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Court Rejects Five-State Bid to Block Carp Migration

A federal court denied a request by Michigan and four other states bordering the Great Lakes to order the closing of links between the Mississippi River and Lake Michigan to block the migration of Asian carp.

U.S. District Judge Robert M. Dow in Chicago today ruled that the states failed to show the requisite imminent harm required to compel him to order action by the U.S. Army Corps of Engineers and Illinois’s Metropolitan Water Reclamation District of Greater Chicago.

Michigan, Minnesota, Wisconsin, Ohio and Pennsylvania sued in July, claiming that infiltration of the invasive species through waterways connecting the river and lake threatened the $7 billion sport fishing and tourism industry.

“There doesn’t appear to be any imminent threat that hordes of Asian carp are swimming upstream,” said Dick Lanyon, executive director of the water reclamation district, who praised the decision. The suing states’ evidence was “not very convincing,” he said.

Michigan Attorney General Mike Cox and his peers had sought a preliminary injunction from Dow. Cox said after the ruling that the attorneys general will confer on whether to press on with the case before Dow, or pursue an appeal. Cox faulted U.S. President Barack Obama for not issuing an executive order to close man-made locks linking the water basins.

’Flick a Switch’

“President Obama could stop the spread of Asian carp with the flick of a switch,” Cox said in a statement. Dow has scheduled a status conference in the case for Jan. 7.

“We are pleased with the result and continue to review the decision,” Wyn Hornbuckle, a spokesman for the U.S. Justice Department, said in an e-mailed response to questions.

Asian carp escaped into the Mississippi after being brought to the U.S. to cleanse fish ponds and sewage lagoons and in ballast water discharged by ocean-going ships. The fish grow as large as 100 pounds (45 kilograms) and feed on plankton that native species need to survive, according to the U.S. Environmental Protection Agency.

The suing states claimed that measures taken by the federal government and Illinois authorities, including creation of electrical barriers in the waterways, didn’t adequately address the threat posed by the fish.

They sought the closure of locks at the mouths of the Chicago and Calumet rivers, where they meet Lake Michigan, as well as installation of permanent screens, grates and other measures to stop the alleged migration. Chicago, the third-most populous U.S. city, abuts the southwestern edge of the lake.

Closing Opposed

Opposition to closing the locks from the Army Corps and the reclamation district -- which is responsible for managing the 76-mile (122-kilometer) waterway network -- was joined by businesses that rely on those connections for commerce.

The opponents told Dow there was no conclusive proof that substantial numbers of live carp were encroaching on Lake Michigan.

“At the end of the day, plaintiffs have not carried their burden of showing that the balance of the harms weighs in their favor,” Dow wrote in a 61-page decision.

He heard five days of evidence and argument between Aug. 23 and Oct. 18.

“This lawsuit has been a distraction from the goal we are all ultimately trying to reach -- a comprehensive solution to dealing with increased populations of Asian carp,” Mark Biel, president of a coalition of businesses opposing the states’ lawsuit, said in a statement following Dow’s decision.

The case is State of Michigan v. U.S. Army Corps of Engineers, 10-cv-4457, U.S. District Court, Northern District of Illinois (Chicago).

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