Greens Win Again in Fight to Save Cormorant

(CN) — A federal judge on Wednesday vacated and remanded two U.S. Fish and Wildlife Service orders that authorized killing aquatic birds that can be trained to fish for humans.

The orders at issue authorize killing double-crested cormorants in certain states, based on complaints that their eating habits were costing aquaculture and other industries their stock.

Yet in China, cormorants are trained to fish for humans, according to a BBC video, though this information is not present in the plaintiffs' allegations.

The U.S. Fish and Wildlife Service (FWS) adopted the Aquaculture Depredation Order in 1998, which authorized the commercial freshwater aquaculture industry to "take" - or, kill - any cormorant found eating commercially-raised fish in certain states, according to court records.

Five years later, the agency issued the Public Resource Depredation Order, allowing state fish and wildlife agencies and federally recognized tribes to kill cormorants on any public land, rather than use nonlethal techniques mentioned in its environmental impact statement.

Though federal law requires a supplemental environmental impact statement for all major federal actions significantly affecting the human environment, FWS employee Terry Doyle wrote in an internal email in 2013 that "resources aren't available" to complete such a statement.

Instead, in 2014, the agency conducted an "environmental assessment," as required for all federal actions that would not significantly impact the environment, sparking more than 80 public comments.

But the agency extended both orders for another five years without revising them.

Public Employees for Environmental Responsibility (PEER), which describes itself online as a nonprofit alliance of state and federal workers, and five members, in turn, sued the FWS and Director Daniel Ashe in D.C. Federal Court.

U.S. District Judge John Bates awarded the plaintiffs summary judgment March 29. The judge also ordered FWS to submit a proposed remediation plan and any comments on the injunctive relief sought by the plaintiffs.

On Wednesday, Bates vacated the 2014 re-extensions of the depredation orders, and remanded them to FWS.

"Absent a strong showing by FWS that vacatur will unduly harm economic interests like aquaculture or recreational fishing, the court is reluctant to rely on economic disruption as the basis for denying plaintiffs the injunctive relief they seek," Bates wrote.

The judge tossed aside FWS's claim that vacatur — the Latin word for "it is vacated" — could cost the aquaculture industry millions.

"Not only do these consequences sound entirely conjectural, they are also disputed by PEER," Bates wrote. "As to the impact on the aquaculture industry, for example, PEER argues that FWS has relied on decade old-figures from 'the short-lived economic peak of the southern catfish industry.' Further, the projection of 'millions of dollars' is based off of cormorant damage over a 20-year-period. But the court sees no reason to expect such protracted consequences."

The judge also brushed aside the claim that vacatur would seriously disrupt activities undertaken by the regulated community on a daily basis.

"The 'activities' FWS has referenced are the killing of cormorants under the depredation orders the court has found wanting," Bates wrote. "If this argument were enough to carry the day, then it seems vacatur would never be appropriate. Obviously the effect of vacatur is to stop these activities. That 'reason alone' cannot be enough."

PEER members Ken Stromborg, Bill Koonz, James Ludwig, Mark Tweedale, and Dennis Wild are also named as plaintiffs.

The defendants have 60 days to appeal the ruling, according to a PEER press release.

PEER's Silver Spring, Md.-based attorney, Laura Dumais, said the plaintiffs are "thrilled with today's decision and hope that it will be a step towards ending the 'predator bad — kill predator' approach to dealing with perceived human-wildlife conflicts."

U.S. Justice Department spokesman Wyn Hornbuckle declined to comment, other than saying the defendants are reviewing the ruling.

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