Top court refuses to shut down shipping to halt carp

TRAVERSE CITY, Mich. (AP) — The U.S. Supreme Court refused Tuesday to order the immediate closure of shipping structures near Chicago to prevent Asian carp from infesting the Great Lakes, before authorities said DNA from the ravenous invaders had been found in Lake Michigan for the first time.

The court rejected Michigan’s request for a preliminary injunction to shut the locks and gates temporarily while officials and interest groups debate a long-term strategy. The court’s one-sentence decision included no explanation and didn’t say whether the justices would consider the case on its merits.

Hours later, federal officials said two DNA samples taken beyond the final barriers between Chicago- area waterways and the lake had tested positive for carp — including one in the lake’s Calumet Harbor. They insisted it was far from certain that carp have actually reached the lake, saying no live or dead fish had been spotted.

Authorities consider DNA testing “an early-warning device where Asian carp may be present,” Gen. John Peabody of the U.S. Army Corps of Engineers said in a teleconference. Agencies will use netting and other tactics to search for stronger evidence, he said.

Peabody said the discovery did not change the Army Corps’ view that the locks and gates on the Chicago Sanitary and Ship Canal and other waterways should remain in operation.

Barge and tug operators called for Michigan and four other states to drop their legal battle to close the locks and focus on negotiation. But Govs. Jennifer Granholm of Michigan and Jim Doyle of Wisconsin said the court fight would continue and requested a meeting between White House officials and the Great Lakes governors.

“We cannot allow carp into the Great Lakes. It will destroy our Great Lakes fisheries, the economy,” Granholm said. “It is urgent.”

The Obama administration said it would welcome such a meeting and called defeating Asian carp “one of our immediate priorities.” It sided with Illinois in opposing a closure, however, telling the court that such action would disrupt the transport of coal and other commodities on waterways linking Lake Michigan with the Mississippi River system.

Asian carp, primarily bighead and silver varieties, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. They have swarmed waterways near Chicago leading to Lake Michigan.

Scientists fear that if they reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery. The biggest Asian carp can reach 4 feet long and weigh 100 pounds while consuming up to 40 percent of their body weight daily in plankton — the foundation of the Great Lakes’ food web. Many scientists say they could starve out popular species such as trout and salmon.

They also are spooked by passing motors and often hurtle from the water, colliding with boaters forcefully enough to break bones.

Last week, the U.S. Army Corps of Engineers said additional carp DNA — but no live fish — had been found in three spots along the Chicago River within a mile of where it flows into Lake Michigan.

Michigan, joined by Minnesota, New York, Pennsylvania, Ohio, Wisconsin and the Canadian province of Ontario, asked the high court to order the locks closed as a stopgap measure while considering a permanent separation between Lake Michigan and the Mississippi basin.

“If effective measures are not taken to stop the advance of Asian carp, and soon, these alien invaders will be in Lake Michigan where it will be, by most accounts, impossible to stop them from spreading to all the Great Lakes and the numerous inland lakes, rivers, and streams that connect to them,” Michigan told the Supreme Court. “Partial measures are no longer an option.”

Illinois and the Obama administration said the electronic barrier was performing well. Closing the locks would could cause flooding in addition to economic damage, the government said. The Illinois attorney general’s office said it was pleased with the Supreme Court’s ruling.

But its denial of the injunction doesn’t necessarily mean the court would rule against Michigan and its allies if the full case came before the justices, said Noah Hall, an environmental-law professor at Wayne State University.

“It just means you have to wait to get your day in court,” Hall said. “But the danger is that by the time the Supreme Court does hear the case, the carp will already be in Lake Michigan.”

Mike Cox, Michigan’s attorney general, said he would press on, filing briefs next month. Meanwhile, U.S. Rep. Candice Miller, a Michigan Republican, requested a hearing of the House Water Resources Subcommittee to consider legislation ordering the locks to close.

The American Waterways Operators, a trade group representing the tug and barge industry, urged all sides to step out of the courtroom.

“We want to focus on collaboration and not spending money on lawsuits,” said Lynn Muench, the group’s vice president.

The group is open to steps such as constructing another electrical barrier in the Chicago rivers and canals and putting up more structures to prevent the carp from swimming between waterways during floods, Muench said.

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