Federal Judge Allows Corps' Cormorant Culling
A motion for a preliminary injunction to stop the U.S. Army Corps of Engineers plan to begin the first year of its four-year plan to ultimately cull up to 11,000 breeding pairs of double-crested cormorants from East Sand Island in the lower Columbia River estuary was denied last Friday (May 8) in federal court.
As a result, culling activities on the island could begin soon, but a date to begin the activity has yet to be set, according to the Corps.
Five conservation and animal welfare groups had filed the lawsuit in late April in the U.S. District Court of Oregon to stop the Corps from culling and harassing double-crested cormorants on East Sand Island. The suit asked the court to immediately stop action this nesting season on the Corps' plan while the lawsuit works its way through the courts.
The suit lists as defendants the Corps, the U.S. Fish and Wildlife Service and the U.S. Department of Agriculture Wildlife Services, the federal agency that would carry out the plan.
The court's denial on May 8 by presiding Judge Michael H. Simon allows the Corps to move ahead on its plan, a fact that both the Corps and the Audubon Society of Portland, lead in the lawsuit, acknowledge.
Bob Sallinger, conservation director at the Audubon, said his group would not appeal the ruling, but would instead move forward with the litigation that he hoped would at least stop the culling of cormorants by the 2016 nesting season.
"We are very disappointed in the court's decision," Sallinger said. "For the 3,489 cormorants that are scheduled to be shot and 9,368 nests the Corps plans to oil, destroy or starve, the losses will be absolutely irreversible."
The first-year depredation permit issued by USFWS authorizes the Corp to take 3,489 individual double-crested cormorants and to remove 5,879 nests, along with 105 Brandt's cormorants and 10 pelagic cormorants.
While the Corps plans to move ahead this nesting season to cull the birds, the federal agency must first wait for a record of decision from Wildlife Services, which will carry out the plan at the lower river island, according to Diana Fredlund, spokesperson for the Corps.
Wildlife Services' ROD was expected around May 11, so it could be forthcoming at any time. Once the ROD is issued, she said, Wildlife Services would need to scout the island to determine the best way to approach its job of culling cormorants, which it will do by oiling eggs, shooting birds and destroying nests in accordance with the one-year depredation permit issued April 13 by the U.S. Fish and Wildlife Service.
"The injunction was denied and we are moving forward to take action toward the target date of 2018 (to complete the entire plan)," she said. She acknowledged that "this is a very complex and contentious issue and all parties feel very strongly about it."
Both the plaintiffs and the Corps intend to proceed with the lawsuit, even while culling is exercised on East Sand Island. Judge Simon said he expects the lawsuit to be resolved prior to the 2016 nesting season.
In his decision, Judge Simon said that his ruling was not on the merits of the lawsuit and he gave the plaintiffs and defendants two months to come up with a schedule for continuing the suit. He said his denial was based on the finding that the plaintiffs did not demonstrate irreparable harm because the culling activities would be spread across four years and that one year's activity would not likely impact the cormorants as a species.
Fredlund said the Columbia River biological opinion requires the Corps to reduce the impact of avian populations in the river on juvenile fish listed under the Endangered Species Act, and to accomplish that by 2018. There are thirteen salmonid species in the Columbia River basin listed under the ESA.
The Corps signed an ROD for its "Columbia River Estuary Cormorants: Environmental Impact Statement" March 20. The EIS lays out the Corps' four-year plan to reduce the lower Columbia River population of the water bird by 56 percent over four years (www.nwp.usace.army.mil/Missions/Current/CormorantEIS.aspx).
On the same day the Corps issued its ROD, Audubon threatened the lawsuit. On April 13, the USFWS approved its one-year depredation permit, giving the Corps the go-ahead to implement its plan. The plaintiffs made good on their promise to file an injunction against the action in late April.
Ultimately the Corps plan will cut the size of the cormorant breeding colony on East Sand Island – believed to be the largest in the world – from about 12,900 breeding pairs to between 5,380 and 5,939 pairs. The colony accounts for 98 percent of the double-crested cormorant breeding population in the estuary.
However, the plaintiffs say culling cormorants in the lower river is just a diversion, a "scapegoating," from the real problems of fish recovery, which is the operation of federal dams on the Columbia River.
They also say that the Corps has failed to demonstrate that the plan to cull cormorants would significantly increase adult salmon returns and, in a statement, Audubon said that by the Corps' own calculations "the planned killing could drive western populations of double-crested cormorants below sustainable levels."
The Corps will need to reapply annually for a depredation permit. Fredlund said during the four years it will implement an adaptive management plan watched over by a committee made up of the Pacific Flyaway Council, USFWS and the Corps. That committee will review the results of the first year's activity at the end of the nesting season, determine if the goals were met and if changes to the plan are needed before it applies to USFWS for the second year's depredation permit.
According to its website, the Pacific Flyway Council is an "administrative body that forges cooperation among public wildlife agencies for the purpose of protecting and conserving migratory birds in western North America." It is made up of the director or an appointee from each state's wildlife agency in the western United States, Canada, and Mexico.
"We will do what we need to do to maintain balance in the Columbia River estuary," Fredlund said. However, she added, the Corps needs to balance all the needs in the river. Among those are fish and wildlife, as well as commercial and private activities.
The plaintiffs said they, too, will be watching the activities on East Sand Island during the 2015 nesting season to ensure that the agencies are held accountable.
Conservation, Animal Welfare Groups File Lawsuit To Stop Plan To Cull Estuary Cormorants by Staff, Columbia Basin Bulletin, April 24, 2015
USFWS Grants Corps One-Year Depredation Permit To Begin Culling Columbia Estuary Cormorants by Staff, Columbia Basin Bulletin, April 17, 2015
Audubon Announces Intent to Sue Corps Over Plan To Cull Cormorants From Columbia River Estuary by Staff, Columbia Basin Bulletin, March 27, 2015
Final EIS Released On Reducing Estuary Cormorant Numbers; Proposes Both Shooting And Egg Oiling by Staff, Columbia Basin Bulletin, Feb. 6, 2015
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