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Cox Appeals in Asian Carp Case

Contact: John Sellek or Joy Yearout 517-373-8060

December 16, 2010

            LANSING -  Michigan Attorney General Mike Cox today announced his office has 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 was filed today in federal District Court in Chicago.  The Great Lakes states are appealing a December 2, 2010 ruling that denied Michigan's motion for preliminary injunction, which called for several immediate actions.  

"Although our suit continues to move forward, the urgent threat that Asian carp pose requires that we aggressively pursue this preliminary injunction," said Cox.  "Until the federal government takes effective action, Michigan and our Great Lakes partners will take full advantage of every opportunity we have to ensure our livelihood is not destroyed by Asian carp."

The notice of appeal filed today requests the 7th Circuit Court of Appeals review the district court ruling of December 2, 2010.  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.  The need for the preliminary injunction, which would stop Asian carp as the rest of the suit is considered, was made clear by the recent capture of a live bighead carp beyond any current barriers. 

Meanwhile, the preliminary ruling did not halt consideration of the merits of the Great Lakes states' lawsuit.  A status conference scheduled for January 7, 2011 will determine future proceedings at the district court level. 

Attorneys general from Wisconsin, Minnesota, Pennsylvania and Ohio first joined Cox in filing his lawsuit on July 19, 2010, due to the Army Corps' dismal record of inaction in confronting Asian carp.  The lawsuit calls for the Corps to use all available efforts to block Asian carp passage in the waterways linked to Lake Michigan, subject to exceptions to prevent flooding, allow access for emergency responders and any other action necessary to prevent serious threats to public health and safety. 

The Permanent Prevention of Asian Carp Act and the CARP Act, both sponsored by U.S Representative Dave Camp (R-MI), still await action by Congress.  The legislation mirrors Michigan's motion for preliminary injunction, calling for temporary closure of the locks to protect the Great Lakes and requiring the U.S. Army Corps of Engineers to expedite a study to determine the best way to permanently separate the Mississippi River Basin from Lake Michigan.

Earlier this year, Cox petitioned the U.S. Supreme Court to intervene and address the threat of Asian carp.  The Supreme Court declined the take up the case but did not rule on the merits of the legal claims by Michigan and other Great Lakes states.

 

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