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Judge moves to dismiss lawsuit asking to prevent carp from entering Lake Michigan

Published: Wednesday, Dec. 5, 2012 9:59 a.m. CDT

(MCT) — CHICAGO — A federal judge has moved to dismiss a lawsuit brought by five Great Lakes states that are seeking to close Chicago-area locks to prevent Asian carp from invading Lake Michigan.

In the opinion and order issued Monday, U.S. District Judge John Tharp Jr. acknowledged that the court was “mindful of, and alarmed by, the potentially devastating ecological, environmental, and economic consequences that may result from the establishment of an Asian carp population in the Great Lakes.”

But, Tharp said, it would be beyond the authority of the court to order the U.S. Army Corps of Engineers to separate the Chicago Area Waterway System from Lake Michigan because the Corps has been directed by Congress to sustain through navigation in that area.

“These statutes preclude the Corps from taking the actions that plaintiffs believe is necessary to prevent the Asian carp from reaching Lake Michigan,” according to the opinion, which granted plaintiffs the option of filing an amended complaint, noting that “there may be room in which the plaintiffs can still maneuver.”

Michigan, Wisconsin, Minnesota, Ohio and Pennsylvania moved to have the locks closed in July 2010. That motion was denied in December of that year and was appealed and denied again by the 7th Circuit of the U.S. Court of Appeals in August of 2011. The Corps and the Metropolitan Water Reclamation District of Greater Chicago then moved in January 2012 to have the complaint dismissed.

Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette, said on Tuesday that the state was reaching out to the other Great Lakes states in the complaint to determine whether they should file an amended complaint or a direct appeal.

“We were pleased that the judge recognized that the threat of Asian carp is real,” Yearout said. “And that he left the door open for us to pursue other legal theories.”

The plaintiffs have until January 11, 2013 to amend their claims or the court will dismiss the case, according to the opinion.

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