Full opinion text
ORDER ORINDA D. EVANS, District Judge. This civil suit is before the Court for determination of remedies for the Defendants’ failure to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, (“NEPA”) when preparing (1) Supplemental Environment Impact Statements (“SEISs”) which supplemented certain Vegetation Management Environmental Impact Statements (‘VMEISs”) and (2) 2002 forest plan amendments for forest plans in Region Eight of the U.S. Forest Service. The environmental analysis in the SEISs also served as the environmental analysis for the 2002 forest plan amendments. No separate NEPA analysis was done for the forest plan amendments. A single Record of Decision (“ROD”) approved and adopted each of the three subregional SEISs and the respective subregional 2002 forest plan amendments. Therefore, the deficient environmental analysis in each SEIS required that the ROD be vacated and that the 2002 forest plan amendments be set aside. These determinations were made in an Order entered February 22, 2008, which granted in part and denied in part Plaintiffs’ remaining claims. 535 F.Supp.2d 1268 (N.D.Ga.2008). Specifically, the Court granted Plaintiffs’ motion for summary judgment as to Claim II, and denied Defendants’ cross motion; the Court granted Defendants’ motion for summary judgment as to Claims I and III and denied Plaintiffs’ corresponding cross motion. Therefore, the remedies addressed herein pertain only to Claim II. Claim II involves one part of Vegetation Management Environmental Impact Statements (“VMEISs”) which had been formulated in 1989-1990 in each of the three subregions of Region Eight. These VMEISs were designed to study the environmental effects which could flow from the use of certain “vegetation management methods” and to recommend options for using (or not using) the various methods given the advantages or disadvantages of each method. The subject “vegetation management methods” were prescribed fire, mechanical methods, manual methods, herbicides, and biological methods. Each VMEIS recommended (as a “preferred alternative”) a certain combination of methods for its subregion. Each contained a large number of “mitigation measures” which would mitigate adverse environmental effects from the use of each of the five methods. One mitigation method common to all three VMEISs and all five vegetation management methods was mitigation measure (2), which was the subject of the Court’s February 22, 2008 Order and indeed the central focus of this litigation. This mitigation measure concerned the requirement of a biological evaluation to determine whether a proposed project which used one or more vegetation management methods would affect PETS species known to exist or possibly existing in and around the proposed project area. No project could proceed without such a biological evaluation. Mitigation measure (2) dealt with how to determine which PETS had to be the subject of a particular biological evaluation. This was needed because designations of proposed endangered and threatened species are nationwide. 16 U.S.C. § 1538; 50 C.F.R. §§ 17.21; 17.31. Sensitive species designations are region-wide for the various regions of the U.S. Forest Service. However, all PETS (including sensitive species) are subject to geographic/locational limitations based on their range and their unique habitat requirements. The relationship between Region Eight’s VMEISs/SEISs on the one hand and the forest plans/forest plan amendments on the other hand is complex. Under the National Forest Management Act (“NFMA”), a project must be consistent with the relevant forest plan. 16 U.S.C. § 1604(i). The VMEISs are separate documents from the forest plans. They are not environmental impact statements for forest plans, which have their own environmental impact statements. They do not describe or authorize individual forest projects. Rather, the VMEISs are programmatic environmental impact statements. Unlike an environmental impact statement for a particular, already defined project, the VMEISs studied the environmental effects which could arise in future, as yet undefined forest projects and established a framework for dealing with those environmental issues. The 1989-1990 ROD for each VMEIS approved and adopted the preferred alternative for vegetation management and also adopted most of the mitigation methods identified in the VMEIS including the original version of mitigation measure (2). In essence, the RODS for the VMEISs approved the use of certain vegetation management methods for future projects conditioned upon compliance with the mitigation measures. The decisions made in the RODs for the VMEISs (including the decision to adopt the original version of mitigation measure (2)) were incorporated into all forest plans in Region Eight in 1989-1990. This was done by amendments to the individual forest plans. Most of the 1989-90 forest plan amendments were physically attached to the RODs for the VMEISs. In 2000 a second version of mitigation measure (2) was substituted in three Region Eight forest plans by amending those plans. These amendments were for the Chattahoochee-Oconee Forest Plan, the Forest Plan for National Forests in Alabama, and the Ozark-St. Francis/Ouachita Forest Plan. The environmental analysis was contained in environmental assessments. There was no corresponding revision of the VMEISs in 2000. The VMEISs were never amended to substitute the second version of mitigation measure (2). The 2002 forest plan amendments were impressed upon whatever forest plan versions existed throughout Region Eight in 2002, incorporating the 2002 SEISs’ version of mitigation measure (2) into all plans. This was the third version of mitigation measure (2). All forest plans must be revised at least every fifteen years. 16 U.S.C. § 1604(f)(5). Until 2005, the applicable regulations required each revision to be accompanied by an environmental impact statement, as opposed to the more modest environmental assessment which may in some cases accompany a forest plan amendment. The forest plans in Region Eight do not all come up for revision at the same time. There is no discernible pattern. A few plans have not been revised since before the 1989-1990 VMEISs were created, although through the plan amendments made in 1989-90 they contain the original version of mitigation measure (2). Some plans were revised during the early to mid 1990’s. They may also contain the original version of mitigation measure (2). Two plans (Florida and Kisatchie) were revised in 1999. They contain a version of mitigation measure (2) which is similar to but not identical to the second version (the 2000 version). See Revised Land and Resource Management Plan, Kisatchie National Forest [AR 712 at 2-8, FW 009]. The ROD for the revised Kisatchie plan acknowledges the 1989 Coastal Plain/Piedmont VMEIS but notes the decision to alter the 1989 VMEIS’s version of the mitigation measure (2) language in the revised plan. [AR 713 at R-5 and R-6]. The ROD for the revised Florida plan notes that it is modifying portions of the RODs for various regional documents, including the ROD for the 1989 Coastal Plain/Piedmont VMEIS which adopted the original version of mitigation measure (2). See Revised Land and Resource Management Plan for National Forests in Florida [AR 611 at 3-26]. The remaining Region Eight forest plans apparently were totally revised after 2002. All of the forest plans which contained the 2000 version of mitigation measure (2) have been superceded by new, revised plans. It is unclear whether the post-2002 revised plans contain any version of mitigation measure (2). Most of the posb-2002 revised plans are not in the record. At least one of the post-2002 revised plan RODs acknowledges the 1989-1990 VMEIS and the 2002 SEIS as documents which were considered in preparing the revised plan. However, it does not state that they are authoritative or controlling. See, e.g., ROD for 2005 Revised Land and Resource Management Plan, Ouachita National Forest [AR 910 at 13]. The original version of mitigation measure (2) was the subject of Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999). That case involved a claim that two projects in the Chattahoochee-Oconee National Forests did not comply with the forest plan, which had incorporated the original version of mitigation measure (2) from the subregional VMEIS’s ROD. The argument was that the projects were inconsistent with the forest plan and thus violated the NFMA, 16 U.S.C. § 1604®, which requires that projects in a national forest be consistent with the requirements of the forest plan. The forest plan per the language of mitigation measure (2) said that the biological evaluation should consider “all available inventories [of PETS] and their habitat for the proposed treatment area”; “when adequate population inventory information [for PETS within the project site] is unavailable, it must be collected when the site has high potential for occupancy [by PETS].” The Forest Service admitted that it had obtained no forest-wide or project-specific “inventories” of PETS. The Court of Appeals found an NFMA violation and held that the projects could not proceed. In so doing the Court of Appeals observed that the record failed to show that the Forest Service possessed forest-wide inventories for PETS which occurred in the project areas; therefore, it was not possible to measure the extent to which the destruction of PETS in the project area might impact the overall forest population. This Court interprets this part of Martin as dicta. Plaintiffs read the Martin decision as holding that: mitigation measure (2) requires that the Forest Service monitor trends for PETS on a forest-wide basis; to carry out this obligation, the Forest Service must maintain a numerical count of each PETS species residing in each national forest and must obtain a numerical count of each PETS species in a proposed project area. Absent the confirmed existence of these “inventories”, no project can proceed, regardless of whether the project methods would harm any PETS. Plaintiffs regard the showing of forest-wide and project-specific “inventories” as a condition precedent to the approval of any projects. In granting Plaintiffs’ motion for summary judgment on Claim II, this Court vacated the 2002 RODs for the three 2002 SEISs and set aside the 2002 forest plan amendments which depended on the same RODs. The question now before the Court is what further remedies to impose. The remedies Plaintiffs seek are the following: (1) an injunction against the authorization of future projects under the 2002 amendments pending NEPA compliance for those amendments; (2) an injunction as to some but not all Forest Service projects which were authorized pursuant to the 2002 forest plan amendments prior to February 22, 2008, pending NEPA compliance for the 2002 amendments; (3) an injunction against relying on the 2002 SEISs, (4) a declaration that projects described in (1) and (2) must be carried out in compliance with the original version of mitigation measure (2) as set forth in the 1989-1990 VMEISs, unless there is a supplement to the VMEISs which complies with NEPA; and (5) a declaration that the 1989-1990 VMEISs govern all future Region Eight vegetation management projects, regardless of whether those projects are authorized under a 2002 amendment or otherwise, until the VMEISs are supplemented or replaced by documents which comply with NEPA. INJUNCTIVE RELIEF AGAINST INDIVIDUAL PROJECTS Defendants contend that no injunctive relief as to projects authorized under the 2002 amendments should be granted. They make three arguments. The first is that the NEPA violation found on Claim II was technical in nature and constituted harmless error, such that no injunctive relief should be granted. Defendants point out that in NEPA cases the harmless error rule does apply, as recognized in Nevada v. Dept. of Energy, 457 F.3d 78, 89-91 (D.C.Cir.2006). The second argument is that to the extent that the remaining projects are purely commercial timber sales or road construction activities, the projects are not subject to the constraint of the 1989-1990 VMEISs, allegedly because the VMEISs were limited to certain activities which did not include commercial timber sales or road construction activities. Specifically, the three VMEISs excluded “... harvest cutting methods” and “road construction”. [AR 104 at 1-2; AR 204 at 1-2; AR 304 at 1-2]. Defendants also point out that the SEISs stated that the vegetation management activities which were covered by the 1989-1990 VMEISs “do not include commercial timber harvesting”. [AR 114 at 1; AR 214 at 1; AR 314 at 1]. The third argument is that region-wide injunctive relief against projects is beyond the scope of the pleadings. The Court first addresses Defendants’ argument that their failure to acknowledge the 2002 forest plan amendments/SEISs and the 2002 Region Eight Supplement to the Forest Service Manual (which included the 2002 decision tree) as connected actions was harmless error. Among the thirty seven letters the Forest Service received when it sent out the draft SEISs in early 2002 were numerous negative comments concerning the proposed Region Eight Supplement to the Manual. The Forest Service responded in part to seven of the commenters that the proposed Supplement was “outside the scope of the proposal”. This was consistent with the Forest Service’s position in this litigation that changes in the Forest Service Manual are administrative in nature and thus are entitled to a categorical exclusion from NEPA compliance. The Forest Service’s presumed failure to consider the referenced comments is somewhat mitigated by the fact that when the Forest Service originally sent out its Notice of Intent in 2001 (the “scoping notice”) it addressed both the proposed change to mitigation measure (2) in the VMEISs and the proposed Supplement to the Manual. Drafts of both the proposed SEISs and the proposed Region Eight Supplement were included with the Notice of Intent and comments on both were solicited. Over 150 written responses were received. [AR 114 at 3; AR 214 at 3; AR 314 at 3]. Many of the responses did address the proposed Supplement to the Manual as well as the proposed change in mitigation measure (2). Also, the Forest Service sent both the proposed Supplement to the Manual and the proposed SEISs to the Fish and Wildlife Service for review of these documents’ potential effect on threatened and endangered species. The Fish and Wildlife Service gave written concurrence to the proposal. [AR 313 at App. 3]. Because the Interior Department, of which the Fish and Wildlife Service is a part, has the statutory responsibility to designate and monitor threatened and endangered species, 15 U.S.C. § 1533, this concurrence is entitled to considerable weight. Finally, the SEISs themselves showed how the new version of mitigation measure (2) would work in combination with the 2002 decision tree which was contained in the Supplement to the Manual. [AR 113 at 3, 8, 37; AR 213 at 3, 7, 31; AR 313 at 3, 8, 19]. Therefore, it is obvious that the Forest Service did consider the relationship between the two. Nonetheless, the violation is not harmless, because the Region Eight Supplement became part of the Forest Service Manual based in part on a faulty assumption that a categorical exclusion exempted it from NEPA review. The Region Eight Supplement was a “connected action” to the 2002 amendments and the 2002 SEISs. As stated in the February 22, 2008 order, the 2002 amendment language makes no sense unless it is read in conjunction with the decision tree in the Region Eight Supplement. In addition, and more importantly, the Supplement applies to all biological evaluations in Region Eight, not just those carried out under the 2002 amendments. The Court rejects Defendants’ argument that commercial timber harvests and road construction are activities which are outside the scope of the 1989-1990 VMEISs. The 1990 VMEIS for the Ozark/Ouachita Mountains, Volume 1, 1-1 through 1-2 enumerates the five vegetation management methods which are the subject of the VMEIS and also the activities addressed by the VMEIS. The “activities” addressed by the VMEIS are listed at 1-1 and 1-2 as follows: The vegetation management program covered by this EIS contains six activities. These activities are: • Site preparation for reforestation of pines and hardwoods; which is done to reduce plant competition so that pine and hardwood seedlings and saplings get needed amounts of sunlight, water, nutrients, and growing space in order to survive and grow in newly established stands. • Stand management for timber stand improvement (release, precommercial thinning); which maintains balanced species composition and vigorous growth conditions for trees by controlling plant competition. • Wildlife habitat improvement, including openings maintenance; which provides a wide variety of plants and habitat conditions beneficial to wildlife, and also protects and enhances habitats of threatened, endangered, proposed, and sensitive plant and animal species. • Corridor maintenance for roads and trails, utilities, and railroads; which provides safe travelways and protects investments. • Range forage improvement; which maintains plant species used by livestock. • Fuels treatment; which is done to reduce hazardous fuels and risks of wildfire damage. Activities affecting vegetation not addressed include silvicultural systems, harvest cutting methods, road construction, recreation and administrative site maintenance, and management of nurseries, seed orchards, and aquatic vegetation. The five “vegetation management methods” evaluated by the VMEIS are listed at 1-2 as follows: • Herbicides, which can be applied as granules or liquid droplets by hand, machine, or helicopter. • Mechanical, the use of machines such as mowers or tractors and bulldozers with attachments. • Prescribed fire, which can be applied by ground and aerial ignition tools. • Manual, the use of hand-held tools. • Biological, the use of livestock to control vegetation by grazing. [AR 304 at 1-2]. The VMEISs and RODs for the Appalachian subregion and the Coastal Plain/Piedmont subregion are the same in this respect. [AR 104 at 1-2, 1-3; AR 204 at 1-1,1-2]. Defendants further point out that the SEISs specifically stated, “The vegetation management activities covered by the VMEIS include herbicide use, prescribed fire, and mechanical site preparation but do not include commercial timber harvesting.” [AR 114 at 2; AR 214 at 2; AR 314 at 2]. This statement was simply an inaccurate recitation of what the VMEISs themselves said. In the VMEISs, the five vegetation management methods were specifically defined as “methods”, not “activities”. The list of covered activities neither specifically includes nor specifically excludes commercial timber harvests. The exclusion of “harvest cutting methods” does not exclude coverage for the activity of commercial timber harvest. Cutting timber does involve at least two of the vegetation management methods, manual and mechanical. More importantly, based on Defendants’ description of many of the 456 projects that were authorized under the 2002 amendments it appears that commercial timber sales are normally a part of such covered activities as timber stand management, thinning projects, wildlife habitat improvement projects and fuels treatment projects. Further, the Court notes Defendants’ position stated through Dr. Thomas’s testimony that the Forest Service no longer conducts commercial timber sales as a stand-alone activity; rather, the timber sales are part of projects designed to promote the health of the forest, protected species or public safety. Because commercial timber harvests are normally a part of covered activities, they are not exempt from the coverage of the VMEISs. The projects in this case which involve road construction are vegetation management projects in which road construction is only one part. There are no stand-alone road construction projects. In this context, the constraints of the VMEISs do apply. SCOPE OF INJUNCTIVE RELIEF Defendants argue that a region-wide injunction against projects authorized under the 2002 amendments would be outside the scope of the pleadings. This argument has some merit. The original complaint in the Chattooga Conservancy case (filed July 26, 2001) was limited to claims involving the 2000 forest plan amendments for forest plans in Alabama, Arkansas and Georgia and the 1999 revised forest plans for Florida and Louisiana. The prefatory “Facts” section in the original complaint, paragraphs 11 through 29, made that clear. The original complaint contained four counts, none of which addressed the 2002 amendments or indeed the 2002 SEISs. Of course, at that time neither the 2002 amendments nor the 2002 SEISs had been created. Plaintiffs’ Supplement to Complaint filed July 9, 2003, contained two counts. Count VI, entitled “Violations of NEPA and the APA in the Supplemental Environmental Impact Statements”, asserted in paragraph 2 thereof that the SEISs had “deleted the mitigation measures requiring population inventories for proposed, endangered, threatened and sensitive (PETS) species from the VMEISs and replaced them with language identical to the amendments to the Land and Resource Managements Plans (LRMPs) that had previously been made for Georgia, Alabama and Arkansas, and the revisions to the LRMPs for Louisiana and Florida; said amendments and revisions being the subject of the original complaint in the captioned matter.” This assertion was factually incorrect; the version of mitigation measure (2) in the SEISs was newly created in 2002 and was reflected in the 2002 forest plan amendments. It was not the version which had previously been put into the 2000 amendments for the forest plans in Georgia, Alabama and Arkansas. Nor was it the version which was in the 1999 revised forest plans for Louisiana and Florida. Paragraph 4 claimed that the SEISs were unlawful because of failure to comply with NEPA in various ways (one of which this Court found meritorious). The three SEISs collectively cover all of Region Eight. However, that does not necessarily mean that all national forests in Region Eight were “covered” by the allegations of Plaintiffs’ Complaint. The Chattahoochee National Forest and a part of the National Forests in Alabama are in the Appalachian subregion, the Ouachita National Forest is in the Ozark/Ouachita subregion, and the Oconee National Forest, the National Forests in Florida, and the Kisatchie National Forest in Louisiana, and a part of the National Forests in Alabama are in the Coastal Plain/Piedmont subregion. Therefore, the reference to all three SEISs was required to “cover” the specific national forests referenced in the Complaint and Supplement to Complaint. Count VII (“Implementation of the Amended Management Plans and Supplemental Environmental Impact Statements”) of the Supplement to Complaint, Paragraph 7 said: Defendants have taken action in the Forest Service’s Southern Region, (Region Eight), pursuant to some or all of the amended or revised LRMPs at issue in this suit. Such actions include, but are not necessarily limited to: timber harvests and other vegetative management practices in the Ouachita National Forest, and pine beetle management in the Chattahoochee-Oconee National Forest in Georgia. (Emphasis supplied). “The amended or revised LRMPs at issue in this suit” were the forest plans for National Forests in Georgia, Alabama and Arkansas, as amended in 2000, plus the 1999 revised forest plans for Florida and Louisiana. In paragraphs 8 and 9 of Count VII, Plaintiffs contested the administrative appeal rulings on the Wildhorse Creek and Oliver Branch projects. Both of these projects were authorized under the 2000 amendment to the Ouachita Forest Plan. Paragraph 12 of Count VII asserted that “because the LRMPs and/or SEISs were unlawful and invalid, the Ouachita timber harvest and other vegetative management practices should have complied with the previously existing LRMP for the forest.” The referenced forest plan was the plan for the Ouachita National Forest. The prayer for relief in the Supplement to Complaint asks for a declaratory judgment that “the Defendants’ supplemental Environmental Impact Statements and Forest Plan amendments and revisions at issue in this action were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law in violation of 5 U.S.C. § 706(2)(A)-(F)”. (Emphasis supplied). The referenced forest plan amendments and revisions were for the National Forests in Georgia, Alabama, Arkansas, Florida and Louisiana. In addition, Plaintiffs sought a declaration “that the timber harvests and other vegetative management practices identified above constitute actions which are arbitrary, capricious, abuses of discretion, or otherwise in violation of the APA, 5 U.S.C. § 706(2)(A)-(F)”. (Emphasis supplied). This was a reference to the Oliver Branch and Wildhorse Creek projects in the Ouachita National Forest. Plaintiffs asserted that “Defendants’ denials of the administrative appeals for these projects are also arbitrary, capricious, abuses of discretion, and otherwise not in accordance with law”. (Emphasis supplied). The referenced projects were Wildhorse Creek and Oliver Branch. Plaintiffs further sought: “A setting aside of the SEISs, amendments to LRMPs, and the timber harvests and other vegetative management practices identified above ”. (Emphasis supplied). This referred at most to the 2000 amendments to the plans for the Ouachita National Forest, the National Forests in Alabama, and the Chattahoochee Oconee National Forest. Owing to a factual mistake which stemmed from failure to consult the RODs for the VMEISs and SEISs, Plaintiffs did not ask for any of the 2002 forest plan amendments to be set aside. The theory of the Supplement to Complaint was that the 2002 SEISs were intended to shore up NEPA compliance for the 2000 forest plan amendments. Plaintiffs had claimed that the 2000 amendments did not comply with NEPA, in part because the SEISs had not been supplemented before the 2000 amendments were promulgated. However, even if the Supplement to the Complaint is recast to refer the 2002 amendments, it is best construed as applying at most to the forest plans for national forests in Georgia, Alabama, Arkansas, Florida and Louisiana. Notwithstanding the foregoing analysis, this Court’s February 22, 2008 Order vacated the RODs for the SEISs and set aside all of the 2002 forest plan amendments region-wide. As was explained to the parties at a hearing on April 8, 2008, the Court would not have set aside the 2002 forest plan amendments on a region-wide basis but for a fact which had never been mentioned in the parties’ briefs. Specifically, each of the 2002 SEISs shared a common, single ROD with all of its respective subregional 2002 forest plan amendments. The same environmental analysis supported both the forest plan amendments and the SEISs. It was not possible to vacate the three subregional RODs, in this Court’s view, without setting aside all of the 2002 forest plan amendments. [April 8, 2008 Hr’g Tr. at 160-61]. Plaintiffs want region-wide injunctive relief against all projects authorized under the 2002 amendments. This includes both projects authorized in the past and any projects which may be authorized in the future. Defendants object to region-wide injunctive relief. Defendants argue that even though the Court found a NEPA violation affecting the 2002 SEISs and 2002 forest plan amendments in Region Eight, Plaintiffs still have the burden of proof under the traditional formulation of elements which must be shown to obtain injunctive relief. Once a plaintiff prevails on the merits, he must show (1) irreparable injury; (2) that monetary damages are inadequate; (3) that the balancing of harms favors plaintiff; and (4) that the public interest would not be disserved by an injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir.2006). Defendants point out that Plaintiffs have produced no evidence at all concerning the attributes of the individual projects they seek to enjoin. All of the evidence in the record comes from the Forest Service representatives who have provided testimony that individual projects should not be delayed for various reasons. Therefore, Defendants argue that Plaintiffs have failed to carry the burden of proof on element (4). Defendants also urge that Plaintiffs have failed to make any showing that their own interests are implicated in the fate of the projects. Defendants highlight part of the holding in Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir.2002), which stated, “Plaintiffs must still make a specific showing that the environmental harm results in irreparable injury to their specific environmental interest. They have done so here. Plaintiffs’ property will be directly impacted by this [highway construction project] and the size and scope of this Project supports a conclusion that the injury is significant.” Id. at 1115. Defendants assert that Plaintiffs “have no interest in the timber sale projects which they seek to enjoin. These sales are simply names on a spreadsheet. In almost all instances, no plaintiff even bothered to file administrative appeals to challenge the project when it was proposed by the Forest Service.” [Defs.’s Proposed Conclusions of Law, filed July 18, 2008, at 17]. Plaintiffs counter that all four factors are satisfied. Plaintiffs argue that under settled law, a NEPA violation entails irreparable injury, such that an injunction should follow. Plaintiffs cite Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir.2004), and Davis v. Mineta, 302 F.3d 1104, 1114 (10th Cir.2002). Plaintiffs also argue that the Court of Appeals has already found that Plaintiffs would be harmed if their procedural rights under NEPA were violated, citing Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1174 (11th Cir.2006). The Court has already found that Defendants violated NEPA in promulgating the 2002 SEISs and the 2002 forest plan amendments. Plaintiffs argue that an injunction would not be adverse to the public interest, because the public interest is served by the reasoned assessment of environmental issues which NEPA dictates. In orders entered on January 11 and 14, 2008, the Court directed Defendants to file a statement of the status of each Region Eight project which had been authorized pursuant to the 2002 amendments. On February 1 and 11, 2008, Defendant filed status reports. These reports reflected that 456 projects had been authorized. Some of the projects had been completed; others were partially completed, and others had not yet commenced. The February 22, 2008 Order directed Plaintiffs to identify the projects they wished to have enjoined. Plaintiffs identified 156 of these projects in a filing on March 4, 2008. Defendants filed a response on March 26, 2008 which included affidavits explaining why many of the projects on Plaintiffs’ list should not be delayed and explaining that some had been completed (or at least that all timber cutting had been done). The response contained tables which grouped these projects under headings reflecting the purposes Defendants assert that these projects serve, as follows: (1) PETS species’ needs (44 projects); (2) promotion of forest health (63 projects); (3) public safety (10 projects); (4) NFMA requirements (23 projects). Plaintiffs filed a reply on April 4, 2008. An evidentiary hearing was held on April 8 and 9, 2008 at which both sides were invited to present evidence on the issue of remedy. Plaintiffs relied on eight 2006 declarations of representatives of the named plaintiffs which had originally been filed in the Court of Appeals (on the issue of standing). Defendants introduced nine March 2008 declarations of various Forest Supervisors in Region Eight concerning the status of certain projects and an explanation as to why some of the remaining projects are needed to create habitat for PETS species, promote forest health, address public safety concerns, and meet NFMA requirements. Defendants also presented the live testimony of two witnesses, Jerome Thomas and George Bukenhofer. The Court heard oral argument. Both sides submitted proposed findings of fact and conclusions of law. Plaintiffs filed a revised summary list of projects they wish to have enjoined on May 23, 2008. About 102 projects are on this list. Plaintiffs have explained that in addition to excluding completed projects, they also excluded projects which already have been contracted out to third parties, 42 projects to create habitat for the red cockaded woodpecker, fuel break projects (to create cleared areas which will avert runaway forest fires), trail maintenance projects, prescribed burning (a low intensity burning technique which serves regenerative purposes), hazardous tree removal, a bridge construction project, a road straightening project, projects creating troop training areas for Fort Polk in Louisiana and Camp Shelby in Mississippi, and certain projects designed to protect public health and safety. Plaintiffs did not list any projects in Texas. Defendants further submitted affidavits of Forest Service supervisors dated on or about July 18, 2008 which state that certain of the projects on Plaintiffs’ May 23 revised summary list had been completed (at least, that all timber cutting for the projects had been completed) or were under contract to a third party. Plaintiffs have offered no contradictory evidence. The Court accepts Defendant’s position and finds that all timber cutting involved in these projects has been completed or the project is under contract to a third party. For this reason alone, these projects will not be considered for injunctive relief. The excluded projects are: FLORIDA Apalachiacola National Forest Hurricane Salvage Project Healthy Forest Initiative — Wakulla Road (7/5/05) ARKANSAS Ouachita National Forest Black Fork Project Jack Pigeon Unit 4 Salvage from Wind Storm Project Trace Creek Project Compartment 123 Project Anticipatory Pine Salvage Project North Waldron Ridge Project Scottside Ecological Unit 25 Project Cedar Creek Project Ozark-St. Francis National Forest Highway 87 Thinning Project (withdrawn; no longer authorized) Compartment 4 and 63 Project Adams Mountain Project Three Knob Project First Thinning Project Middle Fork Project Barnes Project Sie Hollow Project West Morgan Project Keets Project Corley Project Crow Mountain Project TENNESSEE Cherokee National Forest Georges Creek Project Sylco Ridge Project MISSISSIPPI Holly Springs National Forest Commercial Thinning Compartment 83 Stand 9 Project Commercial Thinning Compartment 83 Stand 20 Project Compartment 90 (Stand 8) and Compartment 91 (Stand 14) Project Homochito National Forest Analysis Unit 24 Project Analysis Unit 4 Project KEPCO 30-413 Oil Well Project NORTH CAROLINA Uwharrie National Forest Big Creek Thinning Nantahala National Forest Hazanet Project Massey Branch Quarry Project Eagle Fork Project Second Look Project VIRGINIA and WEST VIRGINIA George Washington National Forest Schoolhouse Road Project (site preparation — chain saw and wildlife opening) — no remaining timber sale (timber sale complete) Cubville Project The remaining projects as to which Plaintiffs seek an injunction are characterized by the following: (1) the projects are not already under contract with a third party and were not completed (that is, all timber cutting had not been done) as of July 18, 2008 and (2) the Forest Service has submitted affidavits of Forest Supervisors which assert that each of these projects serve specific environmental or public safety purposes, such that they should not be delayed. To pick some of Defendants’ best examples. Dr. Jerome Thomas, Forest Supervisor for the Francis Marion and the Sumter National Forests in South Carolina testified to the importance of not enjoining the Southern pine beetle and gypsy moth suppression projects in those forests. Defendants argue that Plaintiffs have not made a showing that the public interest would not be disserved by enjoining these projects pending reauthorization. Finally, Defendants observe that Plaintiffs’ reasoning in determining which projects to exempt from their injunction requests is inconsistent. Specifically, the 42 projects which would benefit the Red-cockaded Woodpecker involve timber cutting so as to create the open forest glades favored by the Red-cockaded Woodpeckers. Plaintiffs do not want these projects enjoined. On the other hand, Plaintiffs want to enjoin fuel reduction projects (which involve thinning densely planted tree stands) and projects to avert the spread of gypsy moths and pine beetles which also involve cutting timber. The Court does agree that there is tension between the goal of stopping timber cutting and the goal of creating habitat for the Red Cockaded Woodpecker. Probably, the same thing is true for some other protected species as well. However, this reality does not mean that Plaintiffs are entitled to no injunctive relief for projects. Plaintiffs counter that the deficient NEPA analysis for the 2002 forest plan amendments and the SEISs (as established in the February 22, 2008 Order granting summary judgment to Plaintiffs on Claim II) constitutes irreparable harm entitling them to an injunction against all remaining projects on their revised summary list. These remaining projects are: FLORIDA Osceola National Forest Suwanee Project Apalaehiacola National Forest Long Term Slash Conversion Project Health Forest Initiative ProjectWakulla Road (11/4/05) LOUISIANA Kisatchie National Forest Catahoula Forest Health Project Hwy 165 Project C 104,107,112 (2/6/04) Project C-7 First Thinning Project Winn Forest EA Project ARKANSAS Ouachita National Forest Irons Fork Project Compartment 12 (Bonnerdale) Project Lower Lake Winnona Project Cedar Creek West Project Avant Watershed Project Sharp Top Compartment 31 Project Bonnerdale Compartment 123 Project Rock Creek Watershed Project Glover Project Little Bear Creek Big Creek Project Huston Project Lower Brushy Creek Project Brooks Hollow Project Ozark-St. Francis National Forests Green Mountain Project Advance (9/15/03) Project Boss Hollow Project Woodland Ecosystem Project Elmo Project TENNESSEE Flatwoods Habitat Project SOUTH CAROLINA Francis Marion National Forest So. Pine Beetle Suppression Project Sumter National Forest Bethesda Project Woods Ferry Project Suppression of Pine Beetle on Enoree and Long Cane Ranger Districts Project Suppression of So. Pine Beetle Andrew Pickens Ranger District Project MISSISSIPPI DeSoto National Forest Shelterwood/Seedtree Project Delta National Forest Shanty Lake Analysis Area Project Holly Springs National Forest Yalobusha Project Commercial Thinning Compartment 103 Stand 9 Project Commercial Thinning Compartment 83 Stand 9 and 23 Project Commercial Thinning Compartment 103 Stand 10 Project Commercial Thinning Compartment 73 Stand 8 Project Chilli Lake Commercial Thinning (3/28/07) Project Homochito National Forest Analysis Unit 5 Project Analysis Unit 27 Project 1st Thinning 2005 Project Tombigbee National Forest Jones Creek Project Upper Mill Creek Project Black Prairie Project Sulfer Springs Project NORTH CAROLINA Uwharrie National Forest Roberto Project Wildlife Opening Construction Project Pekin Sale Project Nantahala National Forest Stecoah Project Bear Creek Project Upper Creek (Chestnut Mountain sale only) Project Baldwin Gap Project VIRGINIA and WEST VIRGINIA George Washington National Forest Toms Branch Project McLear Thinning Project Great Little Timber Sale Project Grindstone Project Schoolhouse Road (site prep chainsaw and wildlife opening) (timber sale complete) Big Run Project Precommercial Thinning Project (5/10/04) A. INJUNCTIVE RELIEF AS TO PROJECTS AUTHORIZED AFTER FEBRUARY 22, 2008: Plaintiffs’ request for an injunction against authorization of future projects under the 2002 forest plan amendments is GRANTED, pending NEPA compliance. This is region-wide relief. Because the 2002 forest plan amendments were set aside effective February 22, 2008, it has not been possible since then and will not be possible in the future for projects to be authorized under the 2002 amendments unless and until an appropriate environmental analysis is done for them. However, that does not mean that projects must be authorized under a 2002 amendment. Some forests have revised plans which postdate and supercede forest plans which contain the 2002 amendments. Other forests have plans which predate the 2002 amendments. The Court means that a 2002 amendment cannot be the authorizing vehicle unless there is NEPA compliance for that amendment. Similarly, future reliance on the 2002 SEISs (after February 22, 2008) is enjoined, unless there is appropriate NEPA compliance for the SEISs. In addition, the Forest Service is enjoined from using or relying on the Region Eight Supplement to the Forest Service Manual, unless and until there is proper NEPA compliance or an applicable categorical exclusion. In the absence of the Region Eight Supplement, the Service-Wide version of Forest Service Manual ¶ 2672.43 (effective October 1986) [AR 1203 at 4-5] applies. The Court notes this is a “suggested procedure”. B. INJUNCTIVE RELIEF AS TO PROJECTS AUTHORIZED PRIOR TO FEBRUARY22, 2008 While Plaintiffs argue that a violation of NEPA leads to a presumption of irreparable harm, there is no presumption entitling plaintiffs to automatic injunctive relief merely because there has been a NEPA violation. The Supreme Court recently specified that, under NEPA, a plaintiff must show that irreparable harm due to the violation is “likely” in order to obtain an injunction. Winter v. Natural Resources Def. Council, — U.S.-, 129 S.Ct. 365, 375-76, 172 L.Ed.2d 249 (2008). In that case, the Navy had prepared an environmental assessment, but not an environmental impact statement, concerning the effects of “mid-frequency active” sonar on marine mammals. Id. at 372-73. The Court reversed the Ninth Circuit’s holding that a preliminary injunction may be granted where the plaintiff had only shown the possibility of irreparable injury. Id. at 375-76. The Court found that such a standard was too lenient, and that in the context of a preliminary injunction, a plaintiff must establish that irreparable injury is not just a possibility but is likely. Id. at 375-76. The Court also found that even if there is such a likelihood of irreparable injury to marine mammals, it was outweighed in this case by the much larger interest in national security. Id. at 378. In the context of other environmental statutes, the Supreme Court has explicitly stated that a statutory violation does not lead to the presumption of irreparable harm such that an injunction must issue; instead, a plaintiff must show that irreparable harm is likely. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 544-15, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (holding that there is no presumption of irreparable harm where there has been a violation of the Alaska National Interest Lands Conservation Act (“ANIL-CA”)); Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (holding that a violation of the Federal Water Pollution Control Act (“FWPCA”) does not merit the automatic issuance of an injunction by the district court, but instead the court must balance the equities). In addition, the U.S. Court of Appeals for the Eleventh Circuit affirmed the denial of a preliminary injunction in United States v. Lambert, a case brought under the Clean Water Act, finding that the Government had not made the required showing that irreparable harm would be likely to occur due to the defendant’s dumping activities. 695 F.2d 536, 540 (11th Cir.1983). The Court stated that “[ejnvironmental litigation is not exempt from [the] requirement” to show irreparable harm. Id. Although there appears to be no presumption of irreparable harm in the context of NEPA violations, the Supreme Court has indicated that environmental violations, by their very nature, often lead to irreparable harm. As the Supreme Court stated in Amoco: [T]he environment can be fully protected without this presumption. Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment. 480 U.S. at 545,107 S.Ct. 1396. Moreover, in the case of Winter v. Natural Resources Defense Council, the Court emphasized that the harm to marine mammals was being weighed against a very serious interest in national security, and that the current injunction would severely burden the military’s ability to conduct appropriate defense training. — U.S.-, 129 S.Ct. 365, 378-82. In addition, the Court found that NEPA’s procedural requirements are intended to prevent agencies from making decisions with a lack of information about potential environmental consequences. Id. at 376. The Court observed that the training exercises at issue had been taking place for 40 years and that the most recent series of exercises had only been approved after the issuance of a detailed environmental assessment. Id. at 376. Plaintiffs’ reliance on the SEISs alone as the theoretical underpinning for their claims for project-specific relief is misfocussed. Projects were not authorized under the VMEISs or the SEISs. Rather, they were authorized under forest plans which had the 2002 amendments. It is true that the VMEISs and SEISs played an important part in forming the forest plans, because the decisions reflected in the RODs for the SEISs and VMEISs were incorporated into the forest plans. But setting aside the SEISs does not itself get Plaintiffs to the desired destination, i.e., where projects may be enjoined. To do that, the additional step of setting aside the forest plan amendments is required. Aso, to enjoin projects previously authorized under forest plan amendments, the court must know what forest plans and what amendments are involved. A reading of Count VI in the Chattooga Conservancy Complaint which is abundantly fair to Plaintiffs is to limit the scope of potential relief to projects authorized under the 2002 forest plan amendments in the national forests in Georgia, Aabama, Akansas, Florida and Louisiana. This does not prejudice Defendants, because both sides had an opportunity at the remedy stage to address whether particular projects authorized under the 2002 forest plan amendments should be enjoined. Both sides had an opportunity to introduce evidence and to supplement the record at the remedy stage. Unlike the cases the parties cite involving a single project, this case involves many projects which were authorized pursuant to forest plans which were amended by amendments (in 2002) which did not comply with NEPA. The Court does not believe that enjoining all previously authorized projects is mandated given a combination of factors which exists. In the first place, reauthorizing these projects under the 1989-1990 forest plan amendments would probably not be outcome-determinative in many cases. With respect to sensitive species, the biological evaluation would still go through similar steps: (1) whether sensitive species exist in the project area and if so; (2) whether the project methods could adversely impact any such sensitive species, and if so; (3) whether any adverse effects of applicable project methods would be contained by the applicable mitigation measures. This process would undoubtedly filter out most project rejections. With respect to proposed, endangered and threatened species the broader, stricter statutory requirements of the Endangered Species Act (16 U.S.C. § 1531, et seq.) would dictate the same outcome regardless of what version of mitigation measure (2) applies. Secondly, as noted, the scope of relief sought in Plaintiffs’ Complaint was unclear. Third, it makes sense to limit any injunction to those projects in which Plaintiffs have demonstrated a clear interest. In this case these are the projects for which Plaintiffs filed an administrative appeal. This does not unsettle any legitimate expectations of Plaintiffs. Defendants are right that Plaintiffs have made no showing of an interest in the vast majority of the projects which they now seek to enjoin. The declarations filed on the issue of standing did not address any of these projects. Plaintiffs never expressed any interest in enjoining any previously authorized projects outside Georgia, Florida, Arkansas, Alabama and Louisiana until they were directed to address this subject in an order entered in early 2008. Accordingly, the Court will limit the potential scope of relief for previously authorized projects to projects in the states of Georgia, Alabama, Arkansas, Florida and Louisiana for which plaintiffs filed administrative appeals. There are no remaining incomplete projects in Georgia or Alabama which were authorized under the 2002 amendments. In Florida and Louisiana, there are some incomplete projects authorized under the 2002 amendments (three in Florida and five in Louisiana). However, Plaintiffs filed no administrative appeals for any of the Florida or Louisiana projects. Within the state of Arkansas, there are twenty incomplete, not-under-eontract projects which were authorized under the 2002 amendments to the Ouachita and Ozark-St. Francis forest plans. Plaintiffs filed administrative appeals for ten of these projects. The Court does not imply that the filing of an administrative appeal would be a prerequisite to this Court’s exercise of jurisdiction to enjoin these projects. However, the fact that Plaintiffs filed administrative appeals as to these projects reflects an actual interest in those projects which was expressed before February 22, 2008. In accordance with the foregoing discussion, the following projects will be considered for injunctive relief: Ouachita National Forest Irons Fork Project Compartment 12 (Bonnerdale) Project Lower Lake Winona Project Cedar Creek West Project Compartment 123 Project Rock Creek Watershed Project Big Creek Project Little Bear Creek Project Huston Project Ozark-St. Francis National Forests Boss Hollow Project The March 26, 2008 affidavit of Judi Henry, Forest Supervisor for the Ozark-St. Francis National Forests indicates that following Plaintiffs’ administrative appeal for the Boss Hollow Project, the Forest Service reversed its decision on this project. [Doc. 370-16 at 6]. Therefore, no injunctive relief is warranted as to this project. With respect to all of the remaining projects in the Ouachita National Forest, with the exception of the Big Creek Project, declarations of forest supervisors are in the record which describe the purposes of each project. These descriptions, quoted verbatim, are as follows: (1) The Irons Fork Watershed project was proposed in order to reduce the risk of insect and disease outbreaks, provide a sustained yield of wood products, provide for a diversity of plant and animal communities, and reduce fuel loadings. (2) The Compartment 12 (Bonnerdale) project was proposed in order to reduce the risk of insect and disease outbreaks, create early successional habitat for species such as quail, and reduce fuel loadings. (3) The Lower Lake Winona Watershed project was proposed in order to reduce the risk of insect and disease outbreaks, create early serai habitat for species such as quail, reduce fuel loadings, and increase mast production for wildlife food sources. (4) The Cedar Creek West Watershed project was proposed in order to reduce the risk of insect and disease outbreaks, create early serai habitat for species such as quail, reduce fuel loadings, and increase mast production for wildlife food sources. (5) The Compartment 123 (Lower Saline River Ecosystem) project was proposed in order to increase early successional habitat for species such as quail, reduce the risk of insect and disease outbreaks, and maintain forest health. (6) The Rock Creek Watershed project was proposed in order to reduce the risk of insect and disease outbreaks, create early serai habitat for species such as quail, reduce fuel loadings, and increase mast production for wildlife food sources. (7) The Little Bear Creek Watershed project was proposed in order to reduce the risk of insect and disease outbreaks, create early serai habitat for species such as quail, reduce fuel loadings, and increase mast production for wildlife food sources. (8) The Huston project was proposed in order to reduce the risk of insect and disease outbreaks, create early serai habitat for species such as quail, reduce fuel loadings, and increase mast production for wildlife food sources. Having considered the evidence, the Court finds there is an insufficient basis on which to enjoin these eight projects pending NEPA compliance. As explained above, this Court cannot grant an injunction against projects based upon the violation of NEPA procedures alone. Plaintiffs must make a showing of the likelihood of irreparable harm to the environment. Plaintiffs have not shown any specific harm to species that is likely to result from the projects listed above. Furthermore, Plaintiffs have failed to establish the likelihood of any such harm that might result from the failure to follow NEPA procedures. The harm sought to be prevented by the NEPA procedural requirements is “the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment.” Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir.1989). The Forest Service authorized these projects under the 2002 forest plan amendments and presumably has performed biological evaluations for the above projects pursuant to the requirements of those amendments. But these biological evaluations, are not in the record, nor have Plaintiffs shown how the biological evaluations already performed would differ from the evaluations that would have been performed under the original 1990 Ouachita Forest Plan. The record does contain relevant excerpts from the Forest Service Manual § 2672.41 (“Objectives of the Biological Evaluation”) and § 2672.42 (“Standards for Biological Evaluations”). However, these subsections of the Forest Service Manual have not changed since 1986. [AR 1203, 1204, 1205]. As set forth in the February 22, 2008 Order, the record also contains considerable evidence from Forest Service representatives as to how biological evaluations and field surveys were conducted under the 2002 amendments. They testified in particular to how the biological evaluations were prepared for the Harvey Mill project in Florida [Doc. 620], the Spring Creek project in Louisiana [Doc. 759] and the Eagle Fork project in North Carolina [Doc 1108]. None of this evidence supports Plaintiffs’ theory that standards for biological evaluations and field surveys are less rigorous under the 2002 amendments than they were in 1990, such that it is likely that PETS would be harmed by the change. In fact, Defendants’ evidence significantly undercuts Plaintiffs’ theory. In summary, the Court is not persuaded that new biological evaluations, conducted under the original standard of mitigation measure (2), would likely provide more information, and therefore more protection to PETS species, than the biological evaluations performed under the 2002 plan amendment. It therefore has not been shown that the harm sought to be protected by NEPA, the harm stemming from uninformed decision-making, is likely to have negatively impacted these specific projects. Given that Plaintiffs have provided no evidence as to how new biological evaluations would differ from the initial biological evaluations performed when the projects were authorized, or how new biological evaluations would better protect any PETS species in the area, the Court cannot conclude that irreparable harm to PETS or the environment is “likely” to result in the absence of an injunction. Accordingly, Plaintiffs’ request for injunctive relief on projects previously authorized under the 2002 amendments is DENIED. DECLARATORY RELIEF A. Meaning of the Original Version of Mitigation Measure (2) Mitigation measure (2) was intended to serve the purpose of protecting any PETS existing in and around a project site. To that end, mitigation measure (2) required the Forest Service to find out what PETS occupy or are highly likely to occupy a project site, and to determine by preparing a biological evaluation whether the project activities would harm those PETS. Unfortunately, the language chosen by the Forest Service was obscure. Specifically, the meaning of the word “inventory” is obscure. The original version of mitigation measure (2) said in relevant part: (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. This Court found after taking evidence, and now declares, that the term “inventory” in this context means population occurrence data for a species of interest. This may include numerous types of population occurrence data: data from monitoring done pursuant to recovery plans for endangered or threatened species, data reported by the states’ Natural Heritage Programs, data reported by environmental or other citizens’ groups, data collected from general surveys conducted by the Forest Service or others, and data collected by the Forest Service in project-specific field surveys. In field surveys, Forest Service representatives walk through the property, looking to see if a particular species of interest occupies the area and if so, in what numbers and in what distribution. Various search methods are used for different species. For samples of the methods which are used, see this Court’s February 22, 2008 Order, 535 F.Supp.2d at 1292-1293. If no representatives of the species of interest are found, the number “zero” represents the total for the field survey. Under the original version of mitigation measure (2) the question of whether available population occurrence data is “adequate”, or whether instead one or more field surveys must be done is entrusted to the judgment of the Forest Service. This determination, as well as all other findings made in the biological evaluation, is subject to review through an administrative appeal. The PETS species which are endemic to Region Eight with few exceptions would defy any effort to obtain an accurate headcount within a project area or within a forest. The vast majority of the nonplant species are small and mobile (e.g., spiders, bats, snakes, beetles, salamanders, crayfish, snails, fr