Fishy Law & Politics

[Beavah]

Yah, so here's a new thread for I&P. Maybe I'm just interested in it because it's interestin' law (states sue each other in the Supreme Court relatively infrequently, eh?, and I'm not sure that the Province of Ontario has standing ).

 

What do yeh think of Minnesota, Wisconsin, Michigan, Ohio, and New York suing Illinois to force closure of the Chicago shipping canals to prevent the spread of Asian Carp into the Great Lakes?

 

Background:

http://www.lansingcitypulse.com/lansing/article-3863-of-asian-carp-and-political-clout.html

 

Recent News:

http://www.chicagotribune.com/news/chi-durbin-carp-13-jan13,0,7723928.story

 

It kinda has da same feel as the Global Warming debate in some ways. Da folks who will be affected by it economically are poo-pooing the reliability of DNA evidence, and the Chicago Water District has even come out and said "Well, there's no proof that the Asian Carp would actually destroy the fishing industry of the Great Lakes".

 

Even has some BSA tie-ins and LNT-ethics stuff.

 

Beavah

 

[vol_scouter]

Beavah,

 

I have found news outlets to be rather consistently unreliable about science. I have no knowledge of the problem and limited background in these areas of science so I will bow out of this discussion though it sounds interesting.

[acco40]

The great lakes provide over $4 billion of tourism revenue to Michigan. Michigan has already see freshwater diverted from the lakes, infestations of zebra mussels, infestations of sea lampreys, and now the asian carp is coming.

 

Water rights is a big issue in Nevada, New Mexico, Arizona, California, etc. and the great lake states feel that the fresh water in their "territory" is their's and it should not be drained, used as a sewer, used as a ship ballast dumping area and they have the responsibility for stewardship over the lakes and should prevent the introduction of invasive species. I tend to agree.

 

Closing the canals would cause a financial (shipping costs) burden to Illinois and others that would be "for sure" but the "most probable" financial loss due to introduction of Asian carp into the great lakes would dwarf that amount.(This message has been edited by acco40)

[CalicoPenn]

The Zebra Mussel and the Lamprey Eel came into the Great Lakes through the locks along the St. Lawrence Seaway and in the ballast tanks of ships coming into the Great Lakes through the St. Lawrence Seaway. I've yet to see Michigan even hint at suing Canada or New York, Ohio or Pennsylvania for the damage this has caused in Lake Michigan, Lake Huron or Lake Superior.

 

I'm wondering what Michigan's real agenda is. I consider the states that have joined in to be bystanders jumping on the bandwagon - Michigan has something else going on.

 

Acco mentions that the Great Lakes provides $4 billion in tourist revenue to the state. The canals in Illinois linking the Mississippi River and the Great Lakes provides $16 billion annually in economic benefits to the State of Illinois, as well as economic benefits to the State of Indiana as steel is moved from their plants through the locks to the Mississippi River.

 

The Army Corps of Engineers just recently shut down an electrical barrier in the locks designed to prevent the migration of the Asian Carp into the Great Lakes for maintenance. The Illinois DNR used rotenone to poison all of the fish in the river from that barrier to the next lock downstream (and closed the locks to use during this time). In a previous survey, the DNR had found dozens of Asian Carp in this stretch of waterway. In this latest round, they found one Asian Carp. It appears that the barrier is proving to be effective and successful in keeping the Asian Carp from migrating up into the Great Lakes.

 

There is no issue of water diversion in the Great Lakes. All of the Great Lakes States, through the US Government, and two provinces in Canada (Ontario - borders the Great Lakes, and Quebec - St. Lawrence Seaway), are part of the Great Lakes Compact, which grants each state and province a set amount of water that they can divert for use. In Illinois, water is pulled from Lake Michigan for the water needs of the city and many of the surrounding suburbs. Wisconsin does the same in parts along their share of the coastline. In Michigan, much of the water that is allowed to be diverted has been sold to a commercial water packaging company (bottled water). I hear that Michigan has come under pressure to somehow increase the amount of water they can sell to bottled watering plants.

 

I hate to sound cynical but I can't help but think this is really a ploy by Michigan to get Illinois to agree to a revised diversion schedule.

 

Is there a possibility of Asian Carp getting into the Great Lakes? Yes. Will closing the locks and canals in Illinois lessen that possibility? Given the preventive measures that Illinois and the Army Corp have been taken, probably not. Will the Asian Carp decimate the fisheries in the Great Lakes? Potentially. Is it a certainty that the Asian Carp will decimate the fisheries in the Great Lakes? No. The same was said about the Lamprey Eel and it hasn't happened yet. More damage was done to the Lake Michigan ecosystem by the States of Michigan, Wisconsin and Illinois stocking the lakes with non-native salmon to bolster their sports-fishing industries. Will the Asian Carp have a greater negative economic impact than closing the locks in Illinois? No.

 

 

 

 

 

 

 

 

[Lisabob]

Well let me just add that the state's attorney general (who initiated this suit) is also running for governor.

 

 

[Nike]

AHA! Political ads in the guise of news stories! Sneaky little *******.

 

But, seriously, invasive plants and animals are a danger and should be dealt with in a deliberate manner, not frivolously.

[Beavah]

Yah, lots of information there, CalicoPenn, but not a lot of it seems to agree with the filings or the information that is publicly available. Do yeh have some different sources?

 

Da Figures I'm seeing indicate a $7 billion potential fishing industry loss plus up to a $16 billion recreation loss for Michigan and the affected states, vs. a $1 - $2 billion loss for Illinois. I believe these figures more than yours since da most recent press releases from Illinois are now raisin' the issue of flooding risk to try to bolster their economic claims.

 

And it seems that quite a lot of the to-do is because carp DNA has been found at the pumping stations which are upstream of the electric fences, eh? In other words, the fish have gotten past the fences. As close as I can tell from da filings, there was never any prior science on whether such fences would work on the fish, and the Corps of Engineers admits the fences are not 100% effective.

 

You are also leavin' out that Illinois is responsible for by far the biggest water diversion from the Great Lakes: the Chicago Sanitary and Shipping canal itself. That's actually the basis for the suit, which revives an 80-year old SCOTUS case against Illinois for that canal in which the court found in favor of the plaintiff states and against Illinois.

 

It's also interestin' to me that the Province of Ontario is involved, eh? That raises some other issues in terms of treaty law. We've even got President Obama's people (from Chicago, no less) weighing in on behalf of Illinois, just to up da absurd and political factors, eh?

 

But yeh definitely reinforced my sense that the players in this case behave very much like da global warming debate, eh? Short-term but significant economic loss vs. long-term and devastating potential loss, obfuscating and throwing up doubt about the science on the one hand while overstatin' the science of things they like (like the effectiveness of the fence) without criticism, and the usual back-and-forth about whose economic numbers are right.

 

This Court has so far done its best to come up with ways to dodge hard, politically-tinged questions like this one on procedural or technical grounds, eh? My guess is they're lookin' to do that again here. But my read of the Michigan case is that it's pretty strong; the Court may not be able to dodge this one. That's why you're seein' lots of Illinois politicians now making appeals that it be resolved in Congress or somewhere else, eh?

 

Interesting that Cox is running for governor, Lisabob. This is pretty bold lawyering, and that explains it perhaps. I take it that your governor is also on board, though?

 

Beavah

 

[Scoutfish]

I read a funny article years ago in a fishing magazine about Asian Carp.

 

Basically, the author said the cheapest, fastest way to get rid of Asain Carp would be to declair them endangered and illeagal. The next thing you know, black market AC fillets, live AC, Ac lamps, ornaments, Mounts and what not would be sold every where!

 

The demand for the fish would be so extensive, that Asian Carp would be extinct in 3 years!

[OldGreyEagle]

Seeing as how Illinois reversed the flow of the Chicago River in 1900 I guess it would only be right to put the river back into its original form and have it flow into Lake Michigan rather then draining the lake.

 

That would truly be leave no trace

 

Speaking of Lake Michigan, anyone ever hear the joke while fishing in lake Michigan I caught 3 perch, 2 salmon and 1 smelt. How mny fish did I catch?

[Trevorum]

At first glance, this situation seems to be no win: severe economic impacts on both sides of the decision. But in the long run, invasive species have proved time and again to be one of the most expensive environmental disasters caused by man. It will be interesting seeing how the politics plays out.

[Lisabob]

People joke about this and yes, politics is involved (ugh). But I have read that these fish can weigh up to 80 pounds, jump 4-6 feet in the air, and eat 4 times their body weight daily.

 

Not being a fish specialist, I cannot independently verify that. But if it is even 60% true, well, wow. These are not cutesy little goldfish. These fish have, evidently, had pretty devastating impacts on the local environment in other places where they've not been controlled. I'm sorry for Chicago and Illinois if the closure of the canal would cost them money but I think there are (sorry, but) bigger fish to fry here.

 

 

Beavah - our Gov is term limited, and of the opposing party from A.G. Cox, but yes she is a vocal supporter of this suit. Looks to me like the Democrats are going to suffer a drubbing in the next gubernatorial election. And fishing/outdoor stuff is a big deal in MI, and it is nice to have IL as a scapegoat. So as far as I know, no state Democratic leaders have come out against this suit. Wouldn't be politically wise. In fact I've heard they're all in a tizzy trying to one-up each other and be tougher!

[acco40]

Did you hear about the need for introducing a new game fish to Lake Michigan? After the die off of other game fish, they introduced the COHO salmon. It was a great fish but fishermen wanted fish that put up a little more fight when trying to reel it in so they cross bred a COHO salmon with a walleye to produce a hybrid Co-wall fish. Wanting an even more sporting fish, one that would hit the lure hard, they crossed the Co-wall with a muskie to get the superlative game fish. It tasted great, fought well and hit the lure hard. Yes, the Co-wall-skie fish did everything they wanted - they just needed to teach it how to swim.

 

Sea lampreys are like salmon and have a salt water, freshwater lifecycle (anadromous). They entered Lake Ontario via the Erie Canal. They entered Lake Erie (1830s) via the Welland Canal (1920s). Lamprey populations peaked in the mid 1960s (which is when the COHO salmon was introduced intentially because the other game fish were essentially gone). With these game fish gone, another invasive species flourished - alewives. Heavy use of "fish poison" (TFM) on their spawning grounds have helped decrease their numbers but not eliminate them. By the way, electric fences were also used to try and control the lampreys and that failed.

 

Zebra mussels did come from ocean going ships dumping there ballast (no illegal but still quite frequent) into the Great Lakes. They "gunked up" lots of things but also cleared the water a lot (they filter vast quantities) which made sunlight go very deep in to the lakes which increased vegetation to enormous levels causing quite a lot of rotting matter (moral of all the above - it's not nice to fool mother nature).

 

From wikipedia (so it must be true!) The EPA is concerned about the possibility of Asian carp migrating to the Great Lakes. In 2002, the U.S. Army Corps of Engineers completed an electric fish barrier in the Chicago Sanitary and Ship Canal, the only aquatic link between the Great Lakes and the Mississippi River drainage basins. The initial fish barrier was used as a demonstration project to study the design's effectiveness. Following positive results, construction began on a second, permanent barrier in 2004.

 

In November, 2009, carp genetic material was detected beyond the two electric barriers, leaving only a single lock/dam on the Calumet River between the detected presence and Lake Michigan. "This is absolutely an emergency," Joel Brammeier, acting president of the Alliance for the Great Lakes, was quoted as saying, referring to the ecological threat, and also mentioning the threat to recreational boaters. "Mr. Brammeier and some others called for the immediate closing of the lock ... though others doubted it was feasible to stop shipping traffic. 'All options are on the table,' said Jacqueline Y. Ashmon, a spokeswoman for the Corps of Engineers. 'We dont have any specifics.'"

 

In the first week of December, 2009, the Army Corps shut down one of the electric barriers for maintenance, and the Illinois Department of Natural Resources responded by dumping 2,200 gallons of the toxin Rotenone into the canal. Rotenone, the report said, is deadly for fish but not harmful to humans, animals or most other aquatic life. While "scores" of fish were killed, only one carp was found, near Lockport Lock and Dam and nearly six miles below the electronic barriers. The fish kill cost $3 million and produced 90 tons of dead fish, reported one commentator, who also noted a parallel with an intentional fish kill in Chicago, in Lincoln Park's South Pond, by the IDNR in Nov., 2008.

 

Now, acco40 again - I've heard some say that Asian carp will not float - like 99% of the fish killed, but will sink - that's why none were found. That sounds fishy to me, but I don't have the facts on that.

 

(wiki again)

2009-2010 litigation

On December 21, 2009, Michigan State Attorney General Mike Cox, who is a Republican running for Governor of the State of Michigan, filed a lawsuit with the U.S. Supreme Court seeking the immediate closure of the Chicago Sanitary and Ship Canal to keep the Asian Carp out of Lake Michigan. Neighboring Great Lakes states and the U.S. Army Corps of Engineers, which constructed the Canal, are codefendants in the lawsuit.

 

In response to the Michigan lawsuit, on January 5, 2010, Illinois State Attorney General Lisa Madigan filed a counter-suit with the U.S. Supreme Court requesting that it reject Michigans claims. Siding with the State of Illinois, both the Illinois Chamber of Commerce and The American Waterways Operators have filed affidavits, arguing that closing the Chicago Sanitary and Ship Canal would upset the movement of millions of tons of vital shipments of iron ore, coal, grain and other cargo, totaling more than $1.5 billion a year, and contribute to the loss of hundreds, perhaps thousands of jobs.

 

There is no issue of water diversion in the Great Lakes. All of the Great Lakes States, through the US Government, and two provinces in Canada (Ontario - borders the Great Lakes, and Quebec - St. Lawrence Seaway), are part of the Great Lakes Compact, which grants each state and province a set amount of water that they can divert for use.

 

Au contraire fish breath. The Great Lake states, including Michigan sue over water diversion in the 1920s. In that case and others, the court repeatedly sided with the interests of the Chicago area. In 1967 with another lawsuit (there are many) the Supreme Court ruled for Illinois again but with the caveat that it was capped at 2.1 billion of gallons a day and ruled that if adjacent states could demonstrate that this diversion was causing them harm they could bring the case back to court. This decision is what is now being used to file suit, once again, against Illinois. So I would say all parties are hunky dory with each other.

 

The Great Lakes Compact is a pact between eight Great Lakes states and the Canadian Provinces of Quebec and Ontario, barring other states and foreign countries from tapping into the Great Lakes' water supply, with certain exceptions. Shipping water in containers larger than 5.7 gallons are considered diversions and prohibited. It also requires the member states of the Great Lakes Commission to begin regulating their own water use, and to promote conservation of the lakes. Motivation to develop the compact was started by a failed attempt in 1998 by a Canadian company to export up to 158,000,000 gallons of water each year to Asia.(This message has been edited by acco40)

[CalicoPenn]

Fair question Beavah. The $16 billion figure comes from US Representative Deborah Halvorson of Illinois. I can't tell you where she gets her figures but am willing to accept that her figures are as accurate as the figures about the affects on the fisheries and tourism.

 

I've been working on Great Lakes issues for the past 18 years as an active member of the Audubon Society, including activism working on passage of the Great Lakes Compact. I'm an environmentalist, but not one that takes statements at face value. If someone tells me that wind farms hurt bird populations, I say show me the data and prove it. When someone says "Asian Carp could decimate the fisheries of the Great Lakes", my first thought is "sure, that COULD happen - but then again, that might not happen - so prove that it will". The fact is we just don't know what affect Asian Carp will have on the great lakes. What we do have is the type of alarmism that give environmentalism a bad name.

 

It's interesting that Ontario has joined in - they certainly have standing as a member of the Great Lakes Compact so that's not the interesting part. The interesting part is that the US Geological Survey says that Asian Carp were found in the Canadian portion of the Great Lakes several years ago (both Bighead Carp, one of the two species of real concern - the other being the Silver Carp - and Grass Carp). If that's the case, then the Great Lakes already has a population of Asian Carp.

 

I'm not saying we shouldn't prevent more from entering the Great Lakes. I'm saying we need to stop this panicky reaction and go back to thinking rationally about the subject. The USFWS, Army Corps of Engineers and IL DNR have been working on this issue since the beginning of the decade. The Army Corp built a temporary electrical barrier just to see if it would be effective back in 2002 and the results were so surprisingly good, that they built permanent barriers. If it was that big of an issue to Michigan, why didn't they protest back then? Why wait 8 years until the Army Corps announces a shut down of a barrier for maintenance?

 

 

 

 

[acco40]

I'm saying we need to stop this panicky reaction and go back to thinking rationally about the subject.

 

Sometimes we wait much to long for "proof" before we act and sometimes we don't. Take the banning of DDT. Some say because of heavy usage in the 1950s and 1960s and early 1970s, DDT led to an increase in diabetes, breast cancer, liver cancer, pancreatic cancer, testicular cancer, leukemia, premature birth, etc. Others say the "panicky" banning of DDT led to and increase of malaria and other parasitic diseases spread by arthropods.

 

Of course we should not go about and make rash decisions but also not always wait until "all the science is in" - folks still debate the effects of cigarette smoking for instance.(This message has been edited by acco40)

[Beavah]

Neighboring Great Lakes states and the U.S. Army Corps of Engineers, which constructed the Canal, are codefendants in the lawsuit.

 

Huh?

 

I think that got all muddled up.

 

Complaintants are the State of Michigan, the State of New York, and the State of Wisconsin together with the States of Minnesota, Ohio, and Pennsylvania.

 

Defendants are the State of Illinois and the Chicago Sanitation District.

 

The United States (Obama administration) are intervenors on behalf of the State of Illinois, but the U.S. is also an indirect party to the suit because of the Corps of Engineers operations.

 

Oh, yah, and da original SCOTUS ruling went against Illinois. Yeh can't build a big project that drains your neighboring states' pond. The subsequent cases have all been supplemental decrees to the original 80-year-old finding.

 

Michigan's AG writes a bit like a politician, eh? Cox has a kind of lame common law public nuisance argument in his filing too; whatever staff member wrote that should be fired. They were clearly rushin' this thing. Still, da case has legs, since da original case was decided against Illinois and it's fairly clear that but for that illicit act the risk of Asian Carp infestation would not be present.

 

It's a really interestin' and quite unusual case. There are probably enough jurisdictional outs for the court to take if they follow their recent pattern of dodging substantive issues, but there's enough here that they might surprise us. I wonder if we have any Sea Scout Ships with boats in the Chicago River that might get cut off from da lake?

 

B