Full opinion text
MEMORANDUM OF ORDER AND JUDGMENT BRIMMER, District Judge. Plaintiffs Biodiversity Associates, Friends of the Bow and Leila Bruno bring this suit against the Forest Service, the Regional Forester, and the Forest Supervisor challenging various timber sales on the Medicine Bow National Forest. Inter-mountain Forest Association, Bighorn Lumber Company, and Louisiana Pacific Corporation were allowed to intervene as defendants on September 14, 2001. Plaintiffs’ suit arises from their claims that Defendants have violated the National Forest Management Act, 16 U.S.C. § 1601 et seq., by failing to revise the Medicine Bow National Forest Plan and by utilizing a timber sale schedule not contemplated by the Plan; that Defendants have violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by failing to supplement the programmatic Environmental Impact Statement to account for new information and changed circumstances; that Defendants have violated Section 327 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 2002 by failing to act expeditiously and in good faith, within the funding available, to revise the Medicine Bow National Forest Plan; and that pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the Court may set aside Defendants’ actions which have been arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Defendants and Intervenor Defendants contend that Section 327 forecloses challenges based on the staleness of the Medicine Bow National Forest Plan documents during fiscal year 2002; that the Environmental Assessments for the challenged timber sale projects adequately address new information and changed circumstances pending the revision of the Medicine Bow National Forest Plan; that the United States Forest Service is meeting the Section 327 standards in its efforts to revise the Medicine Bow National Forest Plan; and that Plaintiffs have failed to demonstrate entitlement to injunctive relief against the Jack Creek # 3 sale, on a balance of the equities. On July 17, 18, 19, 24 and 25, 2002, this Court conducted a hearing initially on Plaintiffs Motion for Preliminary Injunction. At the close of proceedings on July 19, 2002, the parties stipulated and the Court so ordered that the matter before the Court should be merged with a trial on the merits. Fed.R.Civ.P. 65(a)(2). Therefore, the Court now issues its findings of fact and conclusions of law and enters judgment. Fed.R.Civ.P. 52(a), 58. After hearing the issues presented at the hearing, considering the evidence, and being fully advised of the premises, the Court FINDS and ORDERS as follows: Statement of Parties and Jurisdiction Plaintiff Biodiversity Associates is an incorporated non-profit organization based in Laramie, Wyoming, founded to garner increased protection for wildlands and native wildlife and their habitats in the Medicine Bow National Forest (“MBNF”) and the Rocky Mountain Region. Plaintiff Friends of the Bow is an unincorporated, non-profit organization based in Laramie, Wyoming, dedicated to the protection and restoration of the MBNF. Plaintiff Leila Bruno is a citizen of Wyoming and co-founder of Biodiversity Associates and a member of Friends of the Bow, who engages in numerous outdoor activities in the MBNF. Defendant United States Forest Service (“USFS”) is a federal agency within the United States Department of Agriculture. The Secretary of Agriculture has delegated to the USFS the responsibilities of protecting resources and properly managing uses and activities on National Forest System lands, including lands in the MBNF. The national headquarters of the USFS is located in Washington, DC. The headquarters for the Rocky Mountain Region of the USFS is located in Golden, Colorado. The USFS headquarters for the MBNF is located in Laramie, Wyoming. Defendant United States Forest Service Rocky Mountain Regional Forester is a USFS official who is charged with overseeing USFS activities in the Rocky Mountain Region of the National Forest System, including the MBNF. The Regional Forester is responsible for supervising the revision of the MBNF’s 1985 Forest Plan (the “Plan”) and programmatic Environmental Impact Statement (“EIS”), as well as for issuing a timely revision of the Plan and EIS, among other duties. The current Regional Forester is Rick Cables and his office is located in Golden, Colorado. Defendant United States Forest Service Medicine Bow National Forest Supervisor is an official of the USFS. The Forest Supervisor’s responsibilities include supervising activities on the MBNF to ensure the protection of National Forest resources and comply with all applicable laws, regulations and Forest Service policies, among other duties. The current MBNF Forest Supervisor is Mary Peterson and her office is located in Laramie, Wyoming. Intervenor Defendant Intermountain Forest Association (“IFA”) is an Idaho non-profit corporation whose members are sawmills, loggers and related independent businesses that rely on national forest timber sales in the intermountain west for their livelihood. Intervenor Defendant Bighorn Lumber Company (“Bighorn”) is a Wyoming corporation that operates a sawmill in Laramie, Wyoming. Historically, more than half of Bighorn’s federal timber supply has come from the MBNF. Bighorn also owns forest land adjacent to the MBNF that it claims is threatened by infestation of insects and disease and the spread of fire if these dangers are not controlled on the MBNF. Intervenor Defendant Louisiana Pacific Corporation is a Delaware corporation that operates a sawmill in Saratoga, Wyoming. The USFS awarded Louisiana Pacific the Joe’s Park timber sale, which was initially implicated in this suit. Both Bighorn and Louisiana Pacific are members of IFA. The Court has jurisdiction over this controversy pursuant to the Administrative Procedure Act, 5 U.S.C. § 702 (right of review); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201 (declaratory relief); 28 U.S.C. § 2202 (injunctive relief); and 28 U.S.C. § 1361 (mandamus). Venue is proper pursuant to 28 U.S.C. § 1391(e). Statutory Background 1. The National Forest Management Act Pursuant to congressional mandate, national forests are administered under the National Forestry Management Act (“NFMA”), 16 U.S.C. § 1601 et seq. “NFMA requires the Secretary of Agriculture to develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 728, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). NFMA controls national forest management at two levels. First, it requires the implementation of a forest plan, a broad, comprehensive document addressing forest policy and stewardship concerns. See 16 U.S.C. § 1604(d); 36 C.F.R. § 219.10(b). Forest plans are intended to “guide all natural resource management activities, including use of the land for outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. In developing the plans, the Service must take both environmental and commercial goals into account.” Ohio Forestry, 523 U.S. at 729, 118 S.Ct. 1665 (citations omitted). Second, after a forest plan is created, it is implemented through the consideration and adoption of individual forest projects. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e). These projects must be consistent with the forest plan. Id. At issue in this case is NFMA’s mandate that a forest plan “shall be revised ... from time to time when the Secretary finds conditions in a unit have significantly changed, but at least every fifteen years.” 16 U.S.C. § 1604(f)(5). It is undisputed that the current MBNF Plan is more than fifteen years old. The statute is silent on the consequences of a failure to revise a plan within the fifteen year period. 2. The National Environmental Policy Act Both the forest plan and the implementing projects are subject to the requirements of the National Environmental Policy Act (“NEPA”). 42 U.S.C. §§ 4321 et seq. Under NEPA, federal agencies such as the USFS are required to analyze any “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332. NEPA does not mandate a particular outcome in agency decisionmaking; it merely requires agencies to observe procedures designed to ensure citizens and officials are informed and allowed to comment on agency action before decisions are made. See Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368, 1374-78 (10th Cir.1980). “Congress intended these ‘action-forcing procedures’ [in NEPA] merely to guarantee that agencies take a ‘hard look’ at the environmental consequences of proposed actions utilizing public comment and the best available scientific information.” Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir.1999). The primary tool for environmental analysis under NEPA is an environmental impact statement (“EIS”). An EIS is a detailed statement on: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (hi) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C). NEPA does not specifically address how to decide whether an EIS is required, but under regulations implemented by the Council for Environmental Quality (“CEQ”), agencies may conduct an environmental assessment (“EA”) to determine if a proposed action has potentially significant environmental impacts. 40 C.F.R. §§ 1501.4, 1508.9(a). If not, a Finding of No Significant Impact (“FONSI”) is issued, no EIS is necessary, and action may proceed. Id. To avoid redundancy and facilitate the completion of project-level EAs and EISs, agencies are allowed to piggy-back a portion of their analysis on the applicable findings of a programmatic EIS in a process called “tiering.” 40 C.F.R. § 1508.28. The CEQ regulations define tiering as: [T]he coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Id. Agencies may tier information from a programmatic EIS to a project EIS or EA, or from an earlier EIS to a subsequent supplemental EIS or EA. Id. NEPA documents can only be tiered to another EIS, not to a Forest Plan. Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800, 810 (9th Cir.1999). To ensure NEPA procedures are based on the “freshest” information, an agency is required to supplement NEPA documents when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1502.9(c)© and (ii). A supplemental EIS (“SEIS”) is not necessarily required in every instance of altered federal action, new information or changed circumstances. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). However, “if there remains ‘major Federal actio[n]’ to occur, and if the new information is sufficient to show that the remaining action will ‘affec[t] the quality of the human environment’ in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.” Id. at 374, 109 S.Ct. 1851. Agency decisions regarding the necessity -of both initial and supplemental EISs are reviewed under the arbitrary and capricious standard. Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992). A decision is arbitrary and capricious if: the agency ... relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Lamb v. Thompson, 265 F.3d 1038, 1046 (10th Cir.2001) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Courts may use in-junctive relief to cure an agency’s deficiencies in observing NEPA procedures. Ross v. Fed. Highway Admin., 162 F.3d 1046, 1054 (10th Cir.1998). 3. The Administrative Procedure Act The Administrative Procedure Act (“APA”) imposes duties on courts reviewing agency actions in two important ways. First, courts are required to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Second, courts must “hold unlawful and set aside agency action” where such agency action is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Where appropriate, relief in the form of a mandatory injunction may issue under the APA. See Mt. Emmons Min. Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.1997). Such extraordinary relief may issue only to cure “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. Agency action is defined as including “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or a failure to act.” 5 U.S.C. § 551(13). Findings of Fact I.The Medicine Bow National Forest 1. The MBNF is located in Wyoming and contains approximately 1,100,000 acres of forest lands in Albany, Carbon, Converse, Natrona and Platte counties in separate areas including the Hayden Area, the Medicine Bow Mountains area, the Pole Mountain area, and the Laramie Peak area. Administrative Record (hereinafter “AR”), Vol. 1 at 6, 46. 2. The MBNF is largely composed of continuous forest cover in various stages of growth. Transcript of Hearing Proceedings in Biodiversity Assoc., et al. v. U.S. Forest Service, et al., No. 01-CV-078-B (D.Wyo.) (hereinafter “Tr.”) at 409, lines 13-20; Exh. 1-35. 3. Roadless and wilderness areas combined comprise about 37% of the forest. Tr. at 446, line 14 — 25. 4. 55.3% of the wilderness on the MBNF is mature forest, and 54.2% of the roadless areas on the MBNF are in mature condition. Tr. at 627, lines 15-18; Tr. at 628, lines 14-16. 5. The Supervisor’s office, located in Laramie, Wyoming, provides oversight to the combined administrative unit of the Medicine Bow and Routt National Forests and Thunder Basin National Grassland in Wyoming and Colorado. Tr. at 366 lines 5-17. II. The 1985 Medicine Bow National Forest Plan 6. On November 20, 1985, Defendant USFS issued a Land and Resource Management Plan (the “Plan”) for the MBNF. AR at 4. 7. The purpose of the Plan was “to develop an overall strategy to guide management of the [MBNF] for the period 1986-1995 with projections to the year 2030.” AR at 1. 8. The alternative which was chosen as the basis for the Plan decreased emphasis on timber harvesting and livestock grazing and increased emphasis on other resource values, including wildlife. AR at 4-29. 9. The Plan described the management situation on the MBNF; the management direction proposed; and the general management requirements, divided by resource, to attain the direction proposed. The Plan also allocated the MBNF into management areas of differing resource emphasis with specific management requirements (prescriptions) to guide activities in each of those areas. AR at 31— 492. 10. A final Environmental Impact Statement (“EIS”) was issued in tandem with the Plan in November of 1985 pursuant to the requirements of NEPA. See AR at 493-2030. The final EIS analyzed, among other things: 1) the impact of various alternative management strategies for the MBNF, including the one approved by the USFS in November 1985 (AR at 603-606); 2) the impact of managing the MBNF given an assumed maximum timber harvest level (the “allowable sale quantity” or “ASQ”) (AR at 523); and 3) the environmental impact of management, given the adoption of certain standards and guidelines (AR at 790-965). 11. Total acres analyzed in the EIS were 1,665,860. AR at 497. 12. Long term estimates of the physical, biological, economic and social impacts were considered in the decision to adopt the Plan. AR at 101-114. These estimates were disclosed in the EIS. AR at 493— 2030. 13. USFS has been implementing the Plan through various types of site-specific projects and activities, including timber sales, since its adoption in 1985 and continues to do so to this day. It has continually monitored the effects of implementation of the Plan on the various resources of the MBNF and reported the results in annual monitoring reports. AR at 2411 — 3645. 14. The monitoring reports led to numerous amendments to the Plan, dealing with various issues arising during its implementation. AR at 2031' — -2410. These amendments, where necessary, were accompanied by environmental analyses pursuant to NEPA. See, e.g., AR at 2229, 2250, 2272, 2294, 2316, 2379, 2394. 15. The Plan contained a ten year timber sale schedule prefaced by the explanation that it was based on current conditions and information, that it might be modified during implementation as conditions change or new information became available, and that the degree of the modification would determine whether or not the Plan needed amendment. AR at 422— 433. The Plan was amended several times during implementation to change the timber sale schedule. See e.g., AR at 2055, 2061, 2228, 2247. 16. As of the date of this Order, the USFS has not completed a revision of the 1985 MBNF Plan, nor has the USFS completed a supplement to the forest-wide, programmatic EIS that accompanied the 1985 MBNF Plan. III. The Joes Park, Jack Creek # 3, and Bird Creek Timber Sales 17. The three timber sales challenged in this case are the Joes Park Timber Sale, the Jack Creek # 3 (JC3) Timber Sale, and the Bird Creek Timber Sale. AR at 4727-4874. 18. The Bird Creek sale was advertised, but resulted in a rejection of all bids on May 3, 2001 and has not been readver-tised or awarded. The Joes Park Timber Sale is nearing completion and no injunc-tive relief is sought as to it. 19. A final Environmental Assessment (“EA”) for the Jack Creek Timber Sale was published in January 1999. (AR at 4883 — 5034). In July 1999, instructions were given to redo the economic analysis on the Jack Creek decision. The economic analysis was redone and was included as part of the January 13, 2000 Decision Notice and Finding of No Significant Impact (“FONSI”) for the Jack Creek Timber Sale. (AR at 5035 — 5050). The MBNF Supervisor approved and authorized the Jack Creek project through this Decision Notice and FONSI. Id. The EA indicated that the preferred alternative was not a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively, and so the USFS did not need to prepare an EIS as the decision would not have a significant effect on the human environment. AR at 5049. The Jack Creek EA analyzed the impacts of both the JC3 and Joes Park timber sales. 20. The JC3 Sale Decision Notice authorized the sale and logging of approximately 8.5 million board feet of sawtimber over 1,367 acres of public land on the MBNF in the Jack Creek area, including approximately 436 acres of clearcutting. AR at 5036. To conduct this logging, approximately seven miles of road construction or reconstruction work is necessary. AR at 5037. 21. The JC3 Timber Sale includes the construction or reconstruction of 3.5 miles of road, and the removal of 5.6 million board feet of timber through the logging of 540 acres (including 291 acres of clear-cuts). The JC3 Timber Sale contract was awarded to Bighorn Lumber Company. AR at 5771-5784; Tr. at 439. 22. The Joes Park portion of the Jack Creek project includes the removal of 4.01 million board feet of timber through the logging of 514 acres (including 124 acres of clearcuts). The Joes Park Timber Sale contract was awarded to Louisiana Pacific. AR at 5720-5730; Tr. at 438-439. 23. The Jack Creek EA tiered its analysis to the 1985 forest-wide EIS, pursuant to NEPA. AR at 5049. As a result of this tiering, the Jack Creek EA’s economic analysis (AR at 5044); definition of key terms concerning wildlife diversity (AR at 4927); standards and guidelines shaping timber sale design (AR at 4929)(concern-ing old growth standards); and the “Purpose and Need” statement arise directly out of the 1985 MBNF Plan. (AR at 5039). The JC3 Timber Sale was to be implemented to achieve the desired conditions described in the 1985 MBNF Plan. AR at 5035, 5039. 24. The USFS prepared an EA for the White Swan/Holmes Timber sale and Watershed Improvement Projects dated March 1996. AR at 4548. The USFS issued a FONSI and Decision Notice for the White Swan/Holmes Timber Sale and Watershed Improvement Projects on March 29, 1996. AR at 4534. The White Swan/Holmes EA and Decision Notice proposed and analyzed units which make up the Bird Creek sale at issue here. A final EA on the Fall Creek/Bird Creek Timber Sale was published in July of 1997. (AR at 4727). A Decision Notice and FONSI on this sale was issued on April 8, 1998. AR at 4875-4887. The EA indicated that the preferred alternative was not a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively, and so the USFS did not need to prepare an EIS as the decision would not have a significant effect on the human environment. AR at 4885. 25. The Fall Creek/Bird Creek Timber Sale Decision Notice authorized logging of approximately 4.072 million board feet of timber across 1,451 acres of public land on the MBNF, as well as the construction of 3.6 miles of new roads and the reconstruction of 15.8 miles of roads to facilitate this timber sale. AR at 4875^4887. 26. The Fall Creek/Bird Creek Timber Sales EA tiered its analysis to the 1985 forest-wide EIS, pursuant to NEPA. AR at 4728. As a result of this tiering, the Fall Creek/Bird Creek Timber Sales EA’s general impacts (AR at 4785); economic and social analysis (AR at 4814); and standards and guidelines shaping timber sale design (AR at 4929) (concerning hiding cover standards for big game)(AR at 4802) (concerning old growth and wildlife habitat standards) arise directly out of the 1985 MBNF Plan. 27. In an administrative appeal of the Jack Creek Timber Sale decision in 2000, it was alleged that the timber sale would contribute to an unsustainable harvest level on the MBNF. AR at 5437-5450. USFS replied: Sustainability is determined at the Forest Planning level ... Until the Forest Plan is amended or revised, utilizing full public participation and disclosure, there is no scientific or legal basis for any other “sustainable harvest” figure. AR at 5515-5516. USFS replied similarly to a 1999 appeal of the Jack Creek sale (“Reassessment of the suitable timber base is a Forest Plan issue, and is beyond the scope of this analysis”)(AR at 5386), and to a 1998 appeal of the Fall Creek/Bird Creek Timber Sale. AR at 5230. 28. The Jack Creek EA and the Fall Creek/Bird Creek EA discuss forest fragmentation, although neither EA analyzes the effects of fragmentation forest-wide. The absence of such information in those EAs was discussed at the preliminary injunction hearing. See testimony of Dr. William Baker, Tr. at 222-223, 230-231, 236-237, 249-250; testimony of Erik Mol-var, Tr. at 313; testimony of Mary Peterson, Tr. at 518. Scientific concern over forest fragmentation only developed after the 1985 MBNF Plan EIS was completed, and consequently, that EIS does not consider the effects of forest fragmentation. See generally testimony of Dr. Baker, Tr. 196-216. 29. The Jack Creek EA and the Fall Creek/Bird Creek EA consider the impacts of these timber sales on sensitive species and reach conclusions about the impact of the proposed actions on forest-wide populations of sensitive species. AR at 5688, 5614. Forest-wide population data is an issue to be dealt with at the MBNF Plan level, not by a site specific EA. Tr. at 518-519. See testimony of Jeff Kessler, Tr. at 83-84 (MBNF concludes adverse impacts to individuals but not to population as a whole, though MBNF has no data on population as a whole). No forest-wide analysis of the effect of these timber sales is found in the 1985 MBNF Plan EIS to which the EA tiers. 30. Jack Creek EA and the Fall Creek/ Bird Creek EA consider the impact of these timber sales on threatened or candidate species, but do not supply data on forest-wide threatened or candidate species protected by the Endangered Species Act (ESA). EAs conclude that there will be no impact from the proposed actions on populations of threatened or candidate species forest-wide. AR at 5688; AR at 5614. No forest-wide analysis of the effect of these timber sales is found in the 1985 MBNF Plan EIS to which the EA tiers. IV. Occurances Since the Adoption of the 1985 Forest Plan 31. The administrative record and the evidence presented at the hearing demonstrate that since the completion of the MBNF Plan and Plan EIS, several things have occurred: a. Special Review Team. In March 1990, the MBNF Regional Forester convened a Special Review Team (“SRT”) of recognized experts to review the implementation of the 1985 MBNF Plan and generally to offer advice on the administration of the MBNF. After visiting the MBNF and meeting with a wide variety of interested parties, including timber industry officials and plaintiffs, the SRT issued a report. AR at 3900-3956. In its May 1990 Report, the Summary of Conclusions stated: We find that there are several significant problem areas in the administration of the MBNF. Most of these problem areas derive from an emphasis on the production of commercial wood products. The priority on timber production has driven, and drives, much of the Forest plan and the implementation of the plan. We emphasize that this is not a situation unique to the MBNF. In our experience, an emphasis on timber production drives the basic decision-making processes in most National Forests in the western US. In that sense, while we view the problems here to be substantial, the administration of the MBNF is similar to that which prevails in most western National Forests. This report will identify a number of problem areas. Importantly, the Forest Supervisor and his staff are already developing programs in response to several of these concerns. These actions are highly constructive and are evidence of changing policies in this National Forest. This changing set of attitudes in the MBNF was mentioned favorably by several witnesses. We do not, in this report, make recommendations as to whether the existing Plan must be amended or revised. Many of these problem areas can be addressed by other means, including fuller implementation of the existing Plan and the development of administrative policies not rising to the level of Plan amendments. Further, in the interest of administrative flexibility, we think it appropriate that procedural methods of addressing the problem areas we raise should be left to the discretion of the Forest Supervisor. AR at 3904. b. Timber Supply and Demand Study. On October 22, 1991, in the wake of the Special Review Team Report, the MBNF Forest Supervisor issued a document entitled “A Direction for the ’90s.” In that 1991 document, the Forest Supervisor acknowledged there was a “need to look more carefully at the amount of timber harvest, to determine if the amount is sustainable and if it meets the Standards and Guidelines in the Forest Plan.” AR at 3892. The Forest Supervisor spoke of a “timber supply and demand study” (“TSDS”) which would calculate timber sales between 1991 and 2015 based on Forest Plan Standards and Guidelines. AR at 3889. The Forest Supervisor stated that “[i]f this timber supply study indicates timber harvest levels should be changed, we will consider amending the Forest Plan, evaluating a full range of alternatives using the National Environmental Policy Act process, and involving the public in all phases.” AR at 3889. The purpose of the study was to “help determine if there has been a change in conditions or if new information is now available that would lead to a change in the Forest Plan.” AR at 4037. The TSDS was initiated in or around 1989. The TSDS evaluated available saw-timber supply by selecting “[e]utting units entirely consistent with the [1985] Forest Plan” and “designed and selected to harvest the maximum amount of timber.... ” AR at 3894. The MBNF halted the TSDS in or around January 1992. Forest Plan Revision Meeting and Forest Supervisor’s Address (Jan. 8, 1993), at 5, Plaintiffs’ Trial Exhibit 19. Before being halted, the Study had been completed on about 60% of watersheds on the MBNF. Id. While incomplete, the TSDS indicated that the allowable sale quantity (“ASQ”)(whieh is an estimate or projection of timber that can be harvested annually or over some period of time for the forest, but which is not a figure that the USFS is required to meet (Tr. at 502, 505)) calculated in the 1985 Forest Plan, which informed the standards and guidelines for management of the Forest, was too high. Id. The TSDS indicated that the ASQ should have been 7 to 11 million board feet, not 28 million. Id. at 6. Testimony offered at trial supports this conclusion. Testimony of Mary H. Peterson, Tr. at 405-407; AR at 12. The MBNF halted work on the TSDS because the complexities involved with the study and the amount of time and money that it would take to complete the TSDS would be better directed to the Plan revision. Plaintiffs’ Ex. 19 at p. 5. Even though the ASQ in the 1985 MBNF Plan was found to be high, the TSDS was halted, and the Plan has not yet been revised as of this Order, the evidence shows that the actual amount of timber sold on the MBNF since 1994 has been significantly below the ASQ in the 1985 Plan and also below the 7 — 11 million board feet ASQ projected by the incomplete TSDS. Tr. at 407, Government Ex. H. Between 1994 and 2001, the actual volume of timber sold has averaged 4.8 million board feet per year. Id. c. Forest Fragmentation. Since the adoption of the MBNF Plan in 1985, virtually the entire science of landscape ecology and the concept of fragmentation has arisen. See Baker, Landscape Structure Measurements for Watersheds in the Medicine Bow National Forest Using GIS Analysis (Dec. 29, 1994), AR at 6072-6268; Reed et al., Fragmentation of Forested Rocky Mountain Landscape (1994), AR at 6062-6070; Tr. 196-216. Dr. Baker’s “Landscape” report concludes that there is a current and serious deficit in mature and old growth interior forest that was caused by, and is not likely to be remedied by, clear-cutting. See, e.g., Baker, Landscape Structure Measurements for Watersheds in the MBNF, AR at 6076; see also Testimony of Dr. Baker, Tr. at 233 (describing his 1994 report). The existence, and impacts, of fragmentation at a forest-wide level are not addressed in the 1985 Plan, or the accompanying EIS. The Administrative Record contains no evidence that the USFS has attempted to analyze forest fragmentation at a forest-wide level. Dr. Baker, a landscape ecology expert who has studied fragmentation on the MBNF, testified that the 1985 Plan and forest-wide programmatic EIS were “antiquated” and “badly out of date” in their approach to fragmentation. Tr. at 215, 249. Dr. Baker testified regarding new information that has arisen since the 1985 MBNF, including the extent to which: (a) the MBNF is fragmented from logging as well as roads (Tr. at 210-212); (b) protecting small patches of old-growth (as considered in the 1985 MBNF Plan) is useful in preserving species that rely on interior forest (Tr. at 221-222); (c) aggregating harvests might be a way to reduce the impacts of fragmentation (Tr. at 245-246); and (d) high-contrast edge may be detrimental to biodiversity across the forest. Tr. at 249. Dr. Baker testified that if a forest plan contained information on landscape scale issues, then project level analyses could incorporate that information; otherwise, landscape ecology and fragmentation concerns cannot be addressed by looking at a site-specific, project level analysis. Tr. at 219-221. However, the EAs for the Timber Sales at issue in this case considered Dr. Baker’s works, and thus considered forest wide concerns in implementation of these site specific projects. See Infra. d. Sensitive Species. The USFS’s Rocky Mountain Region — the administrative Region of which the MBNF is a part — first promulgated a sensitive species policy and issued a sensitive species list in 1993, and revised them in 1994. AR at 3863-3878. This list contains about 79 plants and 87 animals that occur in the region. Of these, 5 plants and 34 animals occur on the MBNF. The Administrative Record contains no evidence that the MBNF has undertaken surveys or headcounts of sensitive species on a systematic, forest-wide basis since the adoption of the sensitive species list. See Testimony of Mary Peterson, Tr. at 500, 502 (admitting MBNF has no headcounts of sensitive species across the Forest as a whole); Tr. at 501 (population data for sensitive species is the kind of data collected during a Plan revision); testimony of Jeff Kessler, Tr. at 83-84 (while MBNF concludes adverse impacts to individuals, but not to population as a whole, MBNF has no data on population as a whole); testimony of Erik M. Molvar, Tr. at 325-326 (with few exceptions, MBNF possessed no population data on any of the sensitive species or management indicator species except for those which were game species that were tracked by the Wyoming Game & Fish Department). e. Threatened, endangered, and candidate species. Since the adoption of the 1985 MBNF Plan and the accompanying programmatic EIS, the U.S. Fish and Wildlife Service has designated as threatened or as candidate species several species for which habitat occurs on the MBNF. These include the lynx (threatened), 65 Fed.Reg. 16052 (Mar. 24, 2000), Prebles meadow jumping mouse (threatened), 63 Fed.Reg. 26517 (May 13, 1998), and the boreal toad (candidate), 60 Fed. Reg. 15281 (March 23, 1995). See also AR at 3571. V. Pre-1999 Efforts to Revise the Plan 32. The USFS requested that the 1985 MBNF Plan be scheduled for revision beginning in Fiscal year 1993. AR at 4490. 33. In early 1995, the MBNF, Thunder Basin National Grassland and Routt National Forest were administratively combined. Tr. at 367. 34. At that time, both the Routt and MBNF plans were undergoing revision. Tr. at 125. Since the Routt plan was older (approved in 1983) and closer to completion, and there were limited financial and human resources to complete both revisions, the MBNF Plan revision was deferred until the Routt plan could be completed. Tr. at 3678-68, AR at 3319-3320. 35. The 1997 Routt Revised Land and Resource Management Plan as analyzed in the Final Environmental Impact Statement was approved in early 1998. Tr. at 373. 36. The Notice of Intent (“NOI”) to revise the land and resource management plans for all ten units of the Northern Great Plains planning effort, including the Thunder Basin, was published in 1997. AR at 4526-4530. 37. A Record of Decision for the Thunder Basin Land and Resource Management Plan — 2001 Revision was approved in July 2002. Tr. at 373. 38. In fiscal year 1998, Congress curtailed funding for National Forests and National Grasslands plan revision processes that had not already issued a NOI to revise. AR at 3882. 39. The MBNF had not yet published an NOI to revise. Tr. at 372. VI. Post-1999 Efforts to Revise the Plan 40. In Fiscal Year 1999, Congress authorized funding for new forest plan revisions or new grassland plan revisions, and an updated Purpose and Need Planning Criteria was completed in 1999. AR at 5894 — 5914. 41. A NOI to revise the MBNF Land and Resource Management Plan was published in the Federal Register in 1999. Tr. at 376. 42. The fifteen year anniversary date of the MBNF Plan was November 20, 2000. 16 U.S.C. § 1604(f)(5). 43. The Forest Service is currently revising the MBNF Plan. AR at 5960. 44. The USFS expects to publish a draft environmental impact statement by the end of calendar year 2002, and expects to be finished with the MBNF Plan revision by late 2003. Tr. at 386; Jan. 10, 2002 Decl. of Lynn Jackson at ¶ 2. 45. Prior to November 2000, a number of milestones in the Plan revision process were completed: 1) soil surveys; 2) reasonable and foreseeable oil and gas development reports; 3) wild and scenic river eligibility identification; 4) special interest area identification; 5) draft economic assessments; 6) mineral resource survey by the Wyoming Geological survey; 7) watershed assessment of equivalent clearcut acres; 8) timber yield tables; 9) geographic area existing condition reports; 10) completion of draft historic range of variability report; 11) completion of market demand analysis; 12) completion of timber suitability coverage; 13) recreation summer ROS; 14) range capability assessment; 15) road-less area inventory; 16) scenery management system GIS layers; 17) publication of a NOI to revise the Plan and public open houses; 18) updated purpose and need; and 19) completed a Memorandum of Understanding with Wyoming conservation districts. Tr. at 375-377; Govt. Ex. A. 46. The following are some major activities that were initiated and accomplished after November, 2000: 1) Analysis of the Management Situation (Spring 2001); 2) public presentation of baseline assessment reports (April 2001); 3) three field trips to sites on the MBNF were held with the public to discuss major revision issues (September 7, 2001); 4) eight public meetings were held in communities in and around the MBNF to validate issues, the need to change the MBNF Plan, and to discuss six draft alternatives (November— December 2001). The public was so interested in meeting with the USFS that they asked for four more meetings than the four originally scheduled and asked for a time extension to facilitate public comments on the draft alternatives. Declaration of Lynn Jackson at 7-8; Govt. Ex. B. 47. The USFS has been very responsive to its cooperators and the public in the revision process, and has undertaken such actions as scheduling public meetings in response to requests, incorporating and utilizing public comment, and operating a public website. Tr. at 565. 48. The USFS also obtained a large degree of public input in developing the alternatives for the plan EIS. Tr. at 387. 49. Since September of 2001, a number of tasks related to plan revision have been accomplished, including the initiation of two new assessment reports, holding fourteen public meetings, and obtaining regional forester review and approval of the range of alternatives. Tr. at 379-380; Govt. Ex. C. 50. The USFS has re-allocated resources and trimmed expenses to obtain sufficient funds for the forest planning effort in fiscal year 2002. Tr. at 381-382; Govt. Ex. D. 51. The funding for the MBNF Plan revision has almost doubled from the years 1999 and 2000 to 2001 and 2002. Tr. at 384; Pl.Ex. 22. 52. Since January of 2001, five permanent staff members have been added to the planning interdisciplinary team. Tr. at 384. 53. The USFS has developed a schedule with proposed deadlines to meet a fall, 2003 deadline for issuance of the final revised plan, record of decision, and EIS. Tr. at 388-389; Govt. Ex. E. 54. The MBNF Plan revision process is a complex process which typically takes four to five years to complete. Tr. at 389-390. 55. Revision of the Plan has been delayed numerous times since it was first announced that it would be completed in 1995. See Forest Plan Revision Work Plan (Dec. 29, 1992) at 8, Pis’ Ex. 43D, 43E, 43G-Q; Forest Plan Revision Meeting and Forest Supervisor’s Address (Jan. 8, 1993), at 2-3, Pis’ Ex. 19; AR at 3146, 3249, 5490 (all showing various difficulties with the revision, as well as the gradual progression of a later and later deadline for the completion of the revision). The inability to complete the MBNF Plan revision before November of 2000 stemmed in part from a lack of funding and the complication of consolidating two forests and creating a separate plan for the Thunder Basin Grassland. Tr. at 399-400. 56. The USFS is on schedule to issue a final revised plan by fall 2003. Tr. at 398. VII. Congressional Action 57. As of April, 2002, only 12 National Forests out of 127 had completed their Plan revisions. Report to the House & Senate Committees on Appropriations on Forest Service Land and Resource Planning, The Status of Activities, USDA Forest Service 31 January 2002 at 7, attached as Ex. 2 to Defendants’ Notice to the Court dated April 18, 2002. 58. As of October 1, 2001, 39 of the Forest units were in some stage of the revision process, and as of April, 2002, approximately 110 plans would not be completed by the statutory 15 year deadline. Report to the House & Senate Committees on Appropriations on Forest Service Land and Resource Planning, The Status of Activities, USDA Forest Service 31 January 2002 at 3, 7-12, annexed to Defendants’ Notice to the Court dated April 18, 2002. 59. Congress responded to the delay in completing forest plans by enacting Section 327 of the Department of the Interior and Related Agencies Appropriations Act, 2002, Pub.L. No. 107-63, 115 Stat. 414 (Nov. 5, 2001) (hereinafter, “Section 327”). VIII. Fragmentation and the Jack Creek Timber Sale 60. The purpose and need of the JC3 timber sale was to improve vegetative diversity, improve forest health, provide timber to meet public demand, integrated pest management, watershed restoration, and big game security. Tr. at 421-422. 61. The USFS considered three alternatives before deciding how to proceed with the JC3 timber sale, and chose the alternative that best met the purposes and needs. Tr. at 422-423. 62. The Jack Creek EA noted that several commenters had raised a concern about the effects of the proposed sale on fragmentation, and that the issue had been used to develop alternatives. AR at 4900-01. 63. The fragmentation issue was framed in terms of a shortage of undeveloped areas on the forest, an abundance of heavily roaded and cut areas, and concern for the decline in aspen in the vicinity. AR at 4901. 64. The Jack Creek EA analyzed the forest fragmentation expected to result from the proposed action, noting that the USFS planned to concentrate harvest units in seven areas that had past timber sale entries. AR at 4902; Tr. at 423. 65. Moreover, clearcutting and oversto-ry removal harvest methods would be used to maintain and promote aspen in the vicinity. AR at 4902; Tr. at 422-423. 66. The Jack Creek EA also analyzed the amount of road construction, re-construction, and temporary construction that would be needed. Id. 67. The Jack Creek EA noted certain planned mitigation measures, such as closing the road after the sale to restrict vehicle use. Id. 68 To reduce fragmentation, the MBNF staff is working towards reducing the amount of roads in the forest. Tr. at 420. 69.The JC3 sale will rely mostly on road re-construction, instead of new road construction, and all of the new road construction will be closed after the harvest. Tr. at 488, 605, 607. 70. The Jack Creek EA also noted that under the proposed action, commercial thinning will be done to maintain potential Northern goshawk habitat, as well as improve forest resiliency to insects and disease, and increase tree growth. AR at 4902; Tr. at 423. 71. The Jack Creek EA noted that harvesting would be used over a series of entries to consolidate areas fragmented by past clear-cutting, and would also reduce the spread of dwarf mistletoe. AR at 5047. 72. In the Jack Creek area, the lodge-pole pine stands are very heavily infected with mistletoe, and they are at the age where regeneration, through a system of clearcut harvesting, is the appropriate course of action to take in order to end up with a more contiguous young stand of healthy trees, that will grow all together into a stand of mature trees. Tr. at 488-489. 73. The proposed timber harvest will also maintain blocks of mature trees and create blocks of young trees, so as to create a “mosaic” to provide habitat needs for various forms of wildlife and plant species, including goshawks. Id. 74. The JC3 sale was intended to help reduce the fragmentation that already existed in the area through past harvest activities and road building. Tr. at 424. 75. The Jack Creek EA explained that “[i]n keeping with the concepts of Forest Plan implementation and ecosystem management, the Forest Service completed an ecosystem analysis within the Jack Creek sixth-level watershed.” AR at 4892. 76. The Jack Creek EA goes on to note that during the 1995 — 1997 field seasons, the USFS conducted extensive field surveys of existing conditions in certain areas. Id. 77. The Jack Creek EA compared historical conditions to existing and desired conditions, and identified projects, including the planned timber sales analyzed in the Jack Creek EA, that would move the area toward its desired condition. Id. 78. The comments of Biodiversity Associates and the concerns of the public regarding fragmentation and road-building were addressed by the USFS. Tr. at 423-424; AR at 5011. 79. The USFS is not allowing timber sales in roadless areas or wilderness areas, which comprise about 37 percent of the MBNF, pending completion of the revised Plan. Tr. at 446-447, 530. 80. The Jack Creek EA noted that the Jack Creek analysis area was considered to be a fragmented ecosystem because of past clear-cutting and road-building. Tr. at 484, lines 16-20. 81. The JC3 timber sale incorporated by reference much of Dr. Baker’s work, and the USFS considered Dr. Baker’s recommendations for restoration of a fragmented ecosystem, and designed the JC3 sale to address Dr. Baker’s recommendations. Tr. at 429, 484. 82. Dr. Baker’s paper was prepared after the 1985 MBNF Plan. Tr. at 429. 83. Dr. Baker did not provide comments on the Jack Creek EA. Tr. at 271. 84. Pursuant to the guidance of the Multiple Use Sustained Yield Act, the USFS is to manage national forests for multiple uses, including timber harvesting, and in a manner that ensures the forest is not harmed or detracted from the productivity of the land. Tr. at 401. 85. The JC3 timber sale will cause some short-term impacts to mature forest to eventually result in longer-term benefits for the MBNF. Tr. at 485. The Jack Creek EA noted that “[t]o better emulate pre-settlement vegetation patterns and patch size, harvest units have been concentrated in seven areas that have already had past timber sale entries to consolidate and/or begin creating larger stands of trees with similar species, makeup, age, and structures.” AR at 4902. 86. In designing the JC3 Timber Sale, the USFS relied upon a field review conducted by scientists and research wildlife biologists from the University of Wyoming Zoology Department and the Forest Sciences Lab in Laramie, Wyoming. AR at 5011. The USFS did this to get feedback about how the Tie Camp project addressed issues such as wildlife habitats, fragmentation, watersheds, roads, and roadless areas and how harvest could be designed to lessen impacts. Id. 87. During the meetings between the USFS and these scientists and biologists, the scientists agreed that, on a broader scale, “in a managed forest it was good to clump new harvest with old. By doing so, larger patches of homogenous forested vegetation in younger age classes would be created [sic]. As these patches regenerate and mature over time, they will provide larger blocks of habitat in the future. Also by aggregating cutting units into smaller areas, fewer new roads would be needed and more areas of existing mature and old forest would be avoided and not be disturbed during this entry, thus providing habitat that would contribute to the immediate needs of some species such as the pine marten and boreal owl ....” Id. 88. The Jack Creek EA explained that “these considerations provide the rationale, and were incorporated into the design of the Jack Creek Timber Sale.” Id. 89. In Dr. Baker’s 1994 final report, he recommended that silvicultural practices could be used “to decrease the impacts of future timber harvesting on landscape, structure, and even to a limited extent, to remedy some past effects.” AR at 6123. 90. Dr. Baker’s report explained that “aggregation of cutting units has been proposed as an effective silvicultural technique to decrease the effect of fragmentation when clearcutting (Li et al.1993). Using this approach, individual small cuts are placed sequentially so that a larger final patch is produced. This will decrease the overall fragmentation by cuts only if cutting units are concentrated in one area and other areas are left uncut to perpetuate interior habitat. An added benefit of the aggregation is a decrease in the length and density of necessary roads.” Tr. at 6123-24. 91. Dr. Baker also advanced a protection approach which would limit cutting in the landscape. Tr. at 6121-23. 92. Dr. Baker’s 1994 report recommended that fragmentation “[ajnalysis should include, as a matter of course, an assessment of the amount of interior habitat in old forest (by cover type) and the total area clearcut, cumulative area clear-cut, and area affected by clearcuts and roads (e.g., Figs.7, 8) under each alternative.” AR at 6126. 93. The Biological Evaluation (“BE”) for the Jack Creek Timber Sale discussed Baker’s definition of fragmentation as a decrease in interior habitat and an increase in patch density and perimeter. AR at 5680. The BE references Baker’s 1994 paper, including his stated approaches to counter fragmentation and restore the landscape to its range of natural variability in a managed forest. AR at 5680. 94. The USFS followed Dr. Baker’s recommended analytical approach. First, the Jack Creek analysis incorporates the Baker report which assesses the amount of interior habitat in each of 96 biological diversity analysis units (“BDU’s”) forest-wide. AR at 5679-82, 6079. The JC3 area corresponds to BDU 13. AR at 6192; Tr. at 289. The JC3 Timber Sale falls within the north end of BDU 13. Compare AR at 6141, 6192 to AR at 4893-94. Based upon Baker’s analysis, there is little interior old growth or pre-1850 forest in the JC3 area. AR at 6201, 6212. The Baker report also assesses the amount of interior forest in the Jack Creek area by cover type. Id. at 6172. There are only zero to 62 acres of interior lodgepole pine forest in BDU 13, depending upon the depth of edge influence assumed from existing openings. AR at 6172. 95. Second, the JC3 EA displays the total area clearcut. AR at 4966. Third, the EA shows the cumulative area clearcut in map and tabular form indicating total acreage of past clearcuts. AR at 4955(map); 4961-62 (tables). Finally, the map shows the area affected by clearcuts and roads. 96. Dr. Baker testified that he did not know how large a patch size is needed to provide interior forest, although he thought a 100 acre circle would not be enough, as it would have to be “a very large area” to be ecologically significant. Tr. at 273-275. None of the proposed harvest units exceed 40 acres. See AR at 4905; Ex. 1-33. Dr. Baker testified that his 1994 paper did not estimate the influence of roads on interior habitat and he did not offer an estimate of how much the roads in the JC3 sale area affect interior habitat. Tr. at 284-285. Dr. Baker testified that three one-third mile segments of new road built off an existing road would have less effect on interior forest than one new segment a mile long. Tr. at 282, 286. The new road construction in the JC3 sale is approximately 0.6 in three segments. AR at 5777. IX. Clear-cutting and Sustainability 97. The National Forest Management Act, 16 U.S.C. § 1601 et seq. (“NFMA”), allows for clear-cutting, with the largest clear-cut allowed being 40 acres. Tr. at 411. 98. Clear-cutting is a harvest method that improves forest health by removing overstory that would create more mistletoe for a lodgepole pine stand. Tr. at 412-413. 99. The Jack Creek EA noted that moderate to high levels of dwarf mistletoe are present in 28% of the lodgepole pine strands within the Jack Creek analysis area, and there is a need to reduce the spread of this parasitic plant to improve and promote tree health and growth. Mistletoe deforms trees, causes rot, and weakens the tree so that it is more susceptible to insects and disease. AR at 4898. 100. Lodgepole pine generally regenerates in a very dense manner. Tr. at 417. 101. On the MBNF, lodgepole pine, spruce, and fir regenerate naturally. Tr. at 417. 102. While there are negative short-term visual impacts from clear-cutting, the trees in the MBNF regenerate and quickly create new, young, healthy forest. Tr. at 431, 433. 103. The long-term benefits of clear-cutting include reducing fuels for fire, forest health, and providing wood fiber for the nation in a manner that is ecologically sustainable. Tr. at 431. 104. Between 1994 and 2001, the USFS sold an average of 4.8 million board feet of timber per year from the MBNF. The MBNF is growing more than 4.8 million board feet per year. Tr. at 407, 433. 105. The unfinished TSDS stated that a sustainable harvest of timber on the forest (ASQ) would be about 7 million board feet per year. Tr. at 406-407. 106. The ASQ is set below Long Term Sustained Yield Capacity because of constraints other than the physical ability of trees to grow. Tr. at 527-529. 107. The Record of Decision to the 1985 plan noted that a schedule of timber sales for 1986 through 1995 was described in the attached Appendix A, and that the schedule was based on “current conditions and information and, if these conditions change or new information becomes available, the timber sales may be modified.... The exact amount of timber and the site-specific design and effects of these sales will be determined during project planning.” AR at 12. 108. Current harvesting on the MBNF is within sustained yield. Tr. at 432-433. 109. The determination was made that implementation of the JC3 timber sale would not exceed the forest’s sustained yield capacity. AR at 4986, 5005. 110. As to the JC3 sales, the issue of sustainability was briefly addressed in the Jack Creek EA, in response to comments. AR at 4986. X. Sensitive Species and the Jack Creek Timber Sale 111. The Decision Notice and FONSI for the Jack Creek sale found that an EIS was not required for the sale. AR at 5049. 112. A sensitive species is a species on the regional forester’s list, and for which one does not want to manipulate their habitat to where it would cause viability concern or a trend toward listing. Tr. at 496. 113. In BEs, the biologists take into consideration site-specific information that they know about the project area, surveys for sensitive species in those areas, and, if they do not find the species in the area, the biologists make assumptions about the effect on their habitat if the species come into the area, and the mitigation that can be provided to ensure they are not harmed. Tr. at 499. 114. The BE for Listed and Sensitive Reptile, Bird, Mammal and Plant Species for the Jack Creek sale concluded that the sale may affect individuals of sensitive species, but would not result in a loss of viability across the forest. Tr. at 496; AR at 5688. 115. The BE for the Jack Creek sale noted that there are no threatened, endangered, candidate, or other sensitive reptile species occurring in the proposed project area. AR at 5670. 116. The BE for the Proposed Jack Creek Timber Sale concluded that “the proposed action and the action alternatives to the proposed action may adversely impact individuals, but are not likely to result in a loss of viability on the Planning Area or cause a trend to federal listing or loss of species viability rangewide.” AR at 6297. 117. The BE for the Jack creek sale analyzed the direct and indirect effects of the proposed sale on a number of species. AR at Vol. 14 at 5673 — 5676. 118. The BE for the Jack Creek sale also evaluated the habitat needs, distribution, and ecological needs for threatened, endangered, and sensitive species, including the Clustered Lady’s-slipper, and found there were no known populations of the Clustered Lady’s slipper in the analysis area. AR at 5700, 5712. 119. The BE for the Jack Creek sale also noted that goshawk/raptor surveys were conducted in the analysis area, nests were located, and all known nest locations were protected in the design of the alternatives and the proposed action. AR at 5704. 120. The BE for the Jack Creek sale notes that goshawk/raptor inventories have been conducted in the project area watersheds, and there are no known nests in the vicinity of any of the cutting units associated with the proposed action or any of the action alternatives. AR at 5684. 121. The BE for the Jack Creek sale noted that harvest of mature lodge-pole pine forest in the proposed action may impact individuals of certain species, including goshawks and Clustered Lady’s-slipper, but the harvesting was not likely to result in a loss of viability on the Planning Area, nor cause a trend to federal listing or a loss of species viability range-wide. AR at 5689. 122. The USFS protects goshawks or Clustered-Lady’s-slippers that are inventoried and recorded in an area. Tr. at 500. 123. At the pre-operations meeting for the JC3 sale, the USFS and the purchaser and the purchaser’s employees would discuss which sensitive species the employees are to be aware of on the ground, and that operations must stop if a species is found. Tr. at 570. 124. The timber sale contract for the JC3 has a provision that sets up protective measures for the habitat of threatened, endangered, and sensitive species on the timber sale area. Tr. at 572-573; Govt. Ex. P. 125. The contract provision states that as the JC3 sale goes forward, if species are located that were not present previously, the USFS may cancel or unilaterally modify the timber sale contract. Tr. at 573; Govt. Ex. P. 126. The BE for the Jack Creek sale noted that direct or indirect effects of the timber sale would be negligible on the habitat of the pine marten and the golden-crowned kinglet, as no spruce-fir (i.e. these species’ primary habitat) would be harvested. AR at 5674. 127. Pine martens generally use old spruce-fir and lodgepole pine forest. The most vital habitat areas for this species are spruce-fir stands at higher elevation in the southern part of watershed. Spruce-fir makes up only twenty-five percent of the forest area in the watersheds, and no spruce-fir would be harvested in the JC3 sale. AR at 4958. 128. Harvest of mature lodgepole pine does not negatively affect habitat for pine marten in this watershed. AR at 4958. 129. As to the Canada Lynx, the USFS prepared a Supplemental Biological Assessment after the Jack Creek EA was completed in response to the proposal to list the Canada lynx. AR at 6269-6286. 130. The Supplemental Biological Assessment determined that “[t]he proposed action and its alternatives may affect Canada lynx but are NOT likely to jeopardize the continued existence of the species nor result in the destruction or adverse modification of critical habitat.” AR at 6281. (Emphasis in original). 131. The USFS has issued a Notice of Intent to prepare an EIS in conjunctio