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Wednesday, July 16, 2014

Ind. Decisions - "7th Circuit dismisses lawsuit to force action on carp"

Dan Egan reported yesterday for the Milwaukee Journal Sentinel in a story that begins:

A federal appeals court has dismissed a lawsuit brought by coalition of Great Lakes states to force the U.S. Army Corps of Engineers to do more to stop the advance of Asian carp into the Great Lakes.

On Monday, the 7th Circuit Court of Appeals upheld an earlier district court's decision to dismiss the case brought by Wisconsin, Michigan, Ohio, Minnesota and Pennsylvania, Wisconsin Attorney General J.B Van Hollen's office reported Tuesday.

Van Hollen's office noted the lower court's rejection was based on the Army Corps' contention that the agency did not have an obligation to stop a Great Lakes invasion of the jumbo fish, and that the demand by the states to force the agency to sever the artificial link between Lake Michigan and the Mississippi River was a remedy that could not be provided.

Monday's ruling, however, was based on the idea that the Army Corps is already doing enough to stop the advance of the fish up the Chicago canal system, formally known as the Chicago Area Waterways.

"The court rejected the U.S. Army Corps of Engineers' argument that it has no responsibility to run Chicago Area Waterway System in a way that would prevent invasive species from entering the Great Lakes," Van Hollen said in a news release.

"This is an important outcome, and I am pleased the court went on to invite our filing of a subsequent public nuisance action in the event the Army Corps fails to take adequate measures to prevent Asian carp from entering Lake Michigan."

Indiana was not among those suing.

Here is the July 14th, 30-page opinion in State of Michigan, et al v. U.S. Army Corps, wherein Chief Judge Wood's opinion begins:

Meddling with Mother Nature is not always a good idea, as the ongoing saga of the Asian carp illustrates. The unfortunate confluence of two interven-tions—the linkage of the Mississippi River system to the Great Lakes and the effort to control weeds in southern aquatic farms by importing Asian carp, a voracious non-native fish—has led to a situation in which two particular species of carp have overwhelmed the Mississippi River and its tributaries and threaten to migrate into the Great Lakes. Once the carp reach one of the Lakes, they have reached all of them, thanks in part to the last Ice Age and in part to the Erie Canal and later measures to facilitate shipping between Lakes Huron and Erie and Lakes Erie and Ontario around Niagara Falls. See, e.g., http://web2.geo.msu.edu/geogmich/phy_feature.html (all websites cited in this opinion were last visited on July 14, 2014). For an interesting account of the construction of the Erie Canal and the Chicago Sanitary Canal, see Simon Winchester, THE MEN WHO UNITED THE STATES at 196–222 (2013). Adding locks and canals to the natural links between the Lakes opened the way for commercial navigation all the way to the Atlantic Ocean. It is enough for our purposes, however, to focus on the connections between the Mississippi system and the Lakes.
And concludes:
We conclude where we started. We accept for purposes of this appeal that immeasurable environmental and economic damage would be caused not only to Lake Michigan, but to the Great Lakes as a whole, if the Asian carp establish breed-ing populations there. But this point is uncontested, as the active efforts of the Asian Carp Regional Coordinating Committee demonstrate. The Corps and the District in par-ticular are engaged in intensive efforts to prevent the carp from reaching the Great Lakes, and there is a great deal of evidence that indicates they have succeeded thus far in do-ing so. Under these circumstances, we hold that the States have failed to state a claim upon which relief can be granted, either under a public nuisance theory or under the APA. We therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on July 16, 2014 09:25 AM
Posted to Environment | Ind. (7th Cir.) Decisions