Plaintiffs press on in cormorant suit
July 7, 2016
2,394 birds shot this year
Plaintiffs in a federal case in which they seek to stop the U.S. Army Corps of Engineers from continuing to shoot and oil double crested cormorant eggs in the lower Columbia River estuary called talk of “devastating impacts” on salmon by the birds’ predation “little more than a biological soundbite.”
In their supplemental brief federal defendants said the plaintiffs’ brief was just a rehash of what the court has already heard and resolved.
Attorneys for the plaintiffs – the Audubon Society of Portland and others – argued that the measurement of whether to proceed with the program to cull as many as 5,000 double crested cormorants from East Sand Island is the benefit to returning adult salmon, which they said could be as small as 0.3 percent productivity increase for adult steelhead and a range of 0.1 to 0.3 percent for chinook salmon, based on an analysis by a U.S. Fish and Wildlife Service biologist.
The plaintiffs said that analysis concluded that “due to compensatory mortality, even killing all cormorants on East Sand Island would produce no increase in adult salmon productivity.”
Steven Haeseker, a fish biologist and biometrician with the Service’s Columbia River Fisheries office in Vancouver, spoke to the Northwest Power and Conservation Council last month. He summarized his preliminary results, in part: “Cormorant consumption rates were not a significant factor for steelhead [smolt-adult-return rates] after accounting for the other freshwater and ocean factors.”
Using data from tagged Snake River steelhead, Haeseker concluded that predation by double-crested cormorants was balanced by decreased mortality from other sources and that there was no impact on the number of adult fish returning from the ocean based on the number of outgoing smolts several years earlier, according to the Council’s report of Haeseker’s presentation.
Thus, says the Council report, predation by cormorants appeared to have no effect on the number of returning adult fish.
“The bottom line, therefore, is this: Rhetoric about the “devastating” impacts of cormorant predation on listed salmon and steelhead runs, including mentions of “millions” of juveniles eaten by these birds, is little more than a biological sound bite,” the plaintiff’s supplemental brief said.
“The analysis commissioned by the Corps to assess the benefit to salmon from cormorant control – virtually ignored in the agency’s EIS and record of decision – found this benefit to be only a small fraction of the adult salmon ‘survival gaps’ touted by NMFS in its FCRPS BiOp to justify cormorant control.”
Plaintiffs asked the Corps for injunctive relief to immediately stop the culling and for the court to vacate the Corps’ and U.S. Fish and Wildlife’s environmental impact statement justifying the cormorant management program.
After he had remanded the 2014 Federal Columbia River Power System biological opinion May 4, U.S. District Court Judge Michael H. Simon turned on May 12 to the cormorant case, which was already on his docket (the Audubon of Portland and others challenge the U.S. Army Corps of Engineers’ plan to cull double crested cormorants in the lower Columbia River estuary).
He invited the parties to describe why they believe – given the remand of a BiOp that includes a reasonable and prudent alternative to reduce avian predation – the culling should continue. This is the second round of briefs in Simon’s request.
Five conservation and animal welfare groups had filed the lawsuit in late April 2015 in the U.S. District Court of Oregon to stop the Corps from culling and harassing double-crested cormorants on East Sand Island.
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, a defendant in the litigation along with the U.S. Fish and Wildlife Service and the U.S. Department of Agriculture Wildlife Services, said in its earlier June 3 brief that even without the authority of RPA 46 in the 2014 BiOp (the reasonable and prudent alternative that describes actions to reduce avian predation), it is given authority to cull the birds in order to protect threatened and endangered salmon species by two other laws (Northwest Power and Conservation Council’s 2014 Fish and Wildlife Plan and the Water Resources Development Act of 1996).
The plaintiffs argue that in its actions, the Corps under the National Environmental Policy Act should have considered other alternatives, such as hydrosystem changes, before acting on its cormorant management plan.
“Moreover, even if the Corps were to announce tomorrow that a future programmatic EIS would consider hydrosystem operation alternatives that do not rely on cormorant control measures, Congress enacted NEPA to ensure that federal agencies identify and consider alternatives before taking action, not after the fact,” the plaintiffs said in their supplemental brief.
“Therefore, federal defendants should not be allowed to literally shoot first and ask questions later.”
This is the second year the 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.
This year, Wildlife Services, the Corps’ contractor, has shot 2,394 cormorants from boats in the open water between East Sand Island and the Astoria/Megler Bridge, and has oiled 1,092 nests.
The 2016 permit allows the Corps to lethally take 3,114 double-crested cormorants, 93 Brandt’s cormorants and 9 Pelagic cormorants. The latter two species are allowed due to the recognition that some birds that are not double crested-cormorants will be misidentified and shot. Last year, the Corps culled over 1,700 birds and oiled 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 permit (http://www.nwp.usace.army.mil/Portals/24/docs/environment/EIS/Cormorants/Depredation%20Permit%202016%20MB62133B%200.pdf).
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. The Portland Audubon Society said the birds abandoned their nest because of the Corps’ intense hazing and killing of the birds over the past two months. As of today, the Corps is still unsure what caused the some 12,000 nesting birds to leave the island.
As a result, the Corps immediately stopped all culling and egg-oiling activities on and near the island. Egg oiling ended May 11, prior to the disturbance, and the Corps suspended boat-based culling May 16 upon learning of the on-island colony situation, the Corps said.
The Corps’ most recent weekly management report published June 29 at http://www.nwp.usace.army.mil/Missions/Current/CormorantEIS.aspx said several thousand of the cormorants that had abandoned about 8,600 nests are returning to the island and that the Corps expects those numbers to continue to rise in the coming weeks just as the cormorants roosting on the Astoria-Megler Bridge declines.
The reason the birds had abandoned the nests in the first place is still unknown, the Corps said, and re-establishing nests apparently has been a matter of numbers.
“Observers have often seen eagles flushing cormorants as small groups attempted to return (to) the ESI,” the Corps said. “It appears that a group of cormorants large enough to resist being flushed by the eagles allowed them to re-establish the colony.”
The number of cormorants actively nesting is not known, but Corps researchers will be analyzing aerial photos of the island to come up with an estimated number of nesting cormorants by early July. Culling activities will remain suspended.
“Unfortunately, this worst-case scenario is now reality,” the plaintiffs said. “Halting the breeding of nearly half of the cormorant population in western North America during 2016 is a blow to the entire population, and this collapse underlines the continued danger to the entire western population posed by the Corps’ program.”