U.S. SC won't hear case over Asian carp

Jessica M. Karmasek Feb. 27, 2012, 3:00pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court will not order the closure of pathways between the Mississippi River and Great Lakes basins in an effort to prevent Asian carp -- the behemoth fish that leap 10 feet into the air -- from overrunning the region's waterways.

On Monday, the nation's highest court denied petitions for writs of certiorari by Michigan and four other Great Lakes states.

Asian carp, which can weigh up to 100 pounds, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades.

Bighead carp can grow to more than 100 pounds, and silver carp are known for leaping 10 feet out of the water -- a major danger to recreational boaters.

One biologist described them as "living missiles."

Many fear if the fish get into the lakes, they could decimate a $7 billion-a-year fishing industry by gobbling plankton, a key link in the food chain that supports prized species such as salmon and walleye.

The lawsuit, originally filed in the U.S. District Court for the Northern District of Illinois, accuses the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago of creating a public nuisance by operating locks, gates and other infrastructure through which the carp could enter the lakes.

Instead, Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin want to temporarily close the O'Brien and Chicago locks and install barriers to stop the fish. The states' request makes allowances for water releases to prevent flooding and other threats to public safety.

In October, Michigan Attorney General Bill Schuette asked the U.S. Supreme Court to review a federal appeals court's decision in the matter.

The U.S. Court of Appeals for the Seventh Circuit's ruling, issued in August, recognized the real threat posed by the carp.

However, it denied a request for an immediate injunction by the five states requiring an Army Corps of Engineers study on ecological separation to be sped up and the installation of nets in key locations to stop the fish.

In their petition to the U.S. Supreme Court, the states asked justices to overturn the Seventh Circuit's decision and:

- Require the Army Corps of Engineers to install block nets in the Little Calumet and Grand Calumet rivers, two open pathways between the Mississippi River and Great Lakes basins that are vulnerable to Asian carp invasion; and

- Require the Corps of Engineers to expedite the completion of its study of permanent ecological separation between the Great Lakes and Mississippi River basins, so that the part of the study focused on the Chicago Area Waterway is completed within 18 months, not five years.

"We need to close the Asian carp superhighway, and do it now," Schuette has said. "Time is running out for the Great Lakes, and we can't afford to wait years before the federal government takes meaningful action."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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