August 17, 2010

            LANSING -  Michigan Attorney General Mike Cox today announced that a federal judge has scheduled the first hearing on the merits of Michigan's lawsuit addressing the threat of Asian carp, filed in the U.S. District Court for the Northern District of Illinois.  Attorneys general from Wisconsin, Minnesota, Pennsylvania and Ohio have joined Cox in his lawsuit, which was filed July 19, 2010 due to the Army Corps' dismal record of inaction in confronting Asian carp.  Judge Robert M. Dow, Jr. yesterday confirmed that the first hearing in the case will be on Monday, August 23, 2010, with two days reserved for live testimony during the week of August 30, 2010, if the Court determines it is needed.

"The future of our water-based economy and environment is hanging in the balance," said Cox.  "The Great Lakes will now get their day in court." 

At the hearing, Judge Dow will consider Michigan's motion for Preliminary Injunction, which calls for several short-term responses to the Asian carp threat, the need for which was made clear by the recent capture of a live bighead carp in Lake Calumet, six miles from Lake Michigan and beyond any barriers. Michigan's motion calls for the temporary closure of the O'Brien and Chicago Locks and blocking other pathways in the Chicago water system, except as needed to protect public health and safety, among other actions. 

Cox also noted a story published by the Milwaukee Journal Sentinel that seriously questions the idea that a three-foot long, 20-pound mature bighead Asian carp recently found in Lake Calumet, past all barriers, was "planted" there by humans.  The story, entitled "Carp explanation may be a fish story," says that "facts are coming to light that indicate Illinois officials may have stretched their own science to sell a whopper of a fish tale." 

The story cites an "independent peer" review of tests done on the fish as saying that "no concrete conclusion" could be made about the fish's origin.  Additionally, well-known Asian carp expert Dr. David Lodge pointed out no analysis of the fish could explain how a fish got from one place to another.  All of this runs contrary to a press release from the Asian Carp Regional Coordinating Committee suggesting the carp was moved or transported above the barriers, possibly by humans.  ("Fish could have lived most of its adult life above Electric Barrier Defense System.")  When asked for evidence by the Journal Sentinel of so-called "cultural releases" of Asian carp, the Illinois Department of Natural Resources cited a website describing fish releases that were common during the Ming Dynasty, which ended in 1644.  The article goes on to quote an Illinois DNR official as saying, "perhaps in retrospect we should have remained totally silent about possible pathways."      

The story, published on Saturday, August 14^th, can been found at: http://www.jsonline.com/news/wisconsin/100703719.html

The lawsuit is supported by affidavits from two experts: Dr. Tammy Newcomb of the Michigan Department of Natural Resources and Environment (DNRE) and Dr. John C. Taylor of Wayne State University.  Both experts are prepared to testify, if called.

The lawsuit calls for the Corps to use all available efforts to block Asian carp passage in the waterways linked to Lake Michigan, including:

• Use block nets, other physical barriers and fish poison at locations to block or kill Asian carp that have already swam through the O'Brien lock, dangerously close to Lake Michigan;
• Install and maintain block nets and other physical barriers in the Little Calumet River, where no barrier of any kind currently exists;
• Temporarily close the O'Brien and Chicago Locks;
• Install and maintain screens on sluice gates at the O'Brien Lock, the Chicago River Controlling Works and the Wilmette Pumping Station to reduce the risk of fish passage when gates are open; and
• Accelerate efforts to complete a feasibility study of a permanent hydrological separation of the Great Lakes Basin from the Mississippi River within the next 18 months, with reports at six and 12 months.

The lawsuit makes clear that all of the requested action would be subject to exceptions to prevent flooding, allow access for emergency responders, and any other action necessary to prevent serious threats to public health and safety.

Earlier this year, Cox petitioned the U.S. Supreme Court to intervene to address the threat of Asian carp.  The Supreme Court declined the take up the case but did not rule on the merits of the legal claims by Michigan and other Great Lakes states.

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