Supreme Court Denies 2nd Request For Injunction On Asian Carp

Mar 22: In a brief order note from the U.S. Supreme Court, the High Court indicated "The renewed motion of Michigan for preliminary injunction is denied." On February 4, 2010, Michigan Attorney General Michael Cox filed his renewed motion for preliminary injunction [See WIMS 2/4/10]. In his request, Cox said, "Michigan renews its Motion for Preliminary Injunction based upon new developments since the entry of the Court's January 19, 2010 Order denying that initial motion. Two significant circumstances have since occurred that demonstrate more than ever the need for immediate injunctive relief to prevent the movement of bighead and silver carp through the Chicago Waterway System into the Great Lakes. Three major environmental groups -- Alliance for the Great Lakes (Alliance), National Wildlife Federation (NWF), and Natural Resources Defense Council (NRDC), filed a friend of the court brief urging the U.S. Supreme Court to take up the Michigan lawsuit, filed by Cox [See WIMS 2/19/10].

 

    In his request, Cox outlined the significant circumstances as: (1) Silver carp environmental DNA has been recovered both in water samples from the Calumet River lakeward of the O'Brien Locks and from Calumet Harbor, which is essentially in Lake Michigan; and, (2) Despite this new evidence of the increasingly imminent threat to the Great Lakes, neither the Army Corps of Engineers (Corps) nor the State of Illinois have lived up to their assurances to the Court that they would act upon significant new information and work to prevent Asian carp from getting into Lake Michigan. The Corps continues to open the O'Brien and Chicago Locks allowing the passage of more Asian carp into the Lake, while merely studying possible changes, months from now. Illinois has neither announced nor implemented any new measures -- that it alone can control -- to kill, capture, or otherwise contain the injurious fish in its waterway before more of them enter the Lake.

 

    Cox had requested a preliminary injunction "enjoining the State of Illinois, the Metropolitan Water Reclamation District of Greater Chicago, and the U.S. Army Corps of Engineers to immediately take all available measures within their respective control, consistent with the protection of public health and safety, to prevent the migration of bighead and silver carp into Lake Michigan, including, but not necessarily limited to, the following: (a) Temporarily closing and ceasing operation of the locks at the O'Brien Lock and Dam and the Chicago Controlling Works except as needed to protect public health and safety. (b) Immediately using the best available methods to block the passage of, capture or kill bighead and silver carp that may be present in the waterway, especially in those areas north of the dispersal barrier system in a manner that protects public health and safety. (c) Temporarily operating the sluice gates at the O'Brien Lock and Dam, the Chicago Controlling Works, and the Wilmette Pumping Station in a manner that will not allow fish to pass those structures into Lake Michigan except as needed to protect public health or safety. (d) Immediately installing and maintaining interim barriers or structures as needed in the Little Calumet River to prevent the migration of bighead and silver carp into Lake Michigan, in a manner that protects public health and safety."

 

    Attorney General Cox issued a brief statement saying, "Our motion was an extraordinary attempt to protect the Great Lakes, but we felt it was necessary to because the Court deserved to have access to the new DNA and economic information before making a decision. We will continue to focus on the reopening of the diversion case in April, with the goal of developing an effective plan to protect the entire Great Lakes region from the devastating threat of Asian carp." He noted that the Michigan request to reopen the "Chicago Diversion" case is supported by Pennsylvania, New York, Ohio, Wisconsin, Minnesota, Indiana and the Province of Ontario. Cox indicated that, "The Supreme Court has scheduled an April 16th review of Michigan's request for hearings to develop a long-term solution to the crisis that will protect the ecology and economy of the Great Lakes." 

    He said that President Obama, who previously pledged a zero tolerance policy for new invasive species in the Great Lakes, should act immediately to at least temporarily close the locks. Cox praised the bi-partisan efforts of Michigan's Congressional delegation on the issue, including legislation recently introduced by Representative Dave Camp and Senator Debbie Stabenow [See WIMS 1/22/10]. He said the public that they can help bring attention to the issue by signing an online petition to protect the Lakes at his StopAsianCarp website.

 

    Access the March 22 Order List for the Supreme Court (click here). Access a release from AG Cox (click here). Access links to Michigan's filings in the case (click here). Access all of the filings in the case (click here). Access links to various media reports (click here). Access the AG's StopAsianCarp website (click here).