TRAVERSE CITY, Mich. (AP) — A federal appeals panel Wednesday refused to
order closure of shipping locks on Chicago-area waterways to prevent Asian
carp from invading the Great Lakes, but warned that it might reconsider if
the government lags in its efforts to block the dreaded fish’s path.
The 7th U.S. Circuit Court of Appeals in Chicago became the latest of
several courts to turn down a plea from five states for immediate shutdown
of the locks and a quicker timetable for other steps to halt the carp’s
northward march from the Mississippi River toward Lake Michigan, from which
it could spread to the rest of the Great Lakes. The U.S. Supreme Court twice
has rejected the request from Michigan, Minnesota, Ohio, Pennsylvania and
Wisconsin. Federal District Judge Robert Dow in Chicago did likewise last
The states have a pending lawsuit against the U.S. Army Corps of Engineers
and the Chicago water reclamation district that calls for permanently
severing a century-old, man-made link between the Mississippi and Great
Lakes drainage basins. They had sought a court order to close the locks,
which could provide a pathway to Lake Michigan for the carp, while their
suit works through the courts. With the appeals panel’s ruling, that
prospect appears remote.
Significantly, however, the three-judge panel disagreed with Dow’s
conclusion that the states appeared to have little chance of succeeding in
their lawsuit. Dow had acknowledged a carp invasion could harm the Great
Lakes but said the states hadn’t shown it was likely or imminent. He said
flooding and economic damage from closing the locks would do more damage to
Chicago-area businesses and homeowners than “the more remote harm associated
with the possibility” of Asian carp becoming established in the lakes.
In their opinion, Judges Daniel Manion, Diane Wood and Ann Claire Williams
said they were “less sanguine about the prospects of keeping the carp at
“In our view, the plaintiffs presented enough evidence at this preliminary
stage of the case to establish a good or perhaps even a substantial
likelihood of harm — that is, a non-trivial chance that the carp will invade
Lake Michigan in numbers great enough to constitute a public nuisance,” the
The Obama administration has pledged more than $120 million for a
wide-ranging strategy to keep the carp out of the lakes. Because of those
efforts, requiring immediate actions such as lock closure “would only get in
the way,” the judges said. “We stress, however, that if the agencies slip
into somnolence or if the record reveals new information at the permanent
injunction stage, this conclusion can be revisited.”
The five states could take their request to the full 7th Circuit court or
try again before the Supreme Court. No decision has been made, said Joy
Yearout, spokeswoman for Michigan Attorney General Bill Schuette.
“This ruling is disappointing, but (Schuette) is going to continue the fight
for long-term separation and that can happen through our current lawsuit,”
Wisconsin Attorney General J.B. Van Hollen said despite its ruling, the
appeals panel had “found significant merit in our claims.”
“I believe the aggressive actions taken by Wisconsin and the other plaintiff
states have forced the federal government to take this issue more seriously,
and the Seventh Circuit acknowledges as much by suggesting that preliminary
relief may very well be granted in the future, should the federal
government’s efforts wane,” Van Hollen said.
Bighead and silver carp, both Asian imports, escaped from fish farms and
sewage treatment plants in the Deep South in the early 1970s and have been
migrating northward in the Mississippi and tributary rivers.
They have reached the Chicago Sanitary and Ship Canal, built in the late
1800s to flush the city’s wastewater south toward the Mississippi.
A three-part electric barrier was constructed on the canal over the past
decade to prevent invasive species from crossing between the two watersheds.
But more than 80 water samples taken above the barrier have tested positive
for DNA from silver or bighead carp, raising fears that at least some are
getting through. Just one live Asian carp has been found beyond the barrier.
The Army Corps of Engineers is studying options for long-term prevention of
species migration between the two drainage basins. Its report is due for
completion in 2015.
The states’ lawsuit calls for speeding up the study, along with stepping up
measures such as poisoning waters above the barrier, spreading nets and
erecting physical barriers where necessary.
Federal agencies say they have an effective program under way, including
analyzing the electric barrier’s effectiveness and monitoring the Chicago
When a series of water samples turned up carp DNA in Lake Calumet on the
city’s south side this summer, officials ordered an intensive netting and
fish shocking effort. Yet again, they turned up no Asian carp.