the Army Corps. to keep connections navigable between the water bodies.

“It is not the province of the courts to order parties to take action that would directly contravene statutory mandates and prohibitions,” Tharp said in his 46-page decision.

Two varieties of the carp, bighead and silver, entered the Mississippi River system after being brought to the U.S. in the ballast water discharged by ocean-going ships and to cleanse fish ponds and sewage lagoons. The fish grow as big as 100 pounds (45 kilograms) and feed on plankton that native species need to survive, according to the U.S. Environmental Protection Agency.

The states sought the closing of locks at the mouths of the Chicago and Calumet rivers, where they meet Lake Michigan, as well as installation of permanent screens, grates and other measures to stop the alleged migration they claimed threatens a $7.09 billion sport fishing and tourism industry.

Chicago, the third-most populous U.S. city, abuts the southwestern shore of the lake.

Reviewing Decision

“We are reviewing this decision and considering our options,” Joy Yearout, a spokeswoman for Michigan Attorney General Bill Schuette, said in a phone interview.

Wyn Hornbuckle, a spokesman for the U.S. Justice Department, said the government is pleased with the court’s decision.

Among the options Tharp made available is for the states to say they won’t file an amended complaint, in which case he’ll issue a final order of dismissal enabling them to appeal immediately.

The states also named as a defendant the Metropolitan Water Reclamation District of Greater Chicago, an independent governing body responsible for managing water resources over an 883.5 square mile area with a population of 5.25 million, according to its website.

Illegal Action

“Neither the MWRD or the Corps has the authority to close off the waterways in Chicago,” David St. Pierre, the executive director of the district, said in a phone interview. “We simply can’t do it. It would be illegal for us to take that action.”

While environmental traces of carp DNA have been found in Calumet Harbor, a small body of water adjacent to Lake Michigan, no traces of the fish have been found in the Great Lakes, St. Pierre said.

Tharp gave the states until Jan. 11 to try to replead their case in a way that doesn’t accuse the defendants of failing to do something that by law they’re required to do.

“Many organizations, including the Corps, are actively working to stop Asian carp from migrating in to the Great Lakes watershed,” wrote Tharp. “The plaintiffs acknowledge that the defendants and others are taking steps to prevent Asian carp from reaching Lake Michigan, but they argue the defendants are not doing enough.”

The case is State of Michigan v. U.S. Army Corps of Engineers, 10cv4457, U.S. District Court for the Northern District of Illinois (Chicago).

To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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