Saturday, February 6, 2010

Renewed motion to the US Supreme Court to stop the Asian carp


Following denial of an earlier motion in January, The Great Lakes Law Blog reports that Michigan has just filed a renewed motion with the US Supreme Court for a preliminary injuction to close the Chicago Ship and Sanitary Canal to prevent a detrimental invasion of the the Great Lakes by the Asian Carp.

The renewed motion from Michigan focuses mostly on the fact that the balance of equity is in favour of Michigan. The economic analysis of the respective harm suffered by Illinois and Michigan stresses that possible damages to the local economy have been greatly exaggerated. Temporary closure of the Canal locks is even more urgent since Asian Carp DNA has now been found in Lake Michigan.

These are important arguments. However, the Supreme Court did not give any clue on the motives for rejecting the initial preliminary injunction in January, and these arguments could be aimed at the wrong target.

One major argument from Illinois to ask for denial of the initial preliminary injunction was based on lack of jurisdiction. Essentially, reopening the Wisconsin vs Illinois Supreme Court Decree governing the Chicago Canal diversion is not appropriate because the issue is unrelated to the substance of the decree, i.e. the amount of water diverted. Moreover, Illinois argues that it is not the owner and operator of the Canal (the US Army Corp of Engineers appears to be that).

Michigan initially addressed the jurisdiction issue in its Motion to reopen and for a supplemental decree. The renewed motion from Michigan addresses additional issues related to the jurisdiction argument from p.35 to 37.

According to Michigan, there are two avenues for its action to succeed: 1) under the Wisconsin vs Illinois Decree; 2) under the original and exclusive jurisdiction of the Supreme Court on all controversies between two or more state. Michigan argues that Illinois' involvement as a party in this action is essential because only Illinois may provide some aspects of the relief sought by Michigan: according to Illinois state law, only Illinois has the power to block the passage, capture and eradicate Asian Carps.

Despite this, Michigan writes:

«Michigan does not make this request lightly or without recognition of the extraordinary nature of the relief sought in the context of the Court's limited exercise of original jurisdiction. Michigan does so in these unique circumstances, out of its responsibility to protect one of its greatest resources from an imminent threat of extraordinary harm.» (p.9)

The jurisdiction question will possibly be a decisive issue.

Beside the legal battle, significant political developments in Washington DC this week (see Circle of Blue) might provide an alternative solution to the Asian Carp invasion.

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