Filings In Supreme Court Asian Carp Dispute & U.S. Position

Jan 11: Noah Hall, a law professor at Wayne State University and the executive director of the Great Lakes Environmental Law Center in Detroit, has created a blog post that provides links to all of the Supreme Court filings regarding the Asian carp dispute, and will be updated as new filings are made. Professor Hall is representing State Senator Patty Birkholz (R-Saugatuck Twp) and Representative Rebekah Warren (D-Ann Arbor), the respective Chairs of the Michigan Senate and House environmental committees, who are seeking to join the Federal lawsuit via filing an amicus brief to protect the Great Lakes and Michigan’s multi-billion dollar fishing and boating industries from Asian carp [See WIMS 1/5/10].

As previously reported [See WIMS 1/7/10], Michigan and other interests are extremely upset with the Obama Administration which has opposed the Michigan Attorney General's action to permanently close the connection of the Mississippi River to Lake Michigan and the Great Lakes. The Michigan action has been joined by the states of Minnesota, New York, Ohio and Wisconsin and the Province of Ontario. Michigan's Attorney General Mike Cox said he is "extremely disappointed by President Obama's choice to protect the narrow interests of his home state of Illinois while ignoring the pleas of Michigan and at least four other Great Lakes states" which have asked the United States Supreme Court for the immediate closure of Chicago-area waterways containing Asian carp.

According to the United States' Memorandum Opposing Michigan’s Motion for Preliminary Injunction filed by the U.S. Solicitor General Elena Kagan, "Michigan states in its petition for a supplemental decree (at29-30) that its ultimate goal is a permanent injunction separating the Great Lakes from the Mississippi River system, undoing a connection that for well over 100 years has served the important purposes of flood control, navigation, commerce, and sanitation. A host of responsible actors -- federal, state, and even international -- are deeply and intensely engaged in studying all the considerations involved in preventing the transmission of invasive species through that connection. For this Court to pretermit that process and to decree that the answer is to sever the connection, based on a purported federal common law rule, would be altogether inappropriate.

"In a host of ways, the federal government has demonstrated its commitment to protecting the Great Lakes from the expansion of Asian carp. Nothing in federal law warrants second-guessing its expert judgment that the best information available today does not yet justify the dramatic steps Michigan demands. . . The motion for a preliminary injunction should be denied."

Access Professor Hall's blog posting with links to all filings in the dispute (click here). Access the Great Lakes Law Blog postings on the Supreme Court litigation (click here). Also access the recent filing directly from the Supreme Court website (click here).