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Asian carp threaten to invade the Great Lakes. An Asian carp swims in an invasive species tank at the Shedd Aquarium.

A carp's day in court: Latest motion keeps case afloat

by Janelle Schroeder
April 06, 2011

The great Asian carp debate came to a partial halt recently even though Federal Judge Robert M. Dow Jr., handed down his decision that concluded the initial case will continue.

The ongoing legal battle pits five Great Lakes states – Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin – as plaintiffs against the U.S. Army Corps of Engineers, the City of Chicago and others as the defendants.

The plaintiffs are suing the federal government to force the closing of Chicago-area shipping locks in a last-ditch effort to try to keep carp from entering Lake Michigan.

Last week’s ruling is in response to the Army Corp’s January motion to stay the case. The stay would have put the initial lawsuit on hold during the plaintiff’s appeal of a December preliminary injunction that would keep the Chicago-area waterways open for business.

The preliminary injunction, filed by the state of Michigan, was denied by Dow, but Michigan appealed the decision two weeks later in the Seventh Circuit Court of Appeals. The appeals decision has not yet been handed down.

“The Court concluded that a stay of all proceedings in this case pending the Seventh Circuit’s decision in Appeal No. 10-3891 is not warranted at this time,” said Dow in his March 31 decision.

But he also ruled that no further motions should be filed in the case until the appeal is decided. 

Dow cites recent points of argument in the case as a reason for his ruling. The ongoing battle of eDNA research, that detects a presence of the animal's DNA in a specific environment, is essential to the case for both sides and the information is relevant to the case. Carp eDNA has been found in the North Shore Channel, the Chicago River and the Little Calumet River. 

The Court also noted the defendants are not placed under any hardship by proceeding with the initial case. The Army Corps said in the January 21 motion to the court that the defendants "continue to work cooperatively with state and local partners to prevent Asian carp from entering the Great lakes and establishing a population there.”

“We cannot comment on pending litigation,” said Lynne Whelan of the U.S. Army Corps of Engineers regarding Dow's ruling.

Dow said that he expected both parties to continue to exchange information but did give some hope for the defendants in halting further motions until the Court issues a decision in the December preliminary injunction.

"Under the order, the lawsuit is continuing forward and we are looking forward to a status conference being scheduled to determine how the case will proceed," said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette.

Asian carp includes several species, but only the bighead and silver carp are considered threats to the Great Lakes, according to The Nature Conservancy. These fish are two of more than 160 aquatic invasive species that have found a home in the Great Lakes region said Jeffrey Potter of the Biodiversity Project at the Shedd Aquarium.

The fish, which can weigh up to 110 pounds, were originally imported by Midwestern catfish farmers who used the carp to consume the algae in their ponds. Flooding of the fish farms allowed the fish to escape into the Mississippi River and make their way north into the Illinois River.

The actual threat of the carp is highly debated among scientists in the Great Lakes region. Asian carp could become the predominant species in the ecosystem because they have no natural predators and they voraciously consume plankton, stripping the food web of the key source of food for small and big fish.

Once they establish themselves in the lakes, fishery managers have little ability to control them.

The threat posed by carp to the lakes is still a matter of debate among scientists. Konrad Dabrowksi, an aquaculturist with The Ohio State University School of Environment and Natural Resources, has said that the threat of Asian carp has been greatly exaggerated, according to The Nature Conservancy.