Full opinion text
ORDER TABLE OF CONTENTS I. INTRODUCTION. 1272 II. CLAIMS I AND II .1274 A. Background.1274 B. Key Interpretive Issues.1288 C. Region Eight PETS Lists as of 2002 .1290 D. Supplementation of the Administrative Record.1291 E. Standard of Review in NEPA Cases .1291 F. Resolution of Key Interpretive Issues.1292 G. Legal Discussion.1302 1. Claim I.1302 2. Claim II.1306 III. CLAIM III .1309 IV. SUMMARY.1311 V APPENDIX 1313 2002 Regional Supplement to Forest Service Manual 1313 Digest . 1313 § 2672.43 — Procedures for Conducting Biological Evaluations 1314 Decision Tree. 1315 Definition of Terms in Decision Tree. 1316 List of 2002 Region Eight Forest Plan Amendments. 1316 Claims Made in Chattooga and Forest Conservation. 1317 ORINDA D. EVANS, District Judge. I. INTRODUCTION This environmental suit brought under the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600, et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., is back before this Court following an appeal. The parties have filed new cross motions for summary judgment. An evidentiary hearing for the purpose of supplementing the administrative record was held on June 8, 12, and 18, 2007. Oral argument on the parties’ cross-motions for summary judgment was heard on October 12, 2007. Having considered the administrative record as supplemented and the briefs and arguments of the parties, Plaintiffs’ motion is GRANTED IN PART and DENIED IN PART and Defendants’ motion GRANTED IN PART AND DENIED IN PART. Plaintiffs are various environmental organizations which oppose Forest Service projects in the national forests. Defendant U.S. Forest Service is charged with the management of the national forest system. Under the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528, et seq., and the National Forest Management Act, 16 U.S.C. §§ 1600(3) and 1607, the Forest Service must manage the national forests for timber production as well as for recreational and other uses. Specifically, the U.S. Forest Service is required to carry out commercial timber sales in the national forests within the “sustained yield” formula set by the legislation. This reality produces constant litigation between environmental groups and the Forest Service. This case is one instance among many. This case was initially filed as two cases: The Chattooga Conservancy, et al. v. Jacobs, Civil Action No. 1:01-cv-1976-ODE and Forest Conservation Council, et al. v. Jacobs, Civil Action No. 1:03-cv-1230-ODE. The original claims in each case are set forth in the Appendix, pp. 1317-18. The two cases were consolidated following the appeal under the above-captioned case name. The following claims are before the Court on the current cross-motions for summary judgment: I. Claim that the 2000 amendments to the forest plans for Ouachita National Forest (Amendment 31), the National Forests in Alabama (Amendment 17), and the Chattahoochee-Oconee Forest (Amendment 18) are invalid because of deficient environmental analyses or faulty procedures under NEPA. Plaintiffs seek to stop projects approved under the authority of the 2000 amendments which have not been concluded. II. Claim that the 2002 Supplements to the 1989-1990 VMEISs for the Ozark/Ouachita, Appalachian and Coastal Plain/Piedmont subre-gions are invalid because of deficient environmental analysis under NEPA, thereby invalidating certain 2002 forest plan amendments, which were enabled by the Records of Decision (“ROD”) for the Supplements. Plaintiffs seek to stop projects approved under the authority of the 2002 amendments which have not been concluded. III. Claim that the 1999 revised forest plans for the National Forests in Florida and the Kisatchie Forest in Louisiana are invalid because of Defendants’ failure to provide a draft of certain proposed changes to members of the public before finalizing the changes. Plaintiff contend this violated NEPA and the APA. Plaintiffs seek to stop projects authorized under the authority of these revised plans between their adoption in 1999 and their amendment in 2002 which have not been concluded. The Court of Appeals has resolved in Plaintiffs’ favor all issues of standing and ripeness. On Claim I and on Claim II administrative remedies have been exhausted. The Court of Appeals did not address claim III in its opinion, but claim III was remanded to this Court for decision. On claim III there is an outstanding issue concerning exhaustion of administrative remedies, which will be discussed in that part of this Order. The parties disagree as to whether the Court of Appeals resolved all issues of mootness in its opinion. While there is some ambiguity on this point, this Court finds that the Court of Appeals has resolved this issue in Plaintiffs’ favor. In any event, while all of the allegedly invalid plan amendments and revisions now have been superceded by further amendments, and all of the timber-cutting authorized under some of the allegedly invalid amendments may have been concluded by now, there are follow-up project activities such as periodic prescribed burning and reforestation which continue for years. The Court of Appeals noted that the continuing follow-up activities make non-moot the issue of faulty environmental analysis of the superceded amendments and revisions. This Court does agree with Defendants, however, that the issue of mootness may be re-evaluated if new evidence shows that the facts have changed (that all follow-up activities have been completed). II. CLAIMS I and II A. Background The factual background has been set forth in the Court of Appeals’ 2006 opinion in this case, Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir.2006), and in this Court’s predecessor opinions in Chattooga Conservancy v. Jacobs, 373 F.Supp.2d 1353 (N.D.Ga.2005) and Forest Conservation Council v. Jacobs, 374 F.Supp.2d 1187 (N.D.Ga.2005). The Court of Appeals’ opinions in Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999) and in this case, Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir.2006), provide the controlling legal authority. Preceding decisions of this Court in Sierra Club v. Martin, 992 F.Supp. 1448 (N.D.Ga.1998)(Thrash, J.) and 71 F.Supp.2d 1268 (N.D.Ga.1996) (Hull, J.) provide helpful factual perspective. A number of key documents are the focus of Plaintiffs’ claims (I) and (II)- A review of the relevant parts of those documents is a necessary prerequisite to analysis of Plaintiffs’ legal claims. 1990 Vegetation Management Environmental Impact Statement (“VMEIS”) The 1990 VMEIS for the Ozark/Ouachi-ta Mountains subregion is a programmatic environmental impact statement. [AR 304-306]. It analyzed the foreseeable environmental effects of various alternatives for vegetation management in the subre-gion. The Summary, p. vi, enumerates five vegetation management methods (i.e., (1) prescribed fire, (2) mechanical methods, (3) manual methods, (4) herbicides and (5) biological methods). The various alternative approaches considered in the VMEIS (labeled as alternatives A-H) represented different selections or combinations of vegetation management methods. For example, Alternative A was the “no action” alternative in which there would be no vegetation management. Alternative D allowed no herbicide use. Alternative F, labeled as the preferred alternative, called for emphasis on manual methods and prescribed fire, with less emphasis on herbicides and mechanical methods. It called for using “herbicides and application methods that pose minimum risk to humans, wildlife, and non-targe [sic] plants.... Mechanical methods cause low to moderate soil disturbance. Prescribed fire is low to moderate intensity. All sorts of manual treatments are done.” [AR 304 at p. x]. Chapter 1-8 is entitled “Purpose and Need”. Section C (“Scope of Decision”) states in part: “This EIS provides analytical data that may be used when making site specific decisions in the future.” (Emphasis added). Section D (“Implementing the Decision”) has three parts: 1. Site analysis; 2. Project Design; and 3. Monitoring. The subsection on Monitoring states in full as follows: Monitoring of environmental effects is done during and after treatment to assure that the project is implemented as designed and that mitigation measures are effective. Information gathered may be used to validate or refíne treatments or to add further mitigation measures. A full array of treatments in diverse environmental conditions is monitored. Minor projects and those whose effects are already well documented may not be monitored. Effects of treatments on vegetation, soil, wildlife, and threatened or endangered species are monitored in the treated areas. Effects on water and aquatic life may be monitored onsite and downstream. Effects on air quality may be monitored onsite and downwind. Monitoring during treatment is important if changes in tools or intensity are needed. Most monitoring is done just after treatment and at appropriate intervals thereafter. Monitoring is seldom needed beyond 3 years after project completion. Much of the VMEIS is devoted to a comparison of the environmental effects of each of the vegetation management alternatives. While the VMEIS notes the selection of Alternative F as the preferred alternative, the VMEIS itself did not state the final selection of Alternative F or discuss the reason for that selection. This was done in the Record of Decision for the VMEIS, as discussed below. Chapter II (“Alternatives”) first describes each of Alternatives A-H in detail. [AR 304 at II — 1 through 11-19]. It then describes in detail the “methods and tools” which are available. [Id. at 11-19 through 11-40]. Following that, Section E sets out General Management Requirements and Mitigation Measures, applicable to all vegetation management methods, as follows: I. General Management Requirements and Mitigation Measures The following general requirements and measures apply to all vegetation management methods. Each forest may be more restrictive, but not less. (Emphasis in original) a. Site Specific Analysis (1) Projects must have site-specific analysis in compliance with the National Environmental Policy Act (NEPA). This environmental analysis considers site-specific techniques, intensity of application methods, and potential environmental effects of any method considered. A reasonable range of alternatives, including one which does not use herbicides and a “no action” alternative, is examined. * * * The intent of this requirement is to ensure adequate environmental analysis. Congress and the Council on Environmental Quality have recognized the effectiveness of NEPA in developing environmental awareness and protecting the human environment. Monitoring is done through review of site-specific analyses and post-treatment evaluations. (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-cockaded woodpecker, southern bald eagle, northern gald [sic] 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. If it is determined that the project may positively or negatively affect threatened, endangered, or proposed species, consultation is initiated with the Fish and Wildlife Service. If, during informal consultation, it is determined that the project is not likely to adversely affect listed species and the Fish and Wildlife Service so concurs in writing, consultation is terminated. However, if it is determined that the project is likely to adversely affect listed species, formal consultation is initiated. Figure D-l outlines this process. When the evaluation indicates that a project may have an adverse effect on a sensitive species or its habitat, appropriate State wildlife agencies, natural heritage commissions, and other cooperators or species authorities are contacted to identify coordination measures. These measures are directed towards ensuring species viability and preventing negative population trends that would result in Federal listing. The intent of this requirement is to protect threatened, endangered, proposed, and sensitive species. Monitoring is done through review of site-specific analyses, onsite inspections, and post-treatment evaluations. (3) Integrated Pest Management (IPM) principles are used during site-specific analysis. IPM is a decision-making and action process which includes biological, economic, and environmental evaluation of pest-host systems to manage pest populations. IPM strategies apply a comprehensive systems approach to silvicultural, wildlife, range, fuel treatment, and corridor management practices that emphasizes prevention of pest problems. * * * * The intent of this requirement is to ensure use of IPM during project planning. Monitoring is done through review of site-specific analyses, onsite inspections, and post-treatment evaluations. (4) In each project, water quality is protected from nonpoint-source pollution through use of preventive “best management practices” (BMP’s). BMP’s are developed by States with EPA review to comply with the Clean Water Act and control nonpoint-source pollution. Implementation of BMP’s, monitoring and evaluation of their application and effectiveness, and adjustment of practices as needed are done to protect beneficial water uses. The intent of this requirement is to protect water quality and assure compliance with State water quality laws. Monitoring is provided through evaluation of BMP application and analysis of water quality. [AR 304 at 11-40 through 11-43]. Chapter II also contains a large number of method-specific management requirements and mitigation measures, see 11-48 through 11-61. These include significant restrictions on the use of prescribed fire and herbicides. In total, there are 87 “management requirements and mitigation measures” listed in Chapter II of the VMEIS. With respect to all of them, it is provided that “Each forest may be more restrictive, but not less.” Chapter III (“Affected Environment”) is an in depth discussion of the physiography, climate, vegetation, wildlife, PETS, soils, water, aquatic life, corridors, trails and other features of the Ozark/Ouachita subregion. Chapter IV (“Environmental Consequences”) describes the effects of the various vegetative management methods on the forest environment. The 1990 Ozark/Ouachita VMEIS has a number of appendices. [AR 305]. Appendix A is a risk assessment; Appendix B concerns the effects of prescribed fire on soil and water in Southern national forests; Appendix C concerns the effects of herbicides on soil productivity and water quality. Appendix D of the Ozark/Ouachita VMEIS is entitled “A Biological Evaluation of the Effects of the Final Preferred Alternative on Threatened, Endangered, Proposed and Sensitive Species”. It generally discusses potential adverse effects of the vegetation management methods on threatened, endangered or proposed animals and on sensitive animal and plant species. [AR 305 at D-9 through D-13]. It also names all of the protected species which occur in the subregion and states the effect of each vegetation management method (in the absence of mitigating measures) on a species-by-species basis. [AR 305 at D-14 through D-24]. Not surprisingly, the “vegetation management method” most frequently listed as harmful is herbicides. Appendix D also includes, in Figure D-l a flow chart (“decision tree”) for the “site specific environmental analysis process” which includes the population inventory analysis step. [AR 305 at D-10]. While Appendix D’s decision tree is complicated and somewhat obscure, it shows that the project specific population inventory is only one part of the biological evaluation process and that it will not always be necessary to obtain an inventory for a species in the project area. Appendix D’s biological evaluation concludes that the selected mix of “vegetation management methods” in combination with the “management requirements and mitigation measures” would not necessarily be harmful to proposed, threatened, endangered or sensitive species. It notes the requirement of site-specific analysis in determining whether the plans for a particular project would harm PETS. [AR 305 at D-8]. It also notes the requirement of consulting with the U.S. Fish and Wildlife Service when the project “may affect” endangered or threatened species. [Id. at D-9]. ROD for 1990 VMEIS The Record of Decision (“ROD”) for the 1990 Ozark/Ouachita VMEIS was signed on March 5, 1990, by the Regional Forester. It is a seventeen page document, exclusive of exhibits. [AR 307]. It describes the various methods of vegetation management which were considered in the VMEIS and explains why Alternative F will be implemented. It states that this alternative would “maintain effective plant control and ... stress prevention of vegetation management problems before they occur in order to maintain forest health.” [AR 307 at 6]. It explains that Alternative F will use herbicides less than previously, restricted to “least risk” chemicals applied at “lowest effective rates” over fewer acres, and that there will be less use of mechanical methods and that high intensity prescribed fire and high disturbance mechanical tools will be eliminated. Also, there will be “extra mitigation measures that place tighter constraints on how vegetation management projects are analyzed and done”. [AR 307 at 6]. The Record of Decision states, “ALL MITIGATION MEASURES REQUIRED BY THIS DECISION ARE IN EXHIBIT A OF THIS RECORD AND ARE INCORPORATED HEREIN.” [AR 307 at 8], Exhibit A lists, in slightly truncated format, the 87 general and method-specific mitigation measures from the 1990 VMEIS, including measure (2) pertaining to biological evaluations. The list on Exhibit A does not include the language “Each Forest Plan may be more restrictive, but not less” in relation to the “General Management Requirements and Mitigation Measures”. That language is included only as to the “Method Specific Management Requirements and Mitigation Measures”. [AR 307 at A-6]. The ROD for the Appalachian Mountains VMEIS is the same in this respect. [AR 107 at A-l]. The ROD for the Coastal Plain/Piedmont VMEIS is different. [AR 207]. It does retain the “more restrictive, but not less” language as to the first four mitigation measures. The ROD states, “[t]o implement this programmatic environmental impact statement, Forest Plans for the Ozark-St. Francis and Ouachita National Forests are being amended (exhibits B and C) by this Record of Decision”. [AR 307 at 16]. Attached to the Record of Decision are Exhibit B (Amendment 4 to the Ozark-St. Francis National Forest Plan) and Exhibit C (Amendment 3 to the Ouachita National Forest Plan). Exhibits B and C indicate the specific page in those forest plans into which certain of the management requirements and mitigation measures were to be incorporated. Amendment 4 to the Ozark-St. Francis Plan included measure (2) pertaining to biological evaluations. Amendment 3 to the Ouachita Plan did not add mitigation measure (2) to the Plan. It noted that mitigation measure (2) was already in the Ouachita Plan. Indeed, the ROD for the 1990 Ouachita Plan [AR 921] stated that it was incorporating “all standards and guidelines and mitigation measures identified in the Vegetation Management EIS and ROD for the Ozark and Ouachita Mountains”. [AR 921 at 28]. This is a difference between the Ouachita Plan versus the Alabama and Chattahoochee-Oconee plans. These latter plans, like the Ozark-St. Francis Plan received the original mitigation measure (2) language from forest plan amendments which were enabled by the RODS for the VMEIS. In the case of the Ouachita Plan, mitigation measure (2) came from the ROD for the Ouachita Forest Plan. Amendments 3 and 4 to the 1990 Ouachita Forest Plan each contained a statement that they were not significant amendments. No separate environmental analysis was done for them. The environmental analysis in the VMEIS was the environmental analysis for the plan amendments. Further complicating the picture, the 1990 Amended Forest Plan for the Ouachi-ta National Forest (hereinafter “1990 Oua-chita Forest Plan”) was itself an amendment to the 1986 Forest Plan. The 1986 Plan [AR 903] contained very little mention of PETS species, no requirement of pre-project site analysis, and no mention of PETS population inventories. This forest plan was accompanied by an environmental impact statement in 1986. [AR 902], It also was accompanied by a 1986 Record of Decision. [AR 904]. While the 1990 Ouachita Forest Plan technically was Amendment 1 to the 1986 Plan, the body of the 1990 Plan was significantly overhauled and expanded from the 1986 version. The ROD for the 1990 Ouachita Forest Plan adopted the first four mitigation measures described in the 1990 VMEIS. Amendment 3 incorporated the remaining 83 management requirements and mitigation measures into the 1990 Ouachita Forest Plan. The 1990 Oua-chita Forest Plan was in effect between 1990 and 2005. The 1990 Ouachita Forest Plan has considerable references to PETS species in the body of the Plan. On page III — 2, threatened/endangered and sensitive species is identified as an issue for forest management. A number of management practices to address the issue are named, including “[c]ooperating with the Arkansas National Heritage Commission, The Nature Conservancy, and the Oklahoma National Heritage Inventory and Universities in surveys to determine distribution and occurrence of threatened, endangered and sensitive plants and natural communities”, “[c]onsulting with those agencies in regard to planned activities in areas for which surveys for sensitive species have not been completed”, and “[p]articipating in the annual bald eagle survey”. [1990 Ouachita Forest Plan at III — 2]. The stated forest management goals and objectives include “protect and improve habitat for threatened, endangered and sensitive species of plants and animals”, including (a) Coordinate with private groups, other agencies and institutions to train personnel to recognize threatened, endangered and sensitive species, unique plant associations and natural communities in order to manage habitat suitable for perpetuation and/or recovery of those species. (c) Cooperate with state agencies and institutions to protect and maintain sensitive plant and animal species and their habitat to prevent population decline and trends toward federal listing. * * * (e) Update sensitive species lists and distribution information regularly. Id. at IV-2. Forest wide standards and guidelines, page IV-13, include “[pjerform biological evaluation on all projects to determine possible effects on threatened or endangered species, or on species proposed for such listing, or on sensitive species”; “[ajssess the adequacy of existing inventories to allow biological evaluations”; and “[ujndertake inventory work as needed to fill data gaps on the distribution of threatened and endangered species, those proposed for such listing, or sensitive species”. Id. at IV-13. Some species-specific goals are set forth, e.g., In each habitat unit containing a Red cockaded Woodpecker colony site(s) or recruitment stand(s) provide at least 125 acres of pine or pine-hardwood thirty years old or older (of which 50 acres should be 60 years old or older) to meet foraging needs. Foraging habitat connected to the colony or recruitment stand is to be provided within one half mile of each active colony and recruitment stand. Id. Chapter IV contains “resource summaries” for timber, wildlife and other resources in the forest. Sections on threatened or endangered species (IV-39) and sensitive species (IV-42) discuss the incidence of each protected species within the forest and the type habitat needed by that species. Some references are made to pri- or species surveys. Some objectives are set out, e.g., “The Ouachita National Forest population goal is to have fifty active colonies (of Red cockaded Woodpeckers). Management activities are based on recommendations in the Red cockaded Woodpecker recovery plan.” Id. at IV-40. Chapter V is entitled “Implementation of the Forest Plan.” [1990 Ouachita Forest Plan at V-lj. This chapter has nothing to do with pre-project population inventories for PETS species. Subsection A is entitled “Implementation Direction” and does not mention PETS or inventories. Subsection B, “Monitoring and Evaluation Program”, states in part: The purpose of monitoring and evaluating implementation of the Forest Plan is to provide the Forest Supervisor with information on progress toward achieving the goals, objectives and standards. Monitoring does not do the inventory tasks. However, administrative reporting, where appropriate, may be considered a normal part of monitoring. Monitoring is to sense that the Forest Plan direction is being implemented and to determine, in conjunction with the evaluation, if that direction continues to be appropriate.... Id. Chapter V sets out specific monitoring and evaluation requirements for listed forest activities and resources. Separate monitoring requirements are specified for various resources, including each of the Management Indicator Species. PETS species are not separately listed. See id. at V-3 through V-33. “Monitoring and evaluation” is defined in the 1990 Ouachita Forest Plan’s glossary as: “The evaluation on a sample basis of Forest Plan management practices to determine how well objectives have been met, as well as the effects of those management practices on the land and environment”. [1990 Ouachita Forest Plan at GL-6]. Various appendices are attached to the 1990 Ouachita Forest Plan. Appendix A is a “Ten Year Timber Sale Action Plan” which sets timber cutting goals for specified parts of each Ranger District for each year covered by the plan. Appendix B, “Land Ownership Adjustment Plan”, describes the various tracts of land within the forest. It notes that of the forest’s 2,374,265 acres, 787,345 acres are privately owned. Appendix J lists, among other things, each threatened, endangered and sensitive species which does occur or may occur in the forest, and specifies the Ranger District(s) where each species probably or possibly occurs. [1990 Ouachita Forest Plan at J-6 through J — 17]. Martin decision On February 18, 1999, the Court of Appeals decided Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999). This case involved the question whether mitigation measure (2) in the Chattahoochee-Oconee Forest Plan had been correctly applied by the Forest Service in approving certain projects in that Forest. The Court held it had not been applied correctly. The Forest Service had failed to obtain adequate population inventory information before approving the projects. The wording of mitigation measure (2) in the Chattahoochee-Oconee Forest Plan was exactly the same as that in the 1990 Ouachita Forest Plan. Amendment 31 to the 1990 Ouachita Forest Plan Following Martin, the Forest Service decided to alter part of the language of mitigation measure (2) in numerous Southern Region forest plans, including the plan for the Ouachita National Forest. A notice was mailed to 532 individuals, agencies and organization on January 4, 2000, listing two alternative proposals (one of which was a “no action” alternative). Eleven responses were received. An environmental assessment including a biological evaluation were prepared. [AR 914]. The environmental assessment consisted of fourteen pages plus two appendices and a biological evaluation. Appendix A was proposed Alternative 1; Appendix B was entitled “Difference between the Proposed Amendment and the Preferred Alternative.” Lastly the biological evaluation for the Preferred Alternative was attached. The biological evaluation listed each of the nine proposed, endangered, and threatened species and each of the 37 sensitive species existing within the Ouachita National Forest, and stated: “The proposed action is a clarification of the BE procedure and involves no ground disturbance. Therefore, the action will not impact PETS species. For each site-specific project, a separate BE will be prepared that evaluates the effects to those species that have the potential to occur within the proposed project area.” [AR 914, BE at 3]. The BE’s Summary of Determination of Effect said, “[t]he selected alternative for ... [the Amendment] will provide clarification on timing, and amount of inventory needed for proposed, endangered, threatened and sensitive species.” [AR 914, BE at 3]. The environmental assessment described the proposed action, including its purpose and need, described and compared the alternatives considered, compared the biological effects of each alternative, and discussed the environmental consequences of each alternative. The discussion of the proposed action’s effects on PETS began as follows: In order to establish if additional site-specific inventory information is needed, the biologist must first determine which PETS species have potential to occur in the vicinity of the project. A variety of data sources is used to make this determination. These sources include known occurrences from previous surveys and/or presence of habitat for the species in or in the vicinity of the project. Specific sources of inventory data include but are not limited to: (1) Arkansas Natural Heritage Program (ANHP) records, (2) Oklahoma Natural Heritage Inventory records, (3) USDA Forest Service (FS) inventory records, and (4) inventory data from universities and other agencies’ records. Additional information considered includes the known range distribution for the species, U.S. Fish and Wildlife Service (USFWS) county lists for Federal and State listed species, species/habitat relationships information, and site-specific habitat information on the availability of suitable habitat on or in the vicinity of the project. The availability of suitable habitat in the project vicinity is determined by using timber stand inventory data (Continuous Inventory of Stand Conditions), topographic maps, aerial photographs, and site-specific knowledge of the area. [AR 914 at 9]. Thereafter, the Environmental Assessment gave examples of how the proposed change would affect various PETS species. Examples of species for which field surveys would always be conducted were PETS plant species (for ground-disturbing projects), Red-cockaded woodpeckers, and bald eagles. [AR 914 at 9-10]. The rationale was that surveys would provide more definite information to improve the determination of effects to these species. An example of a species for which pre-project surveys would not be required because it would not provide definitive information for excluding the species from the biological evaluation was the Indiana bat. [AR 914 at 10]. Fish, mussels, crayfish and dragonflies were listed as examples of species which were protected by forest plan requirements which were already in place and would, therefore, be a part of the proposed action. [AR 914 at 10]. Therefore, additional surveys would not be needed to protect these species. They would be assumed to be present and would be included in the biological evaluation. [AR 914 at 10-11]. Finally, examples were provided to illustrate the application of the final part of the proposal which was: Habitat requirements of a PETS species are well known, and there is sufficient evidence that the proposed actions would have only short- or long-term beneficial effects or no adverse effects to PETS species, or that any expected adverse effects of the proposed actions would not likely cause it to become federally listed or to suffer reduced viability- [AR 914 at 11]. In a Decision Notice and Finding of No Significant Impact dated July 12, 2000 [AR 914a], the Forest Supervisor found that a modified version of Alternative 1 would be selected. He explained the reason for his selection as follows: I selected Alternative 1 because it best meets the purpose and need (EA, page 6-7) for this change to the Forest Plan. Alternative 1 will make the greatest use (compared with other alternatives considered) of existing data and information on species occurrences, habitat conditions, and species/habitat relationships in determining the level of surveys required (EA, pages 9-12). Although actual field surveys would be required in fewer situations (compared with Alternative 2), the PETS species in question would still be protected under the clarified provisions of Amendment 31. This includes the process that provides mitigation measures for the three situations where surveys would not be needed but PETS species would be assumed to occur in the project vicinity. This amendment would not alter Forest Service responsibilities under Section 7 of the Endangered Species Act. [AR 914a at 3]. The Forest Supervisor found that Alternative 1 was not a major federal action and that it would not have a significant effect on the quality of the human environment. He found that it would not be a significant change to the Forest Plan, and that the proposed action would not adversely affect endangered or threatened species or their critical habitat. [AR 914a at 4-5] Amendment 31 [AR 914a] changed the language of mitigation measure (2) in the 1990 Ouachita Forest Plan. It then provided in full: A biological evaluation of whether, and to what extent, a management action could affect any species federally listed as threatened, endangered, or proposed, under the Endangered Species Act (ESA), or designated by the Forest Service as sensitive, is prepared as part of environmental analysis for project-level decision making. The procedures for biological evaluations are found in Forest Service Manual 2670, Threatened, Endangered, and Sensitive Plants and Animals. 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 speeies/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. 3. Habitat requirements of a PETS species are well known and (a) there is sufficient evidence that the proposed actions would have only short- or long-term beneficial effects or no adverse effects to PETS species or (b) any expected adverse effects of the proposed actions would not likely cause it to be Federally listed or to suffer reduced viability. [EAR 914a at 2], On August 29, 2000, various Plaintiffs, including Sierra Club and Forest Conservation Council, administratively appealed the Forest Supervisor’s decision to adopt Amendment 31 to the 1990 Ouachita Forest Plan. [Chattooga AR, Vol. IV Tab 6]. The appeal alleged that the proposed amendment wrongfully attempted to circumvent the decision in Martin, in that it limited survey requirements and allowed projects to proceed without relevant information. Therefore, PETS would be injured. They alleged that Amendment 31 was inconsistent with the VMEIS; that the VMEIS had to be supplemented before the Forest Plan could be amended and that the amendment was based on inadequate information. [Id. at 4-5]. On November 22, 2000, the Reviewing Officer affirmed the Forest Supervisor’s decision. [Chattooga AR, Vol. IV Tab 6], The decision noted that Amendment 31 would be considered interim Forest Plan direction; the interim direction would only remain in place until the Regional Forester could complete supplementation to the VMEISs and amend the forest plans to clarify the PETS inventory requirements. [Id. at 6], 1986 Alabama Forest Plan The Forest Plan for the National Forests in Alabama and its Record of Decision were issued in March 1986. [AR 403, 404]. This Forest Plan, like the 1986 plan for the Ouachita National Forest, had very little mention of PETS species in it. Unlike the situation in the Ouachita National Forest, no revised Forest Plan was issued in 1989-1999. In January 1989 the Forest Service issued its VMEIS for the Coastal Plain/Piedmont subregion [AR 204, 205, 206] as well as a Record of Decision [AR 207]. Exhibit A to the ROD listed 86 mitigation measures which were being adopted by the ROD, including mitigation measure (2) which was worded exactly the same as that in the Ouachita ROD for its 1990 VMEIS. Exhibit B to the 1989 ROD was Amendment 2 to the 1986 Forest Plan for the National Forests in Alabama, which added mitigation measure (2) (and other mitigation measures) to the Alabama Plan. Exhibit C was Amendment 6 to the 1985 Chattahoochee/Oconee Forest Plan which by its terms added mitigation measure (2) to that Plan. The 1989 VMEIS for the Coastal Plain/Piedmont subregion was the environmental analysis for these two plan amendments. No separate environmental analysis was done. Amendment 17 to the Alabama Forest Plan In March 2000 the Forest Service issued Amendment 17 to the Plan for the National Forests in Alabama. [AR 423]. This amendment is analogous to Amendment 31 in the 1990 Ouachita Forest Plan and Amendment 18 to the Chattahoochee/Oco-nee Plan. The amendment was accompanied by an environmental assessment [AR 424], and a biological evaluation [AR 425]. The biological evaluation for Amendment 17 stated that “[b]ecause no activities will occur as a result of this evaluation no impacts would be considered for this biological evaluation.” [AR 425 at 30]. It further stated “[i]n future activities, separate biological evaluations will be prepared for each forest activity and a site-specific analysis will be conducted and consulted on, if appropriate.” [AR 425 at 30-31]. The Forest Supervisor entered a Decision Notice and Finding of No Significant Impact on March 22, 2000. [AR 426]. On May 1, 2000, the Wilderness Society filed an appeal of the Forest Supervisor’s decision. [AR 427], The arguments made were the same as those made in the Oua-chita appeals. On May 19, 2000, the Forest Supervisor issued his decision rejecting the Wilderness Society’s appeal of Amendment 17 to the Plan for the National Forests in Alabama. [AR 428]. The Chattahoochee/Oconee Forest Plan The Chattahoochee/Oconee Forest Plan and its Record of Decision were issued in 1985. [AR 503, 504]. That Plan and its environmental impact statement also had very sparse mention of PETS species. As stated above, no revised Forest Plan was issued for the Chattahoochee/Oconee National Forest in 1989-1990. Amendment 6 added the original version of mitigation measure (2) to that Plan in conjunction with the January 1989 VMEIS. Amendment 18 to the Chattahoochee/Oconee Forest Plan In February 2000 the Forest Service decided to amend the Chattahoochee/Oco-nee Forest Plan to add Amendment 18 to that Plan. [AR 506]. This amendment is analogous to Amendment 31 of the 1990 Ouachita Forest Plan. An environmental assessment was prepared [AR 507] including a biological evaluation [AR 508]. The biological evaluation said in part: “The proposed action is a clarification of the BE procedure and involves no ground disturbance. Therefore, the action will not impact PETS species. For each site-specific project, a separate BE will be prepared that evaluates the effects to those species on the list that have potential to occur within the proposed project.” [AR 508 at 1]. Therefore, no federally listed species would be affected; no sensitive species would be impacted; the amendment would not result in a trend toward federal listing or a loss of viability of any sensitive species. [AR 508 at 1], Appendix 1 to the biological evaluation listed the endangered, threatened and sensitive species which were believed to exist in the forest. The Forest Supervisor found, in a Decision Notice and Finding of No Significant Impact issued on February 2, 2000, that Alternative 1 would be adopted and that it would become Amendment 18 to the Forest Plan. On March 5, 2000, a group of environmental organizations, including Sierra Club, administratively appealed the adoption of Amendment 18 to the Chattahoochee/Oconee Plan. [AR 510]. Georgia Forest Watch also filed an appeal on March 24, 2000. The appeals made the same arguments as those in the Ouachita appeals. On February 2, 2000, the Forest Supervisor issued his decision notice rejecting to the administrative appeals of Amendment 18 to the Chattahoochee/Oco-nee Plan. [AR 509]. ■ On September 7, 2001, Region 8 of the Forest Service published in the Federal Register a Notice of Intent to Supplement the 1990 Ozark/Ouachita VMEIS and also the two other subregional VMEISs. [AR 309]. This occurred following Plaintiffs’ administrative appeals of the 2000 Amendments in which they claimed that the forest plans could not be legally amended without first amending the 1989-1990 VMEISs. The 1989-1990 VMEISs said the mitigation measures in the forest plans had to be “at least as restrictive” as those contained in the VMEISs, and Amendment 31 (and other similar amendments) allegedly were less restrictive than the original version of mitigation measure (2); therefore, Plaintiffs asserted that a mandate of the VMEISs had been violated and Amendment 31 was invalid. The main purposes of supplementing the VMEISs were to delete the “population inventory information” phrase from mitigation measure (2) and substitute other language and to make mitigation measure (2) uniform in the VMEISs and all regional forest plans. [AR 113, 213, 313], This change did not affect the biological evaluation requirement and did not make any changes in the other “management requirements and mitigation measures”. It did not change the various alternative vegetation management methods or the earlier determination of their effects on the environment. The Notice of Intent also stated the Forest Service’s intent to add a regional supplement to the Forest Service Manual. The Notice of Intent was sent to a large number of interested parties, including Plaintiffs. It included a draft of the proposed change to the part of mitigation measure (2) in the VMEISs which contained the population inventory phrase and a draft of the proposed regional supplement to the Forest Service Manual. Over 150 written responses were received and evaluated. The proposed new wording would make mitigation measure (2) read as follows: 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 information on threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area. In February 2002 the Southern Region of the Forest Service adopted the regional supplement to the Forest Service Manual which had been distributed with the Notice of Intent. It is now in the Forest Service Manual, § 2672.43 (“Procedures for Conducting Biological Evaluations”). [AR 1214 at 3]. This regional supplement added a flow chart (referred to by the parties as a “decision tree”) and a statement concerning the purpose of pre-project site inventories, as follows: 2672.43 — PROCEDURES FOR CONDUCTING BIOLOGICAL EVALUATIONS Procedure for Determining When Project-level Inventory for Proposed, Endangered, Threatened, or Sensitive Species is necessary. Exhibit 1 outlines a procedure for determining when project-level inventory for proposed, threatened, endangered, or sensitive species is necessary. [AR 1214 at 3]. Reduced to its essence, the decision tree made it clear that the project-specific population inventory is only one part of the biological evaluation process. By working through the decision tree in conjunction with the 2002 Amendment (Amendment 35 in the Ouachita National Forest) it can be determined whether a site-specific inventory will be required. The regional supplement contained a Digest, which said: Digest 2672.43 — Provides guidance to aid in determining when project-level inventory of Proposed, Endangered, Threatened, and Sensitive (PETS) ■ species is necessary. The inventory is only one step of the Biological Evaluation (BE) process. This step does not supercede any of the requirements for project-level Bioíogical Evaluations established in the 2672.4 section of the Forest Service Manual (FSM). There are important differences between project-level inventory and forest-level population monitoring. Project-level inventories are conducted to gather information on distribution and numbers of individuals within the area affected by a project. Project-level inventory is usually conducted on a small scale and is used for the detection of PETS species. When properly designed, population monitoring strategies may include project-level inventory data. However, the summation of project-level inventories does not constitute population monitoring. Project-level inventories are not intended to replace forest-level monitoring obligations under FSM 2670.45. Population monitoring is conducted to gather information on distribution and numbers of individuals within a national forest. Population monitoring is usually conducted on a larger scale and is used to detect change in population size. Standardization of monitoring and inventory methods is desirable to reflect population trends within and among populations between observers, over time, to achieve repeatability and consistency. The Forest Service Handbook is being supplemented to identify techniques for inventory and monitoring of proposed, endangered, threatened, or sensitive species or species groups. The Supplemental Environmental Impact Statements (“SEISs”) for the three subre-gional 1989-1990 VMEISs were issued on October 25, 2002. [AR 113, 213, 313]. The SEISs recommended the proposed new mitigation measure (2) language in lieu of the “no action” alternative. They determined that the language change would have no adverse effect on PETS or their habitat and that it would avoid conducting site-specific inventories when inventories would not provide information helpful to evaluating the project’s effect on PETS. The SEISs noted, “[t]he change proposed would remove the requirement that site-specific inventories be conducted for every PETS species under all circumstances”. [AR 313 at 19]. It stated, “[determination of when project level inventory information should be gathered would be made based on the direction now contained in the new Regional supplement to the FSM 2672”. [AR 313 at 3], Appendix 1 of each SEIS set forth the PETS species list (threatened, endangered and sensitive species) for the subregion as of 2002. Appendix 2 was the biological assessment for each SEIS. It found that the proposed change would not adversely affect PETS, would have no impact on sensitive species, and would not result in a trend toward federal listing or loss of viability of any species within the region. Appendix 3 was a letter of concurrence from the U.S. Fish and Wildlife Service. The letter stated essentially that USFWS agreed with the Forest Service’s position that changing the language of the VMEIS concerning population inventory information would have no adverse impact. It did remind the Forest Service of the need to confer with USFWS whenever it appeared that project activities “may affect” listed species or critical habitat. Also, it added: In many cases we foresee the need for concurrent site-specific information. It appears to be the Forest Service’s intention to require these surveys whenever it will aid in making effects determinations during section 7 consultations. [AR 113, 213, 313] (bound paper exhibits). On October 25, 2002, a Record of Decision for each subregional SEIS was signed by the Regional Forester’s designate. [AR 114, 214, 314]. Each ROD stated that this decision amended the forest plans for the national forests in the subregion. In other words, the decision in each ROD was implemented by the 2002 amendments to the forest plans. Amendments for the forest plans were physically attached to the RODs. The amendment for the 1990 Ouachita Forest Plan was Amendment 35, which replaced Amendment 31. Amendment 35 stated (as did the amendments to the other forest plans) that it was not a significant change to the Ouachita Forest Plan. [AR 314 at 6]. No separate environmental analysis was done for Amendment 35 or the other parallel amendments. The environmental analysis in the SEISs was the environmental analysis for the plan amendments. B. Key Interpretive Issues Before turning to the question of whether Defendants’ environmental analyses of the 2000 amendment to the Ouachita Plan and the 2002 Supplement to the VMEIS were deficient, the Court must first determine what these documents meant before the changes were made as well as after. This analysis is complicated because of ambiguities at several different layers of the analysis. In the first place, the population inventory provision in mitigation measure (2) of the 1990 VMEIS and the 1990 Amended Ouachita Forest Plan is itself ambiguous. The word “inventory” and the term “population inventory information” are not expressly defined in any of the pertinent documents. Neither the VMEIS, the 1990 Ouachita Forest Plan, the Forest Service Manual, the Forest Service Handbook nor the Regional Guide for the Southern Region provide a definition. Further, the term “adequate” in the phrase “adequate population information” in the 1990 Ouachita Forest Plan is ambiguous was well. The question is, adequate for what purpose? The next level of ambiguity which creates difficulty is that the Court of Appeals’ holdings in Martin and in Ouachita are unclear in certain respects. Martin held that the Forest Service did not have adequate population inventory information for PETS in that case. Over 30 sensitive species (almost all plants) occupied the project sites. Both sides agreed the plants would be harmed by the project activities. The Forest Service argued that nonetheless the projects should proceed because the viability of the sensitive species was not threatened; the species existed in other locations. To support its argument the Forest Service pointed to maps obtained from the Georgia Natural Heritage Program (“GNHP”) which purported to show population occurrence data for the relevant species in other locations. Also, it pointed to CISC studies which showed the availability of suitable habitat for those species outside the project areas. The Court of Appeals noted that the GNHP maps had been redacted to such a degree that they were useless; the CISC studies only showed the availability of habitat which could support the species. There was no actual population data to support the Forest Service’s conclusion that the species existed outside the project area in sufficient numbers to sustain viability. That made the decision approving the projects arbitrary and capricious. That part of Martin is clear. It required no interpretation of measure (2) pertaining to biological evaluations. It was a determination that the evidence was insufficient to sustain Defendants’ position. What is not clear is whether the Court of Appeals’ rejection of habitat information in the foregoing context also meant that habitat information could not be relied on to show that there is a “high potential” that PETS reside within or around the project site. Also, it is not clear whether under Martin population occurrence data had to be obtained when the selected vegetation management methods were determined not to be harmful to the particular PETS in or around the project area. Under the original version of mitigation measure (2) the determination of whether there is a “high potential” that PETS inhabit the project site is a critical step. Together with species known to inhabit the project site, it defines the set of species which will and will not be the subject of the biological evaluation. The biological evaluation then will determine whether the relevant “vegetation management methods” would harm PETS which are known to inhabit or which have been determined to have a high potential to inhabit the project area. Plaintiffs’ view appears to be that Martin bars consideration of a particular species’ range and habitat requirements to determine whether that species has high potential to inhabit the project area. Instead, Plaintiffs appear to argue that the decision has to be based on actual population data obtained from either prior field surveys or new field surveys conducted in and around the project site area. In Defendants’ view this sometimes would result in useless field surveys. In some cases it would be clear that certain species could not exist in the site either because the species would be outside its range or because the habitat offered by the site is unsuitable. Conducting a field survey for that species would be guaranteed to be fruitless. Defendants also point out that in other cases a field survey’s results would be unreliable because the species is hard to detect due to its small size or its reclusive nature; a field survey which netted a total of zero would not be a reliable indicator of the absence of that species. Consideration of range and habitat might be a more reliable indicator in a particular case. Where range and habitat conditions for a particular species are met (or if a prior survey has shown the species’ presence), the species would be projected to exist in the area and would be included in the biological evaluation. The species could not be excluded just because it was not found in a field survey. The biological evaluation then would determine whether any PETS known or assumed to be present in the project area would be harmed by the proposed vegetation management methods. A further ambiguity in the Martin decision is whether it applies to all PETS, or only to sensitive species. While the Court of Appeals’ holding in Martin referred to PETS (“We consequently hold that the Forest Service’s failure to gather population inventory data on the PETS species occurring or with a high potential to occur within the project areas is contrary to the Forest Plan .... ”), the discussion preceding the holding referred only to sensitive species. Martin, 168 F.3d at 4-5. The same ambiguity appears in the Court of Appeals’ Ouachita decision. See Ouachi-ta, 463 F.3d at 1176 (“[A]t a more basic level, the forest plans required the Forest Service to keep data on sensitive species.”). Finally, there is a significant issue as to the intended purpose of original mitigation measure (2)’s “population inventory information” phrase. Plaintiffs obliquely assert in their summary judgment briefs that the intended purpose was to facilitate forest-wide, periodic monitoring of PETS species to establish population trends for each protected species. In Ouachita the Court of Appeals referred to “the PETS monitoring provision”. However, Plaintiffs have never raised this as an issue for decision, either by this Court or the Court of Appeals. Because this characterization has important substantive implications in this case, this Court elects to consider it although the parties have not expressly addressed it. C. Region Eight PETS Lists as of October 2002 As of October 2002 the following threatened and endangered species believed to exist in the Ouachita National Forest were: four bird species (piping plover, bald eagle, red cockaded woodpecker and least tern), one fish (leopard darter), one insect (American burying beetle), one mammal (Indiana bat), four mollusk species, one plant (Harperella/ptilimnium no-dosum), one reptile (American alligator). Sensitive species believed to exist in the Ouachita National Forest were: three amphibian (all salamander species); one bird (peregrine falcon); four crustacean (all crayfish species); seven fish species; two mammal species (both bats); eight mollusk species; thirty vascular plant species. [AR 313 at Appendix 1], The 2002 list of PETS species believed to exist in the Ozark-Ouachita subregion was: (1) threatened and endangered species — four bird, two crustacean (both crayfish species), two fish, one insect, three mammal (all bat species), six mollusk, three plant, one reptile (an alligator species), one snail, (2) sensitive species — six amphibian (all salamander species), three bird, five crustacean (all crayfish species), ten fish, two insect, three mammal (all bat species), eleven mollusk, one isopod, thirty-nine vascular plant species. For the Coastal Plain/Piedmont subregion, the 2002 list was as follows: (1) threatened and endangered species — four amphibian (two salamander, one toad and one frog species), seven bird, seven fish, two insect (one butterfly and one beetle species), seven mammal (one wolf, one panther, one cougar, two bat, one manatee, and one black bear species), thirteen mollusk, twenty-nine plant, four reptile (one each alligator, snake, tortoise, and skink species), and three snail species; (2) sensitive species — seven amphibian (one amphiuma, three salamander, one waterdog, one frog and one newt species), four bird, nineteen crustacean (all crayfish