Asian Carp - Court Cases and Legal Action
Photo: MLCV - www.michiganlcv.org
Michigan’s Asian Carp Litigation Timeline
December 21, 2009 - Michigan files suit against Illinois in the Supreme Court over Asian carp; includes both a request for a preliminary injunction and order on the future operations of the Chicago Area Waterway System.
January 19, 2010 - Supreme Court denies Michigan’s request for a preliminary injunction to take immediate action on Asian carp.
February 4, 2010 - Michigan renews request to the Supreme Court to close Chicago locks based on new information regarding eDNA tests showing evidence of Asian carp in Lake Michigan, which the federal government failed to disclose to the Supreme Court until after the Court ruled against Michigan.
March 25, 2010 - Supreme Court denies Michigan’s second request to close the Chicago locks.
April 26, 2010 - Supreme Court denies motion for a supplemental decree effectively ending any hope for Michigan and the other Great Lakes states to get the Asian carp case before the Supreme Court.
July 19, 2010 – Five states file a lawsuit against the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago in federal district court.
December 2, 2010 – The U.S. District Court denied the request of Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin to issue a preliminary injunction.
January 26, 2011 – The states filed an appeal to the U.S. Court of Appeals for the denial of the preliminary injunction.
August 24, 2011 – The federal court of appeals upheld the district court order denying the request for the preliminary injunction to close the locks on the Chicago Area Waterway System.
October 6, 2011 – Michigan Attorney General files a request for appeal with the United State Supreme Court to review the U.S. Court of Appeals decision that denied the request of five Great Lakes states for an immediate injunction.
February 27, 2012 - The U.S. Supreme Court issued an order denying the states' petition.
December 2012 – The U.S. District Court for the Northern District of Illinois dismissed the lawsuit filed two years ago by the states of Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania, ruling that hydrologic separation of the Great Lakes and Mississippi River Basins is precluded by federal laws that require the U.S. Army Corps of Engineers to sustain through navigation between the water bodies. The states were given until January 11, 2013 to re-plead the case in a different manner or may appeal the dismissal in the Seventh Circuit.
December 21, 2009 - Michigan files suit against Illinois in the Supreme Court over Asian carp; includes both a request for a preliminary injunction and order on the future operations of the Chicago Area Waterway System.
January 19, 2010 - Supreme Court denies Michigan’s request for a preliminary injunction to take immediate action on Asian carp.
February 4, 2010 - Michigan renews request to the Supreme Court to close Chicago locks based on new information regarding eDNA tests showing evidence of Asian carp in Lake Michigan, which the federal government failed to disclose to the Supreme Court until after the Court ruled against Michigan.
March 25, 2010 - Supreme Court denies Michigan’s second request to close the Chicago locks.
April 26, 2010 - Supreme Court denies motion for a supplemental decree effectively ending any hope for Michigan and the other Great Lakes states to get the Asian carp case before the Supreme Court.
July 19, 2010 – Five states file a lawsuit against the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago in federal district court.
December 2, 2010 – The U.S. District Court denied the request of Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin to issue a preliminary injunction.
January 26, 2011 – The states filed an appeal to the U.S. Court of Appeals for the denial of the preliminary injunction.
August 24, 2011 – The federal court of appeals upheld the district court order denying the request for the preliminary injunction to close the locks on the Chicago Area Waterway System.
October 6, 2011 – Michigan Attorney General files a request for appeal with the United State Supreme Court to review the U.S. Court of Appeals decision that denied the request of five Great Lakes states for an immediate injunction.
February 27, 2012 - The U.S. Supreme Court issued an order denying the states' petition.
December 2012 – The U.S. District Court for the Northern District of Illinois dismissed the lawsuit filed two years ago by the states of Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania, ruling that hydrologic separation of the Great Lakes and Mississippi River Basins is precluded by federal laws that require the U.S. Army Corps of Engineers to sustain through navigation between the water bodies. The states were given until January 11, 2013 to re-plead the case in a different manner or may appeal the dismissal in the Seventh Circuit.
United States Supreme Court
Michigan Attorney General Mike Cox filed suit in the U.S. Supreme Court in December 2009 on behalf of the State of Michigan against the State of Illinois for allowing Asian carp to potentially invade the Great Lakes through the Chicago Canal and other managed waterways. Michigan's lawsuit asked the high court to immediately close the O'Brien Lock and Dam in the Calumet-Sag Channel and the Chicago Controlling Works in the Illinois River, a stopgap measure aimed at keeping the fish at bay. The lawsuit also requested the Court to order the Defendants to develop and implement plans for a permanent solution to the problems that would ecologically and physically separate the carp-infected waters of the Illinois River basin from the Great Lakes.
On Tuesday, January 19th, 2010, the Supreme Court refused to order emergency measures sought by the state of Michigan to stop the migration of the Asian carp toward Lake Michigan. Without comment, the Court refused to issue a preliminary injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers. The Court’s order did not dispose of Michigan's other plea, seeking to reopen a decision from 80 years ago. That ruling, a consent decree by the court, allowed Chicago to divert a certain amount of water from the lake.
Michigan Attorney General Mike Cox filed suit in the U.S. Supreme Court in December 2009 on behalf of the State of Michigan against the State of Illinois for allowing Asian carp to potentially invade the Great Lakes through the Chicago Canal and other managed waterways. Michigan's lawsuit asked the high court to immediately close the O'Brien Lock and Dam in the Calumet-Sag Channel and the Chicago Controlling Works in the Illinois River, a stopgap measure aimed at keeping the fish at bay. The lawsuit also requested the Court to order the Defendants to develop and implement plans for a permanent solution to the problems that would ecologically and physically separate the carp-infected waters of the Illinois River basin from the Great Lakes.
On Tuesday, January 19th, 2010, the Supreme Court refused to order emergency measures sought by the state of Michigan to stop the migration of the Asian carp toward Lake Michigan. Without comment, the Court refused to issue a preliminary injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers. The Court’s order did not dispose of Michigan's other plea, seeking to reopen a decision from 80 years ago. That ruling, a consent decree by the court, allowed Chicago to divert a certain amount of water from the lake.
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Just hours after the Supreme Court announced its refusal to order emergency measures, the U.S. Army Corps of Engineers announced that DNA from Asian carp was found in Lake Michigan for the first time. Sampling from December 8, 2009 found one positive environmental DNA result for silver carp in Calumet Harbor approximately one-half mile north of the Calumet River and one more at a location in the Calumet River north of O'Brien Lock.
Even though the Supreme Court already denied the original motion in January, the ruling was issued a few hours before new evidence revealed that Asian Carp eDNA was discovered in Lake Michigan. Therefore, Attorney General Mike Cox announced the filing of a renewed motion with the U.S. Supreme Court that seeks to close the Chicago locks. Michigan's motion also included an economic study on the effects of the closure of the locks necessary to separate the Mississippi River basin from the Great Lakes basin. The study, conducted by a Wayne State University transportation expert, concludes Illinois' claim that "even a temporary closure of the locks will devastate the local economy" cannot be supported. However, the Supreme Court again denied Michigan's renewed request for a preliminary injunction on March 22, 2010. On April 26, 2010, the Supreme Court denied Michigan’s motion to reopen a decision from 80 years ago that allowed Chicago to divert a certain amount of water from the lake. This effectively ended any hope for Michigan and the other Great Lakes states to get the Asian carp case before the Supreme Court. However, this did not preclude other legal options such as a case in state court or a lower federal court. |
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U.S. District Court for the Northern District of Illinois
Five states - Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania – filed a lawsuit on July 19th, 2010 against the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago (District) in federal district court. After the U.S. Supreme Court refused to hear the case multiple times, the states filed their joint suit in the U.S. District Court for the Northern District of Illinois. The states are claiming that that U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance through the construction and operation of the Chicago Sanitary Ship Canal which is allowing for the migration of the Asian carp that threatens irreparable harm to the Great Lakes and other public trust resources of the states.
The lawsuit requested a preliminary injunction requiring the Corps to expedite a feasibility study evaluating options for permanent physical separation to be completed within 18 months. Furthermore, the suit sought to expeditiously implement plans to permanently and physically separate carp-infested waters in the Illinois River basin and the Chicago Area Waterway System from Lake Michigan to prevent migration of Asian carp and other harmful aquatic invasive species.
An initial hearing was held in August 2010 followed by a three-day evidentiary hearing in Chicago on September 7th, 8th, and 10th, to allow for expert testimony.
Additionally, the Grand Traverse Band of Ottawa and Chippewa Indians filed a motion to join Michigan and the Great Lakes states in the lawsuit regarding the concern of Asian Carp. It's the first motion by a tribe to join the litigation. A portion of the Brief filed by the Tribe is below:
Five states - Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania – filed a lawsuit on July 19th, 2010 against the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago (District) in federal district court. After the U.S. Supreme Court refused to hear the case multiple times, the states filed their joint suit in the U.S. District Court for the Northern District of Illinois. The states are claiming that that U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance through the construction and operation of the Chicago Sanitary Ship Canal which is allowing for the migration of the Asian carp that threatens irreparable harm to the Great Lakes and other public trust resources of the states.
The lawsuit requested a preliminary injunction requiring the Corps to expedite a feasibility study evaluating options for permanent physical separation to be completed within 18 months. Furthermore, the suit sought to expeditiously implement plans to permanently and physically separate carp-infested waters in the Illinois River basin and the Chicago Area Waterway System from Lake Michigan to prevent migration of Asian carp and other harmful aquatic invasive species.
An initial hearing was held in August 2010 followed by a three-day evidentiary hearing in Chicago on September 7th, 8th, and 10th, to allow for expert testimony.
Additionally, the Grand Traverse Band of Ottawa and Chippewa Indians filed a motion to join Michigan and the Great Lakes states in the lawsuit regarding the concern of Asian Carp. It's the first motion by a tribe to join the litigation. A portion of the Brief filed by the Tribe is below:
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Historically, fishing played a central role in the spiritual and cultural framework of Native American life. As the Supreme Court noted more than a hundred years ago, access to fish and wildlife was "not much less necessary to the existence of the Indians than the atmosphere they breathed." United States v. Winans, 198 U.S. 371, 381 (1905). Not only are the Great Lakes fish culturally important to the Tribes, these communities depend upon fisheries resources for their livelihoods. Moreover, by virtue of the supremacy clause (Article VI, clause 2) of the Constitution, Indian Tribes have a property right in treaty-reserved fishery resources that is paramount to the other economic interests cited by Defendants in defense of the relief requested by Plaintiffs. See Grand Case: 1:10-cv-04457 Document #: 122-7 Filed: 08/31/10 Page 1 of 6 PageID #:4813
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On December 2, 2010, the court ruled denying Michigan's motion for preliminary injunction. In that ruling, federal District Court Judge Robert M. Dow, Jr. denied Michigan's motion for preliminary injunction, which called for the temporary closure of the O'Brien and Chicago Locks and blocking other pathways in the Chicago water system, except as needed to protect public health and safety, among other actions.
On October 9, 2012, Michigan Attorney General Bill Schuette filed a response to the supplemental motion to dismiss inMichigan, et al v Corps of Engineers, et al before Judge John J. Tharp, Jr. in U.S. District Court for the Northern District of Illinois. Michigan is joined by attorneys general from Minnesota Ohio, Pennsylvania and Wisconsin, as well as the Grand Traverse Band of Ottawa and Chippewa Indians in the lawsuit against the Army Corps of Engineers and the Chicago Water District. This is a result of an Interim Report to Congress in which the Army Corps of Engineers announced that it does not intend to recommend any plan to separate the Great Lakes and Mississippi River Basin within the deadline set by Congress, and instead will need additional years for more study.
On December 3, 2012, the U.S. District Court for the Northern District of Illinois dismissed the lawsuit filed two years ago by the states of Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania, ruling that hydraulic separation of the Great Lakes and Mississippi River Basins is precluded by federal laws that require the U.S. Army Corps of Engineers to sustain through navigation between the water bodies. The Court ruled that conduct authorized or required by statute, in this case maintaining navigations between water bodies, cannot cause a public nuisance and only Congress can authorize the hydrologic separation that the states asked for. However, the judge gave the states until January 11, 2013 to re-plead the case in a manner that does not does ask for an order or action that is prohibited by statute, but rather within the scope of the USACE’s “Congressionally-authorized discretion.”
On October 9, 2012, Michigan Attorney General Bill Schuette filed a response to the supplemental motion to dismiss inMichigan, et al v Corps of Engineers, et al before Judge John J. Tharp, Jr. in U.S. District Court for the Northern District of Illinois. Michigan is joined by attorneys general from Minnesota Ohio, Pennsylvania and Wisconsin, as well as the Grand Traverse Band of Ottawa and Chippewa Indians in the lawsuit against the Army Corps of Engineers and the Chicago Water District. This is a result of an Interim Report to Congress in which the Army Corps of Engineers announced that it does not intend to recommend any plan to separate the Great Lakes and Mississippi River Basin within the deadline set by Congress, and instead will need additional years for more study.
On December 3, 2012, the U.S. District Court for the Northern District of Illinois dismissed the lawsuit filed two years ago by the states of Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania, ruling that hydraulic separation of the Great Lakes and Mississippi River Basins is precluded by federal laws that require the U.S. Army Corps of Engineers to sustain through navigation between the water bodies. The Court ruled that conduct authorized or required by statute, in this case maintaining navigations between water bodies, cannot cause a public nuisance and only Congress can authorize the hydrologic separation that the states asked for. However, the judge gave the states until January 11, 2013 to re-plead the case in a manner that does not does ask for an order or action that is prohibited by statute, but rather within the scope of the USACE’s “Congressionally-authorized discretion.”
U.S. Court of Appeals for the Seventh Circuit
On December 16, 2010, Michigan Attorney General Mike Cox announced his office filed a notice of appeal from the first preliminary court ruling in his lawsuit to stop the advance of Asian carp into the Great Lakes. Attorneys general from Wisconsin, Minnesota, Ohio and Pennsylvania signed on to Michigan's notice which requested the 7th Circuit Court of Appeals review the district court ruling of December 2, 2010.
In August 2011, noting that federal and state agencies are already mounting efforts to halt the migration of invasive Asian carp into Lake Michigan, the U.S. Court of Appeals for the Seventh Circuit recently rejected the Great Lakes states’ request for a preliminary injunction. The district court denied the states’ request for a preliminary injunction, concluding that the problem had not yet advanced to present an immediate threat. The states immediately appealed. However, the panel noted the new evidence could come to light that could require more drastic action to prevent the advancement of Asian carp into Lake Michigan, and the district court would have the authority to revisit the question of whether a preliminary injunction is warranted.
On December 16, 2010, Michigan Attorney General Mike Cox announced his office filed a notice of appeal from the first preliminary court ruling in his lawsuit to stop the advance of Asian carp into the Great Lakes. Attorneys general from Wisconsin, Minnesota, Ohio and Pennsylvania signed on to Michigan's notice which requested the 7th Circuit Court of Appeals review the district court ruling of December 2, 2010.
In August 2011, noting that federal and state agencies are already mounting efforts to halt the migration of invasive Asian carp into Lake Michigan, the U.S. Court of Appeals for the Seventh Circuit recently rejected the Great Lakes states’ request for a preliminary injunction. The district court denied the states’ request for a preliminary injunction, concluding that the problem had not yet advanced to present an immediate threat. The states immediately appealed. However, the panel noted the new evidence could come to light that could require more drastic action to prevent the advancement of Asian carp into Lake Michigan, and the district court would have the authority to revisit the question of whether a preliminary injunction is warranted.
U.S. Supreme Court
In October 2011, Attorney General Bill Schuette's office submitted a Petition for a Writ of Certiorari also signed by the attorneys general of Minnesota, Ohio, Pennsylvania, and Wisconsin. The petition asks the U.S. Supreme Court to overturn the 7th Circuit decision and order the following:
In October 2011, Attorney General Bill Schuette's office submitted a Petition for a Writ of Certiorari also signed by the attorneys general of Minnesota, Ohio, Pennsylvania, and Wisconsin. The petition asks the U.S. Supreme Court to overturn the 7th Circuit decision and order the following:
- Require the U.S. Army Corps of Engineers to install block nets in the Little Calumet and Grand Calumet rivers, two open pathways between the Mississippi River and Great Lakes basins that are vulnerable to Asian carp invasion; and
- Require the U.S. Army Corps of Engineers to expedite the completion of its study of permanent ecological separation between the Great Lakes and Mississippi River basins, so that the part of the study focused on the Chicago Area Waterway is completed within 18 months, not five years.
Other Actions
In light of the failed court cases, six attorneys general in the Great Lakes region called for a multistate coalition that would push the federal government to protect the lakes from invasive species such as Asian carp by cutting off their artificial link to the Mississippi River basin. The appeal came from Michigan’s Attorney General Bill Schuette along with the attorney generals from Minnesota, New York, Ohio, Pennsylvania, and Wisconsin. They requested assistance from 27 of their counterparts across the Mississippi basin as well as Western states such as Nevada, where other waterways have been infested by zebra mussels believed to have been transported from the Great Lakes. They urged support for legislation that would direct the Corp to timely complete the study to determine the feasibility and best means of implements hydrologic separation of the Great Lakes and Mississippi River Basin.
The 16 states that joined with Michigan include Arkansas, Arizona, Colorado, Iowa, Kansas, Louisiana, Minnesota, Missouri, New York, Ohio, Pennsylvania, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.
Michigan has also remained vigilant in efforts to protect Michigan’s waters from invasion of Asian carp through other pathways including the Department of Natural Resources aggressively monitoring traffic in restricted species since the threat of Asian carp. In May 2012, the Attorney General's Criminal Division has charged an Arkansas man with twelve felony counts of possessing and selling live Asian carp in violation of state law protecting against the spread of invasive species.
It is alleged David Shane Costner, 42, of Harrisburg, Arkansas, possessed 110 grass carp fish, a type of invasive Asian carp. The fish were allegedly transported and sold from tanks housed in a semi-truck furnished by parent company Farley's Arkansas Pondstockers. Costner allegedly travelled around the state, conducting sales of the illegal carp from store parking lots. The trucks also contained live fish species permitted under state law, including channel catfish, largemouth bass and fathead minnows. On May 16, 2012, Costner allegedly sold two of the live grass carp to undercover DNR investigators in Midland, Michigan. Costner pleaded guilty to 12 felonies: ten counts of possession of an illegal species, a felony punishable by two years in prison and a fine of $2,000-$20,000 for each violation and two counts of selling an illegal species, a felony punishable by two years in prison and a fine of $2,000-$20,000 for each violation.
In the end, the Arkansas man was sentenced to jail and fined for selling live Asian carp in Michigan. David Shane Costner pleaded guilty to a dozen felony charges and was sentenced to spend five months in jail and to pay about $3,700 in fines and court costs.
In light of the failed court cases, six attorneys general in the Great Lakes region called for a multistate coalition that would push the federal government to protect the lakes from invasive species such as Asian carp by cutting off their artificial link to the Mississippi River basin. The appeal came from Michigan’s Attorney General Bill Schuette along with the attorney generals from Minnesota, New York, Ohio, Pennsylvania, and Wisconsin. They requested assistance from 27 of their counterparts across the Mississippi basin as well as Western states such as Nevada, where other waterways have been infested by zebra mussels believed to have been transported from the Great Lakes. They urged support for legislation that would direct the Corp to timely complete the study to determine the feasibility and best means of implements hydrologic separation of the Great Lakes and Mississippi River Basin.
The 16 states that joined with Michigan include Arkansas, Arizona, Colorado, Iowa, Kansas, Louisiana, Minnesota, Missouri, New York, Ohio, Pennsylvania, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.
Michigan has also remained vigilant in efforts to protect Michigan’s waters from invasion of Asian carp through other pathways including the Department of Natural Resources aggressively monitoring traffic in restricted species since the threat of Asian carp. In May 2012, the Attorney General's Criminal Division has charged an Arkansas man with twelve felony counts of possessing and selling live Asian carp in violation of state law protecting against the spread of invasive species.
It is alleged David Shane Costner, 42, of Harrisburg, Arkansas, possessed 110 grass carp fish, a type of invasive Asian carp. The fish were allegedly transported and sold from tanks housed in a semi-truck furnished by parent company Farley's Arkansas Pondstockers. Costner allegedly travelled around the state, conducting sales of the illegal carp from store parking lots. The trucks also contained live fish species permitted under state law, including channel catfish, largemouth bass and fathead minnows. On May 16, 2012, Costner allegedly sold two of the live grass carp to undercover DNR investigators in Midland, Michigan. Costner pleaded guilty to 12 felonies: ten counts of possession of an illegal species, a felony punishable by two years in prison and a fine of $2,000-$20,000 for each violation and two counts of selling an illegal species, a felony punishable by two years in prison and a fine of $2,000-$20,000 for each violation.
In the end, the Arkansas man was sentenced to jail and fined for selling live Asian carp in Michigan. David Shane Costner pleaded guilty to a dozen felony charges and was sentenced to spend five months in jail and to pay about $3,700 in fines and court costs.
Asian Carp Truck Photo Credit: Michigan Department of Attorney General
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