The Endangered Species Act, the Federal Columbia River Power System, and the National Marine Fisheries Service.

I. INTRODUCTION

"Who runs the River? The Columbia River ... and the Courts' is the question posed for this conference. The more fundamental question, however, is, "How is the river to be run?" Legal standards are at the center of the implementation of the statutory programs and the recent court decisions concerning how the river is run.

The National Marine Fisheries Service (NMFS) is one agency faced with applying the legal standards that decide how the Columbia River system ought to be run. NMFS implements the Endangered Species Act of 1973 (ESA)(1) for the conservation of Snake River salmon with the ultimate goal of recovering them to be sufficiently self-sustaining that they no longer require protection under the ESA. In particular, NMFS must apply the ESA's standards when advising the various operating agencies(2) of the Federal Columbia River Power System (FCRPS), a system including eight dams and reservoirs on the lower Columbia and Snake Rivers through which these endangered fish must migrate for their survival.

In this presentation, I will review how NMFS's application of ESA standards to the FCRPS has evolved since the salmon were first protected under the ESA in 1991. In 1993, NMFS was challenged in Idaho Department of Fisk & Game v. National Marine Fisheries Service, and NMFS's implementation of the ESA standards invalidated by U.S. District Judge Malcolm Marsh.(3) This case demonstrates that the question of how the river is to be run is subject to divergent interpretations of the controlling ESA standards with a significant range of operational results for both fish and river system users.

NMFS is one of many governmental entities in this region that influence, in a variety of contexts, how the river is run. NMFS is one of five federal agencies under the umbrella of the National Oceanic and Atmospheric Administration (NOAA), within the U.S. Department of Commerce. In addition to its ESA responsibilities, NMFS has other roles relevant to all anadromous fish stocks of the Columbia River Basin. Jurisdiction for the protection of the nation's fish and wildlife resources is delegated to two federal agencies. NMFS has jurisdiction over marine living resources, including anadromous fish throughout their salt and fresh water range, and the U.S. Fish and Wildlife Service (FWS) has lead responsibility for all other species of fish and wildlife in the Basin that are within federal jurisdiction.

In addition to administering the ESA for listed species, NMFS provides advice concerning the needs of fish at federally operated or approved water projects. The Fish and Wildlife Coordination Act of 1976(4) requires federal agencies, including the U.S. Army Corps of Engineers and the Bureau of Reclamation, to consult with NMFS and the FWS before the project is authorized. For example, NMFS reviews applications for permits to dredge or fill wetlands and provides the permitting agency with an evaluation of the project's impact on anadromous fish and their habitat. Similarly, NMFS is one of the fishery agencies that provides recommendations to the Northwest Power Planning Council under the Northwest Power Act(5) on how the fishery resources should be protected and enhanced throughout the Columbia Basin. The Court of Appeals recently directed that a high degree of deference be given on fishery issues under the Northwest Power Act to NMFS and the other regional fishery agencies.(6)

Further, the Federal Power Act (FPA)(7) requires applicants seeking licenses for hydroelectric projects from the Federal Energy Regulatory Commission (FERC) to consult with NMFS and other fish and wildlife agencies. Under the FPA, FERC must give special weight to NMFS fisheries recommendations,(8) and NMFS's prescriptions for fishways at such projects are mandatory license conditions.(9)

II. ESA IMPLEMENTATION

NMFS performs a number of functions to implement the ESA for Snake River salmon. Under section 4,(10) NMFS determines whether species like the Snake River salmon should be listed for ESA protection and designates habitat critical for the listing. Also under that section, NMFS develops "recovery plans" that identify measures necessary for the survival, recovery, and de-listing of endangered and threatened species. Under section 7,(11) federal agencies must consult with NMFS concerning the effects of their activities on listed species and critical habitat. NMFS is also responsible for enforcing the prohibitions of section 9(12) of the ESA and for considering applications for section 10 permits that exempt nonfederal persons from section 9 liability.(13) Finally, NMFS carries out research programs designed to learn more about listed species and their requirements for survival and recovery.(14)

The first consideration for implementing the ESA in each of these functions is the particular biology of the listed species. Pacific salmon pass through various life stages: from eggs laid in freshwater habitat, to juveniles that migrate to the ocean, to adults that return after two to five years in the ocean to spawn a new generation of salmon in the freshwater habitat of their origin. Each life stage has a different salmon mortality because of a variety of human activities and natural conditions. In addition to natural mortality, the level of salmon mortality in the egg-to-smolt life stage is affected by land management activities such as logging, livestock grazing, and mining. Morbility levels in the juvenile migrant stage are affected by the eight FCRPS dams and reservoirs through or around which salmon migrants must pass. These juvenile migrants compete for food and shelter with hatchery salmon that are released into the same river habitat and that often carry hatchery-bred disease. While in the ocean, salmon are subject to natural and human-caused factors, primarily fishing, that contribute to their mortality. Finally, on their return to upstream spawning habitats, the salmons' mortality rate is again affected, in part, by the hydroelectric system.

In deciding to list each of the three Snake River salmon species for ESA protection, NMFS considered the various mortality causes since no single factor could be identified as the primary mortality agent.(15)

After making these listing determinations, NMFS necessarily shifted its focus to individual federal agency actions and their likely effect on listed salmon. Section 7(a)(2) of the ESA is a mandatory obligation that presents "the ultimate barrier past which Federal actions may not proceed, absent the issuance of an exemption."(16) In consultations on proposed federal actions, NMFS must determine whether a particular action is "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat."(17)

When making a jeopardy decision, NMFS must identify and use the best scientific and commercial data available.(18) In carrying out this statutory mandate, NMFS has recognized that the scientific data and analyses available for listed species of Pacific salmon are complex and pose questions for which there currently are no complete answers. Application of the jeopardy standard to the factual circumstances of the listed species demands careful interpretation of the data. NMFS has tackled the application of this standard for the benefit of the salmon directly and overtly since its first Snake River salmon consultations in 1992.

Since the first Snake River salmon listing in 1991, NMFS has conducted five consultations concerning operation of the FCRPS.(19) Four of these consultations concerned operation during the salmon migratory season from April through October. Over this same period, NMFS also consulted on numerous other federal activities including ocean and river fisheries, hatchery releases, and broodstock collection, as well as numerous land management activities including timber harvest, road construction, grazing, and mining.

In most of the consultations NMFS has conducted since 1991, the subject actions directly affect salmon during only one or, in the case of the hydropower system, two of its life stages, although an effect in one life stage is likely to indirectly affect the species in later life stages. Even where an action agency groups activities for consultation by type and proximity, only part of the full salmon life cycle is directly affected. When NMFS considers the likelihood of jeopardy in each of these life-stage-specific consultations, it must also consider the action as part of the aggregate impact of all human activities on the entire life cycle of the listed species. To carry out this responsibility, NMFS has worked continuously since 1991 to refine its analytic tools for applying the jeopardy standard. The record of NMFS's section 7 consultations to date reflects this continuing effort, as well as NMFS's ongoing assessment of the utility and limitations of the best scientific data available for this jeopardy analysis.

III. THE 1992 BIOLOGICAL OPINION

After NMFS listed the Snake River sockeye salmon as endangered and proposed to list the Snake River spring, summer, and fall chinook species as threatened, NMFS sent a letter to federal action agencies that provided initial guidance about its intended application of the statutory and regulatory jeopardy standard.(20) NMFS described an interim approach for immediate consultations that recognized the eventual need for a comprehensive plan to guide salmon recovery. The development of such a plan would also guide individual section 7 consultations. NMFS appointed a team of experts, who made final recommendations in May 1994. NMFS prepared a proposed recovery plan, which it released for public comment in March 1995.(21)

In its 1991 guidance, without the benefit of a recovery plan, NMFS called upon federal agencies "to improve survival and make progress toward reversing the decline of listed and proposed species."(22) NMFS counseled that the action agencies could "avoid jeopardy by directly contributing to a reversal in the downward population trend of proposed and listed species."(23) The application of this standard is clearly a qualitative judgment on the part of NMFS.

In the 1992 FCRPS Biological Opinion,(24) NMFS found, qualitatively, that the 1992 proposed actions would reduce salmon mortality.(25) The mortality reduction represented progress toward reversing the decline of listed and proposed species.(26) On this basis, NMFS concluded that the proposed action would not be likely to jeopardize the listed species' continued existence.

The FCRPS action agencies adopted the biological opinion, which constituted a change in how they would run the river system in 1992. For example, looking at one of the eight categories of proposed FCRPS actions, juvenile flow for spring migrants, NMFS estimated the average Snake River flow during the April 10 to June 20 migration period would increase from a 1984-1990 average of sixty kcfs to sixty-four kcfs in 1992. In reaching its conclusion, NMFS considered the combined effects of all eight categories.(27)

At the same time, NMFS sought to find a more precise method for assessing mortality and to better measure and achieve a consistent reduction in salmon mortality at each life stage. In the appendix to the 1992 FCRPS Biological Opinion, NMFS presented a report which proposed using a mathematical model to simulate the conditions salmon are or might be exposed to at various stages in their life cycle.(28) The report stated that it "specifically tried to estimate the magnitude of improvements needed in human-induced mortality factors to halt the declining trend (achieving a level population) within one life cycle (four to five years)."(29)

While useful, this initial effort was not entirely successful in defining a quantitative goal largely because available scientific data were inadequate for this purpose. The report concluded

that the approach herein described could provide the basis for a quantitative

goal provided we had a means to accurately estimate the human-induced mortality

under existing conditions and under conditions resulting from proposed

actions. The committee further concluded, however, that there is substantial

uncertainty in the estimation of these mortality values.(30)

Instead, the report recommended continuing the qualitative approach to determining jeopardy.(31)

At the same time, however, NMFS indicated its intent to continue to search for better analytic tools and more objective goals. NMFS stated that "[t]hrough the recovery planning process, NMFS will be developing intermediate and long-term objectives and establishing standards for determining whether these objectives are being met. It is very likely that these future standards will impose far more stringent requirements than are necessary to achieve the 1992 interim goal."(32)

IV. THE 1993 BIOLOGICAL OPINION

On March 16, 1993, before undertaking many of its 1993 consultations, NMFS provided the action agencies with further guidance for applying the ESA jeopardy standard to the listed salmon species.(33) NMFS continued to work towards a quantitative approach while recognizing the limitations of the available data. NMFS stated the limitations as follows:

Ideally, scientific information would be sufficiently developed that NMFS could

pinpoint and quantify all the human-induced causes of chinook salmon mortality

for each life stage, convert that mortality to adult equivalents, and specify

the exact reduction in mortality necessary for each action to ensure that the

totality of actions does not reduce appreciably the likelihood of the survival

and recovery of listed species. Unfortunately, the available scientific information

does not provide much certainty in these areas, except that it is clear that

substantial reductions in total human-induced mortality are necessary to prevent

further decline in the species.(34)

Where the 1992 interim goal looked for less mortality under the proposed action than would occur under baseline operations and for progress toward reversal of species decline, the approach for 1993 attempted to go further. The 1993 goal sought to further reduce mortality compared to the mortality rate for a 1986-1990 base period.(35)

NMFS recognized from the outset the difficulty of determining the adequacy of mortality reductions. NMFS qualified its expectations accordingly:

In determining whether a proposed action or alternatives provide(s) reductions

that are adequate, NMFS would consider the best available scientific information

and data, including, among other things: scientific literature for the listed

species and related stocks and on the impacts of the proposed action on listed

species including quantitative mortality data; the relative contribution of the

action to current mortality and overall decline of the species; the availability of

measures judged to be effective in reducing mortality; and recommendations

for methods of reducing mortality previously developed by NMFS and other

interested parties.(36)

This analytic framework for 1993 also attempted to account for the total impact of human activities on salmon in all their life stages. Thus, NMFS developed a second step of the 1993 analysis to evaluate the combination of effects of all human activities. Its goal was to stabilize the species at recent levels within four life cycles.(37) NMFS relied upon three existing Snake/Columbia River salmon life cycle computer models, and asked the modelers to enter into each one a range of estimated mortality reductions that would be achievable by various alternative actions. The purpose of the models was to project the likely future effects of these possible actions on the abundance of the listed fish. NMFS evaluated the results with caveats:

NMFS would use these models with caution as they are new and their scientific

validity has not been proven. There are discrepancies between models that are

not resolved and uncertainties with respect to input parameters and modeling

procedures.... Efforts are underway to address these uncertainties, but they

will not be fully resolved prior to the necessary consultations on 1993 actions.

Nevertheless, NMFS believes that the models are sufficiently developed to justify

their use in the limited context proposed here and that they represent the

best available information and the primary means available for assessing the

combined effects of all actions.(38)

NMFS applied its revised application of the ESA jeopardy standard to the 1993 operation of the FCRPS in its biological opinion issued on May 26, 1993.(39) NMFS concluded that the proposed operation of the FRCPS, as modified during consultation with NMFS, would not likely jeopardize the listed Snake River salmon.(40)

Again, as in 1992, this biological opinion, with its revised application of the ESA jeopardy standard, was based upon changes in how the FCRPS action agencies proposed to run the river. For example, looking again just at flow levels for the Snake River during the spring migration period, while NMFS expected that 1992 flows would average sixty-four kcfs, NMFS based its 1993 biological opinion on the expectation that the corresponding flows would be eighty-five kcfs during the same period in 1993.(41)

V. IDAHO DEPARTMENT OF FISH & GAME CHALLENGE TO THE 1993 BIOLOGICAL OPINION

It was this 1993 application of the jeopardy standard that the Idaho Department of Fish and Game and the state of Oregon challenged in U.S. District Court.(42) Judge Marsh granted the States' motions for summary judgment, finding that NMFS had failed to adequately consider the salmon's biological requirements for survival and recovery when it applied the ESA jeopardy standard of section 7(a)(2),(43) and that NMFS had not used the best science available, particularly that offered by the states of Idaho and Oregon and the Columbia River Indian tribes.(44) In particular, Judge Marsh found that NMFS had not adequately explained its use of the 1986-1990 base period as a target for stabilizing the listed salmon populations.(45) He found that NMFS had failed to consider the low salmon run during that time period and the problems of demographic risk factors and "extinction vortex,"(46) Considerations particularly relevant to the dynamics of small population.(47) Finally, in the court's view, NMFS failed to explain its evaluation of alternative FCRPS actions sufficiently to enable judicial review.(48)

NMFS and its co-defendants have elected not to appeal the decision. The court remanded the 1993 Biological Opinion and Records of Decision to the federal agencies for revision to address the court's concerns. The court also permitted NMFS and its co-defendants to reconsider, instead, a subsequent biological opinion, issued on March 16, 1994, that addressed the operation of the FCRPS from 1994 through 1998 instead of the opinion concerning the completed 1993 operation.(49) The federal agencies engaged in extensive scientific and technical discussions with the litigants from May 1994 through February 1995 to determine what analytical changes in NMFS's application of the jeopardy standard may be necessary to comply with Judge Marsh's order. On March 2, 1995, NMFS concluded a reinitiation of the 1994-98 Biological Opinion by issuing a new biological opinion concerning the operation of the FCRPS from 1995 into the next century.(50) NMFS revised its methodology for applying the jeopardy standard with this latest biological opinion.(51) NMFS concluded that the operation proposed for the FCRPS in 1994 would likely jeopardize the listed Snake River salmon and be likely to result in an adverse modification of critical habitat.(52) This different conclusion resulted from NMFS's revised approach and from a recent significant decline in the listed salmon populations.(53)

The revised methodology, developed cooperatively with the litigants, is based upon the biological requirements of the listed species for both survival and recovery. Unlike the previous approaches that used immediately pre-listing population levels as the reference point, the new methodology looks at broader historical data, where available, to determine stock size, variability and reproductive capability.(54) For each species, NMFS determined survival and recovery population levels and then judged the likely performance of the species in relation to those levels as affected by the proposed FCRPS action. The lower level for survival, a critical escapement threshold, was not intended as an extinction measurement, but was sufficiently high to accommodate the concern for the uncertain dynamics of small populations. NMFS then determined that to avoid jeopardy there must be "a high liklihood that the species' population will remain above critical escapement thresholds over a sufficiently long time."(55)

Similarly, at the upper end of the population range, NMFS defined a recovery level for each species at which the species would no longer require ESA protection. To avoid jeopardy, NMFS found that "the species must have a moderate to high liklihood that its population will achieve its recovery level within an adequate period of time."(56)

In reaching an opinion about jeopardy, NMFS considered the current status of the species, in terms of these population reference points, under the environmental baseline as defined by NMFS regulations.(57) Further, consistent with its previous approach, NMFS evaluated the proposed action in the context of all salmon life stages.

True to its 1991 guidance,(58) NMFS considered the recovery planning effort as relevant guidance for biological opinions. The 1995 Biological Opinion refers to the proposed recovery plan59 for the biological requirements of the listed species species in all life stages and the actions likely to be necessary for Snake River salmon survival and recovery. How the river is run is an important component of that plan for achieving Snake River salmon survival and recovery.(60) (1) 16 U.S.C. [subsections] 1531-1544 (1988 & Supp. V 1993). (2) The operating agencies are the U.S. Army Corps of Engineers, the Bureau of Reclamation, and the Bonneville Power Administration. (3) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 898-99 (D. Or. 1994). (4) 16 U.S.C. [subsections] 661-666g (1988 & Supp. V 1993). (5) Pacific Northwest Electric Power Planning and Conservation Act of 1980, 16 U.S.C. [sections] 839b(h) (1988). (6) Northwest Resource Info. Ctr. v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994). (7) 16 U.S.C. [subsections] 791-828c (1988 & Supp. V 1993). (8) 16 U.S.C. [sections] 803(j)(2) (1988). (9) 16 U.S.C. [sections] 803(j)(1) (1988). (10) 16 U.S.C. [sections] 1533 (1988). (11) 16 U.S.C. [sections] 1536(a)(2) (1988). (12) 16 U.S.C. [sections] 1538 (1988). (13) 16 U.S.C. [sections] 1539(a) (1988). (14) National Marine Fisheries Serv., U.S. Dep't of commerce, The Section 7 Consultation Process: Analyzing Actions That May Affect Endangered or Threatened Snake River Salmon 5 (1993) [hereinafter Section 7 Consultation Process]. (15) See Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 57 Fed. Reg. 58,612 (Nov. 20, 1991) (codified at 50 C.F.R. Part 222) (listing Snake River sockeye salmon as endangered); Endangered and Threatened Species; Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653 (Apr. 22, 1992) (codified at 50 C.F.R. Part 227) (listing Snake River spring, summer and fall chinook salmon as threatened); Endangered and Threatened Species; Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 42,529 (Aug. 18, 1994) (codified at 50 C.F.R. Parts 222, 227) (reclassifying the Snake River spring, summer and fall chinook salmon as endangered on an emergency basis); Endangered and Threatened Species; Status of Snake River Spring/ Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 66,784 (Dec. 28, 1994) (proposing permanent reclassification of Snake River Chinook as endangered). (16) Interagency Cooperation-Endangered Species Act of 1973, as amended, Final Rule, 51 Fed. Reg. 19,926, 19,934 (June 3, 1986) (codified at 50 C.F.R. Part 402). (17) 16 U.S.C. [sections] 1536(a)(2) (1988). Regulations define "jeopardize the continued existence" to mean an action that "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. [sections] 402.02 (1994). (18) 16 U.S.C. [sections] 1533(b) (1988). (19) Under ESA Section 7, federal agencies are required to "consult" with NMFS to insure their actions are not likely to jeopardize the Snake River Salmon. 16 U.S.C. [sections] 1536(a) (1988). See also National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: 1992 Operation of FCRPS (Apr. 10, 1992) [hereinafter 1992 FCRPS Biological Opinion]; National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: Operation of the FCRPS January Through April 1993 (Feb. 24, 1993); National Marine Fisheries Serv., U.S. Dep't of commerce, Biological Opinion: 1993 Operation of the FCRPS (May 26, 1993) [hereinafter 1993 Biological Opinion]; National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: 1994-1998 Operation of the FCRPS (Mar. 16, 1994) [hereinafter 1994-98 Biological Opinion]; National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: Reinitiation of Consultation on 1994-98 Operation of the Federal Columbia Power System and Juvenile Transportation Program in 1995 and Future Years (Mar. 2, 1995) [hereinafter 1995 Biological Opinion]. (20) Letter from Rolland A. Schmitten, Regional Director, National Marine Fisheries Serv., U.S. Dep't of Commerce, to Operating Agencies, at 1-2 (Dec. 5, 1991) [hereinafter 1991 Guidance Letter]. (21) National Marine Fisheries Serv., U.S. Dep't of Commerce, Proposed Recovery Plan for Snake River Salmon (Mar. 1995) [hereinafter 1995 Proposed Recovery Plan]. (22) 1991 Guidance Letter, supra note 20, at 1-2. (23) Id. at 2. (24) 1992 FCRPS Biological Opinion, supra note 19. (25) Id. at 50. (26) Id. (27) Id. at 21. (28) Id. at 73. (29) Id. at 1 app. (30) Id. at 15-16 app. (31) Id. at 15 app. (32) Id. at 16. (33) Section 7 Consultation Process, supra note 14, at 7. (34) Id. at 8-9. (35) The 1986-1990 base period is another means for comparing mortality rates. The 1986-1990 period was selected because it represents a full life cycle. The base period also represents a recent period before the salmon were listed and efforts made to reduce their mortality. 1993 Biological Opinion, supra note 19, at 15. (36) Section 7 Consultation Process, supra note 14, at 8. (37) Id. at 10. (38) Id. at 10-11. (39) 1993 Biological Opinion, supra note 19, at 64-66. (40) Id. at 64-66. (41) Id. at 4 tbl. 1. (42) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv. (IDFG), 850 F. Supp. 886 (D. Or. 1994). (43) 16 U.S.C. [sections] 1536(a)(2) (1988). (44) IDFG, 850 F. Supp. at 891, 898-99. (45) Id. at 893. (46) The "extinction vortex" is described as "the increased risks associated with severely low levels of species populations from random events such as environmental catastrophes (drought, fire) and in-breeding." Id. at 898 n. 29. (47) Id. at 893. (48) Id. at 896. (49) In the 1994 Biological Opinion, NMFS applied a methodology for determining jeopardy that was substantially like the one it used in the 1993 Biological Opinion. NMFS placed less emphasis on the combined effects analysis in 1994 than it did in 1993. 1994-98 Biological Opinion, supra note 19, at 18-20. (50) 1995 Biological Opinion, supra note 19. The federal defendants in Idaho Department of Fish & Game submitted this opinion and the operating agencies' decision documents to the court with their Report of Compliance on March 22, 1995. (51) Id. at 10-15. (52) Id. at 83-91. (53) Id. at 32-37. NMFS has proposed reclassification of Snake River spring/summer and fall chinook salmon from threatened to endangered status. Endangered and Threatened Species; Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 42,529 (Aug. 18, 1994) (codified at 50 C.F. R. Parts 222, 227) (reclassifying the Snake River spring, summer and far chinook salmon as endangered on an emergency basis); Endangered and Threatened Species; Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 66,784 (Dec. 28, 1994) (proposing permanent reclassification of Snake River Chinook as endangered). (54) Id. at 15-23. (55) 1995 Biological Opinion, supra note 19, at 14. (56) Id. (57) 50 C.F.R. [sections] 402.02 (1994). (58) See supra note 20. (59) See 1995 Proposed Recovery Plan, Supra note 21; see also 1995 Biological Opinion, supra note 19, at 10-15. (60) See 1995 Proposed Recovery Plan, Supra note 21, at ch. V, [sections] 2.

Mark A. Eames(*) Staff attorney responsible for managing the National Oceanic and Atmospheric Administration's involvement in litigation concerning its Endangered Species Act program for listed species of salmon in the Pacific Northwest. J.D. 1980, University of Puget Sound School of Law; A.B. University of California at Santa Cruz. The views expressed in this paper are those of the author and do not necessarily reflect the views of the U.S. Department of Commerce, NOAA,