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MADISON – Attorney General J.B. Van Hollen announced today that on Thursday, December 16, the States of Michigan, Wisconsin, Minnesota, Ohio and Pennsylvania filed their notice of appeal and supporting papers with the United States District Court, Northern District of Illinois, in response to the district court's denial of a preliminary injunction against defendants U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to prevent Asian carp from entering Lake Michigan. The appeal would be heard by the U.S. Circuit Court of Appeals for the 7th Circuit in Chicago.
The federal district court in Chicago denied the States' motion to order effective measures to prevent the introduction of Asian carp into Lake Michigan through the Chicago area waterway system on December 4, finding that the States had not met their burden of showing that entry and establishment of carp in the Great Lakes was imminent or presently likely, even though it recognized, "The Court stresses its recognition that the potential harm in a worst case scenario is great."
"To obtain an injunction, we don’t think we have to show that Asian carp have to be entering Lake Michigan in such numbers as to create a likelihood that they will become established as a breeding invasive species; that's just too big a risk," Wisconsin Attorney General Van Hollen said. "The magnitude of the harm to the Great Lakes and our States' tributaries is so great if Asian carp become established, that the present risk of their entry should be enough to warrant strong action," he said.
The States had asked the court to immediately order defendants to implement best available methods to block the passage and to capture or kill bighead and silver carp in the Chicago waterway, including installing block nets, gates and screens, and other interim physical barriers to fish passage between the waterway and Lake Michigan, and temporarily closing and ceasing operation of the locks at the O'Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety.
The States asked the court to order both immediate preventive and long-term solutions. In the short term, they asked that certain locks closed, effective barriers created to prevent continued fish migration, and Asian carp killed that have already passed the Barrier System.
“Long-term, we think the best solution is the one nature once provided: the physical separation of the Great Lakes basin and the Mississippi river systems,” Van Hollen said.