Chattooga Conservancy v. Jacobs (318 F. Supp. 2d 1179, 2004)

ORDER

EVANS, District Judge.

This civil action in which Plaintiffs, various environmental organizations, contend that Defendants, Robert T. Jacobs, Regional Forestor for the Southern Region of the U.S. Forest Service, and the U.S. Forest Service (the “Forest Service”), have acted in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4331-4337, and the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., is before the Court on the Plaintiffs’ Motion for a Temporary Restraining Order and for a Preliminary Injunction [# 33]. Plaintiffs seek to enjoin site preparation and timber harvesting activities at two locations in the Ouachita National Forest— Wildhorse Creek (in Oklahoma) and Oliver Branch (in Arkansas). A hearing was held on January 5, 2004, at which time the Court received evidence and heard arguments of counsel. Both sides have filed briefs. Upon consideration, Plaintiffs’ Motion is DENIED.

I. Factual Background

In March 1990, Defendants issued a Final Environmental Impact Statement for Vegetation Management in the Ozark/Oua-chita Mountains (“FEIS”) that analyzed the relative impact of various vegetation management strategies on the environment in the National Forests of Arkansas and Oklahoma — specifically the Ozark-St. Francis and Ouachita National Forests. The FEIS considered the potential impact of herbicide use, prescribed fire, mechanical methods, manual methods and biological methods. It concluded that biological methods and aerial herbicides would not be used. The other methods of vegetation management were approved, subject to the general qualification that a project utilizing these methods must be preceded by a site-specific evaluation, which would determine whether the proposed vegetation management measures would affect threatened, endangered or sensitive plant and animal species, hereinafter “PETS” or “protected species”, in the proposed treatment area. Specifically, the FEIS provided in pertinent part:

1. General Management Requirements and Mitigation Measures

a. Site-Specific Analysis

The following general requirements and measures apply to vegetation management methods. Each forest may be more restrictive, but not less.

(1) Projects must have site-specific analysis in compliance with the National Environmental Policy Act (NEPA).

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(2) A biological evaluation of how a project may affect any species Federally listed as threatened, endangered, or proposed, or identified by the Forest Service as sensitive, is done by a biologist as part of the site-specific environmental analysis. This evaluation considers all available inventories of threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area. When adequate population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a threatened, endangered, proposed, or sensitive species. Appendix D identifies potential adverse effects from vegetation management by species. When adverse effects are projected, mitigation measures specified in appendix D and this chapter are used to prevent them. Requirements and measures for actions affecting U.S. Fish and Wildlife Service threatened, endangered, or proposed species are detailed in species recovery plans and FSH 2609.23R. Recovery plans have been prepared for the red-coekaded woodpecker, southern bald eagle, northern bald eagle, gray bat, Indiana bat, eastern cougar, Florida panther, American peregrine falcon, American alligator, and the leopard darter. Chapters in FSH 2609.23R have been prepared for red-cockaded woodpecker, southern bald eagle, and American alligator. Requirements and measures for actions affecting sensitive species are detailed in Forest Land and Resource Management Plans.

FEIS, 11-40 and 11-41 (emphasis added).

The FEIS described each of the vegetation management methods and noted that the mechanical method’s major use was “roadside maintenance and even age site preparation.” FEIS, II — 11. The manual method was stated to occur “mostly in timber stand improvement, site preparation, wildlife habitat improvement and trail and roadside maintenance.” Id. The terms “mechanical” and “manual methods” do not appear to refer directly to commercial timber harvest, but rather to activities that may (and perhaps usually do) accompany a commercial timber harvest.

The FEIS also pointed to the requirement of consultation with the U.S. Fish and Wildlife Service, state wildlife agencies, natural heritage commissions, and other cooperators or species authorities before proceeding with a project that might affect threatened endangered or proposed species. FEIS, 11-41 to 11-42.

Also in March 1990, the Forest Service issued an Amended Land and Resource Management Plan (“Forest Plan”) for the Ouachita National Forest. Unlike the FEIS, a significant portion of the Forest Plan is devoted to issues surrounding timber production. Chapter IV of the Forest Plan describes goals and objectives for forest management, and contains a physical description of each of the twenty management areas of the forest. The Forest Plan incorporated the vegetation management choices made in the 1990 FEIS. It specified the protected species believed to live in the Ouachita National Forest, including the red cockaded woodpecker, the bald eagle, the Bachman sparrow, and the Ozark Chinquapin. See Forest Plan, 1-3. Chapter IV discusses each of the protected species, noting their locations by Ranger District within the forest. See id. IV-39 to IV-45. As to certain of the protected species, the Forest Plan contained estimated population numbers (e.g., red cockaded woodpecker, bald eagle). See id. As to the Indiana bat, the Forest Plan noted: “Recent studies of the Forest’s bat fauna have been completed in both Arkansas and Oklahoma. These studies included extensive mist netting of riparian areas and examination of known caves and abandoned mining drifts. Neither species was found.” Id. IV-41. However, the Forest Plan also acknowledged that the Indiana bat might “possibly occur on Forest lands during the maternity period, May-August”. Id. The Plan noted that the Ozark Chinquapin, “[a] tree endemic to the Interior Highlands of Arkansas and adjacent states, occurs in both the Arkansas and Oklahoma portions of the Forest. Largely depleted by the fungus (Endothia Parasiti-ca) that caused the Chestnut Blight, most specimens consist of stump sprouts which persist but usually die before reaching maturity.” Id. IV-45.

On March 5, 1990, two Records of Decision (“RODs”) were signed by the Regional Forester for Region Eight. One is titled “Record of Decision-USDA Forest Service-Final Environmental Impact Statement — Vegetation Management in the Ozark/Ouachita Mountains.” Attached to this ROD are several exhibits. Exhibit A is entitled “Management Requirements and Mitigation Measures” required by the FEIS as to Proposed Endangered, Threatened and Sensitive Species (“PETS”) and sets forth, inter alia, the site-specific PETS data collection requirement. See FEIS ROD, A-l. Exhibits B and C are two documents labeled as Amendments 3 and 4 to the “Ozark-St. Francis National Forests Land and Resource Management Plan”. Id. B-l and C-l. They both pertain generally to mitigation measures, but are difficult to interpret as the underlying documents to which they refer are not in the record. Nonetheless, both sides appear to agree that Exhibits B and C are amendments to the Forest Plan which make the same PETS data collection requirements as those in the FEIS applicable to the Forest Plan. Therefore, the Court will proceed based on this assumption.

The other ROD is titled “Record of Decision-Ouachita National Forest Final Supplement to Final Environmental Impact Statement and the Amended Land and Resource Management Plan.” As noted, it was also signed on,March 5, 1990, by the Regional Forester. This document does not separately refer to the PETS data collection which the FEIS called for when vegetation management strategies are employed, although it does recognize the management direction of the FEIS as applied to the Forest Plan.

In Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999), the United States Court of Appeals for the Eleventh Circuit addressed this same PETS language, which was contained in a Forest Plan for the Chattahoochee National Forest, and held that the Forest Service violated the Chattahoochee Forest Plan by implementing a logging and road construction project in the absence of “adequate population inventory information” on PETS when the proposed site had a high potential for occupancy by PETS. Id. at 5. The Martin court found that because the Forest Service acted contrary to its own Forest Plan in proceeding without “adequate population inventory information”, its actions in approving the projects were arbitrary and capricious.

After the Martin decision, several national forests in the Southern Region, including the Ouachita National Forest, amended their Forest Plans. Amendment 31 to the Ouachita Forest Plan changed the PETS language so as to drop use of the term “inventory” and to make the acquisition of pre-project, additional PETS data more clearly discretionary with the Forest Service:

During the biological process to identify possible effects, existing available information will be used to determine the PETS species known or expected to occur in the vicinity of the proposed project or likely to be affected by the action. The information considered may include data on species/habitat relationships, species range distribution, and population occurrences developed from past field surveys or observations. Existing available information considered will also include the amount, condition, and distribution of suitable habitat.

For some PETS species expected to occur in the vicinity of the project, or likely to be affected by the project, additional field surveys conducted in suitable habitat that is potentially affected by the proposed project are desirable to document the presence or absence of these species. These field surveys would be most appropriate if past field surveys are not available for such areas and if they would provide more definitive information to improve the determination of effects to PETS species.

However, there are some PETS species and situations where information to determine potential effects to PETS species may not require field surveys. For these situations, the PETS species in question would be assumed to occur in the area if suitable habitat is present, and effects to the species would be considered in the effects analysis. These situations occur when:

1. There is a low likelihood of detecting a particular species; a field survey probably would not find that species and therefore could not provide definitive information for excluding a species being considered for protection.

2. Established Forest Plan direction or mitigation that effectively protects PETS species expected to occur in suitable habitat in the project vicinity is already in place and is part of the proposed action.

Decision Notice, Amendment 31, at 2. This Amendment was signed by the Forest Supervisor on July 12, 2000. He found that Amendment 31 was not a significant change to the Forest Plan. He noted that the Amendment was intended to clarify the Forest Service’s management direction for conducting biological evaluations for proposed projects within the Ouachita National Forest. He specifically referred to the Eleventh Circuit’s interpretation of the language regarding the PETS data requirement in the FEIS and the Forest Plan in the Martin case and noted that the existing PETS language did not support the Forest Service’s intent or its view of the proper scientific methodology to be followed.

In connection with Amendment 31, an environmental assessment (“EA”) was prepared after soliciting the views of 532 interested persons. The EA determined that the amendment would have no significant impact on humans or protected species. Notice of the Amendment and notice of right to appeal was published in the Arkansas Democrat/Gazette in Little Rock, Arkansas. Notice of appeal was due within 45 days of date of publication. The record herein does not reflect whether any appeals were filed, and the Court assumes that none were.

At some time after 1990, the Regional Forester for Southern Region determined that the Diana Fritillary (an insect/butterfly) and the American Burying Beetle should be added to the Region’s list of sensitive species.

Plaintiffs filed their complaint on July 26, 2001 and alleged that Amendment 31 to the Ozark/Ouachita Forest Plan was invalid in that it was inconsistent with the 1990 FEIS’ requirement that management and mitigation measures in the Forest Plan be at least as restrictive as those in the FEIS.

In August of 2001, Defendants published a notice of their intent to supplement the 1990 Ozark/Ouachita FEIS so as to delete the reference to a pre-project inventory of PETS population. Defendants also gave Notice of their intent to amend the Forest Service Manual for the Southern Region to effect a similar revision. The amendment to the Forest Service Manual was effective March 7, 2002. It retained the requirement of a pre-project PETS inventory only where: 1) vegetative management techniques in a particular project would have adverse effects on PETS occupants assumed to be present, 2) further information on the number and location of PETS would improve the effectiveness of mitigation efforts to reduce adverse effects, or allow better assessment of effect on the viability of the population, 3) no current site-specific inventory of PETS occupants existed, and 4) feasible and effective inventory methods for the PETS assumed to be present existed. Forest Service Manual, Southern Region, Supp. No. R8-2600-2002-2.

A 2002 supplement to the 1990 Ozark/Ouachita FEIS was published in a ROD on October 25, 2002. This supplement stated “the vegetation management activities covered by the FEIS include herbicide use, prescribed fire and mechanical site preparation, but do not include commercial timber harvesting.” FEIS ROD, October 2002. Regarding the pre-project PETS evaluation, the supplement stated:

A biological evaluation of how a project may affect any species Federally listed as threatened, endangered or proposed, or identified by the Forest Service as sensitive shall be done as part of the site-specific environmental analysis. This evaluation considers available information on threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area.

Id. (emphasis in original). The effect of the 2002 supplement to the Ozark/Ouachita FEIS was to delete mention of PETS “inventory” or further collection of PETS data and to state that “available [PETS] information” should be considered.

The October 25, 2002, Record of Decision also contained a notice that the Oua-chita Forest Plan had been amended so as to delete the language of Amendment 31 (which had emphasized guidelines for collecting new PETS data but also made the decision to collect new data more clearly discretionary) and to replace it with Amendment 35, which simply stated that “available information” on the presence of PETS occupants should be considered. Id. Both the supplement to the FEIS and Amendment 35 state an effective date of November 15, 2002.

Plaintiffs amended their complaint in July of 2003, alleging in part that the approvals of timber sales at the two project sites within the Ouachita National Forest — the Wildhorse Creek Project and the Oliver Branch Project — were unlawful because of Defendants’ failure to inventory PETS occupants within the project areas before proceeding. Plaintiffs maintain that such an inventory is mandated by the Court of Appeals’ decision in Martin.

The instant motion for a temporary restraining order and preliminary injunction seeks to halt the on-going harvest of timber at these projects. As of December 23, 2003, no operations on the Wildhorse Creek Project were ongoing but Defendants stated that they might commence within the next two weeks. [Yelverton Decl. ¶ 6]. Currently, timber harvesting is occurring in the Oliver Branch Project. [Yelverton Decl. ¶ 4].

Wildhorse Creek Project

The Wildhorse Creek Project (LeFlore County, Oklahoma) was announced in January of 2002. The project is located in Compartments 31, 32, 33, 35, 36, 37 and 38 of the Oklahoma Ranger District, Choctaw Unit. It includes 2,323 acres of preparatory thinning for uneven age timber management, 70 acres of single tree selection cutting, 148 acres of group selection/thinning, 218 acres of site preparation burn and chain saw felling, 404 acres of wildlife stand improvement/release and 4,883 acres of wildlife prescribed burn. In July 2002, the Forest Service prepared an EA, captioned “Environmental Assessment for Timber Harvest and Connected Actions.” A “Biological Evaluation of Proposed Wil-dhorse Creek Timber Harvest” (“BE”) was prepared at the same time as part of the environmental assessment.

The BE listed each of the threatened, endangered, proposed and sensitive species (the sensitive species were drawn from the Regional Forester’s sensitive species list) “known to occur within or near the Oklahoma Ranger District”. Wil-dhorse Creek BE, at 2. These species included the red cockaded woodpecker, American burying beetle, bald eagle, Indiana bat, Diana fritillary (an inseci/but-terfly), and Bachman’s sparrow. The BE noted that none of the mentioned species were known to be present “within the proposed project area based on known information” although suitable habitat for the American burying beetle, the Indiana bat, the Diana Fritillary, the Bachman’s sparrow, and the Ozark Chinquapin was noted to be present. Id. at 2-6. The BE contained the following relevant discussion:

1. ABB [American Burying Beetle]

This species is known to occur within the Choctaw, Kiamichi, and Tiak Units, but not known in the Broken Bow Unit. This species is not known to occur within the proposed project areas within the Compartments 31-33 and 35-38. The closest capture site is approximately 1 mile west of the proposed project location alongside Forest Road A22J. Throughout the proposed project area, habitat is similar to where they have been found elsewhere in the Ouachita Mountains.

Surveys for the ABB on the Oklahoma Ranger District began in 1992. On the Choctaw/Kiamichi Units, with over 3100 trapnights between 1992-2001, 12 ABBs. have been captured at five locations. With approximately 136 trapnights between 1993-2001, eight ABBs have been trapped at four locations across the Tiak Unit. No ABBs have been captured on the Broken Bow Unit in surveys completed in 2000-2001 covering 102 nights. One survey has occurred within the proposed project area. In July 1999, a survey occurred within Compartment 31 (T4N, R24E, Section 36) with no ABBs being collected.

No new surveys have been completed for this project because it is assumed that this species occurs within the appropriate habitat on the Oklahoma Ranger District.

2. Indiana Bat

This species is known to occur within the Choctaw Unit, but is not known to occur within the Kiamichi, Broken Bow, or Tiak Units. This species is not known to occur within the proposed project areas, but suitable habitat exists within the proposed project area. Glass and Ward (1959) first documented the Indiana bat in Oklahoma in two eaves in Adair and Pushmataha Counties. Surveys for the Indiana Bat on the Oklahoma Ranger District began in 1989 with Saugey, et al (1990) finding seven hibernating Indiana Bats within Bear Den Caves at the west end of the Choctaw Unit. These caves have been surveyed several times since then, with seven Indiana Bats being found in 1991, one being found in 1993, and four in 1995. No Indiana Bats were found during winter surveys of 1997, 1999, and 2000. Summer surveys at Bear Den Caves by Caire (1986) and Clark and Clark (1997) did not find Indiana Bats. Additional summer surveys completed on the Tiak Unit (Clark and Clark, 1995), Choctaw Unit (Clark and Clark, 1995a), and Broken Bow Unit (Clark and Clark, 1997) did not find Indiana Bats. Claire (1986) did not find any Indiana Bats in his survey of 35 additional locations in Southeast Oklahoma.

No new surveys have been completed for this proposed project because the likelihood of detecting this species in a survey is small. This species is known to use Bear Den Caves during hibernation and is assumed to use the general forest area in that vicinity during spring and fall swarming periods.

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4. Diana Fritillary

This species is known to occur within the Choctaw, Broken Bow, and Tiak Units. It is assumed to occur on the Kiamichi Unit because habitat within this unit is similar to the other units. It is not known to occur within the proposed project area but does have suitable habitat present.

This species is known from three locations on the Oklahoma Ranger District. One male Diana was seen alongside Forest Road 6014 during the June 2001 breeding bird survey on the Choctaw Unit. One male Diana was seen alongside Forest Road 26000 adjacent to a regeneration area during the June 2001 breeding bird survey on the Broken Bow Unit. Two males were noted by Carpenter (1996) on a limestone glade on the Tiak Unit. With the exception of the work completed by Carpenter (1996), no other surveys have occurred on the Oklahoma Ranger District for this species.

No new surveys have been completed for this project because this species is known to occur within the Oklahoma Ranger District, Choctaw and Kiamichi Units within suitable habitat and additional surveys at this time would not provide any increased information for this analysis.

5. Bachman’s Sparrow

This species is known to occur within the Choctaw and Broken Bow Units. It is not known to occur on the Kiamichi or Tiak Units. It is not known to occur within the proposed project areas but does have suitable habitat present.

The Oklahoma Department of Wildlife Conservation conducted a survey for Bachman’s Sparrow at 10 locations on the Broken Bow, Choctaw, and Kiamichi Units during the spring/summer of 2001. Bachman’s Sparrows were found at two locations on the Choctaw Unit and one location on the Broken Bow Unit, with a total of 13 individuals recorded. On the Choctaw Unit, seven sparrows were found within Compartment 49 and two were found within Compartment 84. None of the survey locations occurred within the proposed project area.

During the 1999 Mt. Herman breeding bird survey route, one singing male was recorded in a regeneration area alongside Forest Road 63150 in the Broken Bow Unit.

No Bachman’s Sparrows have been recorded during landbird monitoring points conducted on the Choctaw, Kiami-chi, or Tiak Units between 1996-2001 nor during the Ouachita breeding bird-survey route on the Choctaw Unit over the past 10 years.

No new surveys were completed for this project because this species is known to occur on the Oklahoma Ranger District within suitable habitat, and the habitat requirements of the Bachman’s Sparrow are well documented.

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12. Ozark Chinquapin

This species is known to occur within the Broken Bow, Choctaw, and Kiamichi Units but is not known to occur within the Tiak Unit. This species is not known to occur within the proposed project areas but suitable habitat exists.

Surveys conducted by Watson and Glenn (1992) and Tucker and Watson (1993) found five (5) locations of Ozark Chin-quapin on the Kiamichi Unit. The Oklahoma Natural Heritage Inventory lists an additional five (5) locations of this species within LeFlore County, with one occurring on the Choctaw Unit and four (4) on private land. Elsewhere on the Oklahoma Ranger District, The Nature Conservancy (1996) found viable populations of this species within the upland areas of the Broken Bow Unit. No new surveys have been completed for this project because this species is known to occur within the Oklahoma Ranger District, suitable habitat is present'within the proposed project areas, and additional surveys at this time would not provide any increased information for this analysis.

Id. at 7-11.

The BE then contained a discussion of the environmental baseline for each of the evaluated species, noting the type of environment preferred by each of them. Then, the BE discussed the effects of the proposed management action on .each of the evaluated species. That discussion, in part, stated the following:

American Burying Beetle

... the actual harvesting of trees by any method will have no effect on the ABB. When above ground, the ABB is mobile and able to escape the area of activity. Standard clauses are incorporated into timber sale contracts that protect the area from soil compaction, rutting, and minimize soil disturbance. Harvest locations are monitored to ensure that provisions of the timber sale contracts are being followed[J

... ABBs have been found in all types of timbered areas,, from bottomland hardwoods to mature pine forests, and in all age classes, but show a preference on the Oklahoma Ranger District for pine and pine/hardwood stands with a grassy understory.

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The creation of low standard, intermittent service roads would not be expected to have any effect on the ABB. Upon harvest completion, these roads would be revegetated and still be available for use by the ABB.

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Indiana Bat

Direct impacts to individuals or small groups of roosting bats may occur when trees are cut that harbor undetected roosts or as a result of the accidental felling of occupied snags, shagbark hickories, or damaged or hollow trees during timber harvest or site preparation. None of the areas proposed for timber harvest are located in hardwood or hardwood/pine forest types, which is the main habitat for these species. Because the timber harvest does not occur in preferred habitat, this would be expected to reduce the impact to any roosting bats.

The likelihood of cutting a tree containing a maternity colony or individual roosting bat is extremely low (U.S. Fish and Wildlife Service, 1999). This is due to the large number of suitable roost trees present on the Oklahoma Ranger District, the rarity of these species within Oklahoma, the wide dispersal of Indiana Bats, Eastern Small-footed Bats, and maternity colonies throughout these species’ range, and the fact that there have been no maternity colonies found in Oklahoma.

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Due to the proposed prescribed burning being cool season burns while most bats are hibernating, direct bat mortality due to loss of roost trees would be minimized. ...

Indirect effects to these bat species could result from the felling of snags during the prescribed burn itself or from dozer activity pushing over a snag near the fireline. This would cause the snags to be taken away from potential use as roost sites. Additionally, on warmer days in late winter, prescribed burns have the potential to disturb bats from their roost trees. This would cause the bats to fly and use energy they would otherwise be conserving....

The proposed low standard, intermittent service road construction would have no effect on the Indiana Bat.... These bats are not known to rest beneath leaf litter or use the forest floor to where they would be directly impacted through temporary road construction....

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Ozark Chinquapin

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Ozark Chinquapin responds favorable [ sic] to disturbance and reaches best development and fastest growth rates where abundant sunlight reaches the forest floor. The U.S. Forest Service (1990) notes that field observations indicate that Ozark Chinquapin competes well with other tree species following disturbance from normal forest management practices. Thinning operations in themselves would not be expected to provide negative impacts to this species so long as Ozark Chinquapin stems are not directly cut. Thinning would be expected to promote the viability of Ozark Chinquapin due to the admittance of more light to plants that often survive in the form of suppressed sprouts. Group selection harvests likewise results in rapid release of chinquapin sprouts or roots that may have been dormant for many years.

H* H* * * * *

Bachman’s Sparrow

.... Commercial thinning, single-tree selection, and wildlife stand improvement would be expected to promote increased grass, forb, and understory vegetation growth. This would move these standards towards more suitable Bach-man’s Sparrow habitat by providing open pine stands with increased herbaceous vegetation....

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The proposed low standard, intermittent service road construction could impact nesting Bachman’s Sparrow should the road be created during the nesting season. Should a nesting Bachman’s Sparrow occur within the proposed roadway, the potential exists for vehicles and equipment to damage or destroy the nest, eggs, and/or nestlings. Based upon existing stand conditions and rarity of the Bachman’s Sparrow across southeastern Oklahoma, this would be expected to be a chance occurrence.

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Diana Fritillary

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Timber harvesting and prescribed burning would be expected to indirectly affect Diana Fritillaries through a change in vegetative composition and quantity. This would be expected to have a positive impact on the Diana Fritillary. Commercial thinning and prescribed burning would be expected to improve habitat conditions for this butterfly through providing increased nectar sources (Rudolph and Ely, 2000). Timber harvest would open the canopy and allow increased sunlight to reach the forest floor. This would result in increased nectar source growth. Prescribed burning would also be expected to increase the growth of herbaceous understory vegetation, including nectar sources....

Id. at 22-28.

The EA relied on the BE and found that no protected species were known to occur in the proposed project area. Further, if the American Burying Beetle and the Indiana Bat were present, the Wildhorse Project would have no adverse effect on them. If the Bachman’s Sparrow, Diana Fritillary, and Ozark Chinquapin (sensitive species) were present, the project “may impact individuals but is not likely to cause a trend toward federal listing or a loss of viability”. Wildhorse Creek EA, at 44.

In a Decision Notice and Finding of No Significant Impact made on July 26, 2002, the District Ranger for the Oklahoma Ranger District determined that the Wil-dhorse Creek Project should proceed. He determined that the project would have no significant impact on the quality of the human environment and that it would not adversely affect protected species.

An appeal was filed by Joe Glen (“Glen”), apparently an individual affiliated with Plaintiffs in this case. See Glen Notice of Appeal (Aug. 2, 2002). The appeal claimed that the District Ranger had incorrectly determined that the project would have no adverse effects on the Ozark Chinquapin, and also claimed that the BE was deficient because it omitted a site specific population inventory for the Chinquapin. Glen claimed that this violated the requirements of the Ouachita Forest Plan and also the Forest Service Manual.

On September 9, 2002, the Ouachita Watch League also appealed the District Ranger’s decision on a number of grounds, including that the Ouachita Forest Plan Amendment No. 31 was invalid because it was inconsistent with the 1990 Ouachi-ta/Ozark FEIS which required site-specific, pre-project population inventory information for PETS. See Ouachita Watch League Notice of Appeal (Sept. 9, 2002).

On October 28, 2002, the Regional Forester issued written rulings in the Glen and the Ouachita Watch League appeals. See Regional Forester Appeal Decision (Oct. 28, 2002). In the Glen appeal, the Regional Forester noted that the Ozark Chinquapin was not known to occur within the proposed project area, though suitable habitat was known to exist within the project area; therefore, he would assume the presence of the Chinquapin in his analysis. The Regional Forester also stated that the Chinquapin’s federal listing as a sensitive species was not because it is rare but rather because “most mature trees have been ravaged by Chestnut Blight disease”. Id. at 3. He noted that the proposed thinning operations probably would promote the viability of the Chinquapin because more light would reach the forest floor. He determined that these findings satisfied both Amendment 31 of the Ouachita Forest Plan and the requirements of the Forest Service Manual, as amended.

In the Ouachita Watch League appeal, the Regional Forester also determined by written decision of October 28, 2002 that the Wildhorse Creek Project should proceed. See Regional Forestor Ouachita Watch League Appeal Decision (Oct. 28, 2002). While he did not specifically address the Ouachita Watch League’s claim that the BE failed to include a PETS inventory as required by the 1990 Ozark/Ouachita FEIS, he pointed to the finding in the BE that the project activities would improve habitat for a number of sensitive species, including the Ozark Chinquapin.

Oliver Branch Project

The Oliver Branch Project (Scott County, Arkansas) was announced in November 2001. This project is in Compartments 1262, 1263, 1274, 1288 and 1289 of the Poteau Ranger District. It includes timber harvest from approximately 362 acres of shelter wood and 2,099 acres of thinning. The project also includes wildlife stand improvement, including prescribed burning of forest understory on 5,329 acres and construction of 16 wildlife ponds.

In July 2002, the Forest Service prepared an EA titled “Oliver Branch Resource Management Project.” A BE was also prepared as part of the EA. The BE contained the following relevant discussion:

EVALUATED SPECIES SURVEY INFORMATION

a. Red-cockaded woodpecker

Historically, RCWs occurred in pine forests of numerous species, ranging in the eastern U.S. from New Jersey south through Florida, and west from Missouri through Oklahoma and Texas (Hooper et al.1980). By the time RCWs were listed as endangered, suitable habitat had shrunk to 1% or less of its historic levels, with predictable declines in the numbers of birds (Conner et al.2001). Surveys in Arkansas in the 1970s and 1980s showed a population of at most a few hundred birds confined to public lands and scattered holdings of timber companies (James et al,1981). The population in the Ouachita National Forests represents the northernmost remaining RCWs in the U.S.

Red-cockaded woodpeckers have for many years occupied a cavity tree-cluster (CTC) in Compartment 1274, stand 9 (Poteau RD records, on file). In addition, there is an inactive CTC in compartment 1262. In addition to these CTCs, recruitment CTCs consisting of clusters of trees with artificial cavities have been established in five additional locations in order to provide cavities for dispersing young birds as well as to attract TCWs dispersing through the EMU as a result of translocations or intrapopulation reproduction.

The importance of these active as well as inactive and recruitment CTCs is illustrated by the situation in nearby compartment 1275, stand 89, which is immediately west of EMU at 15. At this CTC in 2002, an unbanded female nested with a male, using an artificial cavity. The origin of this unbanded bird isn’t known, but it illustrates the value of the recruitment CTCs. EMU 15 has sufficient habitat to support 42 recruitment CTCs that could be installed under the proposed action.

Basic biological and population data about RCWs has appeared in many technical publications (Kulhavy et al.1995, Connor et al.2001). Included are data for the Ouachita NF and the Ouachita Mountains in Oklahoma (McCurtain County Wilderness Area). Basic survey data for Arkansas was summarized in James and Neal (1986, 1989).

The Poteau Ranger District has annually prepared a table that summarizes numbers of adults and nesting activity for the Ouachita NF since 1990. These data are on file and form the basis for the annual ONF monitoring report distributed to the public. In addition, an annual RCW report is prepared detailing all aspects of Ouachita NF efforts to recover the species. Both historic and current data exclusive to the Ouachita NF were presented by Neal and Montague (1991).

Also, since 1990, personnel working with RCWs on the Ouachita NF have made detailed daily field reports of activities associated with RCWs, including at least the following types of activities: surveys for cavity trees, maintenance and monitoring of cavity trees, banding and other activities associated with the nesting season, inspections during outbreaks of southern pine beetles. These field notes and copies of the annual reports are maintained at the Poteau RD office in Waldron, AR.

For more than a decade, Ouachita NF biologists on the Poteau, Cold Springs, and Mena Ranger Districts have worked in an educational capacity with other Forest Service personnel, groups like the Audubon Society, and interested individuals so that they can learn to identify RCWs and recognize RCW cavity trees. So, for example, when timber markers walk over large areas, they are also assisting in the effort to locate new, previously unidentified cavity trees. Additional surveys are not necessary to determine the presence of this species or to evaluate the effects of the proposed actions on this species.

b.Indiana bat

The Indiana bat’s life history and habitat requirements for both the active portion of the year and during hibernation are well known and succinctly summarized by Menzel et al. (2001). Mist net surveys and examination of abandoned mines for bat species on the Jessieville-Winona Ranger District, forest-wide, and on nearby lands have been extensive (Heath et al., 1986; Steward et al., 1986; Saugey et al., 1988; Saugey et al., 1989; Nelson et al., 1991; Saugey, unpublished data.) None of these investigations resulted in the captures of Indiana bats.

Indiana bats were discovered hibernating in Bear Den Caves in Eastern Oklahoma (Saugey et al., 1990), but have not been detected there during the breeding season (Clark and Clark, 1995a, 1995b, 1997). More recent investigations of the forest bat fauna include a long-term study on the Winona portion of the district in Phase III research areas being conducted by the U.S. Forest Service’s Southern Forest Experiment Stations, based in Nacogdoches, Texas. Another study conducted during the summers of 2000/2001 by Henderson State University captured bats using ridge-top ponds and road ruts, specifically targeting detection of the Indiana bat. Neither of these studies resulted in the capture of Indiana bats (Perry and Thill, 2001; Tumlison 2001).

Amendment 31 (USDA-FS, 2000a) of the ALRMP (USDA-FD, 1990b) cited the Indiana bat as an example of a species that is assumed to occur in the project vicinity. Because there is only moderate likelihood of being able to detect this species, additional surveys would not provide definitive information for excluding the species from consideration in the project analysis.

c. American burying beetle

The American burying beetle has been extensively surveyed on the Poteau and especially the adjoining Cold Springs Ranger District. Logan County is an historic county for this species and this species was documented in Scott County for the first time in 1992. During the period 1992-1996 there were 70 surveys for ABB on Poteau RD. Only 4 ABBs were captured in these surveys. In 1994^1995, there were 5 surveys for ABB within the boundary of EMU 15. No ABBs were captured in these efforts. Additional surveys are not necessary to determine the presence of this species or to evaluate the effects of the proposed actions on this species.

d. Bald Eagle

During winter, bald eagles can be observed flying over many areas of Po-teau RD, and they sometimes roost along the Fourche LaFave River and likely its tributaries. Bald eagles have also been sighted at chicken dumps located on private lands within Poteau RD (personal comm., K. Piles). They are present each winter (roughly November-Mareh) at Lake Hinkle, outside EMU 15. They are also seen elsewhere on a casual basis. No winter roost site has been identified on Poteau RD and the low numbers seen provide no basis for speculating about the presence of a winter roost.

Bald eagles have nested since 2000 in T2N, R31W, S12, on a hillside near the Lake Hinkle dam. Both the nest site and the potential roost sites are outside EMU 15. No additional surveys are necessary to determine the presence of this species or to evaluate the effects of the proposed actions on this species.

e. Bachman’s sparrow

Bachman’s Sparrow has been found in recent years during the nesting season in Compartment 1274, usually in areas managed for Red-cockaded Woodpeckers. Here it occurs in older pine stands maintained in an open condition with prescribed burning.

The natural history of Bachman’s sparrow and its preferred habitats has been well documented. Bachman’s sparrow populations have declined throughout its southern range in recent decades (De-Graaf et al., 1991; Hamel, 1992), however its viability as a species is not threatened at this time. Population declines may be directly related to declines in its preferred habitats that are early serai stage (losses due to changes in timber harvest methods — no regeneration harvests) and the lack of mature, open pine woodlands.

Bachman’s sparrow forages on the ground in the dense grass or shrub habitat like that found in early forest stage cover. They glean insects, spiders and seeds in summer and seeds in the winter. This species belongs to the guild that is ground-nesting, herb gleaning insectivore-granivore. Key habitat requirements for breeding activity are dense grassy places where scattered trees or saplings are present usually in pine forest types. They use young pine plantations 1-3 years of age, and open pine stands with grasses and scattered shrubs, oaks or other hardwoods (see Arkansas nesting data in Haggerty 1998; also James and Neal 1986; De-Graaf et al.1991; Hamel 1992).

f. Diana fritillary

The Diana fritillary butterfly has been extirpated over much of its historic range (NatureServe Website). In the literature, deciduous and upland pine woodlands near streams appear to be preferred habitat. Eggs are laid singly and haphazardly near various species of violets primarily in late summer. The larvae have been documented to feed on the leaves and flowers of violets (Carlton and Spencer 1996). Five of the eight species of violets in the state occur within the Ouachita Mountains and are found in a variety of moist to xeric habitats (Hunter 1988).

This species has been observed in various areas throughout Poteau Ranger District. Males have been found in abundance during 2002. Surveys on the Poteau Ranger District by Rudolph (ongoing and unpublished) indicate this species to be abundant in Management Area 22 where timber thinning, WSI, and repeated prescribe [sic] burning has occurred. No new surveys are required for the proposed project because this species is known to occur within the Poteau Ranger District, suitable habitat is present within the proposed project areas, and additional surveys at this time would not provide any increased information for this analysis.

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ENVIRONMENTAL BASELINE FOR THE SPECIES EVALUATED IN THIS BE

a. Red-cockaded woodpecker

The Red-cockaded woodpecker (ROW) was listed as Federally endangered in 1970. This listing followed the widespread and near total loss of its habitat in the southeastern U.S. RCW habitat is characterized by park-like stands of mature pines maintained in an open condition by periodic fire. These fires reduced competition from smaller pines and hardwood trees, and fostered a diverse understory of native grasses and forbs. (Conner et al.2001). This habitat is termed a “pine-grassland.”

RCWs are unique in their habit of excavating roost and nest cavities in live, mature, pines (Ligón 1970). These pines usually exhibit heartwood decay caused by the redheart fungus (Connor and Locke 1982). The birds excavate through the hard, resinous sapwood to reach the softer heartwood, where they then excavate a chamber. Shortleaf pine (Pinus echinada) is the species that occurs naturally in the Ouachitas. Mat-ton (1995) found that the mean age of the pines in the Ouachitas with heartwood was 110 years. In Texas, RCWs preferentially chose the oldest available shortleaf pines for cavity excavation, typically in the range of 105 years (Con-nor and Rudolph 1991).

Two critical ecological factors affected the suitability of the Ouachita NF for RCWs: First, the original high-quality pine stands of what is today the Ouachi-ta NF were heavily cutover by private interests primarily during the period 1906-1950 (Smith 1986). Therefore, almost all of the Ouachita NF today consists of second-growth shortleaf pines and mixed species of hardwoods. Older stands in this second growth forest are in the 50-90 years range. Even though this forest contains relatively large acreages of maturing forest, it is just reaching the lower threshold age suitable for redheart development and useful to RCWs for cavity excavation. Second, long term fire suppression has resulted in the loss of structurally open stands. Most stands in the Ouachita NF have stocking rates or hardwoods well above historical levels. There is a natural reason for this. Shortleaf pines will not reproduce under shade. With no fire in the ecosystem, gaps created by the death of older larger shortleaf pines are filled by midstory hardwoods (Guldin 1986). The loss of open pine stands and the advance of hardwood stocking rates following fire suppression has been carefully studied in the Oklahoma Ouachitas (Kreiter 1995).

RCWs initially declined due to widespread and near total removal of mature pines. This was followed by wildfire suppression programs that caused additional, negative changes in RCW habitat. The result was that the birds were completely extirpated from much of their historic range. While RCWs have declined throughout their range, the declines have not been universal. Indeed, a handful of local populations are stable, and a few are growing (Escaño 1995). Population growth is occurring primarily on public lands where habitat restoration is underway and where techniques including use of artificial cavities are being used (Copeyon 1990, Allen 1991). However, even on public lands where recovery efforts are underway, there are critical problems.

Mature pine trees are an economically valuable resource. The fact that RCWs require large areas of mature pines means that their ecological needs often conflict with the economic targets of private landowners (Costa 1995). Since National Forest lands are managed under provisions of the National Environmental Policy Act, economic targets are only one of several in a mix of goals that affect long term land management policies.

Habitat restoration outlined in the Region 8 EIS for RCW recovery (USFS 1995) requires use of standard forest management tools including thinning, midstory reduction, and prescribed burning to provide pine-grassland habitat suitable for RCW recovery. Thinning involves the removal of a portion of the mature tree basal area. This is usually done commercially, through timber sales. Part of the revenues from these sales can be returned to the affected landscape for wildlife enhancements through the Knutsen-Vandenberg (KV) Act. KV funds can then be used to finance habitat restoration activities, including installation of artificial cavities, and other work that directly advances the RCW recovery goals set in the Region 8 EIS.

The Ouachita NF has responded to RCW recovery needs through creation of Management Area 22 (USFS 1996). This pine-bluestem grass project area encompasses 155,000 acres, primarily in Scott County, AR, and includes parts of the Poteau, Cold Springs, and Mena ranger districts. While much more of this pine-grassland habitat exists in the Ouachita NF, MA 22 area is deemed large and contiguous enough to encompass a fully recovered population of RCWs. It is here the Ouachita NF is concentrating its primary efforts towards RCW management in compliance with the Region 8 EIS. These efforts include the already described habitat restoration activities, prescribed burning, translocations of adult RCWs to the Ouachitas from designated donor populations, installation of artificial cavities, and maintenance of existing cavities.

The RCW population, which had been in a long decline, hit an historic low point in the mid-to late 1990s, but has grown steadily since. The number of active territories in 1990 (n=13) had doubled by 2002 (n=27). The number of nesting attempts went from 12 to 24. The estimated number of fledglings (based upon banding) went from 10 in 1990 to 40 in 2001 (data on file).

b. Indiana bat

Spring, summer and fall roosting habitat for this species has primarily occurred as snags with exfoliating bark, or living trees that have exfoliating bark, 'the shagbark hickory in particular. It has also been found in live Virginia and shortleaf pines in Kentucky and Indiana, and additional species are being added as studies continue (Menzel et al., 2001). Many of the snags used by this bat have been of species found throughout much of the Ouachita NF and include red, white and post oaks. Although estimates of size of roost trees is quite variable, Kurta et al., (1996) found the average diameter of roost trees to be between 30-52 centimeters (cm) (11-20 inches), and that roost tree diameter was significantly less variable than the diameter of random trees. Trees of this diameter range are found in timber stands designated to contain immature sawtimber and sawtimber-sized trees. There are thousands of acres of hardwood and pine forest type that fit these categories and have the potential to contain snags of appropriate size and species. There are no threats to the Indiana bat from the proposed project.

c. American burying beetle

The ABB appears to [sic] a habitat generalist with a slight preference for grasslands (grasses and forbs) and forested areas with little to no midstory. Considering the broad geographic range formerly occupied by the beetle, it is unlikely that vegetation or soil type were historically limiting (Nebraska Game and Parks Commission, 1995; Hedrick 1993). Carrion availability, and not habitat, may be the greatest factor determining where the species can survive (USDI-USFWS, 1995). The preference of this insect for areas of grasses and forbs (as would be found in early serai habitats, open pine or hardwood woodlands) is not unexpected since the largest populations of small rodents and birds occur in these areas and their carcasses afford the beetle egg laying/brood rearing habitat (Hedrick 1993).

Management actions proposed for the EMU occur over a small portion of the district and the extent and area(s) of occurrence of ABBs are unpredictable. Thousands of acres of similar habitat containing forbs and grasses are available for use by this species, both on district and over the entire Forest. Quite possibly the greatest limiting factor and threat to the viability of the ABB may be a lack of events or management actions on the landscape that set back or maintain conditions with abundant grasses, forbs, rodents and small birds. There are no known threats to this species from harvest operations but road building and other activities could cause incidental take of this species. (USDI-USFWS, 1994).

d. Bald eagle

Bald eagles have made a steady comeback from population lows, which allowed them to be downlisted from endangered to threatened. They are now seen casually as they fly over many places in the district, but especially around Lake Hinkle in winter, as well as smaller watershed lakes on the district. They occur on only a casual basis within EMU 15. The proposed action will have no direct, indirect, or cumulative effects on this bird, especially since the riparian areas where it is usually found are excluded from all activities except for prescribed fire, which poses no threat to this species.

e. Bachman’s sparrow

Suitable open forest habitat does exist currently within the EMU, primarily in areas managed for Red-cockaded woodpeckers. Within the district, Bachman’s sparrow is most likely to be found in or near pine stands in Management Area 22 that have brushy or grassy understo-ries and limited midstories beneath a sparse canopy (not exceeding 70 BA) or where most overstories have been removed. They are also found in pine regeneration areas that have had a pre-commercial thin treatment followed by burning. They occur regularly in summer in an old seedtree area with an ROW cluster (compartment 1244) where the regeneration has had a precommer-cial thinning and burning. Most recently, they were found along the Waldron Breeding Survey route on the Cold Springs Ranger District in a recent seedtree harvest area. There are no identified threats or limiting factors expected as a result of implementation of the Proposed Action.

During the early part of this century, vegetation in the Ouachita Mountains was converted from being 90% old growth to 90% earlier serai stage conditions as man harvested timber and burned this region. The forest restabl-ished [sic ] itself and underwent another period when excessive harvesting again created an abundance of early forest stage cover conditions. This last period extended from about 1960 through 1990 when clearcut harvests were limited to special situations. What the Bachman’s sparrow population response to these earlier harvests may have been is unknown, as was the population level prior to the most recent era of clearcut harvesting. However, enough is known of Bachman’s sparrow life history to surmise that the populatiuon [sic ] has gone up and down as it tracks changes in forest conditions. Now, more than a decade after the last clearcut harvest, virtually every stand of early forest stage cover habitat has experienced crown closure and no longer provides suitable habitat. In addition, harvests in older stands have diminished with fewer acres offering canopied, but open conditions with appropriate forest floor cover.

Prescribed burning on the Poteau RD regularly includes pine regeneration areas, and these are included in the proposed actions. In this watershed in the future, Bachman’s sparrow will most likely be found in such areas and mature forest stands that have been treated (timber harvest, WSI Midstory, temporary openings) and have developed a herbaceous and brushy understory beneath a sparse canopy. There are no identifiable threats or limiting factors expected as a result of implementation of the Proposed Project.

f. Diana’s fritillary

Surveys conducted in the early 1990’s found the butterfly present in nine counties in western Arkansas usually associated with disturbed habitat or natural prairies. During 1998 and 1999, extensive surveys by Dr. Matthew Moran of Hendrix College added nine additional counties indicating the species to be more widespread than previously thought. Moran’s observations were that “only two nectar plants are commonly utilized by Diana fritillary adults, buttonbush ( Cephalanthus occidental-is) and purple coneflower (Echinacea purpurea).” Moran also suggested that the relative scarcity of the butterfly may be related to its need for high quality nectar plants that have become more rare as prairies and wetlands have been diminished (Moran and Baldridge 2001). Observations by Rudolph and Ely (2000a) working on the Poteau Ranger District suggest that shortleaf pine-bluestem habitat maintained by frequent fire and midstory removal along with other openings (roads, glades, ridges) are the principle habitats used by adults because they harbor abundant nectar sources. These researchers from the U.S. Forest Service’s Southern Research Station found Diana fritillaries were detected significantly more often in pine-bluestem restoration plots during the first and second growing season post-burn than on control or treatment plots during the third growing season post-burn. Detection of adults was highest during this period when nectar resources were most abundant.

Rudolph and Ely (2000b) also reported that flower abundance in east Texas pine forests increased with increasing change in vegetation structure due to prescribed fire. These flowers were not only more abundant, but were composed of herbaceous species most frequently used as nectar sources by adult butterflies. In forests where fire had less impact, flower abundance was much reduced presumably due to the encroachment of woody vegetation in both the midstory and understory. The pattern of nectar source availability also reflected the abundance and species composition of the butterfly communities. The well-burned, pine-dominated forests supported more individuals and a different taxonomic array than unburned forests. In forested stands where repeated fire or short return times (3-5 years) occurred, fire had a major impact. Additional surveys are not needed to provide more definitive information to improve the determination of effects to this sensitive species.

Information on past population levels of this species are unknown and true habitat affinities in the Ouachita Mountains are yet to be fully established other than this butterfly is attracted to sources of high quality nectar. Nectar producing plants may occur anywhere within the project area, but are likely to be most abundant in stands where timber harvest and/or other silvicultural activities have occurred that allow additional sunlight on the forest floor encouraging herbaceous plant growth. It has been suggested that this species may have declined in the interior highlands due to alteration of the fire regime and resulting loss of abundant nectar resources (Rudolph 2001). There are no threats or limiting factors associated with the Proposed Action for this species of insect.

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EFFECT OF PROPOSED MANAGEMENT ACTION ON EACH SPECIES EVALUATED

a. Red-cockaded Woodpecker

Timber harvest, midstory reduction, and prescribed burning are silvicultural tools used to restore open pine-grassland habitat. Mature pine trees are abundant within the watershed. Removal of mature pines in the harvest phase will improve habitat for RCWs by reducing pine basal areas and improving growth potential for the residual stand.

The direct effects associated with timber harvest, wildlife stand improvement (WSI-midstory reduction), and burning will be to improve the habitat for RCWs plus other plants and animals associated with open, park-like forests dominated by mature pines, including a dominant and codominant component of mature hardwoods, and understories with native grasses, forbs, and legumes. Mature pine trees remaining after thinning will be suitable for installation of artificial cavities. Scattered relict trees will provide opportunities for natural cavity excavations.

Indirect effects will primarily involve benefits to other species native to pine-grassland habitats. The wider spacing of residual trees will encourage proliferation of herbaceous and shrubby ground cover (Masters and Wilson 1994, Tables 1-4) and the probability of enhanced insect populations, such as Diana fritil-lary (Craig Rudolph, personal communication). Areas of reduced clutter resulting from burning will enhance foraging activity for species requiring bare ground within the forest. Plants that exist in a suppressed condition as a result of fire exclusion will be released (Masters and Wilson 1994, Table 2). The increased diversity of plants will benefit other birds (Wilson et al.1995) and mammals (Masters et al.1998).

Cumulative effects of the