Carp fight: Stymied in the courts, states widen the scope of the battle

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Commentary

By Gary Wilson

The spotlight on the Chicago Area Waterways System was turned to high by two recent separate but related events.

Two weeks ago an appeals court in Chicago ruled against the effort by Michigan, Wisconsin and three other Great Lakes states to secure emergency closure of the locks in Chicago.

The states had sued the Army Corps of Engineers and Chicago’s water district, demanding that the locks be closed. This came after eDNA testing revealed in 2009 that Asian Carp may have breached the electric barrier designed to keep them out of Lake Michigan.

Then this week six Great Lakes state attorneys general launched a campaign directed at 27 states requesting  support for separating the Great Lakes and Mississippi River. The connected waterways are a primary vector for invasive species that can travel both to and from the Great Lakes.

As with the lawsuit, Michigan attorney general Bill Schuette is leading the outreach to the states that are as far flung as Alabama and California.

Despite defeat, hope for states in court?

The decision against the states in the court case was expected. But  the appellate judges disagreed with the lower court on two key issues:

  • It said that Asian carp would be an imminent threat if they became established in the Great Lakes.
  • It said that the  states could likely succeed in a broader case which requests physical separation of the Great Lakes and Mississippi River.

Both are key legal hurdles that had to be overcome if the states will have any chance of success in court.

The appeals court ruling is 57 pages (yes, I read it) of legalese with language interspersed that a lay person can understand. Best to turn to lawyers who are close to the carp case for their take on the ruling.

David Rieser is the attorney for the industry group, The Coalition to Save Our Waterways, an intervenor in the case on the side of the Army Corps and Chicago’s water district.

Rieser acknowledged that the appellate court agreed with some of the major points made by the states.   But he was pleased with the decision, remains confident that the defendants will prevail and said their underlying case remains strong.

“Going forward, Michigan and the other plaintiffs will carry a high burden and will have to provide specifics on their requested remedy, how it will be implemented , how it will be an improvement on current federal action and what it will cost taxpayers,” he said. “That remains a tough case to make.”

Not surprisingly, a key Great Lakes advocate disagrees.

The Natural Resources Defense Council  supports the states’ goal of physical separation of the Great Lakes and Mississippi River waterways.

“They still face an uphill battle,” said Thom Cmar, an attorney for the group in its Chicago office. “But the ruling  gave Michigan and the other Great Lakes States the green light to proceed with the merits of their lawsuit.

“The states will now have a chance to prove that a court order is necessary to force the Army Corps to address the Asian carp invasion more urgently and effectively, ” he said.

Two-pronged fight by the states

The outreach to the 27 states potentially at risk for aquatic invasives raises the stakes and changes the discussion from one of regional importance to one with national signifigance. And interestingly, the  release was not coordinated with publication of the appeals court decision.

Joy Yearout, spokeswoman for Schuette, said the letter was in motion well before the court ruling.

This indicates that despite repeated adverse rulings in federal courts, the Great Lakes states are in this fight for the long haul.

Why is this happening now?

It has been nearly two years since eDNA testing indicated that Asian Carp may have an unfettered path to the Great Lakes via the Chicago Area Waterways System.

In that time we’ve had:

  • polarization with Great Lakes states pitted against Chicago, Illinois and Indiana.
  • a protracted and expensive legal battle with five states fighting the federal government and Chicago.
  • environmental and industry groups failing to find common ground for the greater economic and environmental well-being of a region that needs to work together.

Meanwhile eDNA testing continues to get positive results beyond the electrical barrier. And the Army Corps continues to rely on that barrier as its primary line of defense.

That’s  where we were in 2009.

By reaching out to a broader national audience, Michigan, Wisconsin and the other states are shooting for a better outcome than what they’ve been able to garner to date at the law.

And why not?  Whatever happens couldn’t be worse.

 

5 thoughts on “Carp fight: Stymied in the courts, states widen the scope of the battle

  1. There is plenty of money locked up in Washington to close off the canal and create the jobs structure to transport the goods around the closed canal.

  2. Aren’t those the flying carp? The ones that get excited by boats whizzing by? Why not find money from some foundation to set up a bounty like $5 per carp? There are alot of people out of work that would love to get paid to go fishing every day without any limits on the catch. Entire species were wiped out in the old days when they offered bounties, why not today? Hell you could make a cottage industry out of taking shotguns out on boats and shooting the crap out them. Have a trailing boat to pick up the remnants and bring them in for the bounty!!! Woo Hoo !!!

  3. There is plenty of money locked up in Washington to close off the canal and create the jobs structure to transport the goods around the closed canal. But, the Republican tea party control in Washington doesn’t care about the Great Lakes, and is actively working to destroy the funding for the GLRI restoration of the Great Lakes. The money is going instead to the Koch corporations network fighting to keep the canal open for the Asian carp access to Lake Michigan.

  4. It’s obvious we cannot control where Asian Carp go, they let this go on too long, and they’re spread too far. We can however control how many predators they run into no matter how they get in. We have several native predators for juvenile Asian Carp. The bigger problem is Lake Michigan is an invasive species safe zone, a safe nursery. This is by design, intentional. Please google “invasive yellow Perch control” the “invasive Walleye” you will see the truth or the real reason why we are not allowed to have a healthy Perch or native fish population. There is no threat of having too many native fish. A healthy native fish population is only a threat to the fish from out of town, all the fish from out of town! Do the search, you’ll see.

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