Full opinion text
ORDER HULL, District Judge. This matter is before the Court on the Plaintiffs’ Motion for a Preliminary Injunction [3-1, 3-2] seeking to enjoin the timber cutting of 2,103 acres in the Chattahoochee and Oconee National Forests in Georgia. After reviewing the record in its entirety and hearing oral arguments of counsel for the parties, the Court hereby GRANTS Plaintiffs’ Motion for a Preliminary Injunction [3-2] and finds as follows. I. FINDINGS OF FACT A. Parties 1. The Defendant United States Forest Service (“Forest Service”) has authorized seven timber projects which allow private parties to purchase and cut timber in the Chattahoochee and Oconee National Forests in Georgia (the “National Forests” or “Forests”). These timber sales allow timber cutting, logging, clearcutting, road building, and related activities for seven timber sale areas in the Chattahoochee and Oconee National Forests (the “timber sale areas”). 2. Defendant George Martin is the Forest Supervisor of the Chattahoochee and Oco-nee National Forests. Defendant Robert C. Joslin is the Regional Forester of the United States Forest Service for Region Eight. These Defendants are the two officials of the Defendant Forest Service who performed or are responsible for the agency actions Plaintiffs challenge in this case. 3. The Plaintiffs are environmental membership organizations with members who are adversely affected by the Defendants’ actions. Plaintiffs’ members lead numerous recreational trips into the Chattahoochee and Oconee National Forests each year. B. Procedural History 4. On April 17, 1996, Plaintiffs filed their Complaint and Motion for Temporary Restraining Order and Preliminary Injunction. 5. On April 19, 1996, the Plaintiffs and Defendants, by consent, stipulated to a twenty-day temporary cessation of all tree cutting, logging, and roadmaking for the eight timber sales in the seven project areas in the National Forests. In lieu of the Court’s granting a Temporary Restraining Order, the Plaintiffs and Defendants consented to this twenty-day temporary cessation of activities, and the Court scheduled a hearing for May 1, 1996 on Plaintiffs’ Motion for a Preliminary Injunction. 6. On May 1, 1996, the Court reviewed the evidence with the parties and heard oral argument on Plaintiffs’ Motion for a Preliminary Injunction. On May 8, 1996, this Court entered an Order granting Plaintiffs’ Motion for Preliminary Injunction based on Defendants’ violations of the Migratory Bird Treaty Act. In that Order, the Court enjoined the timber cutting in the seven timber project areas in issue during the nesting season of the migratory birds. At that time, Plaintiffs also requested an injunction beyond September 15, 1996 based on Defendants’ alleged violations of the Clean Water Act and the National Forest Management Act. In the May 8, 1996 Order, the Court did not reach those issues, but requested further briefing and oral argument. 7. On June 17, 1996, the Court granted Motions to Intervene filed by timber contractors Bert Thomas, Cook Brothers Lumber Co., Inc., Parton Lumber Co., Inc., and Thrift Brothers Lumber Co., Inc. (the “Timber Contractors”), who had entered into the timber sale contracts with the Defendants. 8. On July 11, 1996, the Court heard additional oral argument regarding whether Defendants’ approving these timber sale contracts violates the Clean Water Act, the National Forest Management Act, and the National Environmental Policy Act. This Order addresses these remaining issues. C. Intervenor Timber Contractors 9. The Defendant Forest Service’s seven timber sale projects involve approximately 2,103 acres of forest to be harvested, including logging by clearcutting. The timber projects in the National Forests involve “below-cost” timber sales, in which timber in the National Forests is sold for prices that do not cover the costs to the Forest Service, including the cost of making the sale and reforestation afterwards. 10. Although contracts on four projects have been awarded, timber harvesting and road building activity have begun on only three of these seven timber projects. 11. Applicant Bert Thomas (“Thomas”) purchased two timber contracts awarded by the Defendant Forest Service, namely the Big Net Timber Project and the Upper Swallows Timber Project. Mr. Thomas had started harvesting timber on both projects when operations were suspended voluntarily on April 19, 1996 and later enjoined on May 8,1996. 12. The third project, Compartment 05 Timber Project, was divided into two contracts. Applicant Cook Brothers Lumber Co., Inc. (“Cook Brothers”) purchased the Hanging Rock 2, Compartment 05 Timber Project from the Defendant Forest Service. Cook Brothers had commenced harvesting when operations were suspended voluntarily on April 19, 1996 and later enjoined on May 8, 1996. Road building, but no timber harvesting, has begun on the second contract in the third timber project. Applicant Parton Lumber Co., Inc. (“Parton”) purchased the Hanging Rock 1, Compartment 05 Timber Sale from the Defendant Forest Service. Par-ton had commenced road construction on the project before operations were suspended voluntarily on April 19, 1996 and later enjoined on May 8, 1996. 13. A fourth timber project has been sold, but has not yet been implemented. Applicant Thrift Brothers Lumber Co., Inc. (“Thrift Brothers”) purchased the Compartment 59 Timber Sale from the Defendant Forest Service. Thrift Brothers had not commenced operations at the time the Court entered its May 8,1996 Order. 14. Three remaining timber projects, South Corn Ridge, Dunaway Gap, and Tibbs Trail, have been approved by the Defendant Forest Service, but have not yet been offered for sale by Defendants. 15. The logging and road building at issue include cutting of hemlock-cove hardwoods and stands with advanced age, over ninety years, that are increasingly rare in the highly modified landscapes in North Georgia. 16. The timber projects involve the discharge of 275.2 tons of sediment into rivers and streams in the National Forests. This discharge results from the harvesting of the timber and does not include the discharge from the roads built during the projects. 17. The seven timber projects involve building 18 miles of road in wilderness areas of the National Forests. Some roads are permanent and others are temporary. An additional 155.1 tons of sediment will be discharged to the river and streams from the roads alone. D. Chattahoochee and Oconee National Forests 18. The Chattahoochee National Forest sits on 741,400 acres at the southernmost reaches of the Appalachian Mountains. Visitors from throughout the Southeast come to enjoy outdoor activities in the Forest, which encapsulates a significant portion of the North Georgia Mountains. The Chattahoochee National Forest contains 19,000 acres of lakes and 1,500 miles of perennial streams used by trout. Water yield averages about 2,160,000 acre-feet per year, or 2.9 feet per acre of land. While the Forest attracts a number of urban dwellers, it is also valued for its timber resource. Hardwood and softwood timber is logged to mills in the area. 19. The Oconee National Forest is 104,420 acres located in the rolling terrain of the Georgia Piedmont. Only a few decades ago, these lands were eroding and abandoned cottonfields. Today the land has been returned to productive use. However, soil restoration projects still are implemented to eliminate gullies and similar problems that remain from the past. The Forest contains about 34,000 acres of lakes and 240 miles of perennial streams, used by large-mouthed bass and bream. Water yield averages 115,000 acre-feet per year, or 1.2 feet per acre of land. The Oconee is well know for its deer hunting, and Lake Oconee has become a popular recreational attraction. Timber also plays a major role in the Oconee. While the Oconee is one-seventh the size of the Chattahoochee, the Oconee supplies one-third of the timber harvested annually in both Forests. E. The Land and Resource Management Plan for the Chattahoochee and Oconee National Forests 20. The National Forest Management Act (“NFMA”) requires the Defendant Forest Service to develop and maintain a forest management plan for each unit of the National Forest System. 16 U.S.C. § 1604(a). The forest management plan must develop objectives for the forest unit consistent with the mandate of the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531. Under the NFMA and the regulations promulgated thereunder, the forest management plan must provide for a diversity of plant and animal species within the forest unit, must provide measures that insure that fish and wildlife habitants are managed to maintain viable populations of existing native and desired non-native vertebrae species in the area, and must provide for timber harvesting in the forest unit. 21. In 1985, the Defendant Forest Service implemented the Land and Resource Management Plan (“the Forest Plan”) for the Chattahoochee and Oconee National Forests. As directed under the NFMA, the Forest Plan contains multiple objectives for recreational uses for the Forests, for maintaining a diversity of plant and animal species in the Forests, for maintaining the viability of existing native and desired nonnative vertebrae systems in the Forests, and for timber yield from the Forests. The Defendant Forest Service is currently managing the Chattahoochee and Oconee National Forests under the 1985 Forest Plan, and the Amendments thereto. F. Proposed, Endangered, Threatened, and Sensitive (“PETS”) Species 22. The Defendant Forest Service identifies certain animal and plant species in the Forest as proposed, endangered, threatened, and sensitive species (“PETS”). All parties agree that many plants and animals identified by Defendants as “sensitive species” occupy the seven timber project areas and that a few “endangered species” also occupy the seven timber project areas. All parties also agree that the wildlife habitats in these seven timber project areas are suitable for many “sensitive species” of plants and animals and for some “endangered species.” 23. The regulations promulgated under the NFMA direct that the Defendant Forest Service shall maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure that its continued existence is well distributed in the planning area. Further, the NFMA also directs that habitat determined to be critical for threatened and endangered species shall be identified, and that measures be prescribed to prevent the destruction or adverse modification of such habitat. Objectives shall be determined for threatened and endangered species that shall provide for, where possible, their removal from listing as threatened and endangered species through conservation measures. 24. The Forest Service Manual defines “sensitive species” as those plant and animal species, identified by a Regional Forester, for which population viability is a concern as evidenced by significant current or predicted downward trends in population numbers or habitat capability as follows: 2670.5 — Definitions. 19. Sensitive Species. Those plants and animal species identified by a Regional Forester for which population viability is a concern, as evidenced by: a. Significant current or predicted downward trends in population numbers or density. b. Significant current or predicted downward trends in habitat capability that would reduce a species’ existing distribution. Forest Service Manual § 2670.5(19). The Forest Plan also defines sensitive species as a species with special habitat needs that may be influenced by management. programs. Plan FEIS, at 8-32. 25. Under the NFMA’s regulations, the Defendant Forest Service is required to pay special attention to “sensitive” species. Hence, the Forest Service Manual instructs that Defendants’ activities in the National Forests should “avoid or minimize impacts to species whose viability has been identified as a concern.” Forest Service Manual § 2670.32(3). Also the Forest Plan for these two National Forests incorporates the Vegetation Management Environmental Impact Statement for the Appalachian Region, which requires the consideration of adequate population data for endangered and sensitive plant species whenever there is a high likelihood of occurrence on the project site. 26. The Endangered Species Act defines “endangered species” as “any species which is in danger of extinction through all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming risk to man.” 16 U.S.C. § 1532(4). 27. The following species of plants and animals, admitted by Defendants to be “sensitive” or “endangered” species, were found in at least one, and often several, of the timber project areas in the Chattahoochee and Oconee National Forests: Rough Sedge Brook Trout Witch Hobble Snowy Hydrangea Yellow Lady’s Slipper American False Hellebore Pink Lady’s Slipper Small Purple Fringed Orchid Large Whorled Pogonia Cerulean Warbler Diana Fritillary Manhart’s Sedge Masked Shrew Ruth’s Sedge Pygmy Shrew Cherokee Clubtail Dragonfly 28. The following species of plants and animals, admitted by Defendants to be “sensi-five” or “endangered” species, likely occur or potentially occur in almost all of the timber project areas because the habitats therein are suitable for these species: Peregrine Falcon Southern Appalachian Cottontail Rabbit Green Salamander Common Raven Small Whorled Pogonia Mountain Maple American Ginseng Red Elderberry Turkeybeard Rosy Twisted Stalk Southern Shrew Fort Mountain Sedge Northern Pine Snake Golden Seal Rafinesque’s Big-Eared Bat Trispot Darter Large Flowered Skullcap Holiday Darter Blue Shiner G. Environmental Impact Statement 29. Federal agencies must prepare an Environmental Impact Statement (“EIS”) for any major federal action significantly affecting the quality of the human environment. In order to determine whether an EIS is required, federal agencies first prepare an Environmental Assessment (“EA”) to determine whether the proposed federal agency action does or does not have significant impact. The Defendant Forest Service prepares EAs analyzing each proposed timber project, and then issues decisions with a “Finding of Significant Impact” or a “Finding of No Significant Impact” (“FONSI”). In preparing the EAs, the Defendant Forest Service also prepares Biological Evaluations (“BE”) for each timber project area. 30. The seven separate EAs prepared by the Defendant Forest Service for these seven timber projects each concluded that the timber projects had no significant impact on the sensitive or endangered species in the project areas. The Defendant Forest Service issued seven separate decisions with FONSIs. As a result, no Environmental Impact Statements were prepared for these seven timber projects. 31. Plaintiffs contend the BEs and EAs were prepared without any current population data, inventory data, population trend analysis, and without adequate investigation and information, and that therefore, the Defendant Forest Service’s FONSI decisions are arbitrary, capricious, and contrary to law. The Court first discusses the methodology used by the Defendant Forest Service in preparing the BEs and EAs and then outlines the BEs and EAs for each of the seven timber projects. H. Biological Evaluations and Environmental Assessments 32. Before approving a timber project, the Defendant Forest Service conducts a BE and prepares an EA to determine the impact of the timber project on any “sensitive” and “endangered” species in the timber project area. In completing the BE, a Forest Service staff member (typically a biologist) first develops a list of any sensitive or endangered species that exist or potentially exist in a timber project area. Field surveys are conducted to determine the existence of sensitive and endangered species on the project site. The field surveys for the BEs in issue are in the administrative record. The biologist normally does not count or inventory the number of any given sensitive or endangered species in the project area or gather baseline population data in the field survey. The survey is simply a field trip to the project site to determine what types of species of plants and animals may exist in the part of the project area visited. 33. The staff member also examines whether the project area is a suitable habitat for any potential sensitive or endangered species. If the staff member concludes that the project area does not provide suitable habitat for the sensitive and endangered species, and that there is no record of such species in the project area, and if such species are not observed during the field survey, the staff member concludes that the project likely would not affect any sensitive and endangered species. 34. If any sensitive or endangered species for that National Forest has been observed in the project area or if the project site has suitable habitat for any sensitive or endangered species identified for that particular National Forest, the staff member is required to evaluate the effects of the proposed timber sale on that sensitive or endangered species. 35. As outlined in more detail below, Defendants’ BEs show that numerous sensitive and endangered species of plants and animals exist in the seven timber project areas and that the habitats in the seven timber projects are suitable for many sensitive and endangered species in these two Forests. The issue in this case is not whether the sensitive and endangered species occur in the seven timber project areas or whether the habitats are suitable for certain sensitive and endangered species in the seven timber project areas. Instead, the issue is whether the timber projects by destroying individual populations of sensitive species in the project area and destroying suitable habitats for potential sensitive and endangered species “significantly impact” those sensitive or endangered plants and animals in these Forests. 36. Since Defendants designated the plants and animals in issue as sensitive species, a fortiori Defendants acknowledge that their population viability is a concern due to significant current or predicted downward trends in habitat capability, in population numbers, and population density. However, in making the determination whether these timber projects have a significant impact on viability of these previously designated sensitive species, Defendants admit (a) that they conducted no current on-site population data or inventory of these sensitive species in the timber project areas, but just field-surveyed for their presence; (b) that they have no past or current population data or inventory of these sensitive species in any other areas or ranger districts in the Chattahoochee and Oconee National Forests; (c) that as a result, they have no past or current baseline population data for these sensitive species in these two Forests (whether by project area, compartment, ranger district, or forest-wide); (d) that as a result, they conducted no current population trend analyses (whether by project area, compartment, ranger district, or forest-wide) for these sensitive species in these National Forests to evaluate the impact of destroying both the individual sensitive plants and animals in these project areas and the suitable habitat for other potential members of that species in these project areas; and (e) that they do not have and did not consult any outdated population data or population trend analysis for these sensitive species in these National Forests. 37. Plaintiffs sent Defendants a FOIA request asking for any documents reflecting population trend data for certain sensitive and endangered species existing or with potential habitat existing in the Chattahoochee and Oconee National Forests. The Defendant Forest Supervisor Martin replied that Defendants did not have population data on 32 of the 37 sensitive species listed and did not have any population trend analysis for any of the 37 sensitive species listed. I. Environmental Assessments and MIS Concept 38. Once the BE for a particular timber project is completed, its results are usually reported in the EA for the timber project. In preparing the EA, the Defendant Forest Service creates an interdisciplinary team to address issues pertinent to the proposed timber project. However, in assessing the impact of the timber project on sensitive and endangered species, the Forest Service interdisciplinary team relies principally on two items: (a) the BE; and (b) the “MIS” concept. 39. The Management Indicator Species concept, known as the “MIS concept,” is a methodology by which the Defendant Forest Service manages wildlife habitats. The MIS is a wildlife management scheme in which the welfare of a selected species is presumed to indicate the welfare of other species. A specific plant or animal is selected to represent a particular ecological niche because of its habitat needs. In the MIS concept, the Forest Service selects a particular species based on its required habitat and other factors, such as food needs and whether it is hunted. The selected species becomes an MIS species. Each selected MIS species represents a large group of other species with similar habitat requirements. Once selected, each MIS species purportedly represents numerous other species with similar habitat requirements. Some MIS species also represent other species regarding other activities that occur in the Forest. For example, the White-Tailed Deer, one of the MIS species, represents other species that share the same habitat requirements and that are also hunted. 40. The Forest Service studies the estimated effects of proposed management activities on the MIS species. Once these effects are analyzed, the Forest Service develops an idea about what effects the proposed management action has on the habitat of the MIS species. Once the Forest Service has developed estimates regarding the effects on the habitat of the MIS species, the Forest Service uses those estimates and projects what effects the proposed management objective has on all other species that have similar habitat requirements to that of the MIS species. Thus, the effects on the MIS species are thought to estimate what effects each proposed management action has on the habitat of a large group of represented species and a forti-ori the represented species themselves. 41. The 1985 Forest Plan selected Management Indicator Species for the Chattahoochee and Oconee National Forests. Plan FEIS, at 3-21, Table 3-8. The MIS species chosen were the Deer, Bear, Turkey, Grouse, Quail, Squirrel, Bog Turtle, Yellow Lady’s Slipper, Mountain Pitcher, (Brook, Brown, and Rainbow) Trout, Red-Eye Bass, Turquoise Darter, Yellow Fin Shiner, Coosa Darter, Pileated Woodpecker, Indigo Bunting, and representative PETS species. The MIS species have been altered slightly since 1985. The current MIS species for these Forests are (1) the White-Tailed Deer, (2) Black Bear, (3) Wild Turkey, (4) Ruffed Grouse, (5) Yellow Fin Shiner, (6) Dusky Salamander, (7) Bobwhite Quail, (8) Eastern Gray Squirrel, (9) Brook Trout (sensitive), (10) Brown Trout, (11) Rainbow Trout, (12) Red-Eye Bass, (13) Turquoise Darter, (14) Yellow Lady’s Slipper (sensitive), (15) Bog Turtle (endangered), (16) Mountain Pitcher Plant, (17) Indigo Bunting, (18) Pileated Woodpecker, (19) Coosa Darter, and (20) Red-Cockaded Woodpecker (endangered). 42. Together, the twenty MIS species represent six stages of succession,' or the gradual replacement of one plant community by another; five special habitats or habitat components; and four sensitive or endangered species. Plan FEIS, at 3-22, Table 3-9. From these current twenty MIS species, the EAs select a certain number of the species on the MIS list and designate them as the project MIS for a particular timber project. 43. Under the MIS concept, each of the 2,000 plants and 500 animal species in the Chattahoochee and Oconee National Forests shares similar wildlife habitat needs, with one or more of the twenty MIS species selected for these National Forests. The Defendant Forest Service examines .whether the results of the proposed timber project will maintain, increase, or decrease the type of wildlife habitat needed by the MIS species. 44. In sum, the Forest Service relies on the BE and EA for determining the impact of a timber project on sensitive and endangered species and their habitats. The separate BEs and EAs for all seven timber projects concluded that each timber project would have no significant impact on sensitive or endangered species. The Court thus examines each of the Forest Service’s BEs and EAs that resulted in “Findings of No Significant Impact” and approval of these seven timber projects: (1) the Compartment 05 Timber Project, (2) the Big Net Timber Project, (3) the Tibbs Trail Timber Project, (4) the Upper Swallows Timber Project, (5) the South Corn Ridge Timber Project, (6) the Johns Mountain/Dunaway Gap Timber Project, and (7) the Compartment 59 Timber Project. J. Compartment 05 Timber Sale Compartment 05 of the Chattahoochee and Oconee National Forests is 1,583 acres located approximately twelve miles northeast of Clayton, Georgia in the Big Creek drainage in the Chattooga River Watershed. The compartment is bounded to the east by Cedar Cliffs, on the west by Highway 28 and private lands, and on the north by the Nantahala National Forest. The timber project involves logging of 799 acres in the Chattooga River Basin in Compartment 05, plus 5.3 miles of road to be built. It proposes the discharge of 77.7 tons of sediment into Big Net Branch, Corbin Creek, Big Creek, Double Bridge Creek, Owen Branch, Little Creek, Old Camp Branch, Pin Mill Branch, and Ross Field Branch. Approximately 63.6 tons of sediment come from the road. On February 9, 1993, the District Ranger for the Tallulah Ranger District issued notice of the proposed “Compartment 05 Timber Sale.” The Forest Service often proposes four or five alternatives regarding each timber project including a “no-action” alternative and three or four alternatives with different proposed stands in a compartment to be logged and different methods of logging (such as clearcutting, shelterwood cutting, thinning, even-aged management, etc.). In this Order, the Court outlines only the BE and EA’s findings about the respective alternative ultimately selected for each of the seven timber projects. 1. Biological Evaluation On December 17, 1993, the Forest Service released the BE for the Compartment 05 Timber Project. The BE identified the impacted sensitive or endangered species for Compartment 05 as: (1) the Small Whorled Pogonia, (2) the Pink Lady’s Slipper, (3) Northern Pine Snake, (4) Rafinesque’s Big-Eared Bat, (5) the Diana Fri-tillary, (6) the Peregrine Falcon, (7) the Snowy Hydrangea, (8) the Witch Hobble, (9) the Green Salamander, (10) the Southern Appalachian Cottontail, (11) the Yellow Lady’s Slipper, (12) the Raven, (13) the Cerulean Warbler, (14) the Masked Shrew, and (15) the Pygmy Shrew. a. Small Whorled Pogonia (Endangered) The BE describes the Small Whorled Pogonia orchid as a Federally Endangered Species. The BE states that the Small Whorled Pogonia has been found in nine locations in the Chattahoochee National Forest, including this Tallulah Ranger District, which contains the Compartment 05 Timber Project. The BE acknowledges that the Small Whorled Pogonia occurs in a variety of habitats and that “further studies are needed to delineate the specific habitat needs of this species.” (Emphasis supplied). Because no Small Whorled Po-gonias were found on the project site, the BE concluded that there would be no adverse effects on this species. Although no Small Whorled Pogonias were found on the site, the implication of the BE is that the site for the timber project is a suitable habitat for potential Small Whorled Pogo-nia, especially since other Small Whorled Pogonias have been found in the same ranger district as Compartment 05. The BE does not address the effects of the destruction of the potential suitable habitat on this endangered species. b. Pink Lady’s Slipper (Sensitive) The BE noted that the Pink Lady’s Slipper is common throughout the Chattahoochee National Forests. Hundreds of the Pink Lady’s Slipper were found within Compartment 05. The Pink Lady’s Slipper is listed as “Unusual” by the State of Georgia due to the threats to its viability caused by collection of the Pink Lady’s Slipper for private gardens and for medicinal purposes. The BE acknowledged that “there is little documentation of the effects of timber management activities on Pink Lady’s Slipper.” Thus, the BE concludes that the Compartment 05 Timber Project would provide an excellent opportunity for monitoring the effects of timber management activities on the Pink Lady’s Slipper. The BE concluded that while the Pink Lady’s Slipper, as well as suitable habitat for the Pink Lady’s Slipper, were found, the relative abundance of the species throughout the Forests insures population viability. c. Northern Pine Snake (Sensitive) The BE noted that the Northern Pine Snake occurs from New Jersey to Tennessee, Northern Georgia, and Alabama, and is thought to occur throughout these two National Forests. There was a recent report from Northwestern Georgia and a road-specimen from Northwestern South Carolina in the 1960s. The BE concluded that Compartment 05 provides little suitable habitat for the snake. Although the area was not sampled for the snake, the BE concluded that there was a low likelihood of its presence. The BE acknowledged that if the snake is present, the habitat changes after timber harvest may reduce habitat suitability. The BE concluded that while it was possible that the project may affect individual members of the species, the project would not affect the population viability of the Northern Pine Snake. d. Rafinesque’s Big-Eared Bat (Sensitive) The BE noted that these bats typically roost and hibernate in caves and old buildings, none of which were on the site. However, these bats also had been found in hollow trees, which gave them potential to occur in the project area. The BE concluded that while an individual bat would be displaced if it were present in a tree that was burned or cut, the project would not significantly affect population viability. e. Diana Fritillary (Sensitive) The BE noted that the Diana Fritillary butterfly occurs throughout the Southern Appalachians, inhabiting pine and deciduous forests near streams. Violets serve as the host plant for larvae. Roads and further openings in moist woods may provide nectar plants for this butterfly. The BE noted reports of the butterfly in the site from 1965, 1967, and 1972. A Forest Service ecologist also reported seeing a female of the species in September 1993. Because suitable habitat for the Diana Fritil-lary species exists throughout the Forests, the BE concluded that population viability would not be affected. f. Peregrine Falcon (Anatom Subspecies) (Endangered) The Peregrine Falcon (anatom subspecies) is an endangered species. The BE noted that there was potential habitat for the Peregrine Falcon in the Cedar Cliffs areas of the site and that there was a hack site for the falcon in North Carolina, approximately ten miles from Cedar Cliffs. However, there were no known Peregrine Falcons on Cedar Cliffs, and helicopter flights in the Cedar Cliffs area since 1987 have found no evidence of nesting. The BE concluded that while parts of the project area contain suitable habitat for the species, the timber project would have no adverse effects on the endangered Peregrine Falcon. g. Snowy Hydrangea (Sensitive) The BE noted that the Snowy Hydrangea occurs in several areas within the Tal-lulah Ranger District. The BE noted that changes in the habitat after the project is completed may reduce the habitat suitability for the Snowy Hydrangea, but that the adverse effects on the Snowy Hydrangea will be local and will not decrease viability in the Forest. h. Witch Hobble (Sensitive) The BE says the Witch Hobble occurs in wooded coves at elevations higher than the project site. The only record was “north of the summit on Hightower Bald.” The BE then states, “[sjurprisingly, however, some individual plants were found in the project area.” The BE reported that while the timber project may reduce habitat suitability for the Witch Hobble, these adverse effects “will be local and will not decrease viability on the forest, nor will they contribute to the listing of these species under the Endangered Species Act in the future.” i. Green Salamander (Sensitive) The BE reported that there was potential habitat for the Green Salamander in the Cedar Cliffs area. The BE reports that it is unknown whether any Green Salamander exist in the area because no surveys have been conducted to determine their presence. However, a letter was sent to the Forest Service by an individual named Ray Johns who essentially endorsed the sale but noted a concern about the habitat for the Green Salamander. (Tab 5) His letter noted that the Southern Highlands Plateau, in or near the timber sale areas, is a “core” area of the population of Green Salamanders. Johns explained that the Green Salamander already was on “the indicator list,” and that it likely soon will be placed on “the endangered species” list. The BE concluded that while the project may reduce habitat suitability and adversely affect the Green Salamander, any adverse effects would be to individual members of the species and would not affect population viability. j. Southern Appalachian Cottontail Rabbit (Sensitive) The BE noted habitat for the Southern Appalachian Cottontail Rabbit exists in the timber project site. It is unknown whether the rabbit also was found, apparently because no field surveys for the rabbit were done within Compartment 05. The BE concludes that while the timber project will reduce habitat suitability for the short term, it may have long term beneficial effects. The BE does not explain how or why the project could have long term beneficial effects on the viability of this rabbit or its habitat, but the Court assumes it is due to logging trees creating early sucees-sional growth. The BE acknowledges that individual rabbits may be affected by the timber project, but the project would not affect population viability in the Forest. k. Yellow Lady’s Slipper (Sensitive) While potential habitat for the Yellow Lady’s Slipper was found, the plant itself was not found in the project area. While present throughout the Forest, the Yellow Lady’s Slipper was listed as “unusual” due to the threat of private collection for gardens and for medicinal purposes. Because the Yellow Lady’s Slipper was not found in the project area, the BE concluded that it would suffer no adverse effects. However, the BE concludes with this admission that “[i]t is unknown at this time ivhether the effects of timber cutting and fire are positive or negative to some of our PETS plant species.” BE, Ex. 83 (emphasis supplied). l. Raven (Sensitive) The BE reports that the raven is being considered for “endangered status” in the Southeast because it is restricted to mountainous areas above 3,000 feet. The Raven has been found in two locations in Georgia. The BE noted that the Cedar Cliffs area on this timber project site provides potential habitat for the raven. The BE concluded that even though the Raven may have a transient presence in the project area, the project should not have direct effects on Ravens and will not affect the population viability of the Raven. m. Cerulean Warbler (Sensitive) The BE reported that although the timber project area provides suitable habitat for the Cerulean Warbler, there have been no confirmed sightings in this Tallulah District in the last three years. Accordingly, the BE concludes that the project will have no direct effects on the Cerulean Warbler. However, it might have beneficial effects on the Cerulean Warbler habitat. n. Masked Shrew (Sensitive) The BE noted habitat exists for the Masked Shrew in the project area, but that no surveys to date have been done for the Masked Shrew in the Chattahoochee National Forest. There were small mammal surveys being conducted at the time the BE was issued in other areas of the Chattahoochee National Forest, but they apparently were not yet completed. The BE found that the project may reduce habitat suitability in the short term, but may increase soon thereafter. While individual Masked Shrews may be adversely affected, the project will not affect population viability of the Masked Shrew in the Forest. o.Pygmy Shrew (Sensitive) The BE noted that recent (1985) surveys located the Pygmy Shrew in the Chattahoochee National Forest. The BE also reported potential habitats for the Pygmy Shrew in the specific project area. However, the BE indicated that no surveys were conducted to determine if the Pygmy Shrew is in this timber project site. Even assuming the project affects individual existing Pygmy Shrews in the project area and destroys potential habitat for other Pygmy Shrews, the BE drew the same conclusions about the Pygmy Shrew as about the Masked Shrew, to wit: even if the timber project destroys individual Pygmy Shrews and habitat for Pygmy Shrews, the timber project will not affect population viability of the Pygmy Shrew. 2. BE’s Summary of Impact on Endangered. and Sensitive Species The BE ends with this summary of the impact of the proposed timber sale: Threatened and Endangered species Implementation of the proposed action will have NO EFFECT on the Small Whorled Pogonia or the Peregrine Falcon. There were no documented findings or observations of any federally listed species in the project area. Sensitive species Implementation of the preferred action MAY IMPACT local populations of pink ladyslippers, snowy hydrangea and witch hobble, but will not likely result in a trend to federal listing or loss of viability on the Forest. It is probable that a[sic] some timber management could actually have some direct beneficial effects on some plants. Furthermore, if present, the preferred alternative MAY IMPACT individual Northern Pine Snake, Rafinesque’s Big-Eared bat, Diana Fritillary, Green Salamander, Southern Appalachian cottontail, Masked shrew and Pygmy shrew, but will be local and will not likely result in a trend to federal listing or loss of viability on the Forest. Other known sensitive’ wildlife or plants will have NO IMPACT in the project area. No documentation records, findings or observations of other species were found in the project area. 3. Environmental Assessment After the BE is completed, an EA for the Compartment 05 Timber Project was prepared and released in May, 1994. a. Management Indicator Species The EA employs the MIS concept. Under the MIS concept, the Forest Service selects a few species that the Forest Service determines represent a large group of other species with similar habitat requirements. A particular species is chosen as an MIS species because population changes in these species are thought to represent the effects of management activities on the larger group of represented species. The MIS chosen for the Compartment 05 Timber Project were: (1) the Yellow Lady’s Slipper, (2) the Pileated Woodpecker, (3) the Black Bear, (4) the Gray Squirrel, (5) the Brown and Rainbow Trout, (6) the Dusky Salamander, (7) the Deer, (8) the Turkey, and (9) the Yellow Fin Shiner. EA, pp. 3-4. The EA summary of the effects on MIS species indicates that the only alternative having a detrimental effect on any of the MIS species, specifically the Black Bear, the Deer, and the Turkey, is the no-action alternative. All other alternatives, including the chosen alternative 3 for this timber project, either maintain most of the MIS species or enhance the population of the Black Bear, the Deer,' and the Turkey. The EA itself does not reveal how the Forest Service determined that the project would not affect the MIS species. The EA does not indicate whether the selected MIS species inhabit the project area. The EA does not include or refer to any current inventory or population data or population data trends on the selected MIS species. While the EA references some articles, the articles are not in the EA record, the administrative record about the timber project, the Forest Plan record, or even apparently anywhere in the process record. b. Effects on Biological Diversity The EA also examines the effects of the project on biological diversity (“biodiversity”), which includes the variety of genes, species, communities, ecosystems, and processes by which organisms interact with one another. Diversity exists on four levels: (a) species diversity; (b) community diversity; (c) successional diversity; (d) old-growth, as well as interaction among the elements. Species diversity refers to the diversity of species in the forest, as well as specific sites in the forest. Community diversity refers to variety in the 44 different communities, i.e., hardwoods, upland oak, shortleaf pine, which exist in the forest. Species diversity is listed as the type of diversity that most often is affected by management activities. Successional diversity refers to the variety of animals that inhabit a habitat over various successional periods. Old-growth, in and of itself, creates diversity when spread between blocks of land featuring early successional vegetation. Interaction among elements refers to patterns of occurrence. Patterns may either promote interaction among genes, species, communities, and ecosystems or decrease it. The EA noted that 2000 plant species and 500 animal species were known to exist in the forest; and while the habitat needs for all of these species were not known, EA concluded that the wide range of vegetative communities would continue to support the species in the forest. According to the EA, the timber project will not decrease biodiversity, but, if anything, will increase biodiversity. 4. EA’s Summary of Impact on PETS Species The EA discusses the effects of the timber project on the “PETS” species, which includes the sensitive and endangered species in the project site. The EA states that the no-action alternative would have no effects on PETS or their current or potential habitats. The EA concludes that the timber project will destroy individual sensitive species locally in the project site and will destroy suitable habitat for these species, but that the project will not result in a trend to federal listing or a loss of viability of the sensitive or endangered species in the Forests: All Actions Alternatives —No federally listed plants or animals species were found in the project area. Botanical and animal surveys will be conducted on all high risk sites prior to all future activities and impacts on federally listed species. All action alternatives may impact individual or local populations of pink ladyslippers, snowy hydrangea and witch hobble. These affects would not likely result in a trend toward federal listing or loss of viability on the Forest. It is probable that some types of timber management could have some beneficial affects on some plant species requiring more sunlight. Furthermore, if present, an action alternative may impact individual Northern Pine snake, Rafinesques’s [sic] Big-Eared Bat, Diana Fritillary, Green Salamander, Southern Appalachian cottontail, Masked Shrew and Pygmy shrew. These affects would be local and would not result in a trend to federal listing or a loss of viability on the Forest. The project area contains no habitat specifically required by any one of these species. (See Biological Evaluation, Project File). Cumulative Effects —Refer to the Biological Evaluation, Project File. Environmental Assessment, pp. 63-64. 5. Decision Notice and Finding of No Signiñcant Impact On August 8, 1994, the District Ranger issued the Decision Notice and Finding of No Significant Impact (“FONSI”), and adopting alternative three as the method of timber harvesting. The FONSI relied on the earlier BE in reaching its conclusion that no PETS species would be adversely affected by the timber project. The FONSI relied on the EA’s analysis of Management Indicator Species to support its conclusion that alternative 3 would increase biodiversity. The District Ranger’s decision was appealed on a number of grounds and affirmed. In August, 1995, the timber contracts for the Compartment 05 project were awarded. 6.Amended Biological Evaluation In February 1996, the 1993 Biological Evaluation for the Compartment 05 Timber Project was amended. The amended BE noted that Rafinesque’s Big-Eared Bats would be displaced only temporarily if they were roosted in a hollow tree affected by the timber project. This did not alter the original BE’s conclusion that the Bat’s viability would not be impacted. The Amended BE indicated that the Witch Hobble, which was said to exist in the project area in the original BE, was, in fact, not located in the project area. However, the BE noted that the Georgia Natural Heritage Program has only one record of the Witch Hobble’s occurrence in the state and, thus, the Witch Hobble would need to be protected from any impacts in the future. Necessarily, any impact on the Witch Hobble would adversely affect the species. Regarding the Green Salamander, the Amended BE noted that the preferred habitat for the species was outside the project area. Finally, the Amended BE concluded that the Pygmy Shrew was so widespread that viability would not be threatened by the project. K. Big Net Timber Project The Big Net Compartment of the Chattahoochee and Oconee National Forests is located approximately eight miles southeast of Hiawassee, Georgia between Cor-bin Creek Road and Highway 17/75. The Big Net Timber Project involves logging 115 acres in the Hiawassee River Basin and approximately 0.9 miles of temporary road construction. It proposes to discharge 12.7 tons of sediment into Big Net Branch, Briar Creek, Corbin Creek, High Shoals Creek, Rogers Branch, and the Upper Hiawassee River. Over five tons of that discharge are from the roads. On April 14, 1993, the Defendant Forest Service released notice of its proposal to harvest timber in the Big Net Compartment of the Brasstown Ranger District. 1. Biological Evaluation On August 30, 1993, the Defendant Forest Service released its BE for the Big Net Timber Project. The BE identified the impacted sensitive or endangered species for Big Net as: (1) the Small Whorled Pogonia; (2) the Yellow Lady’s Slipper; (3) the Pink Lady’s Slipper; (4) the Man-hart’s Sedge; (5) the Northern Pine Snake; (6) the Rafinesque’s Big-Eared Bat; (7) the Diana Fritillary; and (8) the Brook Trout. a. Small Whorled Pogonia (Endangered) The BE describes the Small Whorled Pogonia orchid as a Federally Endangered Species. The BE states the Small Whorled Pogonia has been found in nine locations in the Chattahoochee National Forest, including the Brasstown Ranger District that includes the Big Net Timber Project. The findings regarding the Small Whorled Pogonia parallel the BE for the Compartment 05 Timber Project. b. Yellow Lady’s Slipper (Sensitive) The Yellow Lady’s Slipper was found on the timber project site. The BE concludes that while the project will affect individual Yellow Lady’s Slippers (and habitat too), the project is not likely to result in a trend to federal listing as endangered or a loss of viability. c. Pink Lady’s Slipper (Sensitive) The Pink Lady’s Slipper was observed on the timber project site. The BE’s findings regarding the Pink Lady’s Slipper parallel the findings in the BE for the Compartment 05 Timber Project. d. Manhart’s Sedge (Sensitive) The BE reports that the Manhart’s Sedge is endemic to the Southern Appalachians and occurs on rich, steep slopes and stream banks at mid-elevations. The BE notes that the Manhart’s Sedge is classified as a “State Threatened Species in Georgia.” It previously had been reported to exist in surrounding areas. The Man-hart’s Sedge was located in the project area. The BE indicates that the “MS is thought to be relatively common on the Forest but known locations are limited.” The BE further indicates “[ajlthough individuals of this species will be impacted by the proposed action, protection of significant populations in these and other projects will maintain species viability in the Forest.” Although the timber project will destroy individual Manhart’s Sedges in the project area and suitable habitat for other Manhart’s Sedges, the BE concluded that the project would not affect viability of the Manhart’s Sedge. e. American False Hellebore (Sensitive) The BE reported that fifty individual American False Hellebore were seen in the timber project area. The BE states “mitigation measures will be implemented to protect the population of American False Hellebore and the significant populations of Manhart’s Sedge. This will include the exclusion of logging, logging equipment, tree felling and road construction in the colony sites.” f. Rafinesque’s Big-Eared Bat (Sensitive) The findings regarding the Rafinesque’s Big-Eared Bat parallel those in the BE for the Compartment 05 Timber Project. g. Diana Fritillary (Sensitive) The BE reports the Diana Fritillary butterfly “could potentially occur on the project area.” The findings regarding the Diana Fritillary parallel those in the BE for the Compartment 05 Timber Project. h. Brook Trout (Sensitive) According to the BE, the Brook Trout is the only trout species native to Georgia. Brook Trout are already present in High Shoals Branch, which flows through the project area, and could be present in the lower section of Grapevine Cove and Rogers Branches, which are tributaries of High Shoals. The Brook Trout could be present in other tributaries in the project area. The Forest Service apparently acknowledges that sedimentation from the logging and road construction may enter trout streams causing warming of trout streams and further decline of Brook Trout. The BE concluded that viability of the Brook Trout would not be adversely affected as long as “Forest Land Management Standards and Guidelines” and State “Best Management Practices” were followed. In particular, the BE advises that mitigation measures are needed to prevent sedimentation entering and warming trout streams. These measures are identified elsewhere as primarily “silt fencing” during logging and road construction activities. 2. BE’s Summary of Impact on Endangered and Sensitive Species VI. CUMULATIVE EFFECTS Habitat changes resulting from the proposed actions and from activities in the vicinity of the project may, over time, affect the plant species composition in the area. The addition of light into the areas will provide the opportunity [LINES ARE MASSING FROM THE TOP OF PAGE OF RECORD] No federally listed plant species were found in the project area. Botanical surveys will be conducted on all high risk sites prior to all future activities and impacts on federally listed species will be avoided. Significant populations of sensitive plant species will be protected to maintain viability on the Forest. Therefore, cumulative effects from past, present, and reasonably foreseeable future actions will not adversely affect PETS plant species. As long as Forest Land Management Plan Standards and Guidelines and State BMP’s are followed to prevent sedimentation and warming of the trout streams, there should be no adverse cumulative effects to brook trout by this or future activities. The continuation of projects such as stream structures for improving trout habitat should have the cumulative effect of perpetuating and possibly increasing populations. Habitat for Northern pine snake, Rafinesque’s big-eared bat and Diana fritil-lary butterfly are found throughout the Chattahoochee National Forest. The project site contains no habitat specifically required by any of these species. Cumulative effects from past, present, and reasonably foreseeable future actions will not adversely affect these PETS animals. VII. DETERMINATION OF EFFECT The proposed action will not affect small whorled pogonia. The project will not impact brook trout or American false hellebore. The project may impact individuals of pink lady’s slipper, yellow lady’s slipper, Manhart’s sedge, and if present,. Northern pine snake, Rafinesque’s big-eared bat and Diana fritil-lary, but is not likely to result in a trend to federal listing of any of these species under the Endangered Species Act, or a loss of viability on the Forest. 3. Environmental Assessment The EA for the Big Net Timber Project was released in March, 1995. The EA addressed the concern about the Forest Service’s lack of inventory or population data for sensitive and endangered animals and species in the project area and forest-wide, by responding that the law does not require the collection of current inventory-data for purposes of timber projects on specific sites. a. Management Indicator Series The EA for the Big Net Timber Project, as did all other EAs for the other timber projects, relied on the MIS to examine the effects of the timber project on biological diversity. The MIS species chosen for the Big Net Timber Project were: (1) the Yellow Lady’s Slipper, (2) the Pileated Woodpecker, (3) the Black Bear, (4) the Gray Squirrel, (5) the Brown and Rainbow Trout, (6) the Dusky Salamander, (7) the Deer, (8) the Turkey, (9) the Grouse, and (10) the Indigo Bunting. The EA concludes that each of the timber harvesting alternatives will maintain the existing level of biological diversity. The EA does not appear to address the viability of the MIS species, but to use the MIS species to evaluate the effect of the timber project on diversity. The EA cites no past or current population numbers for the MIS species and does not appear to analyze viability or population trends for the MIS species, either forest-wide, or by ranger district, compartment, or timber project. 4. EA’s Summary of Impact on PETS Species The EAs for these timber projects appear to rely on the BEs for their evaluation of effect on PETS. The EA simply echoes the results of the BE regarding the impact of the Big Net Timber Project on the sensitive species and their habitats in the project area. The EA concludes as follows: Botanical surveys will be conducted in high risk areas for this and all future activities and impacts on federally listed plant species will be avoided. Future actions may impact some individuals of Sensitive plants. However, all significant populations of these species will be protected so as to maintain their viability on the Forest. Therefore, the cumulative effects from past, present, and reasonably foreseeable future actions will not have significant effects on PETS plant species. Habitat for Rafinesque’s big-eared bat, northern pine snake, and the Diana Fri-tillary butterfly are found throughout the Chattahoochee National Forest. The project site contains no habitat specifically required by any of these species. Any future projects in the area will also be evaluated for potential PETS species, and impacts will be mitigated or avoided as needed. Therefore, cumulative effects from past, present, and reasonably foreseeable future actions will not adversely affect these PETS animals. Environmental Assessment, pp. 68-69. The EA notes that all of the Big Net Project is in two “Georgia Mountain Treasures’ Wildland” proposals by the Wilderness Society. These proposals seek to remove these lands from projects that contain timber sales and road construction until the new Forest Plan is revised. The Forest Plan usually is revised every 10 years. Because the latest Forest Plan for the Chattahoochee and Oco-nee National Forests is a 1985 Plan, this revision process is now underway. The EA itself does not reveal how the Forest Service determined that this project would not affect the MIS species. The EA does not include any current inventory or population data or population data trends on the selected MIS species or the PETS species. Instead, the EA simply refers to the names of persons and literature consulted. The literature list contains over thirty articles (EA, pp. 100-103), but the vast majority of the articles concern other issues, such as water quantity and quality control, soil and air issues, impact of noise on recreationists, fire management, sediment production, etc. None of these articles appears to have any inventory data or population data or population trend analysis or any studies of any sort about the viability of sensitive species of plants and animals in either the Chattahoochee or Oconee National Forests. In any event, none of these articles appears to be in the administrative record or the project record or the process record. 5. Decision Notice and Finding of No Significant Impact On April 28, 1995, the District Ranger issued the Decision Notice and Finding of No Significant Impact and selected alternative five as the method of timber harvest. The no-action alternative was rejected because it did not provide for healthy and vigorous timber species, did not produce renewable resource outputs, and would not improve conditions for saw timber production. The FONSI indicates alternative five is selected because, among other reasons, “threatened or endangered species are protected through mitigating measures.” FONSI, p. 7. The District Ranger’s decision was appealed on several grounds and affirmed. On October 2,1995, the timber contract for the Big Net Timber Project was awarded to Bert Thomas. L. Tibbs Trail Timber Project The Tibbs Trail Compartment of the Chattahoochee and Oconee National Forests is a 6,672 acre compartment located eight miles northeast of Chatsworth, Georgia. The Tibbs Trail Timber Project includes logging on 439 acres, including 173 acres of clearcutting, plus 6.4 miles of roads. It proposes to discharge 93.1 tons of sediment, over existing amounts, into Bear Branch, Dill Creek, Emery Creek, Milma Creek, and Holly Creek. Approximately 41 tons of that amount are from the roads. On July 8, 1993, District Ranger Black issued notice of a proposal to harvest timber in the Tibbs Trail Compartment of the Cohutta Ranger District. 1. Biological Evaluation The administrative record before the Court contains an EA issued in March, 1995, an amended BE issued in June, 1995, and a corrected EA issued in August, 1995. Apparently, there was an earlier BE in 1992 before the first EA, but it is not in the current record before the Court. Thus, the Court discusses only the amended BE in 1995. The two original timber sales (Upper and Lower Tibbs) were combined into one sale. Both initial BEs were signed January 9, 1992 and August 19, 1992, and the Amendment was signed on March 30,1994. On June 22, 1995, the Defendant Forest Service released an amended BE for the Tibbs Trail Timber Project. The amended BE identifies the impacted sensitive or endangered species for Tibbs Trail as: (1) Upland Combshell; (2) the Southern Acronshell; (3) the Fine-Lined Pocketbook; (4) the Alabama Moccasin shell; (5) the Coosa Moccasin shell; (6) the Southern Club shell; (7) the Southern Pigtoe; (8) the Ovate Club shell; (9) the Triangular Kidney shell; (10) the Tennessee Heel-splitter; (11) the Blue Shiner; (12) the Holiday Darter; (13) the Trispot Darter; (14) the Cerulean Warbler; (15) the Diana Fritillary; (16) the Rafinesque’s Big-Eared Bat; (17) the Small Whoried Pogo-nia; (18) the Yellow Lady’s Slipper; (19) t