Judge holds that inability to resurrect dead fish trumps inability to resurrect dead birds
PORTLAND, Oregon––Rendering a long-awaited verdict on the legality of killing double crested cormorants to protect salmon spawning runs on the Columbia River, U.S. District Judge Michael H. Simon on August 31, 2016 ruled that the U.S. Army Corps of Engineers violated the National Environmental Policy Act “by failing properly to consider reasonable alternatives” to shooting the birds and oiling their eggs to prevent young from hatching.
Judge Simon, however, allowed the cormorant killing and egg-oiling to continue because, he wrote, “The plan provides some benefit to salmonids that are listed as endangered or threatened under the Endangered Species Act, whereas double crested cormorants,” though protected by the Migratory Bird Treaty Act of 1918, “are not listed as either endangered or threatened.”
Little consequence for breaking the law
The sole consequence of Judge Simon’s verdict of the Corps of Engineers is that it now must produce a new environmental impact report that meets NEPA specifications, with no requirement for completing it before killing cormorants and oiling their eggs resumes.
Hired by the Corps of Engineers to thin the cormorant population at the mouth of the Columbia River, between East Sand Island and the Astoria/Megler Bridge that links southwestern Washington to northwestern Oregon, USDA Wildlife Services in April and May 2016 reportedly shot 2,394 cormorants from boats in the open water, and oiled 1,092 nests on East Sand Island itself.
USDA Wildlife Services shot 77% of the “bag limit”
The Corps of Engineers and USDA Wildlife Services are authorized by U.S. Fish & Wildlife Service permit to “lethally take” 3,114 double crested cormorants per year, plus 93 Brandt’s cormorants and nine pelagic cormorants, the latter two cormorant species having been included in the permit quota because of the possibility that they might be misidentified and shot by accident.
The Corps of Engineers is also authorized to oil the eggs in 5,247 double crested cormorant nests per year, and to fully destroy 750 nests so that they could not be re-used.
About 1,700 double crested cormorants were shot in 2015, and about 5,000 eggs were oiled.
Cormorants fled nests
In 2016 the shooting and oiling were suspended for the year, ahead of schedule, after about 12,000 of the East Sand Island double crested cormorants abruptly vacated their nesting colony between May 13 and the morning of May 16. Gulls, eagles, and crows consumed the abandoned eggs.
The Corps of Engineers acknowledged that the double crested cormorants left about 8,600 active nests because of a “significant disturbance,” but rejected the Portland Audubon Society assessment that the “significant disturbance” was the USDA Wildlife Services shooting and egg-oiling.
The Corps of Engineers claimed in a weekly management report published on June 29, 2016 that “several thousand of the cormorants are returning” to East Sand Island, but this was too late in the year for the cormorants to resume breeding.
Spending three weeks in April and May 2016 documenting the East Sand Island cormorant killing from a small boat and with the use of a drone, Showing Animals Respect & Kindness (SHARK) on June 17, 2016 posted video of some of the shootings at https://www.youtube.com/watch?v=xTJQcVCBR9w.
About 2,000 double crested cormorants were reportedly killed during the weeks SHARK was on the scene.
Animal advocates vs. feds & tribes
Suing, meanwhile, to try to stop the double crested cormorant massacre were the Audubon Society of Portland, the Animal Legal Defense Fund, Friends of Animals, and the Center for Biological Diversity.
Supporting the Corps of Engineers were the Confederated Tribes of the Colville Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Indian Reservation, and the Confederated Tribes and Bands of the Yakama Nation, “each with fishing rights secured by treaty,” Judge Simon noted.
Salmon life cycle
Summarized Judge Simon of the ecological issues involved, “The Columbia River is the fourth largest river on the North American continent. Every year, salmon and steelhead (collectively, ‘salmonids’) travel up and down the Columbia River, hatch in fresh water, migrate as ‘juveniles’ downstream to the Pacific [Ocean] on their way to adulthood, and later return upstream to spawn and die. This is the natural course of Columbia River salmonids. They also must attempt to survive the Federal Columbia River Power System, which consists of hydroelectric dams, powerhouses, and associated reservoirs on the Columbia and Snake Rivers.
“Over the last 25 years,” Judge Simon wrote, “thirteen species of Columbia and Snake River salmonids have been listed as endangered or threatened under the Endangered Species Act of 1973.”
Central to Judge Simon’s thinking in framing his verdict appeared to be the considerations in his footnote #11:
“The Court is aware that the double crested cormorants who are killed during the next two years cannot be brought back to life if [a] future proper National Environmental Policy Act analysis results in a determination that killing double crested cormorants does not provide a significant enough benefit to salmonids to keep a reduction of the double crested cormorant population on East Sand Island as a part of the biological opinion process going forward.
“The salmonids that are eaten by the double crested cormorants s over the next two years, however, also cannot be brought back to life if the future National Environmental Policy Act process determines that keeping a low double crested cormorant population is beneficial to salmonids,” Judge Simon continued.
Cormorant predation “not a significant factor”
Preliminary research presented by U.S. Fish & Wildlife Service fish biologist Steven Haeseker to the Northwest Power & Conservation Council in June 2016 found, Haeseker said, that “Cormorant consumption rates were not a significant factor for steelhead [smolt-adult-return rates] after accounting for the other freshwater and ocean factors.”
However, Judge Simon concluded, “Because there is doubt regarding which conclusion a compliant National Environmental Policy Act process ultimately will reach, the benefit of that doubt must be given to the salmonids, which are listed under the Endangered Species Act.”
“It’s a total joke”
Audubon Society of Portland conservation director Bob Sallinger did not find Judge Simon’s reasoning persuasive.
“It’s a total joke,” Sallinger fumed to ANIMALS 24-7. “Why would these agencies ever change course, if they are just allowed to thumb their noses at the courts and the law?”
Said Sallinger in a more formal media statement, “The Judge’s decision is deeply disappointing. The federal government has repeatedly broken the law, failed to address the primary causes of salmon declines on the Columbia River, and overstated the benefits of killing cormorants. Yet the Army Corps of Engineers is allowed to continue killing thousands of protected birds.”
Cormorants are “scapegoats”
Summarized a media release jointly issued by all four plaintiffs, “The birds are the latest scapegoat offered by federal agencies in an effort to divert attention from the ongoing harm to Columbia Basin salmon and steelhead from the federal hydropower system. The court’s ruling allows continued slaughter of up to 10,000 cormorants and destruction of more than 26,000 nests.
“The ruling comes just months after the same federal judge found in another case,” the media statement recalled, “that the federal government had once again failed to operate federal dams in a way that does not jeopardize listed salmon. This marked the fifth time in two decades that the courts have rejected the government’s plan for addressing the impact of dams on salmon.”
Reviewing the ruling
The Audubon Society of Portland and co-plaintiffs “are reviewing the ruling and considering their options,” the co-plaintiffs joint media statement finished. The co-plaintiffs pledged that they would “continue to vigorously oppose the further killing at the East Sand Island colony.”
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.”
“The real threat: the dams”
Agreed Friends of Animals’ legal director Michael Harris, “Just because the Federal Court said that the government agencies can continue killing cormorants despite breaking the law, does not mean that they should continue.”
Center for Biological Diversity attorney Tanya Sanerib put a hopeful spin on the Simon verdict. “We were hoping for an end to the needless slaughter of cormorants,” Sanerib said, “but this ruling is an important first step in getting our federal agencies to look at alternatives and the science behind them, and address the real threat to salmon: the dams.”