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Court Allows Continued Culling of Cormorants in Columbia Estuary to Reduce Predation on Salmonids by Staff Columbia Basin Bulletin, September 9, 2016

... 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 will allow the U.S. Army Corps of Engineers to continue culling double-crested cormorants, as well as oiling the birds' eggs and destroying nests on East Sand Island in the lower Columbia River estuary.

2016 is the second year the U.S. Fish and Wildlife Service has allowed the Corps to cull double-crested cormorants and oil eggs in nests in order to reduce cormorant predation on juvenile salmon, some of which are listed as threatened or endangered under the federal Endangered Species Act.

Although all culling stopped when the cormorants suddenly abandoned the island in mid-May, the birds have returned and laid eggs, and so the Corps said it could begin culling again in the next couple of weeks if the young that were born this year – known as fledglings – leave the nests.

Although the Court found that the Corps and the 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 as it plays out this year and over the next two years.

In his decision, Simon said 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 as he allowed the Corps to continue culling.

"The Court … leaves the Double-crested Cormorant plan and challenged Records of Decision in place because the plan 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," Simon wrote in his decision, dated last Wednesday, August 31.

The Audubon Society of Portland, plaintiffs in the case that began more than a year ago, called the decision "disappointing."

"Despite finding that the Corps acted illegally, the judge allowed them to continue the killing," said Audubon's conservation director Bob Sallinger. "The Corps has been thumbing its nose at the law for two decades, first repeatedly refusing to adequately address the impacts of the hydropower system on listed salmonids – they have now lost five times in court on this issue – and adopting a cormorant plan that also failed to meet the requirements of the law."

Simon rejected in May the 2014 Federal Columbia River Power System biological opinion for Columbia River basin salmon and steelhead listed under the Endangered Species Act.

(See CBB, May 6, 2016, Federal Court Again Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By 2018)

"As long as the Corps is allowed to get away with breaking the law without significant repercussions, there is no reason to expect that they will change their behavior and unfortunately it is both cormorants and salmon as well as the American taxpayer which will pay the price," Sallinger said.

Among the issues, the plaintiffs argued that the Corps under the National Environmental Policy Act 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 all other issues brought to the Court by the plaintiffs.

Diana Fredlund, Corps spokesperson, said that the Court ruled in favor of the federal defendants, including the Corps, "on eleven of the twelve claims plaintiffs asserted in the lawsuit filed to enjoin the Corps from implementing the Double-crested Cormorant management plan.

"Judge Simon only found fault with the Corps' approach of developing alternatives to meet the purpose and need for the action," Fredlund said. "The Court left the Cormorant management plan in place considering the benefits it provides to Endangered Species Act (ESA)-listed salmonids."

The Court agreed with the defendants, she added, that in considering the effects on ESA-listed species, the benefit of the doubt must go to the listed species.

According to the Court decision, the double-crested cormorant management plan "calls for a four-year staged implementation of killing a total of 10,912 adult DCCOs and oiling and destroying a total of 26,096 nests."

Five conservation and animal welfare groups had filed the lawsuit in late April 2015 and filed 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 were represented by Dan Rohlf of Earthrise Law Center.

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

Sallinger said that Audubon is looking at its options for appeal but has yet to determine if this is the best path forward "given that the judge did find that the Corps behaved illegally but allowed them to continue anyway."

Still, the Corps and NOAA Fisheries are required to redo the FCRPS BiOp based on the ruling that Simon issued earlier this year.

"Within that context, they – the Corps and NOAA Fisheries – will have to take another look at their cormorant killing program as well as all the other elements of their plan," Sallinger said. "However, that will not be completed for at least a couple of years, beyond the date by which the Corps will have completed the slaughter on East Sand Island."

As the Corps and NOAA rewrite the BiOp, it will again include a cormorant management component, Fredlund said. At that time, "the Corps will likely consider alternatives other than reducing cormorants in any associated programmatic or site specific NEPA document."

She continued, saying that "In addition to leaving the cormorant management plan, associated RODs (Records of Decision), and Migratory Bird Treaty Act (MBTA) depredation permits in place, Judge Simon held that (1) the Corps' purpose and need statement in the final EIS was not impermissibly narrow, (2) the Fish and Wildlife Service (FWS) did not violate the MBTA, and (3) the Corps did not exceed its authority under the Water Resources Development Act."

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 (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 culling 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 Corps must apply to the Service each year for the permit.

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.

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.

Audubon called the disturbance a complete collapse of the colony.

In an update yesterday, the Corps said there are currently about 3,900 active cormorant nests on East Sand Island and that nearly all the nests have two to four chicks. The chicks are "similarly aged in terms of their development, meaning the egg laying and hatching likely happened around the same time following return of adults to ESI in late June. Juveniles are showing continuous activity (walking around, flapping their wings, etc.), but none have been observed conducting short flights within or outside of the colony. Based on the timing of egg laying and hatching, juveniles should begin to develop flight skills soon; the Corps will monitor and document the timing of these activities."

For the Corps' Double-crested cormorant management updates, see www.nwp.usace.army.mil/Missions/Current/Cormorant-EIS/.

"We are urging the Corps and FWS to stop the killing until that work is completed. Just because the judge allowed them to keep killing does not mean that they have to keep killing," Sallinger said.

"The Army Corp's insistence on resuming the slaughter of cormorants, despite the unprecedented colony failure that occurred last spring and the court's finding that the federal agencies violated the law, is inexcusable," said Animal Legal Defense Fund Executive Director Stephen Wells. "The government has flouted environmental statutes designed to ensure informed decision-making, and in the process jeopardizes the western population of double-crested cormorants."

Audubon, Sallinger said, believes that the combination of multiple court rulings finding that the agencies broke the law, court findings that the Corps failed to look at alternatives other than killing the birds and the fact that the colony suffered complete collapse this spring after the Corps initiated their killing and egg oiling ought to be sufficient to convince the Corps and FWS that it is time to stop the killing and come up with a real strategy to protect salmon that actually respects the law."