Mark Harrison Foster, Jr.

February 19, 2010

In late December of 2009, Michigan Attorney General Mike Cox moved to reopen a 1966 original action involving the management of the Great Lakes and their preservation. The present action sought to compel Illinois, the U.S. Army Corps of Engineers, and the Metropolitan Water Reclamation District of Greater Chicago to take "all available measures" to halt the progression of Asian carp into the Lake Michigan waterways. Roughly a month later, the Supreme Court refused to grant any of Michigan's requested relief. Though denying this petition for relief, the Court did not address whether it would reopen the 1966 case to consider proper management strategies in the face of the pending carp crisis.

Asian carp was originally imported into Southern parts of the United States to aid in wastewater treatment and aquaculture facilities. The carp have a voracious appetite and consume up to 40% their body weight daily. Their ability to consume great quantities of food endangers smaller native species competing for the same resources. Carp live up to twenty years, can weigh up to 100 pounds, and measure five feet long. They reach sexual maturity between the ages of two and seven, and can spawn multiple times each season, from April to September. Michigan fears the spread of the carp into Lake Michigan would have severe environmental consequences, and cited reports from the EPA, the Army Corps of Engineers, and Illinois's Department of Natural Resources in their brief. These reports acknowledged the carp's propensity for rapid proliferation through the Great Lakes region and the inability of any agency to check their spread once entering those waters.

A more recent collaborative study, "Asian Carp Control Strategy Framework," correlated the possible harm of the carp in Lake Michigan to the damage caused to commercial and recreational fishing in the Mississippi River Basin. The study explained the detrimental affect carp poses to other endangered and threatened species. Apart from noting the potential threat, the study included various suggestions. These suggestions ranged from short-term plans to more long-term oversight of carp—as well as other invasive species threats; among these suggestions are targeted removal of the fish and the construction of electric barriers along corridors leading to the lakes. These barriers would halt the rapid progress of the fish into Lake Michigan.

Though this plan provides broad ranging targets with multi-agency cooperation, the Michigan Attorney General continues to press forward with the suit. He argues Illinois must take certain direct steps, among them: closing specific locks, operating sluice gates to halt fish travel in certain waters, and running electric barrier fences at full power continuously. Such steps are necessary, he claims, to ensure the preservation of fauna and flora of the Great Lakes. The denial of the preliminary injunction leaves untouched any final determination on these issues. Only time will tell whether Michigan and the Asian Carp have their day in Court.

Sources:

Brief of Petitioner, Michigan v. Illinois, No. 2 Original (December 21, 2009).

Wisconsin v. Illinois, Michigan v. Illinois, New York v. Illinois, Illinois v. Michigan, 388 U.S. 426 (1967).

Press Release, Office of the Attorney General, Cox Asks U.S. Supreme Court for Immediate Action to Stop Asian Carp From Entering Great Lakes (Dec. 21, 2009) (on file with The Office of the Attorney General) available at http://www.michigan.gov/ag/0,1607,7-164--228372--,00.html.

U.S. Fish and Wildlife Service, Asian Carp Control Strategy Framework (Feb. 2010) available at http://www.asiancarp.org/RegionalCoordination/documents/AsianCarpControlStrategyFramework.pdf.

Monica Davey, U.S. Officials Plan $78.5 Million Effort to Keep Dangerous Carp Out of Great Lakes, N.Y. Times, Feb. 9, 2010, available at http://www.nytimes.com/2010/02/09/science/09asiancarp.html.