CHICAGO (AP) — A federal judge Monday threw out a lawsuit filed by five
states that want barriers placed in Chicago-area waterways to prevent Asian
carp from invading the Great Lakes, but said he would consider new arguments
if the case were filed again.
Wisconsin, Minnesota, Ohio and Pennsylvania claimed that the U.S. Army Corps
of Engineers and Chicago’s Metropolitan Water Reclamation District are
causing a public nuisance by failing to physically separate a network of
rivers and canals from Lake Michigan.
detected DNA from two types of Asian carp in the waterways, bighead and
silver carp. They say if the voracious carp gain a foothold in the Great
Lakes, they eventually could out-compete native species and severely damage
the region’s $7 billion fishing industry.
Judge John Tharp said he couldn’t order the agencies to do what the states
want because federal law requires the corps to keep shipping channels open
between Lake Michigan and one of the Chicago waterways — the Des Plaines
River — and prohibits constructing dams in any navigable waterway without
In a written
ruling, Tharp said he was “mindful of, and alarmed by, the potentially
devastating ecological, environmental, and economic consequences that may
result from the establishment of an Asian carp population in the Great
Lakes.” But he said the proper way for the states to win approval of
separating the waterways is through Congress.
Tharp left the
door open for further court action, however, saying the states might be able
to find other grounds for a nuisance claim that wouldn’t have the effect of
asking the corps and city agency to violate federal law.
“There may be
room in which the (states) can still maneuver,” he wrote.
spokeswoman for Michigan Attorney General Bill Schuette, said his office had
not decided on its next step. “We’re certainly disappointed,” Yearout said.
“We’re reviewing the ruling and we will consult with the other states on how
to move forward.”
Department of Justice, which represents the Army corps, had no immediate
comment, spokesman Dean Boyd said.
is the latest legal setback for the five states, which were joined in their
suit by the Grand Traverse Band of Ottawa and Chippewa Indians. The U.S.
Supreme Court has refused their request — four times — to order temporary
measures such as closing Chicago shipping locks and installing block nets in
gobble huge amounts of plankton, which are tiny plants and animals crucial
to aquatic food webs. Silver carp are notorious for springing from the water
like missiles, sometimes colliding with boaters.
imported in the 1970s to cleanse Deep South aquaculture and sewage treatment
ponds. Some escaped during floods and have migrated northward in the
Mississippi River and its tributaries. They’ve advanced to within 55 miles
of Lake Michigan in the Illinois River, which connects with other waters
that reach Lake Michigan.
barrier in the Chicago Sanitary and Ship Canal is designed to stop them. But
scientists have detected DNA from Asian carp beyond the barrier just a few
miles from the lake. The five states contend the only sure way to block the
carp’s path is to place dams or other structures in the waters, which
Illinois officials say would damage the local economy and cause flooding.
president of the Chicago-based Alliance for the Great Lakes, said the
judge’s ruling would not deter advocates of separating Lake Michigan from
the Mississippi River watershed, which he said was “still the clear
states’ lawsuit was “the right thing to do,” said Lynn Muench, a vice
president of the American Waterway Operators, which represents tugboat and