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
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
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
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
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
“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
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
“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
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
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
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
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.”
--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