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Court Hears Oral Arguments On Killing Estuary Cormorants To Protect Juvenile Salmonids
Posted on Friday, August 05, 2016 (PST)

Saying that double-crested cormorants are not an endangered or threatened species, but that many of the salmon and steelhead they feast on in the lower Columbia River estuary are, U.S. District Court of Oregon Judge Michael H. Simon’s tentative ruling would allow the U.S. Army Corps of Engineers’ to continue culling cormorants in the estuary.

 

The tentative ruling was released Tuesday to attorneys for the plaintiffs and defendants, just prior to final oral arguments Wednesday in a lawsuit that began in April 2015.

 

If the tentative decision stands as is, the Corps would be allowed to continue culling the birds, oiling their eggs and destroying their nests this year and for the next two years at East Sand Island.

 

Although the Court found that the Corps and the Fish and Wildlife Service violated the National Environmental Policy Act “by failing properly to consider reasonable alternatives in developing the management plan for Double-crested cormorants,” it left the Corps’ cormorant management plan in place.

 

Among the issues, the plaintiffs argued that the Corps under NEPA should have considered other alternatives, such as hydrosystem changes, before acting on its cormorant management plan, and the Court ruled in favor of this particular complaint while denying other issues brought to the Court by the plaintiffs.

 

Simon left the management plan in place “because it provides some benefit to salmonids that are listed as endangered or threatened under the Endangered Species Act, whereas Double-crested cormorants are not listed as either endangered or threatened,” the tentative decision said.

 

Five conservation and animal welfare groups had filed the lawsuit in late April 2015 in the U.S. District Court of Oregon, filing an injunction to stop the Corps from culling and harassing double-crested cormorants on East Sand Island. Simon denied that request.

 

Joining Audubon as plaintiffs in the suit are the Center for Biological Diversity, Wildlife Center of the North Coast, Animal Defense Fund and Friends of Animals. They are represented by Dan Rohlf of Earthrise Law Center.

 

The Corps, the U.S. Fish and Wildlife Service and the U.S. Department of Agriculture Wildlife Services, are defendants, represented, among others, by Bradley Oliphant and Stephen Finn, both with the U.S. Department of Justice.

 

After listening through a three-hour oral argument period Wednesday, Simon said this is just a tentative opinion, that there “obviously is a lot of scientific and legal complexity in these issues.

 

“The bad news is that I get to learn about all the mistakes I made and revisit the decision, and the good news is I get to learn about all the mistakes I made and revisit the decision,” he said with a smile. His best estimate for a final decision is 60 days.

 

In objecting to facts in the decision, Rohlf listed seven issues, including the NEPA issue. However, much of his argument Wednesday had to do with what he said is a failure by the Corps and the Service to properly analyze the benefits to salmon productivity (adult salmon returning to spawn) by killing cormorants, and the fear that culling would bring the West Coast population of cormorants to below a sustainable level.

 

Citing a study by Service biologist Dr. Steven Haeseker on compensatory mortality, Rohlf said that killing cormorants will provide minimal benefits to actual salmon productivity. Further, Rohlf said that the Corps and the Service knew of the Haeseker study and ignored or suppressed the information.

 

Finn, attorney for the defendants, said the Haeseker study should not be characterized as a product of the Service and that it had yet to go through the peer review process when the Service completed its depredation permit.

 

“The agency did take his work and submit it for review,” Finn said. “Science processes go on and legal processes can be on a different schedule.”

 

For information on Dr. Haeseker’s presentation to the Northwest Power and Conservation Council, see CBB, June 17, 2016, “Scientist Tells NPCC Science Board Cormorant Plan Likely Has No Impact On Increasing Salmonid Return,” http://www.cbbulletin.com/436942.aspx

 

Simon defined compensatory mortality in his tentative decision, saying it “is the concept describing the assumption that salmonids eaten by DCCOs would have died from some other causes if not eaten by the DCCOs and thus would not have returned to spawn, even if no DCCOs were present in the estuary.” (DCCOs are double-crested cormorants.)

 

A survival gap was determined after the 2008 Biological Opinion (for Columbia River Basin salmon and steelhead) of 3.6 percent for steelhead and 1.1 percent for chinook salmon and was calculated assuming no compensatory mortality. The gap was caused by the more than doubling of the cormorant population between the 2008 and 2014 BiOps.

 

Simon said the plaintiffs’ argument is “not precisely on point.”

 

“The issue is not whether a decrease in the DCCO population will result in a 3.6 and 1.1 percent increase in salmon survival, but whether the increase in the DCCO population caused a 3.6 and 1.1 percent survival gap in the first place.”

 

It is reasonable, he said, to assume that the effect of predation on salmon survival when the cormorant population was 6,000 nesting pairs would be the same if the cormorant population were reduced from the current high population back to 6,000.

 

“In other words, whatever the level of compensatory mortality that existed during the baseline period will be the same after the DCCO population is returned to its baseline period levels.”

 

The evidence, he added, that predation involves “significant compensatory mortality supports a contention that the increase in DCCO population did not actually result in a significant survival gap.”

 

While there is doubt as to the actual benefit to salmon and steelhead of culling the cormorants, the best available science shows there will be some benefit. “In considering effects on endangered and threatened species, the ‘benefit of the doubt’ must go to the endangered species,” Simon concluded.

 

“The Court finds that Plaintiff’s argument that FWS and the Corps acted arbitrarily and capriciously by accepting NMFS’ conclusions that culling DCCOs will provide the expected benefits to salmonid productivity should have been brought by Plaintiffs in a claim under the ESA, not NEPA,” the tentative decision said. “Although DCCOs are not listed under the ESA, the heart of the Plaintiff’s argument is that the benefit to the listed salmonid species in killing DCCOs will not materialize, and that is an ESA Section 7 challenge.”

 

For the second year in a row, the Corps has been shooting cormorants and dousing their eggs on East Sand Island, a tiny island built from dredged material near the mouth of the Columbia River.

 

The intent is to reduce predation on salmon and steelhead smolts migrating through the estuary on their way to the ocean, an action called for by reasonable and prudent alternative 46 of the 2014 BiOp. That BiOp was recently rejected by Simon. The plan calls for reducing the double-crested cormorant population in the estuary from about 13,000 nesting pairs to 5,300-5,900.

 

This year the killing began April 7, authorized by a “depredation permit” issued to the Corps by the Service on March 18. The permit allows the Corps to kill 3,114 double-crested cormorants and 5,000 nests in 2016. Last year more than 1,700 birds were killed and more than 5,000 nests were oiled.

 

The permit also allows the Corps to destroy 5,247 double crested cormorant nests through egg addling by coating eggs with 100 percent corn oil, which suffocates the growing embryo inside the shell. Some 750 of those nests can be fully destroyed, according to the 2016 permit (http://www.nwp.usace.army.mil/Portals/24/docs/environment/EIS/Cormorants/Depredation%20Permit%202016%20MB62133B%200.pdf).

 

Rohlf also asserted that the culling program would reduce the population of cormorants below a sustainable level.

 

Between May 13 and early May 16, a “significant disturbance,” according to the Corps, caused the birds to abandon their nests, leaving their eggs prey to gulls, eagles and crows.

 

Rohlf, as well as the Portland Audubon Society, said the birds abandoned their nest because of the Corps’ intense hazing and killing of the birds over the previous two months.  As a result, the Corps immediately stopped all culling and egg-oiling activities on and near the island. As a result, the Corps suspended boat-based culling May 16 upon learning of the on-island colony situation.

 

The Corps’ most recent weekly management report published August 3 (http://www.nwp.usace.army.mil/Missions/Current/CormorantEIS.aspx) said about 23,000 cormorants had returned to East Sand Island by late June and on July 3 observers noted nesting behaviors from about 19,500 individuals.  The number of nesting cormorants declined through July to a low of 8,500 on July 18.  Corps monitors noted cormorants incubating nests with clutches of three to four eggs.

 

In mid-July, observers said that 15,300 cormorants were seen “loafing” on the island, “suggesting that while they are not nesting, many of the birds remain and are feeding in the lower estuary.”

 

Still, culling and egg oiling remains suspended, the Corps said, but it “may resume later in the season if the number of cormorants on East Sand Island meets the criteria outlined in Chapter 5 of the Double-crested Cormorant Final Environmental Impact Statement and Management Plan.”

 

In its management report, the Corps reminded the public that visitors are not allowed on East Sand Island. “The Corps is concerned that any visitation might trigger another dispersal event.”

 

Also see:

 

--CBB, July 1, 2016, “Plaintiffs Press Case Against Cormorant Culling In Court; 2,394 Birds Shot So Far This Year,” http://www.cbbulletin.com/437040.aspx

 

--CBB, June 17, 2016, “Is Salmon/Steelhead BiOp Driving Cormorant Culling? Not Necessarily Says Corps” http://www.cbbulletin.com/436943.aspx

 

--CBB, June 2, 2016, “Estuary Cormorants Abandon Nest, Eggs After 'Significant Disturbance;' Audubon Blames Feds' Hazing,” http://www.cbbulletin.com/436828.aspx

 

--CBB, May 13, 2016, “Corps More Than Two-Thirds Complete In Killing Over 3,000 Estuary Salmonid-Eating Cormorants,” http://www.cbbulletin.com/436716.aspx

 

--CBB, April 1, 2016, “For Second Year, Corps Issued Permit To Cull Cormorants In Lower Columbia; Allows Killing 3,216 Birds,” http://www.cbbulletin.com/436360.aspx

 

--CBB, October 2, 2015, “Corps Increases Cormorant Culling In Recent Days; Killing Opportunities Ending Soon As Birds Disperse,” http://www.cbbulletin.com/435133.aspx

 

--CBB, August 14, 2015, “Audubon Releases Internal USFWS Report Questioning Whether Culling Cormorants Improves Fish Survival,” http://www.cbbulletin.com/434741.aspx

 

--CBB, May 29, 2015, “Culling Cormorants Begins: Goal Is To Reduce 15,000 Breeding Pairs To Under 6,000 by 2018,” http://www.cbbulletin.com/434132.aspx

 

--CBB, May 15, 2015, “Federal Judge Allows Corps’ Cormorant Culling Plan to Proceed In Columbia River Estuary,” http://www.cbbulletin.com/434022.aspx

 

--CBB, April 24, 2015, “Conservation, Animal Welfare Groups File Lawsuit To Stop Plan To Cull Estuary Cormorants,” http://www.cbbulletin.com/433797.aspx

 

-- CBB, April 17, 2015, “USFWS Grants Corps One-Year Depredation Permit To Begin Culling Columbia Estuary Cormorants,” http://www.cbbulletin.com/433730.aspx

 

-- CBB, March 27, 2015, “Audubon Announces Intent to Sue Corps Over Plan To Cull Cormorants From Columbia River Estuary,” http://www.cbbulletin.com/433509.aspx

 

-- CBB, Feb. 6, 2015, “Final EIS Released On Reducing Estuary Cormorant Numbers; Proposes Both Shooting And Egg Oiling,” http://www.cbbulletin.com/433117.aspx

 

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