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Minnesota takes Asian Carp issue to Supreme Court

Minnesota Attorney General Lori Swanson filed a brief this morning asking the United States Supreme Court to order emergency injunctive relief to protect the Great Lakes--the largest freshwater system in the world--from the potential invasion of Asian carp.

“Lake Superior is an important environmental and economic asset to the State of Minnesota. Asian carp--which reproduce rapidly and consume huge amounts of food--threaten the Great Lakes ecosystem. Emergency action must be taken to prevent the introduction of Asian carp into the Great Lakes,” Swanson said in her brief. The brief also notes that: “Proper stewardship of the Great Lakes means preventing an environmental train wreck caused by the introduction of Asian carp into the Great Lakes ecosystem.”

The threatened entry of Asian carp into the Great Lakes through Lake Michigan is a matter of pressing concern. In November, DNA testing by the Army Corps of Engineers found that Asian carp have likely passed electronic barriers installed on the Chicago Sanitary and Ship Canal near Chicago to prevent the entry of invasive species like Asian carp into Lake Michigan and that the carp may be within six miles of Lake Michigan. On December 21, the State of Michigan asked the U.S. Supreme Court to immediately order federal, state, and local officials responsible for Chicago-area locks and waterways to take measures to prevent Asian carp from entering the Great Lakes. Swanson’s brief supports the relief requested by Michigan, which includes: (1) closure of certain Chicago-area locks connecting certain Illinois waterways directly to Lake Michigan; (2) operation of certain Chicago-area pumping gates in such a fashion that will prevent the carp from entering Lake Michigan; (3) creation of new barriers in the Chicago area to prevent carp from entering Lake Michigan through other water sources; (4) other action to eradicate existing carp and prevent their entry into the Great Lakes.

Minnesota has 140 miles of Lake Superior shoreline. Swanson’s brief points out that recreational and commercial fishing on Lake Superior are important to Minnesota’s economy. “Maintaining proper stewardship of the Great Lakes by stopping the entry of Asian carp is essential to the continued use and enjoyment of this important American natural resource,” she said in the brief. In a December 4, 2009 report, the U.S. Army Corp of Engineers noted that: “The prevention of an interbasin transfer of bighead and silver carp from the Illinois River to Lake Michigan is paramount in avoiding an ecologic and economic disaster.”

The Attorney General’s brief also expresses concern for Minnesota’s regular fishing industry if Asian carp advance into inland Minnesota lakes through Lake Superior: “If they invade the Great Lakes, they will have access to the rivers and tributaries that feed into the Great Lakes, thereby threatening inland waters. This would be extremely destructive to Minnesota’s economy and way of life, where inland fishing is an important recreational and economic pursuit. Indeed, Minnesota is known as ‘The Land of 10,000 Lakes,’ and the recreational fishing in Minnesota alone is a $2.725 billion per year industry,” said Swanson’s brief.

Asian carp are extremely destructive. They can weigh over 100 pounds, consume large amounts of food, and reproduce rapidly. They pose a threat to native fish species by reducing populations of native plants, an important staple for native fish. Some Asian carp can jump up to ten feet out of the water when disturbed by the sounds of watercraft, posing a public safety risk to boaters and water skiers and causing damage to watercraft. Asian carp were brought to the United States by Southern catfish farmers to remove algae from fish ponds. They escaped those ponds during flooding in the 1990s and have since spread aggressively to the country’s waterways.

Under the United States Constitution, lawsuits between states are heard in the U.S. Supreme Court. Michigan and Minnesota are asking the Supreme Court to deal with the current issue within the framework of an old lawsuit from the 1920’s between the Great Lakes states. In the 1920s, a group of Great Lakes border states, including Minnesota, Wisconsin, Michigan, Ohio, New York, and Pennsylvania, filed a lawsuit against the State of Illinois alleging that its diversion of water from the Great Lakes as part of a wastewater management project was illegal. After finding in 1930 that Illinois’ diversion of water was unlawful, the Supreme Court retained jurisdiction of the case and modified the initial order on four occasions (in 1933, 1956, 1967, and 1980).

The U.S. Supreme Court is expected to consider the matter during a conference on January 8.

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