Full opinion text
TABLE OF CONTENTS I. INTRODUCTION ..........................'.........1282 A. The Claims......................................1282 B. The Parties .....................................1282 C. Litigation History ...............................1283 D. The BWCA......................................1285 E. The Seven Active Timber Sales....................1286 1. Shell Lake Sale...............................1286 2. Sunnydale Sale...............................1286 3. Jerry Creek Sale ............................1286 4. West Tofte Sale..............................1287 5. East Tofte Sale..............................1287 6. Beartrap Sale................................1287 7. Old Road Sale................................1287 II. PREPARATION OF THE BWCA EIS AND MANAGEMENT PLAN.....................................1287 III. THE EIS AND MANAGEMENT PLAN................1292 A. In General......................................1292 B. The EIS........................................1292 C. The Management Plan............... 1293 IV. VEGETATION MANAGEMENT TOOLS..............1294 A. Logging ........................................1294 B. Burning ........................................1294 C. Administrative Cutting...........................1295 D. Herbicides ......................................1295 E. Neglect.........................................1296 V. NEPA..............................................1296 A. The Act.........................................1296 B. Standards for Review of EIS......................1298 C. Important Planning Considerations.................1298 VI. THE INADEQUACIES OF THE EIS..................1299 A. Failure to Describe the Proposed Action and to Evaluate Its Impacts ..............................1299 1. Failure to Describe Ultimate Goal of Vegetation Management Policy...........................1299 2. Failure of EIS to Evaluate the Vegetation Management Policy Adopted in Management Plan.......1303 3. Failure to Develop an Overall Plan for the Selection of Logging Sites in the Portal Zone.........1304 4. Failure to Consider How Logging Operations Could Be Conducted with Minimum Adverse Environmental Effects...............................1307 B. The Determination of Impacts.....................1308 1. Inadequacies of the Matrices Method of Determining Impacts ..............................1308 2. Failure to Consider Adverse Environmental Effects Associated with Loss of Virgin Timber.....1311 3. Failure to Consider the Compatibility of Logging with Research, Recreational, and Educational Use of the BWCA ...............................1312 4. Failure to Consider the Adverse Impacts of Potential Mineral Exploration and Extraction Operations in the BWCA...........................1314 C. Alternatives to the Proposed Action................1317 1. The Package Approach to the Alternatives.......1317 a. Zoning ..................................1317 b. Protection ...............................1317 c. Management of Vegetation for Products, Protection, Habitat, etc........................1317 d. Recreation ...............................1318 e. Roads, Trails and Portages.................1318 f. Minerals .................................1318 2. Alternative Comparison.......................1320 D. General Conclusions as to the Inadequacies of the EIS ............................................1323 VII. THE WILDERNESS ACT............................1325 A. The Special BWCA Provision......................1325 B. Statutory History of the BWCA...................1325 C. The Purpose of the Special BWCA Provision........1328 D. Preserving the “Primitive Character” of the BWCA .. 1329 E. Restrictions on Timber Harvesting Which Are “Necessary” to Maintain the Primitive Character of the BWCA .........................................1331 VIII. COUNTERCLAIM FOR DECLARATORY RELIEF......1333 IX. THE INJUNCTION .................................1333 X. THE APPENDIXES ................................1335 A. BWCA Maps....................................1335 1. The Interior Zone............................1335 2. Logging History .............................1336 3. Areas of Mineralization.......................1337 B. Matrices 2 ......................................1338 C. Alternatives.....................................1339 MEMORANDUM AND ORDER MILES W. LORD, District Judge. I. INTRODUCTION A. The Claims The plaintiffs bring this action seeking an injunction and declaratory relief which would prohibit logging in the virgin forest areas of the Boundary Waters Canoe Area (BWCA), located in Northern Minnesota. They allege that the Environmental Impact Statement (EIS) prepared by the United States Forest Service and accompanying its Management Plan for the BWCA, fails to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347, and that the Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136, prohibits logging in the virgin forest areas of the BWCA. Review of the EIS is pursuant to NEPA and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. In addition, defendant Consolidated Papers, Inc. counterclaims for a declaratory judgment that the EIS and Management Plan are consistent with the Wilderness Act and that a total proscription on logging in the Portal Zone would be unlawful both under the Wilderness Act and other applicable laws and regulations. B. The Parties Plaintiff Minnesota Public Interest Research Group (MPIRG) is a non-profit Minnesota corporation with its principal place of business at Minneapolis, Minnesota. Its members are approximately 90,000 students at some 18 colleges and universities located throughout the State of Minnesota who pay $3.00 a year to fund the corporation. The corporate purpose of MPIRG, as set out in its articles of incorporation, is “to promote the public interest and social welfare”. Plaintiff Sierra Club is a non-profit corporation organized under the laws of California with its principal place of business at San Francisco, California. It is a national conservation organization having a membership in excess of 145,000 persons. The Government defendants are Earl V. Butz, Secretary of Agriculture; John B. McGuire, Chief of the Forest Service; Jay Cravens, Regional Forester; and James F. Torrence, Supervisor of the Superior National Forest. Defendant Northern Wood Preservers, Ltd. (Northern), formerly called Northern Forest Products, Ltd., is a Canadian corporation with its principal place of business at Thunder Bay, Ontario. Northern has entered into contracts with Earle West, Jr., to take over the East Tofte Sale and with the St. Regis Paper Company to take over the West Tofte Sale. Harry Fisher, the primary owner of Northshore Forest Products, is Northern’s logger on the two Tofte sales. Defendant Potlatch Corporation, (Potlatch) a Delaware corporation doing business in Minnesota with its principal offices in San Francisco, is a successor to The Northwest Paper Company which merged into Potlatch. The Northwest Division of Potlatch, which has its principal place of business at Cloquet, Minnesota, is a pulp and paper manufacturer that specializes in high grade printing and writing paper. Potlatch is now the holder of the timber sale rights previously held by Northwest. Boise Cascade Corporation (Boise Cascade) is a Delaware corporation doing business in Minnesota, with its principal place of business in Minnesota at International Falls. Boise Cascade owns a number of pulp and paper mills in northern Minnesota and one mill in Fort Francis, Canada. Consolidated Papers, Inc., (Consolidated) is a Wisconsin corporation doing business in Minnesota with its principal place of business at Wisconsin Rapids, Wisconsin. Kainz Logging Company (Kainz) is a partnership with its principal place of business at Ely, Minnesota. Kainz’s principal business is the production of lumber as opposed to production of pulp or paper. It has a sawmill in Ely. Emil Abramson originally purchased the Shell Lake Sale but thereafter has assigned his interest in that sale to defendant Boise Cascade and, as a result, has not been an active party in this matter. C. Litigation History This case initially came before this Court in November, 1972 in an action filed by MPIRG. The history of this case up to April, 1973 is set forth in Minnesota Public Interest Research Group v. Butz, 358 F.Supp. 584 (D.Minn.1973) [1973 opinion]; aff’d, 498 F.2d 1314 (8th Cir. 1974); and is discussed in part infra at 1287-1292 as part of the EIS preparation process. The 1973 trial lasted 18 trial days with testimony contained in 2,391 pages of transcript. On April 16, 1973 this Court issued a lengthy opinion holding that the Forest Service’s actions with regard to the timber sales in the BWCA constituted “major federal actions” having a significant effect on the human environment within the meaning of the National Environmental Policy Act and therefore requiring the preparation of an EIS with respect to the management policy dictating such administrative actions. 358 F.Supp. at 622-624. On June 10, 1974 the Court of Appeals for the Eighth Circuit sitting en banc, with three judges dissenting, announced its affirmation of this Court’s decision that NEPA required the preparation of an EIS. Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1325 (8th Cir. 1974) [Court of Appeals Opinion]. That opinion states that the issue of whether or not the Wilderness Act authorizes timber cutting in the BWCA was a “crucial question” for the District Court’s determination in further proceedings. 498 F.2d at 1325 n. 31. Furthermore, the Court of Appeals assumed that the injunction would terminate upon the filing of the final EIS and that any challenge to the adequacy of the EIS would require the institution of a separate proceeding. 498 F.2d at 1325 n. 32. Notice of the filing and availability of the final BWCA EIS and Management Plan were published in the Federal Register on July 11 and 19, 1974. 39 Fed. Reg. 25524, 39 Fed.Reg. 26477. On August 19, 1974, plaintiff MPIRG filed a motion to serve and file a Third Amended Complaint which challenged the adequacy of the EIS and sought a declaration that the Wilderness Act prohibited timber harvesting in the Portal Zone of the BWCA. On August 28, 1974, the Sierra Club moved to intervene as a plaintiff and served the proposed complaint which alleged that the EIS was inadequate and that the Wilderness Act prohibited logging in the virgin forest areas of the BWCA. These motions were granted. The private defendants’ Answers generally denied the allegations contained in MPIRG’s Second and Third Amended Complaints and in the Sierra Club’s Complaint and alleged that the Wilderness Act and regulations promulgated by the Secretary of Agriculture thereunder (36 C.F.R. § 293.16) permit and require that timber harvesting continue in the Portal Zone of the BWCA. In addition, defendant Consolidated counterclaimed for a declaratory judgment that the provisions of the Wilderness Act and duly promulgated regulations of the Secretary of Agriculture pertaining thereto are consistent with the final EIS and Management Plan in that a total proscription of logging of the Portal Zone would be “an illegal restriction on timber use under controlling law and regulations”, particularly the Wilderness Act. On September 12, 1974, this Court requested that the parties advise this Court by affidavit of significant changes which may have occurred regarding the status of active timber sales in the BWCA. Following the filing of such affidavits by the parties, this Court, on September 18, 1974, issued an Order and Preliminary Injunction on the grounds that the plaintiffs had established a substantial probability of success on the merits, and that they would suffer irreparable harm if logging and logging related activities were allowed to continue pending a trial on the merits and final determination of the matter. The order enjoined the defendants from cutting timber or conducting any logging related activities including road building, in those areas of the seven active timber sales which are contiguous with the virgin forest areas of the BWCA. A second trial on the merits commenced on November 4, 1974, and continued over 18 trial days and finally concluded on Saturday, January 4, 1975. The testimony of 12 witnesses was presented and the trial transcript is 2,228 pages. By stipulation, the testimony and exhibits received in evidence during the 1973 trial, together with supplementary proceedings held on February 8, 1973, and proceedings on plaintiffs’ motion for a preliminary injunction heard in September 1974, including all affidavits and exhibits offered in connection therewith, were made a part of the record in the second trial. (Governments Exhibit 48). On January 22, 1975 this Court vacated that portion of its order and preliminary injunction, issued September 18, 1974, enjoining defendant Consolidated from cutting timber and from conducting other logging related activities, including road building, on the Old Road Sale. Consolidated proved, upon the basis of all of the files, records and proceedings herein, that the Old Road Sale did not amount to an incursion into the contiguous virgin forest area of the BWCA. Although this case bears the same civil number as in the 1973 case, it is in fact a separate proceeding. This Court recognizes that it is not bound by its earlier findings of fact and conclusions of law; however, the 1974 trial has shown them to be entirely accurate and correct. Therefore, while this Court may refer to individual parts of the 1973 opinion’s findings of fact and conclusions of law for emphasis, or make additional findings of fact which overlap or duplicate earlier findings for purposes of clarity of presentation, the whole of the 1973 findings of fact and conclusions of law are hereby reaffirmed and incorporated here by reference. The earlier findings are of particular importance because of the discussion of the effects of logging on the primitive character of the BWCA. 358 F.Supp. 609-617. D. The BWCA A description of the unique characteristics and qualities of the BWCA is included in this Court’s 1973 opinion and need only be briefly touched upon here. 358 F.Supp. at 594-596. The Boundary Waters Canoe Area (BWCA) is located in Cook, Lake and St. Louis Counties in Northeastern Minnesota. It occupies 1,030,000 acres of land and water in the northern one-third of the Superior National Forest. The BWCA is 104 miles wide from east to west, and averages 16 miles from north to south. Its irregular northern border follows the waters and portages of the International Boundary, a distance of 145 miles. Water makes up approximately 18% of the area and allows for 995 to 1,200 miles of canoe routes. (EIS at 1, 15). The BWCA is comprised of three separate units of land. The easterly unit, sometimes called the Caribou Unit, is separated from the main area of the BWCA by the Gunflint Trail. To the west, the so-called Little Indian Sioux Unit is separated from the main portion of the BWCA by the Echo Trail. Id. The BWCA is divided into two zones. The Interior Zone, sometimes referred to as the “no-cut” zone occupies some 618,000 acres of land and water, including 100,000 acres added to the Interior Zone in 1975. The Interior Zone contains over 90 percent of the lake surface area of the BWCA and is the area which receives the primary recreational usage. As the name implies, the Portal Zone is the entry zone through which persons pass to reach the Interior Zone. It consists of some 412,000-418,000 acres of land and water around the southern perimeter of the BWCA. The Court of Appeals Opinion describes the BWCA as follows: The BWCA, located in northern Minnesota, is a unique natural resource with some 1,060,000 [sic] acres of lakes, streams, and timber, which along with the adjoining Canadian Quetico-Superior forest forms the only canoe wilderness area in the world. The area contains more than 1,000 lakes larger than 10 acres, either connected by streams or convenient portages that allow for easy canoe travel through the wilderness area. The BWCA is administered by the United States Forest Service as a Wilderness Area and as a part of the Superior National Forest. The Draft Management Plan of the Forest Service for the BWCA refers to the area as “unique, pristine, endangered, rugged, primitive, beautiful and fragile.” Highly prized by many, including plaintiff MPIRG, the Wilderness Area affords recreational, scientific, and educational opportunities. It is also highly regarded by others, like the defendant paper and logging companies, who value the thousands of acres of marketable timber it contains. 498 F.2d at 1316-1317. E. The Seven Active Timber Sales There are currently seven active timber sales within the Portal Zone of the BWCA. Any future sales made during the lifetime of the EIS and Management Plan would be within this zone. The Forest Service’s action with regard to these sales (and four other sales no longer relevant) constituted the major federal action significantly affecting the quality of the human environment that required the preparation of this EIS. 358 F.Supp. at 622; 498 F.2d at 1316, 1319-1323. Evaluation of the environmental impacts of each of these timber sales is not a part of the final EIS. It is the Forest Service’s position that “Environmental Analysis Reports” (EARs) made in 1973 for each timber sale satisfies the requirements of NEPA. (Governments Exhibits 40-46). This issue is discussed infra at 1306-1307 as part of the discussion of the inadequacies of the EIS. A brief description of each of the existing sales including its location and a map is contained as Appendix C of the EIS and Management Plan. Additionally, a description of each sale is contained in this Court’s 1973 Opinion, 358 F. Supp. at 604-609, and in the EAR prepared for each sale. Therefore, each sale need only be briefly described here. 1. Shell Lake Sale. This sale is located on the southwestern edge of the BWCA just to the west of the Sunnydale Sale and to the south of Shell Lake. It is primarily adjacent to virgin forest areas as well as some logged areas. Logging in the enjoined areas of this sale would be a direct incursion into the main virgin forest area of the BWCA. This sale, to be logged by defendant Boise Cascade, can be logged only in the winter. Access to this sale is via a winter road from the Echo Trail. Winter spur roads must be constructed to complete this sale. 2. Sunnydale Sale. This sale is located on the southwestern edge of the BWCA just to the northwest of Rams-head Lake and to the north of the Echo Trail. It is almost entirely surrounded by virgin forest and, if logged, would be a direct incursion into one of the main virgin forest areas of the BWCA. A portion of the Sunnydale Sale was burned in the Little Sioux fire, May, 1971, and, along with the perimeter around the burned area, has been eliminated from the sale area. Defendant Potlatch intends to log the Sunnydale Sale in the winter only. Approximately one-half of the nearly 10 miles of road which will be required in order to complete this sale remains to be constructed. The Sioux-Hustler Trail runs north and south through the Sunnydale Sale. The EAR for this sale requires that a reserve strip be provided on either side of the trail in which no logging would occur. This curtain is intended to shield the effects of logging from hikers who stay on the trail. However, those hikers who wander off the trail will encounter the sale. 3. Jerry Creek Sale. This sale is located on the southwestern edge of the BWCA just to the southeast of the Sunnydale Sale and to the southwest of White Feather Lake. It is almost entirely surrounded by virgin forest area. Logging in the enjoined areas of this sale would be a direct incursion into one of the main virgin forest areas of the BWCA. Logging is permitted only in the winter. The Jerry Creek Sale was originally awarded to Northwest Paper Company (now defendant Potlatch). Access to it is by winter road leading from the Echo Trail. Approximately 1.7 miles of road have been constructed on the sale and an additional three miles must be built to complete logging. 4. West Tofte Sale. This sale is located on the southeastern edge of the BWCA to the west of Alton Lake and inland from the North Shore community of Tofte. It is surrounded by virgin forest on the north, the East Tofte Sale on the east and an area logged after 1940 to the south. Logging in the enjoined areas of this sale would be a direct incursion into the main virgin forest area of the BWCA. A substantial part of this sale is included in the 1975 addition to the Interior Zone. In addition, 8,500 acres lying east of the Lujenida-Zenith Portage, as well as a triangular shaped area lying north of the Lujenida to Fredrick Lake Portage, have been deleted from this sale under the EAR prepared for this sale. Defendant Northern is the current holder of this sale. Summer roads with spot gravelling and winter haul roads must be constructed to harvest the remainder of the sale area. The main timber haul road crosses the Phoebe River very close to the western border of the West Tofte Sale and more importantly it crosses the Knight-Hazel Portage. A winter road will be constructed across Barto Creek. Canoe routes will be within hearing distance of logging activities. Several canoe routes pass through or adjacent to the sale area and in addition the area receives some use by hikers, fishermen, campers, snowshoers and cross-country skiers. Users who seek a wilderness experience off the designated routes will see and hear logging activity. Logging will occur in an area around and north of Barto Lake and Barto Creek. Barto Lake is a warm water lake with potential for recreational use. 5. East Tofte Sale. This sale is located in the southeastern portion of the BWCA to the southwest of Brule Lake. It is surrounded by virgin forest to the north; Sawbill Lake to the west; an area logged after 1940 to the south; and the Black Spruce Sale to the east. Logging in enjoined areas of this sale would be a direct incursion into the main virgin forest area of the BWCA. On February 2, 1973 this Court enjoined logging north of the line (west to east) from the tip of Sawbill Lake to the northern tip of Hide Lake to the northern tip of Clam Lake to the southern tip of South Temperance Lake. Except for this area, logging on the East Tofte Sale is now complete. This sale is currently held by defendant Northern. The road system necessary to log the remainder of the sale is partly constructed; however, spur roads need to be constructed for the completion of this sale. The principal timber haul road into this sale crosses the Kelly Lake to Burnt Lake Portage near the southern boundary of the sale. The Forest Service has received complaints in the summer months from users who have heard the noise from logging machinery. 6. Beartrap Sale. This sale is located on the southwestern edge of the BWCA just to the northwest of the Old Road Sale and Home Lake. It is adjacent to some virgin forest areas as well as some areas logged since 1940. Gutting in the enjoined area of this sale would be a direct incursion into the contiguous virgin forest area of the BWCA. This sale is owned by defendant Kainz. Access to the area is by winter road paralleling Spring Creek from the Echo Trail Road to the sale area. Approximately two miles of road will be necessary to complete the logging in this sale area. This area receives some recreational use by cross-country skiers. 7. Old Road Sale. This sale is located on the southwestern edge of the BWCA to the southeast of Home Lake. It does not amount to an incursion into the main virgin forest area of the BWCA and for that reason was released from this Court’s earlier injunction by order dated January 22,1975. II. PREPARATION OF THE BWCA EIS AND MANAGEMENT PLAN During a three-year period from May, 1971 to June, 1974, the Forest Service engaged in a planning process which culminated in the preparation of a new BWCA EIS and Management Plan. The process began in May, 1971 when Regional Forester Jay H. Cravens directed the Supervisor of the Superior National Forest to prepare a land use management plan for the Superior National Forest and the BWCA. The initial decision was to prepare a management plan for the entire Superior National Forest followed by a separate plan for the BWCA. The stated purpose of the BWCA Plan was to update and revise existing BWCA management guidelines and to assure that the administrative policies were responsive to current knowledge about the environment and the needs of the public. At the same time, a determination was made that the plan would be a major federal action and the Supervisor was further directed to prepare an EIS in accordance with NEPA. To carry out this directive a planning team was formed which initially consisted of four-full-time members including a planning leader, a professional forester, a wildlife biologist and a landscape architect. A full-time forester-economist, a soil scientist, a hydrologist and a geologist were subsequently added to the team. Job descriptions were developed for the planning team members. Other staff experts assisted the planning team on a part-time basis, as required. In the fall of 1971 the planning team prepared Objectives and Policy Guides for the Superior National Forest (Governments Exhibit 52) which stated various objectives to be used as the framework for the Management Plan. The objectives included making the forest an outstanding example of coordinated land use and value protection, involving the public in the management of the forest, providing optimum benefits from the forest consistent with resource capabilities, working to improve economic and social well-being of area residents and developing an effective and achievement-oriented organization. A number of specific policies to accomplish each objective were also stated therein. Copies of this document were forwarded to interested persons. During this same period, on November 18, 1971, legal counsel for plaintiff MPIRG submitted, to the Forest Service and to the Department of Agriculture, a request that an EIS be prepared on 14 active timber sales under contract and on the timber management practices, in general, in the BWCA; and further requested that all timber cutting be halted until the EIS was prepared. (Defendants Exhibit 2). Assistant Secretary of Agriculture, T. K. Cowden, replied to this request in January, 1972 stating that all existing timber sale contracts within the Portal Zone of the BWCA would be continued and that the existing timber sales in the Portal Zone were made in accordance with the Wilderness Act of 1964 and the Secretary of Agriculture’s regulations which authorized commercial timber harvesting in the Portal Zone of the BWCA. (Plaintiffs Exhibit 72). During early 1972 the planning team, headed by Robert L. Rice, Assistant Forest Supervisor in charge of Planning, developed a 30 page booklet entitled Three Million Plus (Governments Exhibit 54) which had as its purpose the formulation of an orderly planning process for the EIS and Management Plan. This booklet set out the process for preparing the EIS and Management Plan. In April, 1972 because commercial timber harvesting in the Portal Zone was becoming a controversial issue, a decision was made to focus planning team efforts on the BWCA alone and to stop work on the separate EIS and Management Plan for the Superior National Forest. Thereafter, a decision was made to prepare a Preliminary Environmental Analysis for existing timber management activities in the BWCA. (Governments Exhibits 32, 60). The initial work of the planning team and other Forest Service employees who worked on the Plan included: (a) collecting information and ascertaining the issues, concerns and problems in managing the BWCA from interviews and discussions with District Rangers, Supervisor’s staff, University of Minnesota School of Forestry staff, Minnesota Department of Natural Resources staff, and staff at the North Central Experiment Station in St. Paul, (a research arm of the Forest Service); (b) gathering information through field inventories and collecting written material for the planning process; (c) conducting 23 informal public discussion workshops during October and November, 1972 in local communities in northern Minnesota and also in the Minneapolis-St. Paul area for the purpose of advising the public of the progress of the Management Plan and also to obtain the responses, comments and reactions of the public to the management proposals and issues for the BWCA; and (d) requesting the comments and views of other citizens by mailing a public information package. (Responses from 77 persons were received.) On November 24, 1972 MPIRG filed its First Complaint for injunctive relief requesting that the defendants be enjoined from logging or conducting logging-related activities in the BWCA until the Forest Service had prepared an EIS which complied with NEPA. Following a trial on the merits in January 1973, this Court enjoined the Government defendants and private defendants from logging in specific areas of the Portal Zone (primarily those areas that are contiguous to virgin areas of the forest) until the Forest Service had completed its BWCA Management Plan and accompanying EIS. 358 F.Supp. at 630. In December 1972 the planning team assembled the first edition of Superior Planning Notes under one cover. (Governments Exhibit 59). This document consisted of almost two hundred pages of information regarding BWCA geology, history, climate, federal and state laws and regulations, economics, soils, minerals, vegetation, recreation, water, fish and wildlife, insects and disease, land occupancy, land adjustment, fire and fire protection, research, history, archeology, educational values, travel network and entry information. The Planning Notes were revised from time to time as new information was obtained. During the week of January 15-19, 1973 the planning team, forest staff and district rangers met to analyze and discuss the alternatives presented by the planning team and to make preliminary decisions regarding these alternatives, which would be reflected in the Draft EIS and Management Plan. The alternatives discussed were in the form of management options for each of several management activities or uses and not in the form of the six alternative “packages” which appear in the Final EIS. (Governments Exhibit 76). Mr. Rice, the planning team leader, in his testimony at the 1974 trial characterized the alternative packages as “first order alternatives” and the alternatives for each management activity as “second order alternatives”. (Transcript 161-163). Both “first order alternatives” and “second order alternatives” have been referred to as “management alternatives”. The alternatives are discussed infra at 1317-1323. On January 26, 1973 the planning team issued a summary of its preliminary decisions and a rough draft of BWCA management directions (Governments Exhibit 80). On August 1, 1973 the Council on Environmental Quality (CEQ) issued new guidelines to apply to all impact statements filed with the Council after January 28, 1974, 40 C.F.R. § 1500, 38 Fed. Reg. 20550 (1973). These guidelines apply to the BWCA EIS. In November, 1973 the Council on Environmental Quality informed the Washington Office of the Forest Service that the BWCA Management Plan and Environmental Impact Statement did not meet the requirements of NEPA. The most critical deficiency was the failure to present alternatives. (Governments Exhibit 116). On December 6, 1973 a meeting was held in the Washington office of the Forest Service which was attended by Robert Lunt, a representative of the Council on Environmental Quality, various representatives of the Superior National Forest, and representatives of the Forest Service at Washington and of its regional offices. Mr. Lunt of CEQ informed the Forest Service representatives that he was considering a recommendation that the Draft Environmental Impact Statement be withdrawn and revised since it did not adequately discuss the full range of resource management alternatives or the reasons behind various changes in policy from those presently in effect in the BWCA. Specific areas of CEQ concern were: 1) vegetation management (timber harvest, fire management, insect and disease control); 2) snowmobile use; 3) horsepower limitations for motorboats; and 4) reserved rights in connection with mechanical portages. With regard to vegetation management, CEQ was concerned with the failure of the Draft EIS to consider the full range of alternatives for timber harvesting (from no harvesting to complete cut over) and for fire management (from no use of fire to exclusive use of fire in place of timber harvesting). The Forest Service objected to withdrawing the Draft, EIS since many public comments had been received. Instead, the Forest Service agreed to rewrite the EIS and include an in-depth discussion of alternatives in the Final EIS. (Governments Exhibit 116 at 4). After this meeting, and based upon discussions and preliminary decisions therein and upon the various documents and other materials assembled and utilized by the planning team (including the Superior Planning Notes and the public involvement analysis), the team prepared various matrices for use in the Draft EIS. These matrices (EIS 121-127) became the Forest Service’s tool for stating the environmental impacts of each and every Management Activity or Use, including vegetation management by logging. The matrices are discussed infra at 1308-1311. Additionally the matrix dealing with vegetation management (EIS at 122) is reprinted as Appendix B to this opinion. In the spring of 1973 the Forest Service prepared EARs on each of the existing timber sales. These EARs were prepared initially by the district rangers, and were reviewed by a team on the staff of the Superior National Forest. Ultimately they were approved by the Forest Supervisor or his deputy. The EARs recommended modifications in existing sales, including the deletion of some areas from cutting. (Governments Exhibits 40-46; Transcript 324-327, 334-337). The Draft Management Plan and Environmental Impact Statement were filed with the CEQ on August 15, 1973 and were released and made available to the public and interested members of Congress the next day. Notice was then filed in the Federal Register as required by NEPA. 38 Fed.Reg. 23820 (1973). Instead of the usual 45-day period for public comments provided by the CEQ guidelines, the Forest Service decided that a full 60 days would be available. During the review period close to 800 copies of the Plan and EIS were distributed and 499 public responses thereto were received by the Forest Service. On November 19, 1973 proposed Forest Service guidelines based on the August 1, 1973 CEQ guidelines (40 C.F.R. § 1500) for the preparation of EISs were published in the Federal Register. 38 Fed.Reg. 31922. Following the December, 1973 meeting with Mr. Lunt of CEQ, the Forest Service prepared a content outline of the Final EIS which proposed to include a section on alternatives. (Governments Exhibit 117). However, this outline, which was discussed with Mr. Lunt in February, 1974, did not list or discuss specific available alternatives. In January, 1974, the Superior National Forest issued the BWCA Management Plan . . . Public Involvement Report prepared by the planning team. (Governments Exhibit 37). The report includes two parts. Part I discusses public involvement activities conducted by the Superior National Forest during 1972 as they relate to the preparation of the BWCA Management Plan. Part II is a summary of the written public responses to the Draft Plan and Environmental Statement. Between December, 1973 and January, 1974 the planning team began reviewing and developing new matrices, studying the impacts of each alternative activity and use and analyzing their effects. During the week of February 12-15, 1974 the Forest Supervisor, his staff and the district rangers met to review the environmental analysis matrices prepared by the planning team and to make final recommendations for the Management Plan. At this meeting the statement of policy which appears in the Management Plan at P-18, regarding logging in the Portal Zone, was defined. That policy was that “Vegetation in the Portal Zone will not be reserved from cutting unless species or unique plant communities not found in the Interior Zone are involved.” The minutes of the meeting for that week do not indicate that any consideration was given to the alternatives of eliminating logging in the virgin forests of the Portal Zone or to any of the other alternatives, aside from the question of administrative cutting as a substitute for commercial logging and fire. After the February 12-15 meetings Mr. Rice (forester) and Mr. Nebel (economist) reworked the matrices, prepared management alternatives and began drafting the Forest Service’s recommendations for the Final EIS and Management Plan. At first, the planning team prepared four management alternatives which were presented to Regional Forester Cravens, along with maps and matrices, at a meeting in March, 1974. The Regional Forester’s Office suggested two additional alternatives which appear as Alternatives 1 and 6 of the Final EIS. (Governments Exhibit 49). Thus, the six management alternatives (alternative packages) which appear in the Final EIS were not developed until late in the EIS development process. The six management alternatives were presented to the President’s Quetico-Superior Committee on March 21, 1974. The Committee offered a variation on Alternative 5 by adding “remote areas”. In addition, between April 3 and April 10, the six management alternatives were presented to the Ontario Ministry of Natural Resources, the Superior National Forest Advisory Committee, the Forest Supervisor in Duluth and the Rotary Club in Virginia, Minnesota. On April 16, 1974 a meeting of all district rangers and staff was held in the Forest Service Office in Duluth. At this meeting the six management alternatives were presented and discussed and a decision was made to recommend Alternative 3 to the Regional Forester. On April 29, 1974 a copy of a Review Draft of Management Plan and Environmental Impact Statement was delivered to Regional Forester Cravens which indicated that Alternative 3 was recommended. On May 7, 1974 Regional Forester Cravens indicated that “Alternative 3 looks best”. (Governments Exhibit 130). On June 28, 1974, after final revisions and editing by Mr. Rice and Mr. Nebel, Regional Forester Cravens transmitted the Management Plan and EIS to CEQ. Subsequently, on July 11, the Forest Service published notice of the Final EIS and Management Plan in the Federal Register (39 Fed.Reg. 25524), and CEQ published a similar notice in the Federal Register on July 19, 1974. 39 Fed.Reg. 26477. On August 19, 1974 MPIRG filed its motion to serve and file a third Amended Complaint challenging the adequacy of the EIS and seeking a declaration that the Wilderness Act prohibited logging in the virgin forest areas of the Portal Zone of the BWCA. This Court granted MPIRG’s motion and also permitted the Sierra Club to intervene as a plaintiff. On September 16, 1974 Regional Forester Cravens formally approved the Management Plan subject to conditions and changes listed in Governments Exhibit 133. [Incorporated at the front of the most recently printed EIS and Management Plans]. III. THE EIS AND MANAGEMENT PLAN A. In General An outline of the basic structure of the EIS and Management Plan provides a helpful background to the discussion, infra at 1299-1323 on the inadequacies of the EIS. The EIS and Management Plan were prepared with respect to all aspects of management of the BWCA. Consequently, they deal with issues in addition to timber harvesting and related activities. The existing timber sales are not extensively evaluated in the EIS but rather are evaluated in individual EARs, prepared for each timber sale. A difficult problem in evaluating the EIS has been the contradictions in policy between the EIS and Management Plan and within each of them. However, the federal action evaluated in the EIS was used to prepare the Management Plan, therefore the policies contained in the Management Plan are presumably those which will be implemented by the Forest Service. B. The FIS The BWCA EIS is divided into five parts not counting the Summary Sheet, Introduction, Management Plan, or Appendixes. The “Summary Sheet” states that the EIS is a Final EIS, prepared by the Forest Service, and that the type of action is administrative. This is followed by a brief description of the action which for the most part is a restatement of the policies contained in the Management Plan at P-2-P-4. (EIS at 1-4). Next, is a brief summary of environmental impacts and adverse effects, followed by a list of the six management alternatives. (EIS at 4-10). The Summary Sheet ends with a paragraph about consultation with the public and outside agencies during the preparation of the EIS and Management Plan and the dates on which the Draft and Final EIS were made available to CEQ and the public. (EIS at 10-11). The Introduction contains a brief statement about the “unique” quality of the BWCA, recites that the proposed action addressed in the EIS is a Land Use Management Plan for the BWCA, that the plan contains major departures from current management practices which will have impacts upon the environment, and recites that “Alternative 3 is proposed as offering the best current solution to the needs of ‘use’ and ‘preservation’(EIS at 13). The Introduction ends with a brief statement about what is contained in the following six chapters, Chapter VI being the Management Plan. (EIS at 12-14). Chapter I is a description of the area, environment, resources, associated values and beneficial uses of the BWCA. Chapter II traces the history of the area and how historical events have, over the past 130 years, specifically influenced the treaties, laws, and regulations that currently govern the administration and use of the area. This chapter concludes with a synopsis of the major laws governing management of the area and planning areas adjacent to the BWCA, whose use is affected by, and which affect the BWCA. Chapter III presents the six “Packages” of management alternatives, including maps. These are followed by a one page evaluation of the comparative advantages of the alternatives and a fold out comparison chart. These alternatives are packages of various policies for numerous management activities and uses. (The Alternatives are included as Appendix C of this opinion, excluding maps). The Alternatives, comparison chart, and statement of comparative advantages of the alternatives are followed by sections which discuss the “Unavoidable Adverse Impacts of the Alternatives”, the “Relationship Between Short-Term Uses and Long-Term Productivity for Each Alternative”, and the “Irreversible Commitments and Irretrievable Losses of Resources” under each alternative. Ending the chapter is a comparative evaluation and discussion of the alternatives in terms of how they respond to “National Interests and Goals” (primarily NEPA policies, the special BWCA provision of the Wilderness Act 16 U.S. C. § 1133(d)(5), and laws and treaties relevant to BWCA management in general). Again these are package evaluations of numerous policies for individual activities and uses. The package evaluation of alternatives is a major inadequacy in the EIS as will be discussed, infra at 1317-1319. Chapter IV is an environmental analysis that reflects potential effects of the various activities and uses which have been suggested for the BWCA and suggests how some of the adverse effects might be mitigated. This is the heart of the evaluation of environmental impacts. This chapter contains seven fold-out matrices which state, without discussing, the impacts of various management activities and uses upon environmental factors grouped as physical, biological, cultural, or economic. The matrices which evaluate the impacts of commercial timber harvesting is included as Appendix B to this opinion. As will be discussed infra at 1319-1323, the failure of the EIS to give any clue as to how the impacts in the matrices were assigned and determined to be adverse or favorable; major or minor; long-term or short-term; direct or indirect, is another major inadequacy of the EIS. Chapter V is a summary of public participation, responses to the draft EIS and the Forest Service comments on the major issues raised. Chapter VI is the Management Plan. C. The Management Plan The Management Plan states that it is designed to provide management direction for at least ten years. (Management Plan at P-4). Testimony indicated that 10 years is close to the expected life of the EIS and Management Plan. (Transcript 1384-1390, 2023). Since the Management Plan derives its environmental information from the EIS, a new management plan would require an accompanying EIS. This plan replaces the previous BWCA Management Plan formulated by the Forest Service in 1964 and amended in 1966 in an attempt to comply with the Wilderness Act, 16 U.S.C. §§ 1131-1136, and Secretary of Agriculture’s regulations governing the BWCA. 36 C.F.R. § 293.16. (formerly 36 C.F.R. § 251.85). The Management Plan is divided into three sections. First is the Introduction which is, for the most part, a restatement of the EIS Summary Sheet. (EIS at 1-4). Second is the Implementation Section which explains that the plan will be used to revise the current BWCA Management Handbook. Third is the Resources and Activities Section. This section is the main body of the Management Plan. It describes management assumptions, directions and policies governing the treatment of Fifteen resources and activities including vegetation. IV. VEGETATION MANAGEMENT TOOLS A good portion of this Court's discussion of the inadequacies of the EIS will concern the use of logging, as opposed to various other management tools available to the Forest Service, in managing the forests of the BWCA. A brief discussion of the available management tools and how they will be used in the BWCA Management Plan follows. While this discussion may at some points seem unclear, this is in large part attributable to the numerous ambiguities and contradictions in policy which this Court found to exist throughout the EIS and Management Plan. The Forest Service has five basic tools with which to manage the vegetation in the BWCA; they are: logging, burning, administrative cutting, herbicides, and neglect (simply doing nothing with the exception of attempting to control wildfires). A. Logging—The Management Plan states that the two-zone system for regulating the harvesting and removal of timber will be continued. Commercial logging will not be allowed in the Interi- or Zone but will be permitted in the Portal Zone subject to the restrictions of the Shipstead-Newton-Nolan Act, 16 U. S.C. § 577a. Timber within 400 feet of the shorelines of lakes and streams suitable for boat or canoe travel, or any portage connecting such waters, will be specifically excluded from harvesting. Harvesting operations are to be designed to avoid unnecessary crossings of portages. (Management Plan at P-16). Additionally, timber sales plans are to incorporate suitable provisions for prompt and appropriate cover restoration. Finally, an EAR will be made of each new sale. Id. EARs were prepared on the existing timber sales in April 1973. (Governments Exhibits 40-46). B. Burning-—The Forest Service has concluded that burning is not an acceptable management tool for the Portal Zone except as a supplement to logging. (EIS at 86, Management Plan at P-3, P-46, P-47). Fire is nature’s tool for managing the forests of the BWCA. The BWCA is a fire dependent ecosystem; therefore fire is the best method of insuring that the processes of change in the forest follow as closely as possible those employed by nature. (1973 Opinion, 358 F.Supp. at 609-617) (Management Plan at P-45). The Management Plan provides that prescribed burning will be permitted for treating logging slash and to manipulate vegetation. (Management Plan at P-3, P-47). Furthermore, the present fire prevention and detection program will be continued with some limitations on the use of motorized equipment, chemical retards and overland transportation of personnel and supplies. Id. Finally, some pre and post season wildfires will be allowed to burn if they can be quickly contained. Id. Prescribed burning is defined in the appendix to the Management Plan as follows: prescribed burning: Controlled application of fire to wild-land fuels in either their natural or modified state, under such conditions of weather, fuel moisture, soil moisture, etc., as allow the fire to be confined to a predetermined area and at the same time to produce the intensity of heat and rate of spread required to further certain planned objectives of silviculture, wildlife management, grazing, fire-hazard reduction, etc. NOTE: It seeks to employ fire scientifically so as to realize maximum net benefits with minimum damage and at acceptable cost. (Management Plan at A-59). This basically means that fire can be used either to treat logging slash or to manipulate vegetation. (Management Plan at P-47). In other words, burning can be used as a vegetation management tool by itself, with only administrative cutting around the area to be burned to create fire breaks, or in connection with burning slash after logging has occurred. The evidence showed that burning can be developed as an effective management tool within the next 10 years. See discussion infra at 1302. C. Administrative Cutting—The Forest Service proposes to allow “Administrative Cutting” of timber in the Portal Zone and Interior Zone as a vegetation management tool. At the 1974 trial the plaintiffs were much concerned that large areas of the Portal Zone and possibly the Interior Zone might be logged under the guise of “administrative cutting”. The EIS defines administrative cutting as simply non-commercial cutting. (EIS at 102). The Management Plan however, as revised by Regional Forester Cravens’ letter approving the Final EIS and Management Plan, will only “permit administrative cutting of vegetation for the development and maintenance of campsites, portages, trails, for fire control, to aid prescribed burning, and for user safety.” Management Plan at P-18 as revised by Cravens’ Letter (Governments Exhibit 133). The EIS contains an additional policy not specifically referred to as administrative cutting but which this Court must assume amounts to administrative cutting because it is “non-commercial cutting”. This policy would allow vegetation to be cut in both the Interior and Portal Zones to clear areas for campsites, trails, portages, for public safety, for fire management, and in the suppression of insects and /diseases. (EIS at 86). If this policy is in fact still in force as a supplement to administrative cutting as defined in the Management Plan then this court might be faced with a substantial problem because there is no indication as to just how much timber could be cut to suppress insects and diseases or whether the suppression of insects and diseases also includes preventative measures (i. e. cutting old trees because they could become infested with insects or disease). This 'Court must assume that the policy of administrative cutting as defined in the Management Plan at P-16 as amended by Regional Forester Cravens’ letter (Governments Exhibit 133) is the only type of cutting, other than commercial logging in the Portal Zone, which is to be allowed in the BWCA. D. Herbicides—The Management Plan provides that, “herbicides will not be used to manipulate vegetation unless there is a clear need to use them to ensure desired stand composition and then only with Regional Forester approval.” (Management Plan at P-18). This policy however has been modified by Chief of the Forest Service McGuire to provide even greater protection against their unnecessary use. Reviewing the herbicide policy for the BWCA Chief McGuire commented as follows: While the use of herbicides is not specifically prohibited in the Wilderness Act, herbicide use does not seem to be generally in keeping with wilderness philosophy nor is it necessarily consistent with the management of primitive conditions. As such I believe the use of herbicides should be approved only when no other method of attaining the desired results is practical. The Regional Forester is instructed to consider this reasoning when considering granting approval for the use of herbicides in the BWCA. (Administrative Review-1974 BWCA at 15). E. Neglect—The Interior Zone will be managed primarily by neglect until in the opinion of the Forest Service burning can be safely used as a management tool. (Management Plan at P-18, P-46). The development of burning as a management tool, as will be discussed infra at 1302, will take approximately 10 years. The Interior Zone will contain primitive enclaves, the most primitive type of area in the BWCA. The EIS provides that in primitive enclaves burning will be used almost exclusively as the management tool. (EIS at 9, 111). In these areas the forces of nature will be duplicated whenever possible. Id. V. NEPA A. The Act In 1969, Congress responding to growing public concern over our environment passed the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347, effective January 1, 1970. In adopting NEPA Congress resolved not to allow Federal agencies or funds to be used in a predatory manner so far as the environment is concerned. Named Individual Members of the San Antonio Conservation Society v. Texas Highway Dept., 400 U.S. 968, 978, 91 S.Ct. 368, 27 L.Ed.2d 388 (Douglas, J. Dissenting from denial of certiorari); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 294 (8th Cir. 1972), cert. denied, 409 U.S. 1072, 93 S.Ct. 674, 34 L.Ed.2d 661 (1972) [E. D. F. v. Corps]. Congress declared the purposes of NEPA to be as follows: To declare a national policy which will encourage productive and enjóyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and bisophere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. 42 U.S.C. § 4321. Section 101 of NEPA (42 U.S.C. § 4331) is a Congressional declaration of national environmental policy. Section 101(a) is a general statement of policy and Section 101(b) requires the Federal Government to use all practicable means to achieve specific policy goals stated therein. Section 101 reads as follows: (a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environment quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations ; (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities ; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. 42 U.S.C. § 4331. (Emphases added). Section 102 of NEPA (42 U.S.C. § 4332) contains specific procedural directives which Federal agencies must follow in preparing the EIS and implementing the policies of NEPA § 101. Section 102 reads as follows: The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall— (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) The environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, [United States Code,] and shall accompany the proposal through the existing agency review processes; (D) study, develop, and desc