Amicus Curiae Her Majesty the Queen in Right of Ontario

7/28/2019 Amicus Curiae Her Majesty the Queen in Right of Ontario

1/17

Nos. 1, 2, 3, Original

WILSON-EPES PRINTING CO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THESupreme Court of the United States

STATES OF WISCONSIN,MINNESOTA,OHIO,AND PENNSYLVANIA,

Complainants,

v.STATE OF ILLINOIS AND THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO,Defendants,

UNITED STATES OFAMERICA,Intervenor.

STATE OF MICHIGAN,

Complainant,v.

STATE OF ILLINOIS AND THE METROPOLITAN SANITARYDISTRICT OF GREATER CHICAGO,

Defendants,UNITED STATES OFAMERICA,

Intervenor.

STATE OF NEWYORK,Complainant,

v.STATE OF ILLINOIS AND THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO,

Defendants,UNITED STATES OFAMERICA,

Intervenor.

BRIEF OFAMICUS CURIAE HER MAJESTYTHE QUEEN IN RIGHT OF ONTARIO

IN SUPPORT OF THE STATE OF MICHIGANSMOTION FOR A PRELIMINARY INJUNCTION

* Counsel of Record

RICHARDA.WEGMAN *ELDONV.C.GREENBERGGARVEYSCHUBERT BARER1000 Potomac Street, N.W.

Suite 500Washington, D.C. 20007(202) 965-7880

Attorneys for Amicus CuriaeHer Majesty the Queen inRight of Ontario


2/17

(i)

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ................................ ii

INTRODUCTION ................................................ 1

INTEREST OFAMICUS .................................... 1

ARGUMENT ........................................................ 8

THE INTRODUCTION OF ASIAN CARPTO THE GREAT LAKES POSES THETHREAT OF IMMEDIATE AND IRRE-

PARABLE ENVIRONMENTAL HARM TOTHE PROVINCE OF ONTARIO ..................... 8

CONCLUSION .................................................... 13


3/17

ii

TABLE OF AUTHORITIESCASES Page

Her Majesty the Queen in Right of Ontariov. EPA, 912 F.2d 1525 (D.C. Cir. 1990) .... 2

Michigan v. EPA, 213 F.3d 663 (D.C. Cir.2000), cert. denied, 532 U.S. 904 (2001) ... 2

United States v. Cinergy, 458 F.3d 705(7th Cir. 2006) ........................................... 2

FOREIGN STATUTES

Constitution Act, 1867 (U.K.), 30 & 31Victoria, c. 3 .............................................. 1

Great Lakes Fisheries Convention Act,R.S.C. 1985, c. F-17 (Canada)................... 5

TREATIES AND AGREEMENTS

Canada-Ontario Agreement Respectingthe Great Lakes Basin Ecosystem,available at http://www.ene.gov.on.ca/publications/6263e.pdf .............................. 7

Canada-United States Great Lakes Water

Quality Agreement, 30 U.S.T.S. 1383,T.I.A.S. No. 9257 (1978), available athttp://www.ijc.org/rel/agree/quality.html . 6

Convention on Great Lakes Fisheriesbetween the United States and Canada,6 U.S.T. 2836, T.I.A.S. No. 3326 .............. 5, 12

Great Lakes St. Lawrence River BasinSustainable Water Resources Agree-ment (December 13, 2005), available athttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv

er_Basin_Sustainable_Water_Resources_Agreement.pdf ......................................... 7, 8
http://www.ene.gov.on.ca/%20publications/6263e.pdfhttp://www.ene.gov.on.ca/%20publications/6263e.pdfhttp://www.ijc.org/rel/agree/quality.htmlhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_Riv%20er_Basin_Sustainable_Water_Resources_Agreement.pdfhttp://www.ijc.org/rel/agree/quality.htmlhttp://www.ene.gov.on.ca/%20publications/6263e.pdfhttp://www.ene.gov.on.ca/%20publications/6263e.pdf


4/17

iii

TABLE OF AUTHORITIESContinuedPage

Great Lakes St. Lawrence River BasinSustainable Water Resources Compact(December 13, 2005), Pub. L. No. 110-342, 122 Stat. 3739 (2008), available athttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable_Water_Resources_Compact.pdf....................................... 7

OTHER AUTHORITIES

A Joint Strategic Plan for Managementof Great Lakes Fisheries (as revisedJune 10, 1997), available at http://www.glfc.org/fishmgmt/jsp97.pdf ...................... 5, 13
http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_%20River_Basin_Sustainable_Water_Resources_Compact.pdf


5/17

INTRODUCTION

The Province of Ontario (the Province orOntario) submits this briefamicus curiae in supportof the State of Michigans motion for a preliminaryinjunction.1

INTEREST OF AMICUS

As explained below, the potential intro-duction of destructive invasive speciesbighead carpand silver carp, collectively known as Asian carpinto the Great Lakes poses a direct and immediatethreat of irreparable injury to the environment andeconomy of Ontario.

The Province is the second largest province inCanada, with a population of more than twelvemillion citizens. It is a province rich in naturalresources, including its fresh waters, fish and water-dependent natural resources. Approximately 40% ofthe shoreline of the Great Lakes and 36% of thewaters of the Great Lakes lie within the boundariesof Ontario. There are 63 aboriginal communities thatborder the Great Lakes. While under the Constitu-tion Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, theParliament of Canada has exclusive legislativeauthority in relation to inland fisheries, Canadahas delegated responsibility for the management ofinland fisheries to its provinces. Canadian federaland provincial legislation related to fish create a

1 The parties have consented to the filing of this brief.Because of the timing of Michigans motion, ten days advancenotice of amicus curiaes intention to participate was notfeasible. No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contributionintended to fund the preparation or submission of this brief. Noperson other than amicus curiae or its counsel made a monetarycontribution to its preparation or submission.


6/17

2

cooperative scheme for the management of fisheriesin Ontario. Ontario is steward of its natural re-sources and is responsible for their effective andsustainable management.

The Province is responsible for protecting thepublic health, welfare and economic well-being of itscitizens, the value of its natural resources and thequality of its environment. Because of its sharedenvironment with the United States, the Provincehas often participated in U.S. regulatory processespotentially affecting its environment and joined,

either as a party or amicus curiae, in U.S. naturalresources and environmental litigation. E.g.,Her

Majesty the Queen in Right of Ontario v. EPA, 912F.2d 1525 (D.C. Cir. 1990) (protecting common eco-system from problem of acid rain); Michigan v. EPA,213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S.904 (2001) (protecting common ecosystem from powerplant air emissions); United States v. Cinergy, 458F.3d 705 (7th Cir. 2006) (protecting common ecosys-tem from power plant air emissions).

The fishery resources of Lakes Huron, Superior,Ontario, Erie, Lake St. Clair and the Detroit and St.Clair Rivers have major social, environmental andeconomic importance to the Province, its citizens andall persons who live in the Great Lakes Basin. If

Asian carp are allowed to make their way fromthe Chicago Sanitary and Ship Canal into LakeMichigan, they will inevitably become part of theGreat Lakes ecosystem of which these waters are apart. The economic value of the sport and com-mercial fisheries in the Great Lakes in Ontario

is substantial. In 2005, direct recreational fisheryexpenditures (primarily transportation, food andlodging for fishers) amounted to $215 million Cana-


7/17

3

dian. In addition, in 2005, there were expendituresof $228 million Canadian related to the purchase ofboats, motors and other items connected to therecreational fishery. The approximate gross value ofthe commercial fishery in the Great Lakes in Ontario

varies from $180 to $215 million Canadian per year.Eighty per cent of that value lies in the Lake Eriecommercial fishery. Should Asian carp become colo-nized in the Great Lakes system, Lake Erie is likelyto be the Great Lake most severely affected.

The sound management of the aquatic resources

and water dependent natural resources is vital tothe Province. Over time, the Great Lakes fisheryresources have been diminished and significantlyaltered through exploitation, degradation of habitatand the introduction or invasion of plant and animallife. It is essential that there be an ecosystemapproach to management that focuses on the main-tenance and development of entire fish communitiesfor the benefit of society and the environment and tomeet public demand. This approach requires theprotection and rehabilitation of both aquatic habitat

and depleted stocks of desirable species, vigilanceagainst aquatic invasive species and effective fish-eries management to ensure stable self-sustainingfoundations for entire fish communities.

As part of its effort to conserve and manage itsfishery resources, Canada and the Province haverecognized that coordination and cooperation be-tween themselves and with the United States andindividual states is a critical element to ensure thatfisheries are maintained in a sustainable and re-

sponsible way. The ecosystem approach to fisheriesmanagement in the context of waters that are sharedby Ontario and the Great Lakes states can only be


8/17

4

effective with the cooperation and consensus of thevarious Canadian and U.S. state and federal agenciesresponsible for the management of those resources.Fish do not respect the 49th Parallel, and the GreatLakes Basin ecosystem does not pay attentionto international boundaries. Cooperative decision-making is the best way to manage and conserve afragile resource.

It is clear that now is the moment to act to preventthe introduction of Asian carp into the Great Lakes,since prevention is far preferable to, and less costly

than, attempts at eradication or control (which areoften ineffective or only partially effective) that mustfollow establishment of an invasive species in order tomitigate its negative effects on the ecosystem.

To date, the Great Lakes jurisdictions have recog-nized a responsibility to take action within theirborders. Ontario and the Great Lakes states haveacted in a manner appropriate to each jurisdiction toaddress the potential threat of the introduction oflive Asian carp into the Great Lakes Basin waters

through peoples accidental or direct actions. In 2006and 2004, respectively, Canada and Ontario amendedtheir regulations to make it illegal to possess, buy orsell live Asian carp within the Province, and theyhave enforced these regulations. However, this is notenough and does not address the Great Lakes Basinecosystem-wide problem that faces us here. For that,the jurisdictions must act together in a cooperativemanner as has been done in other contexts.

Given the recognition of the shared responsibilityof Canadian and U.S. jurisdictions for the waters and

resources of the Great Lakes, international treaties,conventions, and state-provincial agreements havebeen entered into on water quality, water levels,


9/17

5

water removals and fisheries, to ensure their coordi-nated and effective management and protection.

One of these agreements is the Convention onGreat Lakes Fisheries between the United States andCanada, which was signed in Washington, D.C., onSeptember 10, 1954, and entered into force onOctober 11, 1955, 6 U.S.T. 2836, T.I.A.S. No. 3326(the 1954 Convention). The 1954 Convention wasentered into by the two federal governments largelyin response to the shared concern for the decline incertain fish stocks because of the damage caused by

the invasion of sea lamprey, an eel-like fish thatfeeds on other fish. It is implemented in Canada by afederal statute, the Great Lakes Fisheries Conven-tion Act, R.S.C., 1985, c. F-17. Article II of the 1954Convention establishes the Great Lakes FisheryCommission (the Commission) and created the pos-sibility of establishing and facilitating advisory com-mittees for each of the Great Lakes. The importantduties of the Commission include the coordination ofresearch and the formulation of programs designed todetermine the need for measures to ensure the sus-

tained productivity of any desired fish stock, toprotect these stocks from depletion and to provide acoordinated approach to fight aquatic invasivespecies.

Acting under the 1954 Convention, in 1981,Ontario, the eight Great Lakes states, and the twofederal governments, with the help of the Commis-sion, developed and agreed to AJointStrategic Plan

for Management of Great Lakes Fisheries, availableat http://www.glfc.org/fishmgmt/jsp97.pdf. TheJoint

Strategic Plan, revised most recently in 1997, useslake-specific committees as the Commissions actionarms to achieve Commission policy goals and the


10/17

6

policy goals of the member organizations. Lakecommittees consist of senior fishery managers fromOntario, the eight Great Lakes states, and U.S. tribal

jurisdictions that border the lakes. The committeesmeet several times annually and discuss a variety ofissues related to the shared management of thefishery, including the management of sea lampreyand other aquatic invasive species. By following the

Joint Strategic Plan, and through participation in thecommittee process, the jurisdictions have achievedsubstantial success in managing common problems

on a consensus basis. This consensus-based approachis essential to the management of the Great Lakesfisheries resources in a coordinated and effectivemanner. If Asian carp were to become established inthe Great Lakes, it is anticipated that the damagethat would be caused by them would requireimmediate and aggressive attention under the 1954Convention. The responsibility of Ontario as aparticipant in the lake committees is to work toprotect the environment while weighing the socialand economic importance of the fishery to all users -

sport fishers, commercial fishers, aboriginal peopleand local communities. All these interests would bethreatened by the introduction of Asian carp into theGreat Lakes.

Another international agreement of importance toOntario is the Canada-United States Great LakesWater Quality Agreement, 30 U.S.T.S. 1383, T.I.A.S.No. 9257 (1978), available at http://www.ijc.org/rel/agree/quality.html. The two federal governmentsextended the approach of cooperative management toissues facing the Great Lakes when they signed the

Great Lakes Water Quality Agreement in 1972. TheAgreement reflects the two countries commitment toresolve a wide range of water quality issues facing
http://www.ijc.org/rel/http://www.ijc.org/rel/


11/17

7

the Great Lakes basin and the international sectionof the St. Lawrence River. These issues were, and inmany cases still are, critical to the economic andsocial health of not only the Great Lakes region, butto the entire United States and Canada.

The Canada-Ontario Agreement Respecting theGreat Lakes Basin Ecosystem, available at http://www.ene.gov.on.ca/publications/6263e.pdf

Lastly, one of the state-provincial agreements go-verns the management of withdrawals and diversionswithin the Great Lakes Basin. The Great Lakes-St.Lawrence River Basin Sustainable Water Resources

Agreement, signed December 13, 2005, by the eightGreat Lakes states and Ontario and Qubec, avail-able at

, assists Can-ada in meeting its obligations under the Great LakesWater Quality Agreement. It is the frameworkthrough which the governments of Canada and

Ontario work cooperatively, with the support of otherpartners, to restore, protect and conserve the en-

vironmental quality of the Great Lakes Basinecosystem in order to achieve the vision of a healthy,prosperous and sustainable Basin for present andfuture generations.

http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable_Water_Resources_Agreement.pdf, which recentlyentered into force for the United States, recognizesthe importance of a shared management of our waterresources in the Basin. See Pub. L. No. 110-342, 122Stat. 3739 (2008), available at http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Water_Resources_Compact.pdf. In

Article 207(11) of that Agreement, the parties to theSupreme Court decree that Michigan is seeking toreopen in this case have committed to making best
http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdfhttp://www.cglg.org/http://www.cglg.org/http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdfhttp://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable%20_Water_Resources_Agreement.pdf


12/17

8

efforts to ensure that the input of Ontario andQubec regarding the decree will be sought. It isreadily apparent in the circumstances that Ontariohas a strong interest in the outcome of this case

The decree in Wisconsin v. Illinois is a key elementin protecting the interests of all Great Lakes jurisdic-tions, including those in Canada. Indeed, in briefingthe last time the decree was before the Court, theUnited States, in its December 1978 memorandum(at page 2) (App. 8a), noted particularly that themaintenance of friendly relations with Canada is

implicated by the operation and modification of thedecree. Further, as noted above, Article 207(11) ofthe Great Lakes-St. Lawrence River SustainableWater Resources Agreement expressly recognizesthat Ontarios participation in matters relating to thedecree is desirable, commits the parties to use bestefforts to facilitate the appropriate participation of. . . [the Province] in the proceedings to modify thedecree and directs that such participation shall notbe unreasonably impeded or restricted.

ARGUMENT

THE INTRODUCTION OF ASIAN CARP

TO THE GREAT LAKES POSES THE

THREAT OF IMMEDIATE AND IRREPARA-

BLE ENVIRONMENTAL HARM TO THE

PROVINCE OF ONTARIO

This case presents an issue that is of vital impor-tance to the Province, and it is equally vital to theProvince that immediate action be taken to preventthe introduction of Asian carpa destructive inva-

sive speciesinto the Great Lakes ecosystem.


13/17

9

Among the fisheries to be most affected shouldAsian carp enter the Great Lakes near Chicago willprobably be those in Lake Erie and Lake St. Clair.These environments, on both sides of the U.S.-Canada border, are believed to provide excellentenvironments which Asian carp may colonize. Thefishery resources are inherently fragile in nature,and the introduction of an invasive species as

voracious as the Asian carp could irreparably damageparticular fish stocks. While it is not possible toknow with certainty what the environmental and

economic results of the introduction of Asian carpinto the Great Lakes would be, it is all but certainthat there would be a serious negative impact on thesport and commercial fisheries in the lakes, and inparticular Lake Erie and Lake St. Clair. It is equallycertain that efforts to control or eradicate such aninvasive species are likely to be inherently lesssatisfactory than prevention of the occurrence of anyinvasion in the first instance. This is particularlytrue for Asian carp, since Asian carp have a differentbiology from native fish. They cannot be caught

as part of a traditional hook and line recreationalfishery and, in all probability, would be difficult tocatch by existing commercial fishers using commer-cial fishing gear.

If Asian carp were introduced into the Great Lakes,the probable effect would be to drastically alter thefood web. This would significantly alter the existingfish community structure from a fishery dominatedin biomass by predacious native fish to a fish commu-nity dominated in biomass by the invasive Asiancarp. Asian carp feed on algae and microscopic

organisms in the water column consuming an amountrepresenting a substantial proportion of their bodyweight every day. This feeding behavior removes


14/17

10

essential organisms normally relied upon by nativefish, and would probably result in a decrease in theircondition and decline in their population. It isexpected that the food supply available to native toppredator fish (that are highly sought after by therecreational and commercial fishery) would in turnbe decreased by the effects of Asian carp. It isexpected that the introduction of Asian carp wouldnegatively alter the structure of fish communitiesand the food web, which would in turn dramaticallyaffect the recreational and commercial fisheries.

One way to understand the effects that Asian carpmay have in the Great Lakes is to examine thedamage they have caused to the Mississippi andIllinois Rivers. There is overwhelming evidence ofthe irreparable harm in those watersheds resultingfrom the introduction of Asian carp there. Theycause ecological damage by consuming huge amountsof essential nutrients, destroying the native fish com-munity and establishing Asian carp as the over-whelmingly predominant biomass in the ecosystem.Colonization of Asian carp in portions of the Missis-

sippi and Illinois Rivers has almost totally destroyedthe commercial fisheries that relied on native fishcommunities. In addition, silver carp pose a seriousphysical threat to boaters and users of the waterwaysbecause of their habit of leaping out of the water inreaction to sound and vibration. Injuries to recrea-tional boaters, water skiers and other users of thewaters have occurred as a result of collisions withleaping silver carp. Ontario is concerned that similardamage or injury may occur in Ontario waters if

Asian carp are introduced into the Great Lakes

system.


15/17

11

What may happen as a result of the introduction ofAsian carp in the Great Lakes can also be learnedfrom the experience of other invasive species thathave entered these waters. For example, zebramussels, another invasive species, were introducedinto the Great Lakes in the mid-1980s. Zebramussels significantly changed the nature of the GreatLakes ecosystem, increasing water clarity, disruptingthe food web and affecting fish habitat by alteringthe structure and composition of critical spawninghabitat. Where zebra mussel populations dominate,

they disrupt the food web by filtering nutrients fromthe water column and reducing the abundance of foodsources for other organisms. Resulting water clarityencourages plant growth leading to oxygen depletionfor fish. Overall, the impact is a reduction in theamount of food available to native species. In fact,zebra mussels have caused drastic declines in thenative Great Lakes mussels (commonly known asclams). An estimate of the amount that has beenspent to address problems related to zebra mussels inboth the United States and Canada in the Great

Lakes Basin is between $3 and 7.5 billion Canadian.Between 1989 and 2004, Ontarians alone spent $120million Canadian on zebra mussel control. Thesedisruptive effects are typical of those that otherinvasive species may have.

Another example of the damage that may be causedby invasive species is found in the sea lamprey whichfeeds on the once commercially and environmentallysignificant Lake trout (and other fish). Eventualdecimation of Lake trout began when sea lampreyentered Lake Erie and the upper Great Lakes in the

early 1920s with the opening of the Welland Canal.Sea lampreys are parasites that attach themselves tofish, suck their fluids and weaken them so that they


16/17

12

die from secondary infection or general decrease infitness. So significant was the negative impact thatthe U.S. and Canadian federal governments enteredinto the 1954 Convention, one of the purposes ofwhich was to develop a united attempt by theaffected U.S. and Canadian jurisdictions to battle thesea lamprey. While today there are efforts to controlsea lamprey through lampricide and male steriliza-tion and subsequent release, the cost of such controlmeasures is substantial, e.g., on the order of $20million U.S.annually, of which Canadas contribution

in 2009 was $8.1 million Canadian. This annual andcontinual requirement to spend money in an attemptto control sea lamprey has not resulted in theireradication. Though a different approach to handlingthe introduction of Asian carp would need to betaken, any such approach would likely also beextremely costly.

Notwithstanding the substantial and very costlyefforts by Ontario to cope with the problems of zebramussels and sea lampreys, Ontarios fisheries con-tinue to be bedeviled by these invasive species, and

Ontario faces a long-term challenge in coping withthem.

Ultimately, what happens at the control points forentry of Asian carp into Lake Michigan is not apurely a U.S. domestic issue. There will be profoundconsequences, if this invasive species is introduced tothe Great Lakes, for Canadian jurisdictions, such asOntario, as well. Our waters are interconnected, andirreparable harm to U.S. states will almost certainlyentail similar irreparable harm to Ontario. What

happens in Illinois waters can and will affect thesustainability of the Lakes fish populations sharedwith the other Canadian and American stakeholders.


17/17

13

Further, the ecosystem approach to fisheries manage-ment, as taken under the Joint Strategic Plan forManagement of Great Lakes Fisheries, which is soimportant to the maintenance of our fisheries, can befundamentally compromised by the introduction ofinvasive species such as Asian carp. In such circum-stances, preventing the introduction of Asian carpinto the Great Lakes and protecting the Lakesfishery resources is of great national and inter-national importance.

CONCLUSION

For all the reasons set forth above, Ontariorespectfully submits that the State of Michigansmotion for a preliminary injunction should begranted.

Respectfully submitted,

* Counsel of Record

RICHARDA.WEGMAN *ELDONV.C.GREENBERGGARVEYSCHUBERT BARER1000 Potomac Street, N.W.Suite 500Washington, D.C. 20007(202) 965-7880

Attorneys for Amicus CuriaeHer Majesty the Queen inRight of Ontario

December 31, 2009

Documents

Amicus Curiae Her Majesty the Queen in Right of Ontario