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Ruling Halts Efforts to Relocate Salmon-Eating Terns by Barry Espenson Columbia Basin Bulletin - August 10, 2001

U.S. District Court Judge Barbara Rothstein on Tuesday delivered a "legal slam dunk" in favor of bird advocates with a ruling that, for all intents and purposes, ends an effort to manipulate Caspian tern and cormorant populations to reduce their consumption of salmon in the Columbia River Estuary.

Rothstein ruled that the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service acted illegally when they initiated a plan to turn the world's largest colony of Caspian terns away from their preferred nesting site. The plan to relocate approximately 12,000 Caspian terns was initiated by the federal agencies as part of an effort to reduce bird predation on Pacific salmon populations.

The National Audubon Society, Defenders of Wildlife, Seattle Audubon Society and American Bird Conservancy filed a lawsuit last year challenging the scientific basis for the plan and the agencies' failure to complete an adequate environmental impact study.

"This decision is as close to a legal slam-dunk as you get," said Richard Smith, an attorney representing the environmental organizations. "The court has stopped both the Army Corps of Engineers and U.S. Fish and Wildlife Service from conducting any further activities to harass or harm Caspian terns or cormorants until they complete a full and adequate Environmental Impact Statement."

"This ruling is a victory not only for Caspian terns and cormorants, but also for endangered Pacific salmon," said Helen Ross, conservation program manager of the Seattle Audubon Society.

The plaintiffs said the plan "lacks scientific support regarding its potential effectiveness in increasing salmon survival, fails to analyze the potential effects on the terns and fails to reconsider cumulative effects of actions over several years," according to Tuesday's court order. The plaintiffs also asked that the U.S. Fish and Wildlife Service prepare its own EIS before granting a permit to the Corps that authorizes the taking of up to 300 tern eggs.

The initial plan called for the harassment of terns attempting to nest at Rice Island, altering habitat at Rice Island to make it less appealing and preparing habitat at East Sand.

The action filed by the plaintiffs challenged the adequacy of an Environmental Assessment and resulting Finding of No Significant Impact prepared by the Corps in support of its plan.

The court agreed, saying that in deciding against preparing a full EIS, the agency must provide "a convincing statement of reasons" as to why the project's impacts are insignificant.

"The COE has not analyzed possible effects of its actions," Rothstein wrote. "Instead, the administrative record shows great uncertainty regarding the environmental effects on both terns and salmon."

EA's issued in 2000 and 2001 say the "harassment activies will have no long-term effect on the Caspian tern population, but the documents provide no support for that conclusion."

"Uncertainty also exists regarding the effect of tern predation on salmon survival," Rothstein wrote. "Although COE cites data supporting the link between reduced predation and increased salmon smolt survival, that data received heavy criticism from commenters.

"The documents contain almost no information about whether reduced predation would affect the number of smolt that return to the estuary to spawn, which is the true measure of success in reviving salmon runs," Rothstein said. "The uncertainty over the relationship between the tern and the salmon requires an EIS."

Rothstein also cited "public controversy" as a reason for requiring an EIS under the National Environmental Protection Act. She said the 2000 EA "engendered a tremendous public response," with many comments questioning the science and data backing the tern relocation plan. Even members of the Caspian Tern Working Group that developed the plan did not concur with all of the elements of the proposed action.

"Contrary to defendants arguments, COE did not simply choose one expert's view over another," Rothstein wrote. "Rather, COE lacked data but still proposed acts that even fellow agencies in its own working group believed required more study. The public controversy mandates an EIS."

Rothstein also granted a motion for a permanent injunction, ordering the defendants to "refrain from further action regarding Caspian tern and cormorant habitat in the Columbia River estuary and to refrain from harassing the Caspian terns and cormorants until defendants prepare an EIS.

"COE's plan involves harassing the birds but fails to plan for protecting the population in the future," Rothstein said. "Destroying habitat without creating a long-term alternative would result in irreparable harm.

"There is no legal remedy that would prevent the harm, so an injunction is necessary."

"The court saw the federal government's plan for what it really is, which is an effort to scapegoat fish-eating birds as the cause of declining salmon runs, while diverting attention away from the real threats to salmon, including dams and loss of habitat," said Michael Senatore, legal director for Defenders of Wildlife.

"Birds are the only thing that salmon have co-evolved with" in the Columbia Basin, Ross said. Now, she said, salmon recovery planners will be forced to focus on manmade causes of mortality such as the hydrosystem, habitat loss and pesticides and other pollutants.

The decision "continues to enjoin the Corps of Engineers and federal government from doing anything with regard to habitat or harassment of Caspian terns and cormorants" in the estuary, according to Corps spokesman Matt Rabe.

"All of the work we're doing on East Sand Island comes to a halt," Rabe said. The focus of a plan implemented each spring and early summer for the past three years has been to relocate a large Caspian tern colony from Rice to East Sand Island. The theory has been that the birds would eat fewer salmon at East Sand, where more marine species were available.

Several years of research from that project, developed by state, federal and tribal officials, show that tern predation on salmon is reduced for birds nesting at East Sand, Rabe said. Rice Island is manmade, created from the dredgings of the Corps' navigation channel maintenance program. East Sand is located nearer the river mouth and ocean.

Rabe said the Corps' counsel's office had had little time to review the decision as of this morning (Friday).

"We're still evaluating all of the potential impacts," Rabe said. "We are considering an appeal."

Caspian terns are the largest species of tern in the world, measuring up to a foot-and-a-half long. The gull-like birds live on every continent in the world except Antarctica, with North America home to the largest number.

The court decision now ensures their largest North American nesting ground will remain intact, according a press release from the Defenders of Wildlife and Seattle Audubon Society.

The court had issued a temporary restraining order and preliminary injunction in April 2000 prohibiting tern harassment on Rice Island. In December of that the year the court denied the defendants' motion to dismiss the claims.

Founded in 1916, the Seattle Audubon Society is Seattle' oldest natural history organization. With a membership of 5,500, Seattle Audubon is one of the 10 largest National Audubon Society chapters in the United States.