Full opinion text
OPINION MARSH, District Judge. Plaintiffs filed these actions claiming that defendants violated the Endangered Species Act (ESA) with respect to actions taken affecting recently listed salmon species. The linchpin of plaintiffs’ dispute with defendants relates to the technical and economic impact of defendants’ decision to augment flows over dams in an effort to improve juvenile fish migration: plaintiffs submit opinions from biologists declaring that flow augmentation has an insignificant impact upon the protection of the listed salmon species, while argu: ing that these measures contribute to im creased power rates. Plaintiffs proffer, again by expert declarations, that a reduction in salmon harvests would háve a significantly positive impact upon the species while posing a comparatively minimal economic burden on commercial fishing interests. However, like the salmon’s attempt to return to its natural spawning ground, before reaching the merits of these actions, plaintiffs must first survive the long migration through the many procedural barriers which must be considered by the judicial system in order to comply with the United States Constitution. By raising these procedural jurisdictional dams, defendants now seek summary judgment against all claims in these actions on the basis that plaintiffs fail to satisfy the “cases” and “controversies” elements of Article III, § 2 and because indispensable parties cannot be joined. Two of the plaintiffs seek partial summary judgment on claims for declaratory relief on the application of “incidental take” permits to commercial harvests. While plaintiffs’ views on one of the most complex and multi-faceted challenges facing the Pacific Northwest may well be as valid as any other, I find that, like many of the salmon these days, their claims simply cannot survive the journey home. Thus, for the reasons that follow, defendants’ motions are granted and plaintiffs’ motions for partial summary judgment are denied. I. Introduction & Overview a. The Fish The Columbia River, its largest tributary, the Snake River, and their surrounding environments provide residents of the Northwest with vast and invaluable resources. One of their most notorious resources is the anadromous salmon, two species of which have recently been listed as endangered or threatened by the National Marine Fisheries Service (NMFS). The NMFS determined that the Snake River sockeye salmon constituted an endangered species pursuant to the ESA. The listing became effective December 20, 1991. The NMFS determined that the Snake River spring/summer chinook and Snake River fall chinook were threatened species, and this listing became effective May 22, 1992. The “listing process” for these salmon species began in 1978 and included 13 years of biological study. • Scientists estimate that the population of Snake River spring/summer chinook has steadily decreased from 1.5 million in the late 1800s, to . an average of 125,-000 during the 1950s, to lows of wild fish ranging from 3,343 fish to 21,870 from 1980 to 1988. April 10,1992 Biological Opinion, p. 13. Snake River fall chinook have experienced similar trends, decreasing from an historical high of'72,000 wild fish to 78 in 1990 and .318 in 1991. Id., at 14-15. According to Idaho Fish and Game records, Snake Riyer soekeye salmon reached a known historical escapement peak into Redfish Lake of 4,361 in 1955, compared to an escapement of 4 in 1991-. ■ Plaintiffs do not challenge the validity of the listings. Further, there is no dispute that the Snake River soekeye is a distinct population segment of the species. Oncorhynchus (0.) nerka, and that the Snake River spring/summer chinook and the Snake River fall chinook are distinct population segments of the species O. tshawytscha, and thus, each constitutes a protectable “species” for the purposes of the ESA. There is also no dispute that, although classified as a distinct stock, the listed species are identical in physical appearance to non-listed stocks of the same race. The listing of these salmon species has, and will continue to have, a significant impact upon at least four river activities directly at issue in this case: (1) harvest — of salmon for commercial, sport-recreational and tribal uses; (2) habitat — which includes the 1,270 miles of Columbia River water (745 of which lie in the United States), 1,038 miles of the Snake River, and adjacent land uses including timber harvests, road building, grazing, mining, farming, and recreation; (3) hatcheries — which release fish into the Snake and the Columbia rivers to increase harvest, but which may have a detrimental effect on wild stocks due to increased fishing pressure, increased predation, competition for limited food resources, spread of disease, and potential adverse genetic effects; and (4) hydropower — from operations generated from hydroelectric dams operated by the Army Corps of Engineers (COE), the Bureau of Reclamation (BOR) and various private power companies. Hydroelectric power produced by the COE and BOR is marketed by the Bonneville Power Administrations (BPA). Although the listings have been anticipated for years, the action has come at a particularly critical time in the Pacific Northwest. According to the 1991 Northwest Power Plan, for the first time since the Northwest Power Act (NWPA) was passed in 1980, population increases and other changes have made it impossible for the Northwest to be an energy exporter. We have absorbed all of what was our formerly “excess power,” and are now forced to look to new power sources. In 1992, the COE and the BOR increased water flows in the Federal Columbia River Power System (FCRPS) for the purpose of benefitting the migration of juvenile listed species. However, this action diminished the use of the water for power production and thus reduced the amount of power available to the BPA for marketing and increased costs of power supply by $60 million. Stipulated Facts #58, 59 & 65. Increased costs from 1992 operations will initially be paid from BPA’s financial reserves, but the BPA expects to recover its increased costs from its customers. Stipulated Facts # 67 & 79. Salmon “water budgets” place a stress on the Columbia River system, as do the recent loss of nuclear power supplements, six continuous years of drought conditions, warming effects of El Nino, and increased pressure from the federal government to require the BPA to repay almost $1 billion in federal loans. See the 1991 Northwest Power Plan. However, as far as the salmon are concerned, the most significant “stress” upon the river resource is industrial and consumer electric usage which rely upon the dams and hydropower operations. According to the June 1991 NMFS report, “Factors for a Decline A Supplement to the Notice of Determination of Snake River Spring/Summer Chi-nook Salmon Under the Endangered Species Act,” eight million of the ten million historical losses of salmon and steelhead is attributable to hydropower development and operation. Further, as of 1991, cumulative mortality rates for juvenile spring/summer chinook salmon passing the eight mainstem hydroelectric projects is estimated to be as high as 91%. Another historically significant factor contributing to the decline of the salmon runs is “overutilization.” The NMFS estimates that commercial and recreational harvest of chi-nook salmon peaked in the early 1880s at about 2 million fish annually. Salmon canneries in Astoria, Ilwaco, Portland and The Dalles flourished around the turn of the century — expanding production from 6,000 cases of 48 one-pound cans in 1866 to a record setting 43 million pounds on the Columbia in 1883. See Anthony Netboy, The Columbia River Salmon and Steelhead Trout: Their Fight for Survival, 19-23 (University of Washington Press, 1980). Over the past few decades, however, most of the canneries have gone and timing and method restrictions have resulted in seasons that are limited to days, and sometimes only hours, with actual ocean and in-river catches down to the thousands for some stocks and the tens for others. Thus, although harvests historically “substantially contributed” to the salmon’s decline, the NMFS noted that current harvest levels have been “greatly curtailed” in commercial, recreational and Indian fisheries due to the efforts of participants in the Columbia River Fish Management Plan (CRFMP) to protect the fish. b. The Cases Plaintiffs filed three separate actions against Ronald Brown, Secretary of Commerce and other federal agencies alleging violations of the ESA, 16 U.S.C. § 1531 et seq. pertaining to protection of the Snake River sockeye, Snake River spring/summer chinook and the Snake River fall chinook salmon. Although these actions and the plaintiffs are not identical, plaintiffs represent similar high volume “user” interests in hydropower operations, assert similar claims and seek similar relief. Thus, they have been consolidated for the purpose of discovery and case management. Each of these cases was assigned to me because several of the claims asserted and relief sought by plaintiffs “challenge” harvest activity under the CRFMP which, as amended, was adopted by this court on October 7,1988. See United States v. Oregon, 699 F.Supp. 1456 (D.Or. 1988), aff'd, 913 F.2d 576 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991). The CRFMP is a delicate, but effective structure for allocating and planning harvest activities. As I noted in an opinion last February: “The factual circumstances that exist in this case are unique ... [There is an] absolute need for coordinated and centralized management of fish resource management in the Columbia River to protect fish and the balance between treaty Indian and non-treaty fisheries ... If Compact members or non-parties are permitted to interfere with this carefully balanced process ... the state’s fisheries management departments would be confronted with confusion and chaos.” United States v. Oregon, Civ. No. 68-513-MA (February 29, 1992) (order granting Washington’s motion for a restraining order against an injunction issued by the Circuit Court of the State of Oregon for Clatsop County). While I can hardly describe the subject matter in U.S. v. Oregon as “narrow,” its central concern addresses only one river activity — harvest. The present actions force the scope of the subject matter even wider to encompass the four river-related activities described above. Thus, although the focus of these present actions is much broader, it was with a continuing desire to avoid both confusion and chaos and to preserve what I feel is an essential “big picture” perspective, that the case management committee and the Chief Judge of this district determined that cases which may impact the CRFMP, and which relate to salmon harvest activities on the Columbia, be brought before me, as the judge presiding in U.S. v. Oregon. II. Governing Acts & Agencies Government regulation of the Columbia River resources is varied and complex, to say the least. The following is a brief description of a few of the Acts and regulatory agencies implicated, either directly or indirectly, in the present actions. The Endangered Species Act is, obviously, our central focus. However, many of the challenged activities in this case must be examined in their full regulatory and historical context before basic structural issues of standing, ripeness/mootness and necessary parties can be adequately addressed. For example, plaintiffs’ claimed “injuries” relate primarily to increased costs of hydroelectric power traceable to increased expenditures by the BPA on salmon conservation programs. The BPA does not, however, participate in such programs of its own initiative, but is required to do so through the Pacific Northwest Electric Power and Conservation Planning Council under the Northwest Power Act (NWPA), 16 U.S.C. § 839(6), 839b(a)(2), (e)(1) & (h). (1980). In describing these various agencies, councils and statutes, my primary intent is not only to broaden our focus and place the issues in perspective, but also to draw attention to the procedural complexity of applying the Endangered Species Act to an area that is already heavily laden with sometimes overlapping regulations and regulators. Not only are there already separate statutes designed specifically to promote conservation of salmon and steelhead, 16 U.S.C. § 3301, et seq., but there are also wildlife conservation measures within the Acts governing harvest and hydropower regulations. In determining to list the salmon stocks, the NMFS considered these existing regulations and regulatory agencies and noted that they had failed to prevent the decline of the species for three primary reasons: (1) measures designed to protect the species are not mandatory or specific enough to enforce; (2) inadequate funding to implement proposals; and (3) failure to meet guidelines, such as water budgets set aside to improve juvenile fish migration. This commentary is not meant to in any way question the validity of the ESA or its application to Pacific Northwest salmon stocks, but is merely offered as a preface that any analysis of the introduction of the ESA into the complex, multi-state river management operation must be approached with care. 1. The Endangered Species Act The Endangered Species Act, 16 U.S.C. § 1531, et seq., was enacted by Congress in 1973 to conseive endangered and threatened species. Unlike several of its predecessors, the 1973 Act eliminated the proviso that endangered species be protected “where practicable” and directed instead that the “balance [be] struck in favor of affording endangered species the highest of priorities.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180-181, 195, 98 S.Ct. 2279, 2295, 2302, 57 L.Ed.2d 117 (1978); see also Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987) (noting that ESA significantly restricts court’s equity jurisdiction). Section 9 is a substantive provision which prohibits certain activities related to species that are designated as endangered or threatened. Specifically, § 9 makes it unlawful for any person to “take ... possess, sell, deliver carry, transport or ship” any endangered species and provides civil and criminal penalties for violations of its provisions. Section 7 of the ESA imposes both substantive and procedural requirements upon federal agencies and requires that agencies “insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species.” § 1536(a)(2). This general proscription covers direct threats to species as well as destruction or adverse modifications to “critical” habitat. Id. Section 7 prescribes a three-step process which includes an initial screening to determine if an endangered species “may be present,” and a biological assessment to determine if the species is “likely to be affected.” If the answers to steps one and two are both yes, the Act requires the action agency to engage in “formal consultation” with the U.S. Fish and Wildlife Service (FWS) or NMFS. Following consultations, the FWS or NMFS issues a biological opinion as to whether a project is likely to jeopardize a species or adversely modify its critical habitat. § 1536(a)(2); Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). While formal consultation will satisfy the agency’s procedural obligation under § 7, an agency’s reliance upon a biological opinion issued by the NMFS must nevertheless be “reasonable” to satisfy the act’s substantive obligations. Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410, 1415 (9th Cir.1990). The consulting agency is directed to utilize the “best scientific and commercial data available.” § 1536(a)(2). In 1982 Congress amended the ESA to create an exception for “incidental” takings of listed species to avoid the dilemma created whereby a proposed action might be permissible under § 7(a)(2), but be prohibited by the broader proscription contained in § 9. See, H.R. No. 567, 97th Cong., 2d Sess. 26 (1982). “Incidental takings” may be authorized if they occur during the course of an otherwise lawful activity and where such a taking does not jeopardize the continued existence of the species or destroy or adversely modify critical habitat. § 1536(a)(2), (b), (h). An incidental take statement accompanies a biological opinion and, whei’e possible, must specify the impact of the take on the species. § 1536(b)(4); see also H.R. 567, 97th Cong., 2d Sess. 27. The limited taking must be incorporated into “terms and conditions” imposed to minimize the impact on the listed species along with “reasonable and prudent” mitigation measures. Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1580 (9th Cir.1993). If an anticipated take is exceeded, the agency or permittee must “immediately re-initiate consultation.” Id., 50 C.F.R. § 402.14(i)(4). Private parties may also “incidentally take” listed species without violating § 9, by obtaining an incidental take permit, also known as a “§ 10 permit” from NMFS or the FWS pursuant to § 1539. For example, private hatchery operators obtained § 10 permits from the FWS in 1992 to take listed species for use as broodstock. See Deposition of William Shake, at 67-68. Section 11 of the Act provides for citizen suits, and mandates that agency action be given deference upon judicial review unless the action is “arbitrary, capricious or otherwise not in accordance with the law.” 5 U.S.C. § 706; Delaney v. E.P.A., 898 F.2d 687, 689 (9th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990). Especially in those instances where agency judgment involves “technical expertise,” or where specialists express conflicting views, judicial review is limited to an assessment of whether the agency “conducted a reasoned evaluation of the relevant information and reached a decision that, although perhaps disputable, was not arbitrary or capricious.” Mt. Graham Red Squirrel, 986 F.2d at 1576, 1580. Other provisions of the ESA are designed to further conservation through acquisition of habitat (Section 5) and establishment of cooperative agreements with states (section 6). In addition, Section 4(f), 16 U.S.C. § 1533(f), requires the Secretary to develop and implement “recovery plans” for all listed species. NMFS/FWS regulations define the term “recovery” as “improvement in the status of listed species to the point at which listing is no longer appropriate.” 50 C.F.R. § 402.02. Thus, the ultimate goal of the ESA is “to make itself obsolete.” Rohlf, supra note 17, at 100. 2. Lv-River Management Harvest allocation for Chinook, sockeye, sturgeon, shad, walleye, steelhead, coho and lamprey in the Columbia River is vested in the CRFMP whose participants include tribal governments and representatives from the states of Oregon and Washington who are members of the Columbia River Compact. Other signatories to the plan include U.S. governmental agencies (FWS, the Bureau of Indian Affairs (BIA), and NMFS), the State of Idaho and, subject to limitations, the Shoshone-Bannock Tribe. CRFMP § I.G. The CRFMP was originally formulated as a partial settlement of U.S. v. Oregon and is augmented by annual management plans. Regulatory authority resides with the Columbia River Compact through respective state laws in Oregon and Washington. The CRFMP is the in-river analogue to the Pacific Fisheries Management Council (addressed infra) in that it provides the framework for management and allocation of state and tribal fisheries in the Columbia River. Members participate in the formulation of fishery regulations, harvest goals and decisions affecting area closures, seasons and gear restrictions. See generally Affidavits of Burnell Bohn (Oregon Dept, of Fish & Wildlife) and Jean Edwards (Inter-Tribal Fish Commission) (description of Plan framework, implementation, goals and post-listing response). Commercial non-Indian gillnet fishing takes place on a 140-mile stretch of the river from the mouth of the Columbia up to Bonneville Dam. This portion of the river has been divided into five management zones (“Zones 1-5”) which correspond to Washington county boundaries. The gillnet fishing season varies from year to year depending upon run size projections, escapement goals, projected harvest efficiency, and the expected proportion of wild to hatchery fish. See Generally, CRFMP “management goals” and Wilkinson & Conner, p. 75-76, n. 306. From Bonneville to McNary dams (Zone 6), tribal ceremonial and subsistence (C & S) fisheries are entitled to a minimum catch of spring and summer chinook, while mainstem platform tribal fisheries are subject to limitations based upon Technical Advisory Committee (TAC) preseason estimates of anticipated catch. 3. Ocean Management Pacific Ocean harvests are governed by a similar but separate regulatory scheme. The Fishery Conservation and Management Act (FCMA, aka the Magnuson Act), 16 U.S.C. § 1801, et seq. (1976), created two regional councils. The Pacific Fishery Management Council (PFMC), is headquartered in Portland, Oregon, with members which include the states of California, Oregon, Washington and Idaho. The North Pacific Fishery Management Council (NPFMC), is headquartered in Anchorage, Alaska, and is comprised of representatives from Alaska, Washington and Oregon. The PFMC is responsible for the Pacific Fish Management Plan which is the framework for commercial, recreational and tribal ocean harvest of mixed stocks. The NPFMC manages salmon fisheries off the coast of Alaska in the U.S. Exclusive Economic Zone (EEZ), 3-200 miles offshore. Like the CRFMP, the PFMC and the NPFMC adopt plans which ban or permit certain types of fishing, and which set maximum sustainable yields, allowable biological catches and area and timing restrictions ■within the EEZ. Fishing within three miles of the coastline is regulated by the respective coastal state in concert with Council plans. Both councils are responsible for preparing and monitoring management plans for each “major harvestable marine species” within their geographic jurisdiction. See Generally, Wilkinson & Conner, supra, at 48-53; 16 U.S.C. § 1852(a)(6) & (7). Under the Magnuson Act, conservation and management plans must be designed to prevent overfishing and maintain an optimum sustainable yield. 16 U.S.C. §§ 1851(a)(1), 1853(a). Conservation measures must be based upon the “best scientific information available” and should promote “efficiency in the utilization of fishery resources” while minimizing costs “where practicable.” § 1851(a)(1) — (T). h. Habitat Management The Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq., was originally enacted in 1934 to “provide that wildlife conservation shall receive equal consideration and be coordinated with other features of water-resource development, maintenance and coordination of wildlife conservation and rehabilitation.” § 661 (1958). Under the Act, the Department of the Interior is charged with responsibility for assisting federal, state and private entities involved in habitat management by conducting surveys and investigations to minimize adverse impacts on wildlife. Id. For example, any government agency or private entity must “consult” with the FWS “with a view to the conservation of wildlife.” § 662. The Act also designates a national Wildlife Refuge system, and provides for administration and enforcement of mining, mineral leasing, hunting and fishing. § 668dd. Another significant statute governing habitat activities in National Forests is the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331, et seq. (1970). NEPA is a procedural statute enacted for the purpose of ensuring that cultural, historical and environmental preservation will be considered as factors in carrying out federal plans, functions and programs. Id., see also Save the Yaak v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (under NEPA, agency action will be set aside if procedures are not followed). NEPA requires all federal agencies to prepare detailed statements of anticipated impacts of any proposed “major federal actions significantly affecting the quality of the human environment.” § 4332((2)(C). Thus, the “action agency” will produce an environmental assessment (EA) or an environmental impact statement (EIS). See e.g. Seattle Community Council Federation v. F.A.A., 961 F.2d 829, 831-32 (9th Cir.1992) (explaining NEPA procedures). If the agency concludes that a proposed action (such as a timber management plan) will have no significant impact, it will issue a “Finding of No Significant Impact,” (FONSI). Id., § 1501.4. Like biological assessments and biological opinions, EAs and EISs include mitigation requirements as part of a permit process. § 4332(E), (G). Judicial review of an EA or an EIS produced under NEPA is available via the Administrative Procedures Act, 5 U.S.C. § 706(2)(A). Thus, for example, an EIS issued by the Bureau of Land Management for an off-road motorcycle race over public desert land may only be reversed if a court finds the action to have been “arbitrary, capricious, or an abuse of discretion.” Sierra Club v. Clark, 774 F.2d 1406, 1410 (9th Cir. 1985). Similarly, an agency’s decision not to prepare an EIS must be upheld if the agency took a “hard look” at the environmental consequences and made an informed decision. Friends of the Payette v. Horseshoe Bend, 988 F.2d 989, 992-93 (9th Cir.1993). 5. Power Management The Northwest Power Planning Act, 16 U.S.C. § 839 (1980), was enacted by Congress as a “comprehensive energy charter” for the Pacific Northwest. See § 839; and Wilkinson & Conner, p. 53. The Act is designed to promote an efficient use of Columbia River resources to bring about an “adequate, efficient, economical, and reliable power supply,” while providing environmental quality and while acting in a manner which is “consistent” with environmental laws. § 839. The Act provides for regional planning and participation through the creation of the Pacific Northwest Electric Power and Conservation Planning Council. § 839b. Members of the council include two persons each from Idaho, Montana, Oregon and Washington with participation by the BPA. The Council was given two years from the date of establishment to prepare and adopt a regional “conservation and electric power plan.” § 839b(d)(l). In creating the plan, Congress provided the Council with a mandatory list of priorities: “The plan shall ... give priority to resources which the Council determines to be cost-effective. Priority shall be given: first, to conservation; second, to renewable resources; third, to generating resources ... and fourth, to all other resources.” § 839b(e)(l). In addition, Congress provided a list of factors the Council must consider in developing the plan, including environmental quality, compatibility with the existing regional power system, protection and enhancement of fish and wildlife “including sufficient quantities and qualities of flows for successful migration, survival and propagation of anadromous fish.” ' § 839b(e)(2); and § 839b(h)(6)(E)(ii). Section 839b(h) mandates the development of a fish and wildlife program to “complement” existing Federal, State and Indian activities. The program must also meet certain specified criteria which include that it “be based on, and suppqrted by, the best scientific knowledge,” utilize the most effective means with the minimum cost, be consistent with the legal rights of Indian Tribes, and must specifically address the needs for “improved survival” of anadromous fish in the Columbia River system. Id.; see also § 839g(e) (“savings” provision for tribal rights). Sections 839c and 839f give the BPA the authority to enter into contracts for the sale of power to public bodies, cooperatives and “direct service industrial” (DSI) customers. The BPA establishes rates to ensure they cover costs, § 839e(b)(l), (e)(2), but may negotiate discount rates with certain industrial customers. § 839e(d); See e.g. Portland General Elec. Co. v. Johnson, 754 F.2d 1475 (9th Cir.1985) (discussing special rates negotiated with aluminum companies). BPA rate schedules are subject to the approval of the Federal Energy Regulatory Commission (FERC). CP Nat. Corp. v. Jura, 876 F.2d 745, 747 (9th Cir.1989). Actions challenging rates, the constitutionality of the Act, or the implementation of any final action taken pursuant to the Act, must be filed in the United States Court of Appeals for the region. § 839f(e)(5); see e.g. Pacific Power and Light v. Bonneville Power Admin., 795 F.2d 810, 814 (9th Cir.1986). Actions claiming breach of contractual provisions by the BPA that exceed $10,000 arise under the exclusive jurisdiction of the U.S. Claims Court via the Tucker Act, 28 U.S.C. §§ 1346(a)(1), 1491. See e.g., Public Utility Dist. No. 1 v. Johnson, 855 F.2d 647, 650 (9th Cir.1988). District courts retain jurisdiction over all other actions “taken pursuant to the Act by agencies other than BPA or the Northwest Power Planning Council.” PP & L, 795 F.2d at 814. However, the Ninth Circuit approaches the jurisdictional question with a “broad view” of its own jurisdiction while narrowly defining district court review. Id. The court noted that its exclusive jurisdiction over claims arising under the Act reflects Congress’ intent to expedite litigation and prevent district courts in different states from rendering potentially conflicting decisions. Id., at 815. The primary source of electric power marketed by the BPA is hydropower generated by dams in the Columbia River Basin. Stipulated Fact # 54. The DSIs provide approximately 30% of BPA’s income, and one-quarter of their electric power load is “interruptable” under “contingent service agreements.” Thus, if the BPA restricts that top quartile power supply, the DSIs must either restrict operations or purchase from other, more expensive sources. Stipulated Facts #6 & 7. PNGC’s members are residential, small commercial and agricultural customers who purchase all or substantially all of their wholesale power from the BPA under long term power sale contracts. Stipulated Facts # 18 & 19. PPC is a preference customer under 16 U.S.C. § 832, and its member utilities provide approximately 43% of the BPA’s total annual revenues under long term power contracts. Stipulated Facts #25, 27 & 29. The BPA is the sole source of power for most of PPC’s member utilities. Stipulated Facts #30 & 32. III. The Complaints Overview Plaintiffs’ claims under the ESA are primarily directed against three specific agency actions: (1) the April 10, 1992 Biological Opinion issued by the NMFS concerning 1992 Federal Columbia River Power System (FCRPS) operations; (2) the May 1, 1992 Biological Opinion, “no jeopardy” finding and the incidental take statement for Pacific Ocean fisheries; and (3) the June 12, 1992 biological opinion, “no jeopardy” finding and the incidental take statement for 1992 CRFMP summer and fall season fisheries in the mainstem Columbia, Zones 1-5. Although the complaints raise similar issues, each plaintiff contends it holds a unique position vis-a-vis the defendants and the challenged agency activity. Thus, the following is a brief summary of the plaintiffs, their claims, and their prayers for relief. 1. Pacific Northwest Generating Coop. v. NMFS, et al. Plaintiff PNGC is a generation and transmission power cooperative for 29 rural electric cooperatives. PNGC filed this action against the Secretary of Commerce, the NMFS, PFMC, NPFMC, the Bureau of Land Management (BLM), FWS, FS, BOR, COE and the BPA. PNGC claims that the NMFS violated the Endangered Species Act on April 10, 1992 when it issued a biological opinion concerning the 1992 operation of the FCRPS because it failed to “conduct consultations under § 7 of the ESA in a comprehensive manner.” PNGC contends the NMFS should have considered the impact of proposed actions on the entire life cycle of the listed species “as well as hydropower operations.” As a result, PNGC claims that the NMFS “arbitrarily and capriciously” violated § 7 by imposing requirements upon hydroelectric power operations without also imposing requirements upon other factors affecting the listed species — harvest, habitat and hatchery management — in the same April 10 opinion, or in any subsequent biological opinions or assessments. PNGC agrees that the NMFS has engaged in consultations with the FS regarding some habitat activities that may affect the salmon. PNGC claims, however, that there are numerous habitat activities authorized by the FS and BLM and hatchery operations authorized by the FWS and the COE, which have not undergone § 7 consultations with the NMFS, nor has NMFS issued any biological opinions regarding these habitat and hatchery operations. Complaint, para. 23-24, 30. In addition, PNGC contends that NMFS did not correctly apply its “environmental baseline” standard in its ESA § 7 consultations and failed to use the best scientific and commercial data available. PNGC contends that the NMFS’ decision to augment flows and spills was motivated by a desire to rebuild a commercial salmon harvest and went far beyond the ESA’s goal of ensuring “survival” of the listed species. Specifically, PNGC challenges the NMFS’ conclusion that increased flows have a beneficial impact upon the listed species’ juvenile mortality rate. Further, PNGC argues that the NMFS failed to adequately consider the effects of voluntary measures already instituted by the BPA, COE and BOR (such as transportation and predator control programs) before requiring augmented flows and spill modifications. PNGC sets forth 7 claims for relief: (I-VI) Violations of § 7 of the ESA (as described above); and (VII) Violations of the Administrative Procedures Act (APA) by all defendants. PNGC seeks a declaration that conditions imposed upon 1992 FCRPS operations in the April 1992 incidental take statements are invalid. PNGC also seeks a declaration that any harvest or hatchery activities which affect the listed species’ habitat and which are undertaken prior to § 7 consultations, biological assessments and incidental take permits, are unlawful. In addition, PNGC seeks an injunction against the imposition of the April 10 restrictions and implementation of any future “unnecessary and imprudent” ESA regulations on FCRPS operations until the NMFS determines that such measures are biologically effective, based upon the best scientific and commercial data available and “impose the minimum costs among available alternative measures.” 2. Aluminum Co., et al. v. NMFS, et al. Plaintiffs in this action are various metal corporations collectively known as Direct Service Industries (DSIs). DSIs filed their action against the Secretary of Commerce, the U.S. Dept, of Commerce, NMFS, PFMC, NPFMC, FWS, BLM, FS, BPA and the COE. DSIs set forth 17 claims for relief under §§ 7, 9 & 10 of the ESA and the APA. Generally, DSIs claim that defendants violated the ESA by permitting harvest, habitat, and hatchery activities to proceed without adequate and coordinated § 7 consultations. DSIs’ claims relating to harvest issues allege that the May 1 and June 12 biological opinions and incidental take statements violate the ESA. DSIs contend the May 1 opinion and incidental take statement are invalid because they fail to impose significant limitations on the ocean fisheries, fail to include consultations with the NPFMC regarding impacts of fishing off the coast of Alaska, and reach a “no jeopardy” conclusion without knowing the exact impact upon the listed species. DSIs allege that the June 12 opinion and incidental take statement are not based on the best scientific and commercial evidence available because they reached a “no jeopardy” finding with respect to summer and fall mainstem fisheries without knowing the extent of the takings involved, and by assuming that catches would be less than amounts authorized under the CRFMP. As to both opinions and incidental take statements, DSIs claim that the NMFS has engaged in an “improper practice” by evaluating harvests in a “piecemeal” fashion and that the agency has favored harvest interests over protection of the listed species. Further, DSIs claim that the incidental take statements are illegal because authorization of a harvest in a mixed stock fishery is not “incidental” to an otherwise lawful activity (counts III, V, IX, X and XII) DSIs do not contend that any portion of the biological opinions or incidental take statements which address commercial or C & S tribal fishing-seasons violate the ESA. As to issues related to salmon habitat, plaintiffs contend that the FS and BLM have authorized grazing, logging, road building and recreational activities in areas which may affect salmon spawning grounds, without first making biological assessments and consulting with the NMFS. DSIs also contend that the FWS and the COE have failed to adequately protect the listed species by authorizing, funding and operating salmon and steelhead hatcheries in the Columbia River basin without first consulting with the NMFS. Plaintiffs seek a declaration that the incidental take statements issued on May 1 and June 12 violate ESA §§ 7 & 9 and that all habitat and hatchery activities are unlawful unless and until the federal agencies complete § 7 consultations. Plaintiffs also seek an injunction against all habitat and hatchery activity until § 7 consultations are complete, and against all harvests “directed at the Oncorhynchus tshawytscha and Onoorhynchus nerka” and all “other harvests which may incidentally take those species, until they have completed § 7 consultation.” 3. Public Power Council v. NMFS, et al. PPC is a non-profit corporation which represents 114 consumer owned electrical utilities located throughout the Pacific Northwest. PPC filed this action against the Secretary of Commerce, the U.S. Dept, of Commerce, NMFS, PFMC, NPFMC, FWS, BLM, FS, the BPA and the COE. PPC’s thirteen claims closely mirror that of the DSIs in that PPC challenges the May 1 and June 12 biological opinions and incidental take statements on grounds that they violate § 7 of the ESA and the APA. Both PPC and the DSIs argue that the NMFS has acted arbitrarily and capriciously by relying upon “piecemeal” analysis of harvests, by failing to adopt a “comprehensive approach” to consider harvests in light of the combined impacts of habitat, hatchery and hydropower operations, and by failing to rely upon the “best scientific and commercial data available.” PPC adds an additional claim that the June 12 incidental take statement fails to include reasonable and prudent mitigation measures. PPC’s complaint also differs from DSIs in that it raises no claim directly under § 9 of the ESA. PPC seeks a declaration the defendants violated § 7 of the ESA by: (1) failing to consider cumulative effects of in-river and ocean commercial fishing; (2) formulating biological opinions without the best scientific data available; (3) issuing incidental take statements which failed to specify: (a) the exact number of listed species expected to be harvested, (b) reasonable and prudent measures, and (c) mitigation provisions; (4) issuing incidental take permits for direct takings and subsequent commerce; and (5) failing to consider cumulative effects of habitat, hatchery and hydro operations. PPC seeks an injunction requiring defendants to conduct comprehensive consultations and, like the DSIs, seeks an order prohibiting defendants from approving any harvest activity “directed at” chinook or sockeye, and halting all “other” harvest activity pending completion of adequate § 7 consultations. During oral argument on the parties’ cross motions for summary judgment, the DSIs and PPC withdrew their claims against the June 30, 1992 opinion which addressed only tribal commercial and C & S fisheries. Thus, the DSIs and PPC challenge the May 1, and June 12,1992 biological opinions and incidental take statements insofar as they permit ocean and in-river Zone 1-5 non-tribal commercial and sport fishing and challenge defendants’ failure to conduct consultations with the NPFMC on ocean harvests off the coast of Alaska. Plaintiff PNGC challenges only the April 10, 1992 biological opinion regarding hydropower operations. In addition to their specific claims against harvest activities, each of the plaintiffs challenge generally the defendants’ failure to conduct “comprehensive consultations” within and among the four highlighted areas affecting salmon mortality: harvest, habitat, hatcheries and hydropower. The biological opinions challenged in these cases address a number of technical issues related to harvest and hydropower management. To fully understand plaintiffs’ objections to the validity of these opinions, the following is a brief summary description of the four biological opinions issued during 1992 relating to FCRPS operations and PFMC ocean and CRFMP in-river harvests. (1) The April 10, 1992 Biological Opinion (Hydropower) The April 10 opinion was issued by the NMFS as its § 7 ESA Consultation with the COE, BPA and BOR concerning the 1992 operation of the FCRPS and the projected impact of Columbia River hydropower operations upon the listed salmon species. In the cover letter to this document, the NMFS Administrator, William Fox, explains that the opinion “covers 1992 FCRPS operations only,” and is intended to act as an “interim approach on consultations” pending completion of the “recovery plan” in 1993. Annual planning takes place under the Pacific Northwest Coordination Agreement (PNCA) with the participation of the BOR, BPA, COE and “major northwest generating utilities.” The April 10 opinion is responsive to biological assessments (BAs) issued by the COE and the BPA in January of 1992. The initial BA issued by the COE on January 9, 1992 contemplates increased velocities in the Snake and Columbia River reservoirs as part of a Fish Passage Plan for 1992. The interim goal outlined by the NMFS is to focus upon “decreasing mortality [from percentage baseline levels] rather than increased survival because it is most consistent with the definition of ‘take’ in the ESA.” The opinion identified eight categories of proposed mitigative actions including flow augmentation, predator control efforts, increased spill at Ice Harbor and Lower Monumental Dams, increased law enforcement (to reduce illegal harvests), biological monitoring, completion of and extended seasonal operation of bypass facilities, and continuing the program to transport juveniles downstream by truck and barge. Although the opinion proposes several modifications to 1992 FCRPS operations, it is the opinion’s “flow augmentation” proposal which generates the present controversy with PNGC. The report notes that operation of the FCRPS is “a significant factor causing the decline of all three listed and proposed species,” and concluded that “therefore, baseline operation of the FCRPS is likely to jeopardize the continued existence of these species.” The opinion reasons that juvenile salmon are affected by decreased river flows because it slows their passage through reservoirs. Theoretically, slow passage increases juvenile exposure to predation and disease (from higher temperatures) in the reservoirs. Slow passage downstream may cause “residualism,” that is it may affect delicate timing required for smoltification since the juvenile must get from fresh water to salt water within a relatively small window during its spring life, or face losing its ability to migrate to the ocean. If the juvenile goes beyond its smoltification window without having reached salt water, it becomes a resident of the reservoir and vulnerable to prolonged exposure to disease and predation. Thus, the opinion concludes that drawing down reservoirs to increase water velocity and decrease travel time for juvenile migrants along with monitoring and evaluation of water conditions could “possibly” reduce juvenile mortality. The report cautions that “no existing studies provide empirical evidence establishing a relationship between juvenile fall chinook salmon survival and travel time,” and that the proposed action was expected to have “little effect” on adults. The opinion contains additional caveats that the effects of many of its proposed actions are “not quantifiable,” and notes concerns about the precision of certain underlying assumptions in analyzing data collection and projections. The NMFS concluded that the 1992 operating plan represented progress towards reducing mortality rates of listed species and thus, the 1992 FCRPS actions “are not likely to jeopardize the continued existence” of the listed species. In addition, NMFS recommended further coordinated evaluation, management and research. Section XI of the opinion is the “incidental take” statement and list of “reasonable and prudent measures and terms and conditions for implementation” under § 7(b)(4) of the ESA, recognizing that operation of the FCRPS in 1992 “is expected to result in the incidental take” of an unknown number of listed salmon species. However, the statement estimates that if all reasonable and prudent measures are implemented, the “incidental” take of listed stocks should not exceed 69% for juvenile and less than 18% for adult sockeye, 68-71% for juvenile and less than 35% for adult spring/summer chinook, and 82% of juvenile and less than 66% of adult Snake River fall chinook salmon. On April 10, 1992, the COE issued a “Record of Decision” indicating its intent to comply with the terms listed in the NMFS’ April 10 incidental take statement. Both the COE and BOR are conducting dam operations in accordance with the terms and conditions set forth by the NMFS. (2) The May 1, 1992 Biological Opinion (Ocean Fisheries) The May 1 opinion was issued by the NMFS pursuant to § 7 of the ESA following consultation with the PFMC regarding the effect of the 1992 Fishery Management Plan (FMP) for ocean “mixed stock” salmon fisheries off the coasts of Washington, Oregon and California on the listed Snake River salmon species. The opinion relies upon the biological assessment (BA) provided by the Salmon Technical Team (STT) of the PFMC as well as available information from scientific literature and biologists. Like the April 10th opinion, the May 1st opinion cautions that the consultations cover only 1992 and represent an “interim” approach designed to “reduce the decline” of the listed species. The May 1 opinion notes that based upon historical data, run sizes, and gear .restrictions, the possibility of a harvest of Snake River sockeye in the PFMC area is “almost nü ” rpjm May 1 opinion also recognizes that while the availability of data is limited, migration and timing patterns of spring chi-nook and rough projections from coded wire tag (CWT) recoveries lead to estimation that less than 1% of the spring chinook are harvested in the ocean fisheries and that any impact on summer chinook would be “extremely small.” The most substantial impact that ocean fisheries have on listed species is on the Snake River fall chinook. Analysis of the impacts on Snake River fall chinook was based upon a recently developed microcomputer-based chinook model which relies upon estimates of abundance, exploitation rates (which vary by management form — i.e., either quotas or estimates from fisheries with time/area restrictions) distribution, age structure and maturation rates. Although precise numbers of the Snake River fall chinook catch were not known, the NMFS concluded that, based upon the proposed 1992 management regime, the incidental take of Snake River fall chinook would be 40% lower during the 1992 season than it was during the 1986-1990 base period. Based upon its estimation that PFMC ocean fisheries would have little to no impact upon the soekeye or spring/summer chinook and that the exploitation rate for fall chinook would decrease 40% consistent with the interim goal of “decreasing mortality,” the NMFS concluded that the proposed 1992 Pacific Ocean FMP was “not likely to jeopardize” the listed species. An incidental take statement pursuant to § 7(b)(4) is attached. Included within the opinion are conservation recommendations to the PFMC to develop better estimates of ocean distribution and abundance of listed species and .to continue to work to develop an integrated “Life Cycle Model” to analyze impacts of all aspects affecting a salmon’s life throughout its entire life span, to continue monitoring impacts and to include endangered species impacts in management planning criteria. (3) The June 12, 1992 Biological Opinion (In-River Fisheries) The June 12 opinion was issued by the NMFS pursuant to § 7 consultations with the FWS and the BIA regarding impacts on the listed species of the 1992 summer and fall season fisheries conducted under guidance from the Columbia River Fishery Management Plan (CRFMP) in “Zones 1-5,” which comprise the mainstem Columbia ‘River below Bonneville Dam. In addition, the opinion addresses potential impacts on the listed species from tribal C & S gillnet and platform fisheries in Zone 6, between Bonneville and McNary dams. In the June 12th opinion, NMFS reiterates the samé warnings raised in the April and May 1992 biological opinions that it was developed as an “interim” approach for 1992 actions only and that its present goal is to reduce mortality rates. Aso, like the May 1 opinion, the NMFS relied extensively upon a biological assessment prepared by TAC, the CRFMP subcommittee, “with” the FWS. As with the prior opinions, the June 12th opinion anticipates future “comprehensive plans for recovery.” The NMFS also notes that it considers ocean harvests (addressed in the May 1 opinion) and hydroelectric operations (addressed in the April 10 opinion) in assessing impacts of in-river fishing activities on the listed species, so its approach is more comprehensive than the prior two.. However, NMFS also notes that it does not consider future federal actions including ongoing hydroelectric operations, and habitat conservation, but that these actions are being reviewed “through separate consultation processes.” June 12 Opinion, at 18. While, recognizing that any catch of a Spake River soekeye could jeopardize the species, the NMFS calculated the following probabilities of a Snake River soekeye catch: (1) .39 for tribal C & S fisheries in Zone 6 (based upon a hypergeometrie distribution and a low estimated run size of 50,000 Columbia River soekeye arid a total catch of 3,000); (2) .002 for lower river commercial shad and recreational steélhead fisheries; (3) .01 for mainstem recreational fisheries; and (4) .01 for lower river fall' season commercial salmon fisheries (with no recorded landings of soekeye since 1983). Potential catches of spring and summer chinook were analyzed by a percentage of anticipated take.. In light of an estimated increase in spring chinook run sizes due to intentional restrictions in lower river recreational and commercial fisheries and the elimination of tribal Zone 6 commercial summer soekeye fishery,, the opinion estimates that, although raw numbers are expected to increase, the 1992 planned harvest represents an overall 25.7% lower harvest rate of spring chinook th^n that of the base period (1986-1990). The rate of harvest for summer chinook was up over prior years and based upon the depressed status of the summer chinook, the CRFMP had already instituted harvest limits of summer stocks to mainstem Indian C & S platforms, incidental catch in Indian gillnet (targeting soekeye, steelhead and shad) with a 5% cap, and incidental catch in non-Indian mainstem fisheries (directed at soekeye and shad) with a 5% cap. The June 12 opinion includes estimates of a harvest of approximately 88 summer chi-nook from tribal C & S fisheries, 7 spring/summer chinook from'the commercial shad fishery, 10 summer chinook from main-stem recreational fisheries, and up to 5 could be lost from handling during Washington’s sturgeon research and tagging project. Upriver fall chinook estimates were up 5,000 to 45,000 beyond McNary Dam based upon the CRFMP management plan to increase escapement goals in 1992. Anticipated harvest rate on Snake River fall chinook was estimated at 74.7% below the base period rate. Based upon anticipated harvests and improvements in mortality rates, the NMFS concluded that the 1992 CRFMP proposal met its interim goal of reducing mortality and “reversing the decline in abundance,” .and thus, was “hot likely to jeopardize the continued existence” of the listed species. The opinion also provides conservation recommendations including improvements in data collection,"forecast methodologies, monitoring, production strategies and amending management criteria to more specifically account for the needs of the listed species. The incidental take statement coversCRFMP 1992 operations and anticipates' an incidental take of spring/summer chinook and Snake River fall chinook. A decision on the' impacts on the Snake River soekeye was deferred. The “Reasonable and Prudent Measures” section reiterates the need for improved in-season monitoring and possible re-initiation of agency § 7 consultations if incidental take exceeds specified levels. (4) The June SO, 1992 Biological Opinion The June 30 opinion is the addendum issued by NMFS to further address potential impacts on the Snake River soekeye from tribal Zone 6 C & S platform and fall season commercial fisheries. Additional consultations with the tribes and other CRFMP parties following the June 12 opinion resulted in a “no jeopardy” finding for the Snake River soekeye with an incidental take permit for no more than 3.1% total soekeye harvest in Zone 6 (an estimated harvest of 1,500 soekeye, down from 3,000 in 1991) with a .22 probability of harvest of a listed species. The reduced harvest expectations were due to substantially lower flows in 1992 and the tribes’ voluntary decisions to close platform fishing on Sundays and forgo their summer C & S gillnet fishing season. Conservation recommendations included further voluntary reductions in soekeye harvest (below 3.1%), possible re-initiation of agency § 7 consultation and a shift in the focus of management planning from allowable harvest rate to “acceptable risk associated with minimized incidental take.” TV. Motions & The Participants a. Defendants’ Motions Defendants now move for summary judgment against all three complaints on four alternative bases: (1) standing; (2) mootness; (3) unripeness; and (4) failure to join necessary and indispensable parties — that is the Indian Tribes who exercise treaty fishing rights in the Columbia River and Ocean fisheries. b. Plaintiffs’ Motions DSIs move for partial summary judgment on a single legal argument that defendants violated § 9 of the ESA by issuing “incidental- take” permits for commercial ocean and in-river .harvests (in Zones 1-5), since the authorization constituted a direct take of endangered species and also resulted in the unlawful trade and transport in commerce of endangered species. I emphasize that this is a legal argument, because the DSIs do not premise it upon any specific factors relative to the 1992 incidental take permits, nor do they present any direct evidence that endangered species have actually been taken and traded in commerce. For the purposes of these motions, I have assumed plaintiffs’ contentions are true. The DSIs’ position is an all or nothing argument that, since there can never be an “incidental” take of a listed species from a commercial mixed stock harvest, the taking can only be “direct” and, hence, in violation of § 9. Plaintiff Public Power Council (PPC) has filed a similar motion for partial summary judgment alleging that the “takes” authorized on May 1, and June 12 were direct rather than “incidental.” During oral argument, PPC withdrew that portion of its motion which is directed against the June 30 opinion and incidental take statement (which relate only to Zone 6 tribal fisheries) and those portions of the June 12 opinion and incidental take statement which relate to tribal Zone 6 fisheries. However, unlike the DSIs, PPC also seeks summary judgment on the basis that the incidental take statements violate ESA § 7 because they fail to: (1) specify the amount of the take (impacts); (2) include minimization measures; and (3) include consultation on Alaskan harvests. PNGC has not filed a similar motion for partial summary judgment against the incidental take statement issued with respect to 1992 FCRPS hydropower operations. However, it has filed an opposition to defendants’ motion for summary judgment. c. Amicus & Intervenors Amicus participants Nez Perce, Warm Springs, Quinault, Makah, Yakima, and Umatilla Tribes jointly filed memoranda in support of defendants’ motions for summary judgment in each case, and against the DSIs’ and PPC’s motions for partial summary judgment. The State of Washington, a defendant-intervenor, has filed opposition to the DSIs’ and PPC’s motions for partial summary judgment which essentially echo federal defendants’ position regarding the “incidental” take issue. The State of Oregon, a defendant-intervenor, has filed its own motions for summary judgment in each case on grounds which mirror and augment claims raised by federal defendants. Intervenor Salmon-for-All filed opposition to DSI and PPC plaintiffs’ motions for partial summary judgment, joining in opposition filed by federal defendants and the amicus treaty tribes. I received no response from amicus Idaho Department of Fish & Game, or intervenor Coalition for Idaho Water. Intervenors in the PNGC case, Civ. 92-973-MA, Northwest Resource Information Center (NRIC), et al, filed a brief joining in the federal defendants’ motion for summary judgment only on the basis that PNGC lacks standing. Although the remainder of NRIC’s brief also raised issues relative to their members’ own standing to proceed with their cross-complaint, during the hearing on summary judgment I informed the parties that I would not consider the merits of NRIC’s cross-complaint, since there is currently no motion pending against it. I do note, however, that NRIC’s cross-complaint differs from PNGC’s complaint in at least two potentially significant respects. First, NRIC contends that the flows are insufficient to protect the species. Second, NRIC’s basic attack is directed against the NMFS’ year-by-year approach to FCRPS operations and its failure to make a comprehensive impact analysis over time (as opposed to PNGC’s complaint that the NMFS failed to consider comprehensive impacts). V Discussion 1. Standing Plaintiff PNGC claims an immediate interest in the Columbia and Snake River fish and water management via the impact of BPA’s decisions about water flow and the corresponding rate-increases. Specifically, plaintiff claims that, “as direct purchasers of BPA electric power” its members “bear a substantial portion of increased costs” which result from conservation measures taken for the listed species. These conservation measures include river operations (water flow restrictions) as well as BPA’s participation in and funding of hatchery and other conservation programs. Plaintiff PNGC also premises standing upon an “informational” interest in accurate and complete endangered species data for use in the FCRPS process. . DSI plaintiffs claim an immediate interest in the listed species because: (1) they employ biologists and geneticists who activelyparticipated with the NMFS throughout the process which led to the listings; (2) they participated in the “Salmon Summit” and its efforts to develop a recovery plan for the listed species; (3) they have paid approximately one-third of the BPA’s costs attributable to conservation measures over the last ten years through incr