Endangered Species Act Amendments:
Recovery Plans

Section Table of Contents

Recovery Plans

Current Law
S. 1180

When required

Scientific basis required

Priorities

Appointment of recovery team

Contents of recovery plans

Public notice and participation

Role of the Secretary

Implementation agreements

FACA

Role of states

Critical habitat

Schedule/deadlines

Enforcement

HR. 2351

Duty to recover species

When recovery plan required

Contents of recovery plans

Federal implementation plans

Schedule/deadlines

Role of states

Determining recovery

Current Law

Under current law, recovery plans are to be developed for endangered and threatened species unless the Secretary finds that a plan will not promote the conservation of the species. The Secretary is to give priority to species that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity. A plan must include: 1) a description of site-specific management actions that are necessary to achieve the plan's goal; 2) objective, measurable criteria which, when met, would result in a determination that the species no longer needs the protections of the Act and can be removed from the lists; and 3) estimates of the time and costs required to carry out the plan and to achieve intermediate steps toward the goal. Current recovery plans have been interpreted as advisory rather than regulatory documents.

The Secretary may use the services of public and private agencies, institutions and "qualified persons" in developing recovery plans. Recovery teams are not subject to the Federal Advisory Committee Act (FACA).⁷ The public is given notice and an opportunity to comment on recovery plans or revisions.

S. 1180

 

Section 3 of S. 1180 (pp.104-130) would expand significantly on current provisions relating to recovery plans and §3(b) of the bill (p.104) would establish a new, detailed §5 in the ESA devoted to that topic. (Current §5 of the Act on land acquisitions would become §5A.)

When required. Although recovery plans generally would be required, broader exceptions than are available under current law would be allowed. Recovery plans would be required for endangered species and threatened species that are indigenous to the United States or in waters with respect to which the United States exercises sovereign rights or jurisdiction.⁸

Under S. 1180, a recovery plan would not be required in every instance. Under new §5(a) (p.104), the current exception for when the Secretary finds a plan would not promote the conservation of the species would be preserved. In addition, a recovery plan would not need to be prepared if there is an "existing plan or strategy" to conserve a species that is the "functional equivalent" of a recovery plan. It is not clear what would be regarded as an adequate functional equivalent, or whether an equivalent plan or strategy must contain all the elements otherwise specified for recovery plans by the bill, such as measurable goals that constitute recovery, etc. ⁹ The Secretary could specify details in implementing regulations. Given the absence of legislated guidance, it is possible that general agency planning documents might be deemed functional equivalents. The Secretary may also authorize a state agency to develop a recovery plan.

A new ESA § 18(e) (pp.129-130) would be added to require the phased-in preparation of recovery plans for all species listed before the amendments that would be made by the bill. Therefore, it appears that all species listed before enactment of the amendments would have recovery plans prepared, but not all species listed after enactment of the amendments would.

Scientific basis required. Recovery plans would be required to be based on "the best scientific and commercial data available" and to set out biological recovery goals to recover the species. These goals would be based solely on the best scientific and commercial data available and would be expressed as objective and measurable biological criteria, the achievement of which would result in de-listing.

Priorities. A system of priorities would be established in new § 5(b) (pp.104-105) for developing recovery plans. The priority provisions in the bill are similar to the existing priorities, but would be expanded to include taxonomically distinct species, candidate species, and potential military conflicts as elements affecting priority status. Therefore, priority would be given to plans that address species facing immediate threats, multiple species, candidate species dependent on the same habitat as listed species, and plans that have the greatest likelihood of achieving recovery or those that would reduce conflicts with private property, jobs, other economic activities, and military training and operations. Since the recovery goals are to be based on science, the reduction of conflicts referred to here may mean reduction of conflicts through the certainty that recovery planning would provide. It is unclear what the priority to be given species that are "more taxonomically distinct" would mean in instances where the number of individuals of a species is ample in part of its range, but low in another part of its historic range. This was true, for example, with respect to the bald eagle which was plentiful in Alaska, but endangered in the lower 48 states. The eagle was listed as endangered in the lower states and has now recovered to the extent of being listed as threatened. Similar conditions also pertain to other species, such as the marbled murrelet. Under the bill language, it is possible that such species would receive a lower priority in recovery planning.

It also is unclear how priorities are to be balanced. It seems possible that all or most listed species might fall in one or more priority categories and could be a high priority in some regard, but a low priority in other. For example, the Florida panther might have a low priority for a recovery plan under the criteria, given its similarity to the other subspecies of Felis concolor and great difficulty in recovering, but it might have a high priority because it substantially conflicts with development.

Appointment of recovery team. When a recovery plan is to be done, a recovery team would be appointed and requirements for the appointment process are set out as a new § 5(d) (pp.106-107). Under current law, FACA would not apply. Team members would be "broadly representative of the constituencies with an interest in the species and its recovery and in the economic or social impacts of recovery...." Aside from this requirement, the balance of representation on a recovery team is left to the discretion of the Secretary. Members would also be selected for their knowledge of the species involved or expertise in the elements of the recovery plan or its implementation.

A new § 5(d)(3) of the bill (p.107) would authorize the Secretary to establish criteria to identify species for which the appointment of a recovery team would not be required. These criteria would have to take into account the availability of resources for recovery planning, the extent and complexity of the expected recovery activities, and the degree of scientific uncertainty associated with the threats to the species. There is no other clarification of what such criteria should be. If the Secretary does not appoint a recovery team, the Secretary may allow a state to complete a recovery plan. If a state does not do so, the Secretary must perform the duties of a recovery team.

Contents of recovery plans. Within 6 months of the formation of a recovery team, recommendations on recovery goals would be made to the Secretary by the members of the recovery team "with relevant scientific expertise." As mentioned, the recovery goals would be based solely on the best scientific and commercial data available. These recommendations would have to receive independent scientific review, which could prove difficult with respect to little-known species for which there &e a limited number of experts. Under new § 5(e)(2) (p.110), recovery plans would contain recovery measures designed to achieve the recovery goals. These recovery measures could include traditional measures such as actions to protect and restore habitat, but also the establishment of refuges, captive breeding, and releases of experimental populations. Under § 2(c)(8) of the bill (p. 97), any data that were described by the Secretary or submitted to the Secretary in connection with a listing regulation would be required to be considered by a recovery team and the Secretary.

In developing a draft recovery plan, a recovery team (or the Secretary if there is no recovery team) would be required to consider alternative measures to meet the recovery goals and "an appropriate balance" among enumerated factors of time, effectiveness, and social and economic impacts. No detail is provided on how the appropriateness of the balance of recovery measures would be determined, and absent additional guidance, a final decision of the Secretary on this matter might not be judicially reviewable.¹⁰ A draft plan also would have to describe the economic effects of recommended recovery measures, describe alternative recovery measures that are not included with the reasons for their inclusion or exclusion, and describe economic effects. A recovery plan also would have to include measurable benchmarks by which progress toward recovery could be measured. Specifying both recovery goals and measurable benchmarks could be difficult for species for which adequate information is not available.

Public notice and participation. Other provisions in new § 5(f) (p.113) would provide for public notice and opportunity to comment, and for up to five hearings on a plan, including at least one in each state to which a plan would apply. Because this provision contains the same wording as does the new listing section and requires holding at least one hearing "in an affected rural area, if any," ("rural area" is defined in § 9(a)(3) of the bill as a county or unincorporated area with no city or town over 10,000 inhabitants), it appears likely that the maximum of five hearings could be required in many instances. This process would probably broaden public participation, but could be costly and time-consumming.

Role of the Secretary. Under new § 5(h) (p. 114), the Secretary would review a draft recovery plan for compliance with the law and give the recovery team an opportunity to resubmit a plan to which the Secretary objected. In finalizing a plan, the Secretary would select recovery measures that meet the recovery goal and benchmarks and publish an explanation of why any measures recommended by the team were not selected. It is not clear whether the Secretary could modify the recovery goals and benchmarks or add additional recovery measures not recommended by the team. The selected measures must meet the balance required by § 5(e)(2)(B)(i) (concerning effectiveness, time, and social and economic impacts). Review of existing plans and periodic review and possible revision of new or existing plans would be permitted. Revisions would also be completed by recovery teams unless the Secretary has established an exception.

New § 5(d)(3) (p.107) would authorize the Secretary to establish criteria for identifying species for which the appointment of a recovery team would not be required. If the Secretary does not appoint a recovery team, the Secretary shall allow a state to appoint a recovery team and complete a recovery plan. If a state does not appoint a recovery team, the Secretary must perform all the duties of a recovery team.

Implementation agreements. Under new § 5(l)(1) (p.116 - 117), the Secretary would be "authorized" to implement recovery measures by entering into agreements with federal agencies, states, Indian tribes, local governments, private landowners and organizations. (See previous comments concerning "tribes.") The bill sets out preliminary criteria for the Secretary's approval of such agreements, such as whether the party has the legal authority and capability to carry out the agreement. These agreements appear to be optional and there are no provisions regarding their contents. How these agreements interact with other implementation agreements authorized by the section (discussed below) is not clear.

In contrast to the apparently optional agreements authorized under new § 5(l)(l), under new § 5(l)(2) (p.117), there would be a duty for each federal agency identified as an agency that authorizes, funds, or carries out actions likely to have significant effect on a listed species, to enter into an implementation agreement with the Secretary not later than 2 years after approval of a recovery plan.

"For purposes of satisfying this section" (i.e., new ESA § 5), the substantive provisions of these agreements are "within the sole discretion of the Secretary and the head of the Federal agency entering into the agreement." This language would preclude judicial review of whatever is committed to the discretion of the officials negotiating such agreements.¹¹ However, the breadth of what is committed to their discretion is not clear. The committee report asserts that only review of a plan for compliance with § 5 would be precluded, and that review of compliance with the rest of the ESA and other laws would be retained.¹² Possibly this means that only the issue of whether the measures m a federal implementation agreement are adequate to achieve recovery is intended to be insulated from review. However, the language in question does place "the substantive provisions of the agreement" to some extent beyond review, and these provisions would include measures to be carried out on the lands. Arguably, this language leaves open the possibility of restrictive or permissive agreements or anything in between.

One could perhaps argue that even if federal recovery measures would be insulated from judicial review, judicial review would still be available for compliance of federal actions with the § 7(a) requirement that agencies avoid jeopardizing the continued existence of species. However, new § 5(l)(3) of the bill would provide that any action authorized in one of these agreements "shall not be subject to the requirements of section 7(a)(2) for that species," if the action is carried out during the term of the agreement and the agency is in compliance with the agreement. Section 7(a)(2) both requires that federal agencies insure that their actions will not jeopardize the continued existence of listed species and requires completion of the consultation process to review federal actions for possible jeopardy. It is not clear whether new § 5(l)(3) would only eliminate the consultation process, or whether it also would eliminate the requirement of § 7(a)(2) that the agency insure that it will avoid jeopardy. (Other parts of the ESA, such as § 7(a)(1), provide a general duty to federal agencies to conserve species, but courts have focused on the more specific requirements and procedures of § 7(a)(2) in enforcement actions.) Therefore, the scope of the exceptions provided in new § 5(1) and the scope of remaining judicial review is not clear, and these issues go to the basic duties of federal agencies to ensure the survival and recovery of listed species.

No public involvement in the development of federal implementation agreements would be required. If the agency involved prepared an Environmental Impact Statement under the National Environmental Policy Act (NEPA), this process would appear to afford an opportunity for public participation, even though the final choices would be completely up to the Secretary and the head of the agency involved and be beyond judicial review. We do not know if similar instances exist where the EIS process is completed with public participation even though the final decision is within the reviewable discretion of an official.

Furthermore, under new § 5(l)(3)(B) (p.118), non-federal persons and their actions could be included in "an implementation agreement" if a site-specific action "meets the requirements of subparagraph (A)" and requires federal authorization or funding. Subparagraph (A) refers to agreements between an agency and the Secretary. It is not clear in which types of agreements non-federal parties can participate, but it appears that they may participate in both general agreements under new § 5(l)(l), which expressly mentions non-federal parties, and in mandatory agency agreements under § 5(l)(2). If private parties participate in mandatory federal agency agreements, it appears that the actions of private parties could also be excused from the consultation process, and not be subject to public input or judicial review.¹³

As noted, under new § 5(l)(3)(A) (p.118), agency actions that affect listed species or critical habitat apparently would not be subject to § 7 consultation if the action is addressed in an implementation agreement and the federal agency is in compliance with the agreement. Therefore, only agency scientists would review agency actions or non-federal actions included in such an agreement. Federal agency efforts to recover species would be almost completely up to the individual agency, checked only by the requirement that the Secretary must initially agree to the implementation plan. This arguably may increase efficiency and agencies could be expected to make good faith efforts to carry out the law. However, agencies have not always made adequate efforts in the past^{. 14} The bill lacks the usual checks on agency actions, such as meaningful public input, non-agency review, peer review, and judicial review. The adequacy (or inadequacy) of an agency's decisions may not become clear until species in question have declined further. And, as noted, non-federal actions could also be included in these agency implementation agreements.

The relationship of these provisions on recovery to existing processes of federal land management agencies is not clear. For example, a representative of a federal agency affected by a particular recovery effort may be on a recovery team, but representation of such agencies would not be required. Recovery plan implementation agreements with federal agencies would be required, but the relationship of these agreements to existing federal land management plans is not specified. Perhaps in the context of federal land management agencies, the implementation agreements would be the specific measures and timetables proposed by an agency to respond to a recovery plan through making plan amendments or revisions. If so, because such plan amendments would occur after an agency implementation agreement, which could be executed up to 2 years after approval of a recovery plan, the time for federal agency response could be very long. As drafted, there is no provision for emergency responses.

Financial assistance to private landowners in carrying out a recovery plan implementation agreement would be made available under the provisions of new § 5(l)(4).

FACA. As under current law, FACA would not apply to recovery teams.

Role of states. The Secretary would be required under new § 5(a) to "develop and implement" recovery plans "in cooperation with the States." Section 9(a)(2) of the bill would add a new paragraph to § 3 of the ESA defining "in cooperation with the States," as a process under which each of the affected states or a representative of state agencies would be given an opportunity to "participate in a meaningful and timely manner in the development of the standards, guidelines, and regulations to implement [the act]." There is no elaboration on how state representatives would participate or who would develop the "process" by which that participation takes place, though it may be inferred that the Secretary would do so. While this provision would allow states to represent their interests in species and recovery plans, it also raises questions as to how this participation in both the development and implementation of plans is to occur and how state participation might affect the statutory deadlines.

In addition, under new § 5(m) (p.120), upon the request of one or more Governors, the Secretary may authorize a state agency to prepare a recovery plan in accordance with the scheduling, team appointment, and general substantive requirements of the federal law. The Secretary "in cooperation with the States" would publish standards and guidelines for the development of recovery plans "and for the grant and withdrawal of authorization by the Secretary...." It is not clear whether "with the States" here refers only to a particular instance in which a recovery plan would be developed by a state or states, or whether these standards and guidelines would be general ones developed to guide all instances when states would develop recovery plans. Additional provisions regarding when the Secretary may withdraw authority from a state are set out. The Secretary must give the state agency an opportunity to correct deficiencies identified by the Secretary and unless the deficiencies are cured within 60 days, the Secretary may withdraw authority from the state. (Interestingly, if the deficiency is a missed deadline for developing a draft recovery plan, this appears to extend the delay by 60 more days.)

New § 5(d)(3) (p.107) would authorize the Secretary to establish criteria for identifying species for which the appointment of a recovery team would not be required. If the Secretary does not appoint a recovery team, the Secretary shall allow a state to appoint a recovery team and complete a recovery plan. If a state does not appoint a recovery team, the Secretary must perform all the duties of a recovery team.

Critical habitat. The new provisions in S. 1180 on the designation of critical habitat are in new ESA § 5(n) (p.123), which would require a recovery team to provide the Secretary with recommendations on critical habitat. Therefore, designation of critical habitat could occur a significant length of time after listing. (See Habitat Protection below.) This subsection is not among the subsections with which state-developed recovery plans must comply. See § 5(m)(l), which requires a state plan to comply with various procedural sections and also with the substantive requirements of § 5(e). Therefore, the actions that would be required from state recovery teams with respect to critical habitat are not clear. Also, general guidance to landowners may not be available for quite some time after listing, since designation of critical habitat, establishment of recovery measures, and management restriction could be set out in the recovery plan. In addition; § 2(c)(7)(C) would strike the language in current ESA § 4(b)(8) that requires the Secretary, as part of a designation of critical habitat accompanying a listing, to indicate which activities might adversely modify habitat.

Schedule/deadlines. Under new § 5(c) (p.106), a draft recovery plan would have to be completed not later than 18 months after listing and a final recovery plan finalized not later than 30 months after listing. An additional 2 years would be allowed for a federal agency recovery implementation agreement; plus additional time -- which could easily be two years -- would be needed to amend or revise federal land and resource management plans thereafter. Therefore, for a species that occurs on federal lands, 6½ years could elapse between the time a species is listed and the time protective measures were in place under relevant federal management plans. Listing itself and possible litigation would add additional time. No provision is made for emergency responses.

Reports. The Secretary would be required to report every 2 years to the relevant congressional committees on the status of efforts to develop recovery plans.

Enforcement. Section 3(c) of the bill (p. l28) would amend § 1l(g)(1)(C) of the Act to allow citizen suits against the Secretary for falling to perform any act or duty under new § 5 on recovery plans which is not discretionary with the Secretary. The principal remedy in the context of a state-developed recovery plan appears to be for the Secretary to remove the authority provided the state. A citizen suit might be available to force the Secretary to take that action in some circumstances. As discussed above, judicial review of recovery implementation agreements negotiated with a federal agency would be circumscribed and the extent of review is unclear. These agreements also apparently could include actions by non-federal parties that receive federal approval or funding. (See Enforcement below.)

H.R. 2351

Section 2 (8) finds that only by taking actions that implement "the existing recovery goal" of the ESA "can we ensure that species will eventually be removed from the lists" under that Act.

Duty to recover species. Section 107(a) of the bill (pp.16-17) would amend § 7(a) of the ESA to clarify that the current requirement that all federal agencies use their authorities to further the purposes of the ESA by carrying out programs for the conservation of listed species includes recovery actions identified in recovery implementation plans of the agency. Some duty to recover species appears to be currently required because of the definition of the word "conserve" in § 3 of the ESA, but the House bill would clarify this duty.

As is true of S. 1180, H.R. 2351 would significantly broaden existing ESA recovery provisions and add new provisions Section 2(8) of the bill (p.4) would find that implementing the recovery goal of the ESA is necessary to ensure that species will eventually be removed from the ESA lists. Section 101 (p.5) would define "recovery" to mean "that the threats to a species, as analyzed under section 4(a), have been eliminated, the species has achieved long-term viability, and the protective measures under this Act are no longer needed." As will be discussed, this reference to the elimination of threats could have broad effects.

When recovery plan required. Section 105 (p.12) would amend current ESA § 4(f) that addresses recovery plans. In contrast to the Senate bill, H.R. 2351 would require a recovery plan to be prepared for "each" endangered or threatened species and would strike the current exception that allows the Secretary not to prepare a recovery plan if the Secretary finds that a plan will not promote the conservation of the species. On the one hand, this requirement could encourage preparation of multi-species recovery plans, but on the other hand, it could be a very difficult requirement to meet without more personnel and funds. Arguably, it could also waste time and money on recovery plans that would not promote the conservation of species.

Contents of recovery plans. Section 105 (p.13) would add new language to require that recovery plans include provisions for the conservation in the recovery plan area of each species listed as endangered species or threatened species, and for "candidate species, and species proposed for listing." It is not clear how or why "recovery" provisions should be prepared for species that are not yet listed, since before listing it has not been determined that the protective measures of listing are necessary and hence that recovery can be achieved. The intention might be to require that a recovery plan include provisions relative to candidate and proposed species in the area that "would be likely to eliminate the need for listing," but this is not stated.

The provisions of current § 4(f)(l)(C) that describe the contents of recovery plans would be modified (p. 13) to require that the description of site-specific management actions denote those of the "highest priority and greatest recovery potential." Habitat needs and population levels would be included among the objective measurable criteria that, when met, would result in a determination that a species could be removed from listing. (p.14.) Current law requiring estimates of time and costs would not be changed. A new provision added as §4(f)(l)(C)(iv) (p.14) would require a general description of types of actions likely to violate the taking and jeopardy prohibitions. This would provide additional guidance to landowners. Unlike S. 1180, the bill would retain current § 4(b)(8), that requires the Secretary to publish, at the time of critical habitat designation, information on activities that would adversely affect the habitat.

Another new provision (p.14) would require a list of federal, state, tribal, and local government entities that would be significantly affected by the goals or management actions in the recovery plan, and should complete a recovery implementation plan under new ESA § 4(f)(5)(A). However, new § 4(f)(5)(A) (p.15) would only require federal agencies to develop plans, so the duties of non-federal agencies in this regard are unclear.

Federal implementation plans. New ESA § 4(f)(5)(A) (pp. 15-16) would require each federal agency significantly affected by the goals or management actions in a final recovery plan to develop and implement a recovery implementation plan after public notice and opportunity for comment. Such a plan would have to identify the agency's duties and management responsibilities that would contribute to the achievement of the recovery goals; set forth specific agency actions, timetables, and funding to achieve and monitor recovery goals; identify lands or waters under the agency's jurisdiction that do or could provide habitat for the species; identify any actions needed to acquire additional suitable habitat; and describe the actions the agency will take to contribute to recovery. Presumably, the timetables would reflect any time necessary to amend or revise land and resource management plans where appropriate. It appears that failure by an agency to carry out a recovery implementation plan could be challenged under the citizen suit provisions of §11(g)(1) of the ESA as amended by §109 of the bill (p.43).

Schedule/deadlines. Section 105 (p.12) would amend ESA § 4(f) to require completion of a draft recovery plan within 18 months and a final plan within 30 months. Implementation is also stated as beginning after 30 months (p.13), but under new §4(f)(5)(A), agencies are to develop a "recovery implementation plan" after a recovery plan is finalized and after notice and opportunity for public review and comment. No specific length of time is set out for completion of these agreements. Additional time would be consumed by any necessary amendments or revisions to federal land and resource management plans. There are no provisions for emergency responses. Therefore, the House and Senate bills would probably involve similar length of time for federal agencies to respond with recovery actions.

Role of states. New § 4(f)(5)(C) (p.16) would direct the Secretary, consistent with current ESA § 6 on cooperative agreements, to cooperate to the maximum extent practicable with states, tribes, and local government entities that are significantly affected by a final recovery plan, to develop cooperative plans to achieve the goals of a recovery plan. ESA §6 would be amended (p.16) to include "any Indian tribe" as a possible party with whom the Secretary could enter into a cooperative agreement. (See earlier discussion concerning recognized and unrecognized tribes.)

Determining recovery. Under new § 4(f)(l)(D) (p.14), for the purpose of determining criteria for measuring when a species has recovered and can be de-listed, the Secretary, in consultation with the National Academy of Sciences, would be required to select a panel of scientists with related expertise and no significant economic interest in the recovery plan. How the Secretary is to work with this panel is not set out, but it appears that the panel is to determine the criteria and the Secretary is to apply them to make de-listing determinations.

Endnotes

7 5 U.S.C. App. §§ 1-14.

8 The Senate Report indicates that this would mean those waters landward of the outer boundary of the Exclusive Economic Zone established by Presidential Proclamation No.5030, dated March 10, 1983. S. Rep 105-128 at 19(1997)

9 The Senate Report states that "only plans or strategies that have undergone similar procedural and substantive requirements could serve as functional equivalents." Id, at 19.

10 CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE § 13.3 (2d ed.) (1977), discussing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) and other cases. Courts may be expressly precluded from reviewing agency actions, including instances when a subject is committed to agency discretion by law, or may be precluded from doing so in practice because of a lack of criteria or meaningful standards by which to evaluate agency decisions.

11 Id

12 See S. Rep. 105-128 at 22 (1997), which states: "With the exception of the deadline for completion of recovery plan implementation agreements between the Secretary and a Federal agency, compliance of those agreements with section 5 would not be subject to judicial review under the provisions of section 11 of the Act. The agreement may be challenged as violative of other laws and other sections of the Act."

13 This interpretation appears to he supported by the committee report at 23.

14 For example, one judge commented that the Forest Service in its actions to conserve the northern spotted owl had engaged in "a remarkable series of violations of the environmental laws ...;" had exhibited a "deliberate and systematic refusal" to comply with the laws; and that "[t]he problem here has not been any shortcoming in the laws, but simply a refusal of administrative agencies to comply with them." Seattle Audubon Society v. Evans, 771 F. Supp. 1081, 1089, 1090, 1096 (W.D.Wash. 1991).