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Published: Tuesday, 9/7/2010

States battle Asian carp in court

BY TOM HENRY
BLADE STAFF WRITER
Michigan attorney General Mike Cox seeks a preliminary injunction while a lawsuit against the Corps of Engineers proceeds. Michigan attorney General Mike Cox seeks a preliminary injunction while a lawsuit against the Corps of Engineers proceeds.
CARLOS OSORIO / AP Enlarge

A federal court hearing begins in Chicago Tuesday that has huge ramifications for the Great Lakes region's $7 billion fishery, and especially for Toledo and other parts of western Lake Erie trying to diversify their economies with more recreation tourism.

Mike Cox, Michigan's attorney general, is asking for a preliminary injunction against the Army Corps of Engineers to block the movement of Asian carp into Lake Michigan until a suit seeking a permanent separation of the lakes from the Mississippi River is decided.

Mr. Cox, joined by Ohio Attorney General Richard Cordray's office and other officials, demands immediate construction of more barriers and more aggressive use of poisons, metal grates, nets, and similar devices to repel the threat.

"The future of our water-based economy and environment is hanging in the balance," Mr. Cox said.

The hearings only will decide the temporary injunction.

Ohio, Wisconsin, Minnesota, and Pennsylvania have joined Michigan as plaintiffs to the suit, filed July 19 against the Corps and the Metropolitan Water Reclamation District of Greater Chicago. The city of Chicago, the Coalition to Save Our Waterways, and Wendella Sightseeing Co. Inc., are recognized as intervening defendants, while the Grand Traverse Band of Ottawa and Chippewa Indians have filed a motion seeking intervener status for the plaintiffs.

The lawsuit is similar to one the U.S. Supreme Court declined to hear earlier this year when the state of Illinois was identified as a primary defendant. The high court did not rule on the merits of the suit.

The injunction for immediate relief is sought because the lawsuit could take years to decide, said Joy Yearout, spokesman for the Michigan attorney general's office.

Judge Robert M. Dow, Jr., of U.S. District Court in Chicago has set aside Tuesday, tomorrow, and Friday for testimony. Initial arguments were heard on several preliminary legal issues in late August.

One key witness expected to be called Tuesday is David Lodge, a University of Notre Dame fish biologist whose DNA research created a stir throughout the region and in Washington.

Mr. Lodge, director of Notre Dame's Center for Aquatic Conservation, led a team of researchers who last fall found genetic evidence of carp eluding the Corps' set of multimillion-dollar electrical barriers.

He is expected to testify on the validity of his research - and offer the judge some thoughts of how devastating two species of Asian carp, the silver and bighead carp, could be for the lakes.

In an interview on Lake Michigan's Beaver Island, where he spoke to a group of journalists attending an expedition sponsored by the Institutes for Journalism & Natural Resources, Mr. Lodge said Lake Erie likely would incur the greatest blow from Asian carp.

Lake Erie and its tributaries produce more fish than the other four Great Lakes combined.

Lake Erie's western basin - from Monroe to Sandusky, with parts of the southwest Ontario - is the most fertile ground because it is the warmest and shallowest part of the Great Lakes region. That is especially true around Toledo and the Maumee River.

But the western basin also would be prime habitat for Asian carp. Like other fish, they love warm, shallow water and long tributaries to spawn. They also would have an ample supply of microscopic plankton and fish to devour.

"I'm less concerned about Lake Superior [by far the deepest of the Great Lakes], though prepared to be surprised," Mr. Lodge said. "I'm very concerned, as are all of the biologists I've talked to, about Lake Erie, where the most is at stake."

Biologists view Asian carp as veritable aquatic vacuum cleaners, able to wreak havoc on any lake or river they colonize. Bighead carp can grow to be larger than 100 pounds and consume 10 percent of their body weight a day; silver carp are so sensitive to vibrations from motors they leap out of water when boats approach them. Some have injured boaters, smacking them with the force of a flying bowling ball - hard enough to kill people if struck in the head.

Mr. Cordray warned that the annual rite of fishing in Lake Erie over Labor Day weekend "could soon be in jeopardy" if Asian carp are not turned back.

Asian carp were brought into North America decades ago, mostly by Southern fish hatcheries that wanted them to eat pond scum. Many escaped from Arkansas when the Mississippi River flooded in 1993. They have been migrating upstream since.

In addition to the Chicago pathway, Indiana officials are trying to keep them out of the Maumee River. Asian carp have migrated into the Wabash River. Although not directly connected, the Maumee and Wabash rivers share a common floodplain in Fort Wayne, which leaves open the possibility of Asian carp in the Wabash entering the Maumee when the water is high.

But the mere presence of carp "does not mean the game is over," Mr. Lodge said.

"That does not mean an establishment of the fish is inevitable. The key thing is to keep the number of individuals as low as possible," he said.

Asian carp are seen as a test case for a little-known federal law called the Lacey Act. Though rarely exercised, it gives the U.S. Fish and Wildlife Service the power to ban live imports and interstate transport of aquatic and land creatures that are deemed a threat to others.

Although problems with four species of Asian carp have been known for years, it wasn't until 2007 that the Lacey Act was invoked for silver carp.

That came after five years of review of a petition several congressmen submitted to the agency in 2002. The bighead, black carp, and grass carp have not been listed.

The process is long and arduous because the government, in effect, is being asked to blacklist something by euphemistically declaring it an "injurious species," officials have said.

Mr. Lodge said officials need to cut through that red tape.

"If you really back up this issue to where it is, it's about the Lacey Act," he told reporters. "If you don't want more disasters like this in the future, then close the door or at least put a screen door at the nation's borders."

Contact Tom Henry at:

thenry@theblade.com

or 419-724-6079.



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