Full opinion text
ORDER ON MOTIONS FOR SUMMARY JUDGMENT RE 1994 FOREST PLAN DWYER, District Judge. I. INTRODUCTION The legality of a forest management plan adopted by the Secretaries of Agriculture and Interior must be decided in these consolidated cases. Among the federal lands in Washington, Oregon, and Northern California are about twenty-four million acres that are within the geographic range of the northern spotted owl. The plan to manage this large area was adopted in response to orders entered in this litigation (see Seattle Audubon Soc’y v. Moseley, 798 F.Supp. 1484 (W.D.Wa.1992), aff'd sub nom., Seattle Audubon Soc’y v. Espy, 998 F.2d 699 (9th Cir. 1993), and in the District of Oregon (see Portland Audubon Soc’y v. Lujan, 795 F.Supp. 1489 (D.Or.1992), aff'd sub nom., Portland Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir.1993)). The Secretaries and their departmental agencies — the United States Forest Service and the Bureau of Land Management (“BLM”) — submit that the new plan, jointly adopted following a final supplemental environmental impact statement (“FSEIS”) by a record of decision (“ROD”) issued on April 13,1994, satisfies all requirements of statutory and regulatory law. The plan is challenged from two sides. Seattle Audubon Society (“SAS”) and several other environmental groups (the “plaintiffs”) contend that compliance with the environmental laws is still inadequate. They seek an order remanding the matter to the agencies for further analysis and explanation, with an injunction against all or nearly all timber sales in the meantime. On the other side is the Northwest Forest Resource Council (“NFRC”), an association representing loggers, mill owners, and others in the timber industry. NFRC has been an intervenor-defendant in the first-filed of these cases (No. C92^f79WD) since 1992, but brought its challenges to the 1994 plan in two suits filed, with industry co-parties, in the United States District Court for the District of Columbia, Northwest Forest Resource Council v. Thomas and Northwest Forest Resource Council v. Dombeck (Civil Nos. 94-1032 (TPJ) and 94-1031 (TPJ) in that court). The industry challenges to the plan are interrelated with those of the environmental plaintiffs. The court in the District of Columbia transferred the Thomas case to this district, and stayed the Dombeck case, so that the issues could be decided here and duplicative litigation avoided. When NFRC voluntarily dismissed the transferred case without prejudice, this court allowed the federal defendants to cross-claim against NFRC for declaratory relief on its claims of illegality asserted in the Thomas and Dombeck complaints. That ruling permits both sides’ challenges to the 1994 forest plan to be decided together. If NFRC’s contentions were upheld against the cross-claims for declaratory judgment, the result would be a remand to the agencies. The plaintiffs and the federal defendants have moved for summary judgment. There are no issues for trial and, under the provisions of Fed.R.Civ.P. 56, summary judgment is appropriate. For the reasons given below, the court finds that the federal defendants have acted within the lawful scope of their discretion in adopting the 1994 forest plan. The question is not whether the court would write the same plan, but whether the agencies have acted within the bounds of the law. On the present record, the answer to that question is yes. The order now entered, if upheld on appeal, will mark the first time in several years that the owl-habitat forests will be managed by the responsible agencies under a plan found lawful by the courts. It will also mark the first time that the Forest Service and BLM have worked together to preserve ecosystems common to their jurisdictions. The Secretaries have noted, however, that the plan “will provide the highest sustainable timber levels from Forest Service and BLM lands of all action alternatives that are likely to satisfy the requirements of existing statutes and policies.” ROD at 61. In other words, any more logging sales than the plan contemplates would probably violate the laws. Whether the plan and its implementation will remain legal will depend on future events and conditions. These are described below. II. HISTORY OF THE CONTROVERSY The background and history of the legal struggle over management of the federal forests that are home to the northern spotted owl are described in Seattle Audubon Soc’y v. Evans, 771 F.Supp. 1081 (W.D.Wa.1991), aff'd, 952 F.2d 297 (9th Cir.1991). After decades of logging and development, perhaps ten percent of the original old growth forest remains. See Evans, 771 F.Supp. at 1088. The owl is an indicator species under 36 C.F.R. § 219.19. Its waxing or waning is a viability measure for other wildlife — for an ecosystem — in the remaining old growth. In 1988 the Forest Service adopted a plan for management of the owl forests within its jurisdiction. Environmental and industry groups sued in this court, challenging the plan’s legality. While the case was pending, the United States Fish & Wildlife Service (“FWS”) announced on April 25, 1989, its intent to list the owl as “threatened” under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Soon afterward, Congress enacted a temporary statute, which became law on October 23, 1989, directing the Forest Service and the BLM to offer specified quantities of timber for sale in fiscal years 1989 and 1990. The statute, known as section 318, was based upon wildlife viability assumptions that the federal agencies later recognized were false; if logging continued at the levels mandated, some vertebrate species would vanish from the federal forests. In May 1990 an interagency scientific committee (“ISC”) proposed a plan for conservation of the spotted owl. In October of that year the Forest Service published a notice that future timber sales would be consistent with the ISC recommendation; but the notice did not adopt standards and guidelines for the management of the owl under procedures required by the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., and was not accompanied by an environmental impact statement as required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The legal adequacy of the 1989 notice was challenged. On March 7, 1991, this court entered an order declaring unlawful the Forest Service proposal to log spotted owl habitat without complying with statutory requirements. See Seattle Audubon Soc’y v. Evans, 771 F.Supp. at 1082-83. Following an eight-day evidentiary hearing on the scope of injunctive relief, the court issued an injunction protecting owl habitat from further timber sales pending the Forest Service’s adoption of a management plan in compliance with NFMA. Id. at 1096. In January 1992, the Forest Service published a supplemental EIS, and in March of that year it adopted an ROD establishing guidelines for managing spotted owl habitat. SAS and co-plaintiffs filed Cause No. C92479WD challenging the adequacy of the ROD and EIS; NFRC and other industry parties became intervenor defendants. On May 28, 1992, following briefing and a hearing, the court found that the new ROD and EIS violated NEPA in three ways. Seattle Audubon Soc’y v. Moseley, 798 F.Supp. 1473 (W.D.Wa.1992), aff'd sub nom. Seattle Audubon Soc’y v. Espy, 998 F.2d 699 (9th Cir.1993). The agency was enjoined to prepare a new or supplemental EIS curing these defects and, in the meantime, to refrain from awarding additional timber sales in Regions 5 and 6 that would log suitable habitat for the northern spotted owl. Seattle Audubon Soc’y v. Moseley, 798 F.Supp. 1484, 1493-94, (W.D.Wa.1992), aff'd, 998 F.2d 699 (9th Cir. 1993). A schedule for compliance was set (Seattle Audubon Soc’y v. Moseley, 798 F.Supp. 1494 (W.D.Wa.1992), aff'd, 998 F.2d 699 (9th Cir.1993)), and was later extended at the agency’s request to accommodate planning needs. Litigation involving the BLM forests followed a similar course. In October 1987 environmental plaintiffs sued in the United States District Court for the District of Oregon, alleging that the BLM’s refusal to prepare a supplemental EIS regarding a plan to log owl habitat in forests managed by it violated NEPA and other statutes. On May 18, 1989, the district court found that the agency’s decision not to prepare a supplemental EIS was arbitrary, capricious, and an abuse of discretion. Portland Audubon Soc’y v. Lujan, 712 F.Supp. 1456, 1485 (D.Or. 1989). The court concluded, however, that a section of the Department of the Interior and Related Agencies Appropriation Act barred plaintiffs’ challenge to the BLM’s decision. Id. at 1488-89. On June 22, 1992, after the expiration of that section, the district court in Oregon again ruled that the BLM had violated NEPA, and enjoined it from making further timber sales in spotted owl habitat pending completion of a supplemental EIS. Portland Audubon Soc’y v. Lujan, 795 F.Supp. 1489 (D.Or.1992), aff'd sub nom. Portland Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir.1993). Shortly before the 1994 plan was adopted, the injunction in this court barring additional Forest Service sales was modified by the granting of a motion, unopposed by most of the parties, to release twenty-four sales. Order on Defendants’ Motion for Modification of Injunction (March 24, 1994) (Dkt. # 418). After the plan was adopted, the injunction was vacated, again with no opposition by most parties, in an order noting that “[t]he legality of the new plan should be tested in proceedings directed to it, without the presence of an injunction whose purpose has been served.” Order Dissolving Injunction, Etc. (June 6, 1994) (Dkt. # 466). By stipulation, the order called for thirty days’ written notice to all parties in advance of any proposed new timber sale that would log spotted owl habitat. Id. III. SUMMARY OF APPLICABLE STATUTES AND REGULATIONS Congress has mandated several uses for the national forests and BLM lands. The Multiple-Use Sustained-Yield Act of 1960 (“MUSY”), 16 U.S.C. § 528 et seq., declares “that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528. MUSY recognizes that “some land will be used for less than all of the resources.” 16 U.S.C. § 531(a). The National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., adopted in 1976, sets out further requirements. It directs the Forest Service to manage the national forests so as to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” 16 U.S.C. § 1604(g)(3)(B). The NFMA implementing regulations provide that “[fjish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” 36 C.F.R. § 219.19. The regulations also direct that forest planning “reeogni[zej that the National Forests are ecosystems and their management for goods and services requires an awareness and consideration of the interrelationships among plants, animals, soil, water, air and other environmental factors within such ecosystems.” 36 C.F.R. § 219.1(b)(3). The regulations incorporate the statutory requirement that forest planning provide for multiple uses and sustained yield “in a way that maximizes long-term net public benefits in an environmentally sound manner.” 36 C.F.R. § 219.1(a). The BLM is steward of public lands governed by the Oregon and California Railroad and Coos Bay Wagon Road Lands Act (“O & CLA”), 43 U.S.C. §§ 1181a-1181j, and the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. § 1701 et seq. O & CLA applies to certain lands revested in the United States after earlier conveyances to a railroad, and provides that they “shall be managed ... for permanent forest production” and “in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facil[i]ties.” 43 U.S.C. § 1181a. FLPMA, adopted later, declares as policy that the BLM lands shall be managed “on the basis of multiple use and sustained yield unless otherwise specified by law,” and “in a manner that will protect the quality of scientific, scenic, historical, ecological, air and atmospheric, water resource, and archeological values.” 43 U.S.C. §§ 1701(a)(7) and (8). It directs the Secretary of the Interior, in developing and revising land use plans, to “observe the principles of multiple use and sustained yield;” to “achieve integrated consideration of physical, biological, economic, and other sciences;” and to “give priority to the designation and protection of areas of critical environmental concern.” 43 U.S.C. § 1712(c). All federal agencies must observe the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. NEPA requires that impacts of “major Federal actions significantly affecting the quality of the human environment” be considered and disclosed in an environmental impact statement. 42 U.S.C. § 4332(2)(C). The Council on Environmental Quality (“CEQ”), established by NEPA, issues regulations for NEPA compliance. 42 U.S.C. § 4342 et seq. The Forest Service and BLM must comply also with the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Section 7(a)(1) of ESA requires that federal agencies carry out their programs so as to conserve species listed as threatened or endangered under the statute. 16 U.S.C. § 1536(a)(1). See also 16 U.S.C. § 1531(b) (one purpose of ESA is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved”); 16 U.S.C. § 1532(3) (defining “conserve” as meaning the use of “all methods and procedures which are necessary” to bring listed species to the point of recovery). Section 7(a)(2) of ESA requires federal agencies to insure that their actions are not likely to jeopardize the continued existence of a listed species, or to result in destruction or adverse modification of habitat that FWS has designated as “critical” for such a species. 16 U.S.C. § 1536(a)(2). Agencies must therefore consult with FWS, before acting, to assess the effects on listed species or critical habitat. Id. The agencies are also subject to the Clean Water Act (“CWA”), 33 U.S.C. § 1311 et seq., which mandates compliance with state requirements to restore and maintain water quality necessary for purposes of water supply, recreation, and protection of fish, shellfish, and wildlife. IV. PROCEDURE USED TO DEVELOP PLAN The FSEIS and ROD are the result of a massive effort by the executive branch of the federal government to meet the legal and scientific needs of forest management. They reflect unprecedented thoroughness in doing this complex and difficult job. The first step was a conference held at Portland, Oregon, on April 2, 1993. In attendance were the President, Vice President, several members of the Cabinet, loggers, mill-owners, environmentalists, labor leaders, local government officials, scientists, economists, Native American tribal representatives, and others. Information and views were exchanged. After the conference the administration established three working groups. The Forest Ecosystem Management Assessment Team (“FEMAT”) was organized to conduct a conservation and management assessment of all federal forests within the range of the northern spotted owl. A second group dealt with economic development and assistance, and a third with agency coordination. FEMAT was an interagency, interdisciplinary team of scientists, economists, sociologists, and other experts. Its chairman was Dr. Jack Ward Thomas, a Forest Service biologist. FEMAT was asked to develop a set of options for management of all federal forests within the owl’s range that would comply with existing laws, maintain biological diversity, provide for sustainable levels of timber harvest, and support rural economies and communities. To carry out this task FEMAT reviewed earlier plans and proposals and developed fifty-four alternatives which were evaluated against ecological criteria. This process resulted in the selection of thirty-five for a more detailed review. Further analysis led to ten alternatives chosen for final intensive assessment. FEMAT assessed the predicted effects of the ten options on more than a thousand animal and plant species for the next century- — -an unparalleled effort. The ten final alternatives vary in four main respects: the quantity and location of land placed in some type of reserve; activities permitted within reserve areas; delineation of areas outside the reserves; and prescriptions for those areas. The alternatives range from one that calls for 11.4 million acres of late successional old-growth (“LSOG”) reserves to one that calls for 5.4 million acres. The projected probable timber sale quantities range from 100 million board feet (Alternative 1, which would preserve nearly all remaining LSOG) to 1.8 billion board feet (Alternative 7). Two tables summarizing the main features of the ten alternatives, published in the ROD, are reproduced as Appendices A and B to this order. Initially considered, but not selected for intensive assessment, was a “no-action” alternative based upon the management direction in effect in July 1990. Because of changed conditions, the “no-action” alternative was found insufficient to meet legal requirements. In May 1993 the Secretaries directed the Forest Service and BLM to begin preparing, in cooperation with the Fish & Wildlife Service, National Park Service, National Marine Fisheries Service, and Environmental Protection Agency, a joint draft supplemental EIS to assess the environmental effects of the ten options FEMAT was preparing, and to provide for public participation in accordance with NEPA. On July 28, 1993, the agencies published a Draft Supplemental Environmental Impact Statement on Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl (“DSEIS”), 58 Fed. Reg. 40444-^40445 (July 28, 1993). The DSEIS presented the alternatives FEMAT had chosen for intensive assessment; identified Alternative 9, endorsed by the President on July 1, 1993, as the preferred alternative; summarized the analysis given in the FE-MAT report; and attached the FEMAT report as an appendix. The interagency team that prepared the DSEIS received more than 100,000 comments on it during the ninety-day comment period. The Departments of Agriculture and Interior sponsored public hearings at Olympia, Washington; Salem, Oregon; and Red-ding, California. In response to comments and agency concerns, the interagency team did further analysis on cumulative impacts on several hundred species; changed the preferred alternative to furnish additional protection to LSOG forests; did more analysis of predicted employment effects; explained the rejection of proposals for further analyses; examined information that came into existence after publication of the DSEIS, including the most recent owl demographic data; and requested and financially sponsored the running of a computer model to simulate owl population dynamics. The Forest Service and BLM published the FSEIS in February 1994. They provided an additional thirty-day period for public comment. See 59 Fed.Reg. 9210 (Feb. 25, 1994); 59 Fed.Reg. 9992 (Mar. 2, 1994). The interagency team received comments and summarized them. Partly in response to those comments, the ROD reflects changes from the version of Alternative 9 presented in the FSEIS. V. DESCRIPTION OF THE AGENCIES’ ADOPTED STRATEGY In adopting the ROD on April 13,1994, the Secretaries jointly amended the planning documents of two Forest Service regions, nineteen national forests, and seven BLM districts. The ROD selects, with minor modifications, Alternative 9 of the FSEIS as management direction for the habitat of LSOG forest-related species within the range of the owl. The plan sets standards and guidelines only for lands administered by the Forest Service or BLM. Management of other federal lands (e.g., national parks) is not affected. Of the 24.5 million federal acres within range of the northern spotted owl, 19.4 million are administered by the Forest Service, 2.7 million by the BLM, and 2.2 million by the National Park Service. The remainder of about 200,000 acres includes military installations and national wildlife refuges. Of the total, about 20.6 million acres are forested, including about 7.4 million acres of suitable habitat for the northern spotted owl. The plan has four main components. First, it designates reserve areas in which logging and other ground-disturbing activities are generally prohibited to protect the ecosystem and conserve the owl and other species. Second, it designates the unreserved areas as “matrix,” in which timber harvest may go forward subject to environmental requirements. Third, it adopts an aquatic conservation strategy which, among other things, overlays the reserve areas and matrix with a system of key watersheds where activities are restricted to conserve aquatic species. Fourth, it creates a monitoring and evaluation program, and allocates six percent of the lands to adaptive management areas near communities affected by the reduction in timber sales. In the adaptive management areas, new ways to achieve ecological and economic goals will be tried. The acreage allocation in the planning area, by type of land use, is as follows: Late-successional reserves 7,430,800 Congressionally reserved areas 7,320,600 Administratively withdrawn areas 1,477,100 Riparian reserves 2,627,500 Adaptive management areas 1,521,800 Managed late-successional areas 102,200 Matrix 3,975,300 TOTAL 24,455,300 Congressionally-reserved areas are those already set aside by Congress, such as national parks and monuments. Administratively withdrawn areas are those already identified as not scheduled for timber harvest for various reasons. Managed late-suceessional areas are those designated for special measures because of frequent fires. The reserve areas taken together (including late-successional reserves, congressionally reserved areas, administratively withdrawn areas, and riparian reserves) protect about eighty percent of the remaining LSOG forest acres in the planning area from programmed timber harvest. Limited thinning and salvage operations are permitted in the Forest Service and BLM reserves where they would promote LSOG conditions, subject to review by interagency bodies. Compared to Alternative 1, which would preserve nearly all the remaining LSOG, Alternative 9 has about 1.3 million fewer reserve acres. Compared to Alternative 7, which projects the likely results of prior management directives now deemed inadequate, Alternative 9 has about 4 million more reserve acres. Additional provisions are made for the spotted owl and marbled murrelet, both listed as threatened under ESA. (See 55 Fed. Reg. 26114 (June 26, 1990) and 57 Fed.Reg. 45328 (October 1,1992)). One hundred acres are protected around each known owl activity center in the matrix and adaptive management areas. A band extending from ten miles to forty miles inland in California, Oregon, and Washington, is designated as a marbled murrelet zone with additional guidelines to protect the bird’s habitat. A broader murrelet zone is established for survey and nest-site protection purposes. With respect to certain other rare plant and animal species, land managers are required to protect known sites and to check for the presence of specimens before conducting any ground-disturbing activities. The Fish & Wildlife Service has issued a biological opinion determining that the plan is not likely to jeopardize the continued existence, or destroy or adversely modify critical habitat, of any listed species. The aquatic conservation strategy (“ACS”) is directed to the aquatic ecosystem, water quality, and fish habitat. It establishes key watersheds to afford refugia for at-risk fish species and stocks; adopts watershed analysis as a basis for monitoring; and provides for watershed restoration on a long-term basis. All 24.5 million acres of Forest Service, BLM, and other federally-administered lands within the range of the owl are allocated to one of three watershed categories, with graduated levels of regulation. No logging or other major resource activities can be undertaken in a key watershed until watershed analysis has been conducted. The matrix comprises about 3.8 million acres, or sixteen percent, of the lands in the planning area. Timber sales can be offered in the matrix. There must be compliance with NEPA, ESA, and other laws and regulations, and opportunities for administrative appeals of site-specific decisions that would have environmental consequences. The agencies estimate that the plan, when fully implemented, will yield about one billion board feet of timber per year. This represents a seventy-three percent reduction from the unsustainable average timber sale levels of the 1980s. Over the first decade, a maximum of about one quarter of one percent per year of owl habitat in the planning area could be logged. A three-part monitoring process is adopted: implementation monitoring to determine whether the standards and guidelines are being followed; effectiveness monitoring to determine whether the desired results are being achieved; and validation monitoring to determine whether the plan’s assumptions are sound. Supervision of monitoring is entrusted to an Interagency Steering Committee composed of representatives of the Secretary of the Interior, Secretary of Agriculture, Administrator of the EPA, the Under-secretary of Commerce for Oceans and the Atmosphere, and the White House Office on Environmental Policy. Regional oversight is to be provided by a Regional Interagency Executive Committee, which currently consists of the Pacific Northwest heads of the Forest Service, BLM, FWS, National Marine Fisheries Service, Bureau of Indian Affairs, and EPA. The ROD creates twelve “province analysis areas” to assure that monitoring will cross administrative boundaries. Monitoring and evaluation will be further assisted by a Research and Monitoring Committee composed of full-time federal scientists. The plan can be amended, if necessary, depending on the results of monitoring and other new information. VI. SUMMARY OF CHALLENGES TO FSEIS AND ROD SAS and twelve other environmental organizations as co-plaintiffs have sued the two Secretaries; James Lyons, Assistant Secretary of Agriculture; the Forest Service; and the BLM. SAS’s claims are brought under NEPA, NFMA, and the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 702, 706(2)(A). The Sierra Club, in its complaint, makes the same claims as SAS. Three other environmental plaintiffs who have sued separately — Native Forest Council, Forest Conservation Council, and Save the West — make the same claims plus others discussed below. NFRC in its Thomas and Dombeck complaints, which are the subject of the federal defendants’ cross-claims for declaratory judgment under 28 U.S.C. § 2201, asserts a variety of challenges under several statutes. The cross-claims seek judgment declaring that the ROD and FSEIS meet the standard of review set forth in 5 U.S.C. § 706(2)-i.e., that the agency action cannot be set aside on the basis of NFRC’s pleaded claims. The challenges to the plan fall into four basic categories. First, there are challenges related to the Secretaries’ use and interpretation of the wildlife viability provision. Second, the plaintiffs and NFRC contend that the agencies have failed to follow the requirements of NEPA in several respects. Among these claims are challenges to the agencies’ analysis of new information, opposing opinion, and cumulative impacts. Third, NFRC asserts that the Secretaries lack statutory authority to adopt certain parts of the plan. Finally, NFRC and three environmental groups challenge certain procedures used to develop the strategy. The plaintiffs and the federal defendants have filed cross-motions for summary judgment against each other, and the federal defendants in No. C92-479WD have moved for summary judgment against NFRC dedaring its Thomas and Dombeck claims to be invalid. VII. JURISDICTION, VENUE, STANDING, AND RIPENESS The court has jurisdiction in these cases under 28 U.S.C. § 1331. The requirements of standing to sue and ripeness as to the plaintiffs’ claims have been held satisfied in an appeal from an earlier order in C92-479WD. Seattle Audubon Soc’y v. Espy, 998 F.2d 699, 702-03 (9th Cir.1993). Jurisdiction, standing, ripeness, and venue as to the federal defendants’ cross-claims for declaratory judgment against NFRC in No. C92-479WD have been confirmed in earlier orders. See Order Granting Leave to Federal Defendants to Amend Answer to Assert Cross-Claims, Denying Motion to Join Additional Parties, and Making Other Provisions (Aug. 5, 1994) (Dkt. #526); Order on NFRC’s Motions to Dismiss Cross-Claims, Obtain a More Definite Statement, to Strike, and to Transfer (Oct. 12, 1994) (Dkt. # 690). The forest plan under review is programmatic — that is, it sets the ground rules for managing certain public lands. The plaintiffs and NFRC have standing to sue on the claims they have pleaded; their members are users of these federal forests. To confine judicial review to individual, site-specific actions that would come later — to each timber sale, for example — rather than decide the legality of the plan itself, would be wholly impractical. As the Ninth Circuit has noted, “if plaintiffs did not have standing to challenge a non-site-specific EIS, the program as a whole could never be reviewed.” Resources Ltd., Inc. v. Robertson, 8 F.3d 1394, 1397 (9th Cir.1993). At an earlier stage of this litigation the court of appeals stated: [T]he threatened harm to owl viability resulting from further logging in old-growth forests, in the absence of an owl management plan which complies with the requirements of NEPA and the NFMA, is concrete, specific, imminent, caused by agency conduct in question, and redressable by a favorable ruling. Seattle Audubon Soc’y v. Espy, 998 F.2d at 703. See also Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir.1992); Lane County Audubon Soc’y v. Jamison, 958 F.2d 290 (9th Cir.1992). The requirements of jurisdiction, venue, standing to sue, and ripeness are met. VIII. STANDARD OF REVIEW, ADEQUACY OF ADMINISTRATIVE RECORD, FACA VIOLATIONS A. Standard of Review The court in reviewing a challenged administrative action determines whether the action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or was taken without observance of procedures required by law. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 980-81 (9th Cir.1985); 5 U.S.C. § 706(2)(A). The standard is narrow and presumes the agency action is valid. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). While the court may not substitute its judgment for that of the agency, it should subject the action to a “thorough, probing, in-depth review.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). B. Effect of Seeking Declaratory Judgment NFRC contends that the usual standard for reviewing agency action should be altered because the agencies are seeking a declaratory judgment; the burden, NFRC argues, should be on the government because of this state of the pleadings. But in a declaratory judgment case the question of who has the burden of proof is governed not by the formal position of the parties but by the nature of the relief sought. Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F.2d 541, 546 (9th Cir.1949). NFRC has pleaded, in Thomas and Dombeck, that the plan is illegal. It is only as to those claims that the federal defendants seek a declaratory judgment. The burden of showing illegality remains on NFRC. The outcome, on the present record, would be no different if the burden were reversed. C. Administrative Record There is a voluminous administrative record concerning the Secretaries’ decision of April 13, 1994. The decisional documents— the ROD and FSEIS with appendices— themselves total more than 4,000 pages. They spell out in detail the alternatives, the reasons for the decision, and the supporting analysis. The rest of the record is contained in twenty boxes, the index to which alone has nearly 4,000 pages with about 100,000 record items. D. Declarations Outside Record The focal point for judicial review is the administrative record in existence, not a new record made initially in the reviewing court. Asarco, Inc. v. EPA, 616 F.2d 1153, 1159 (9th Cir.1980). Evidence outside the record may be considered for certain limited purposes, e.g., to explain the agency’s action or to determine whether its course of inquiry was inadequate. Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989); Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). The federal defendants request that certain declarations filed by SAS be disregarded. In substance this is a motion to strike. The motion is denied; these declarations, and those filed by other parties including the federal defendants, are properly considered for the limited purposes mentioned above. E. Adequacy of Administrative Record Document and deposition discovery as to the composition and completeness of the administrative record was allowed, and production of still-extant electronic communications was ordered. See, e.g., the discovery orders at Dkt. ## 579, 606. A late-filed motion by NFRC for additional discovery was granted in part, and the schedule adjusted to accommodate it. (Dkt. # 700.) No justification for additional discovery has been shown. While the administrative record contains what the Secretaries relied upon in making their decision, many documents generated earlier were not preserved. Members of the FEMAT and FSEIS teams were told to retain documents material to the decision, but were left free to discard others, largely in their own discretion. Thousands of pages of notes, memoranda, and other working documents and electronic communications were destroyed. The record as it stands, however, includes many documents reflecting dissenting opinions and a variety of views on all subjects. Citing Glover v. BIG Corp., 6 F.3d 1318, 1329 (9th Cir.1993), SAS asks the court to presume that the destroyed documents were adverse to the government. For such a presumption to arise, it must be shown that the party had notice that the documents were relevant; that has not been shown here, nor is there proof of any ulterior motive. See Allen Pen Co., Inc. v. Springfield Photo Mount Co., Inc., 653 F.2d 17, 23-24 (1st Cir.1981); Nation-Wide Check Corp., Inc. v. Forest Hills Distrib., Inc., 692 F.2d 214, 218-19 (1st Cir.1982). NFRC, citing Portland Audubon Soc’y v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir.1993), for the proposition that an incomplete record must be viewed as a “fictional account of the actual decision-making process,” seeks to vacate the FSEIS and ROD. The record here, however, is sufficient to show the decision-making process and to permit judicial review under the APA. See Sears Savings Bank v. Federal Savings & Loan Ins. Corp., 775 F.2d 1028, 1029 (9th Cir.1985). That additional documents might provide a fuller record makes no difference if the record as it exists is adequate. Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir.1986). This is true even though portions of the administrative record may have been destroyed. See Hurst v. U.S. Postal Service, 586 F.2d 1197, 1200 (8th Cir.1978). Personal files and notes are not required to be contained in an administrative record. See National Wildlife Federation v. Burford, 677 F.Supp. 1445, 1457 (D.Mont.1985); Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1456 (1st Cir.1992). Since the administrative record is legally sufficient, the absence of some documents that could have been included does not justify invalidating the agency action or changing the standard of review. F. FACA Violations One party on each side — NFC and NFRC — contend that the federal defendants’ violations of the Federal Advisory Committee Act (“FACA”), 5 U.S.C.App. 2 (1988), in the establishment and operation of FEMAT require invalidation of the plan. In general, the President or a Cabinet officer may listen to advice from any person. FACA, however, applies to an “advisory committee” or similar group that is “established or utilized” by the President or a federal agency “in the interest of obtaining advice or recommendations.” 5 U.S.C.App. 2 § 3(2). It does not apply to committees composed wholly of federal employees. Id. Most, but not all, of FEMAT’s members were government employees; some were non-federal scientists. NFRC sued the Secretaries and other defendants for relief under FACA in the United States District Court for the District of Columbia. The defendants resisted on the ground, among others, that FEMAT was not an “advisory committee” within the meaning of the statute. The court held that the “uncomfortably broad statute” indeed applied. Northwest Forest Resource Council v. Espy, 846 F.Supp. 1009, 1010 (D.D.C.1994). This ruling came several months after FEMAT had delivered its report and twenty-four days before this court’s deadline for filing a legally sufficient management plan. The District of Columbia court granted declaratory relief that FEMAT was convened and did its work in violation of FACA requirements including those of open meetings, making records publicly available, keeping detailed minutes, and being constituted, in the first place, with a balanced membership and pursuant to filed advisory committee charter. But the court declined to order injunctive relief, stating: Finally, plaintiff seeks an order enjoining the Administration from relying upon the FEMAT report to promulgate regulations implementing its Forest Plan. Such an injunction is, of course, the relief of which plaintiff is most desirous. In the Court’s opinion, however, such an injunction would exceed the injury presently to be redressed. There is nothing in the record to suggest that the FEMAT Report, or its advice and recommendations to the President, would have in any way been altered had FACA been complied with to the letter. Id. at 1015. Accordingly, noting also that the question of an injunction was premature and that a constitutional question could be raised, the court awarded declaratory relief only, stating that the “effect and consequences of that judgment will be left to other courts and/or other cases.” Id. FACA can and should be enforced by injunctive relief during the process; that is, by an order requiring that a proposed or existing committee comply with the statute. But once a committee has served its purpose, courts generally have not invalidated the agency action even if there were earlier FACA violations. As Judge Friendly wrote for the Second Circuit in National Nutritional Foods Ass’n v. Califano, 603 F.2d 327, 336 (2nd Cir.1979): So far as we are aware, no court has held that a violation of FACA would invalidate a regulation adopted under otherwise appropriate procedures, simply because it stemmed from the advisory committee’s recommendations, or even that pending rulemaking must be aborted and a fresh start made. We perceive no sound basis for doing so. Applicable rulemaking procedures afford ample opportunity to correct infirmities resulting from improper advisory committee action prior to the proposal. See also Center for Auto Safety v. Tiemann, 414 F.Supp. 215, 226 (D.D.C.1976), remanded on other grounds, 580 F.2d 689 (D.C.Cir.1978) (availability of a subsequent opportunity for comment and for review of the final regulation under the Administrative Procedure Act cures a FACA violation); Washington Legal Foundation v. Dept. of Justice, 691 F.Supp. 483, 495-96 (D.D.C. 1988), aff'd sub nom., Public Citizen v. Dept. of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (public accountability aspects of FACA satisfied by subsequent opportunity to question). NFC and NFRC rely upon a recent Eleventh Circuit case, Alabama-Tombigbee Rivers Coalition v. Dept. of Interior, 26 F.3d 1103 (11th Cir.1994), enjoining the use of an advisory committee report where FACA had been violated. In that case, however, the plaintiffs obtained a temporary restraining order before the report was distributed and used by the government. The court noted, in exercising its “broad equitable power,” that “other Circuits have affirmed the denial of injunctive relief requested as a result of FACA violations,” based on the “individual facts of the cases before them.” Id. at 1107 and 1106 n. 8. Alabama-Tombigbee would not require automatic invalidation of the agency action, and can be reconciled with the more numerous cases denying injunctive relief. The record here makes clear that the government should not be enjoined from relying upon the FEMAT report. The ROD shows that the Secretaries recognized the District of Columbia court’s ruling, accepted it, and elected to proceed for valid reasons. See ROD at 52-53. They concluded, in agreement with the court, that the FEMAT recommendations would have been the same had there been full compliance with FACA. The FEMAT report was circulated during the ninety-day public comment period and was subjected to public comments and criticisms, including those by NFRC. The Secretaries decided that the “consultation and decision-making process has, taken as a whole, satisfied the objectives of FACA” ROD at 53. Here, as in National Nutritional, supra, the “procedures afford[ed] ample opportunity to correct infirmities.” The findings in Northwest Forest Resource Council v. Espy do not justify vacating the ROD or altering the standard of review. IX. SUBSTANTIVE CHALLENGES For convenience, this order divides the challenges to the plan into “substantive” and “procedural” categories. Where there is overlap — for example, where parties make similar arguments under both NFMA and NEPA — the discussion applies to both categories to the extent relevant to both. A. Authority to Adopt an Interagency Plan on an Ecosystem Basis As of early 1993, repeated violations of environmental laws by the Forest Service and BLM had led to court injunctions barring further logging sales in spotted owl habitat areas pending compliance with the laws. The agencies for years had operated independently and sometimes in conflict. In the current plan they have cooperated and have analyzed not just individual species but ecosystems. NFRC, noting that agency action may not contravene statutes and regulations, see Dilley v. Alexander, 603 F.2d 914, 920 (D.C.Cir.1979), challenges this approach. As for ecosystem planning, the FSEIS states: The agencies must take an ecosystem management approach to forest management, with support from scientific evidence, and meet the requirements of existing laws and regulations. FSEIS at S-4. NFMA “requires planning for the entire biological community — not for one species alone.” Seattle Audubon Soc’y v. Moseley, 798 F.Supp. at 1483. The regional standards and guidelines must consider the effects on other old-growth species, and the subject cannot be put off until individual forest plans are developed. Seattle Audubon Soc’y v. Espy, 998 F.2d at 704. Both agencies’ planning statutes require them to utilize “a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic and other sciences.” 16 U.S.C. § 1604(b); 43 U.S.C. § 1712(c)(2). Both agencies’ activities must also comply with NEPA. 42 U.S.C. § 4321 et seq. Regulations implementing NEPA call upon agencies, when conducting their assessments, to consider “ecological” effects “such as the effects on ... the components, structures, and functioning of affected ecosystems.” 40 C.F.R. §§ 1508.8 and 1502.16. In addition, the ESA requires federal agencies to carry out their administrative programs so as to conserve listed species and the ecosystems upon which they depend. 16 U.S.C. §§ 1531(b), 1536(a)(1). Given the current condition of the forests, there is no way the agencies could comply with the environmental laws without planning on an ecosystem basis. As for interagency cooperation, NFMA directs the Secretary of Agriculture to “coordinate” National Forest planning “with the land and resource planning processes of ... other Federal agencies.” 16 U.S.C. § 1604(a). The Secretary of the Interior is directed by FLPMA to “coordinate ... land use inventory, planning and management activities ... with the land use planning and management programs of other Federal departments and agencies____” 43 U.S.C. § 1712(c)(9). The courts have repeatedly encouraged the Forest Service, the BLM, and FWS to turn from disparate strategies for managing LSOG forests to a cooperative approach. See Seattle Audubon Soc’y v. Evans, 771 F.Supp. at 1092-93; Seattle Audubon Soc’y v. Evans, 952 F.2d at 297, 302 (9th Cir.1991) (“The Forest Service will doubtless have to coordinate its planning efforts with other agencies such as the Fish and Wildlife Service and the Bureau of Land Management....”); see generally Portland Audubon Soc’y v. Endangered Species Committee, 984 F.2d 1534 (9th Cir.1993). NFRC contends that the ecosystem approach violates the multiple use and sustained yield principles of MUSY and NFMA. But conservation on this basis is entirely consistent with those principles. The plan designates millions of acres for programmed logging. As noted in an earlier decision, Congress’s mandate for multiple uses, including both logging and wildlife preservation, can be fulfilled if the remaining old growth is left standing, but not if it is logged to the point where native vertebrate species are extirpated. Seattle Audubon Soc’y v. Moseley, 798 F.Supp. at 1490. NFRC also contends that the agencies acted arbitrarily and capriciously in trying to return the forests to an assumed preEuropean-settlement level of about sixty-five percent old growth. The record does not support this contention. Scientific estimates of past conditions (as to diversity, ecological process, and connectivity) were used in evaluating the alternatives. FSEIS 2-68-69. But the FSEIS states: In general, forest plantations, fire suppression, logging, ownership patterns, and human and environmental influences have altered the regional ecosystem on federal lands to the extent that none of the alternatives would provide for a return to conditions that closely match those of previous centuries. Site conditions across all landscapes will not return to their pre-settlement conditions within the next 100 years. However, all alternatives reverse the management trend of the last 50 years on federal lands, which, if continued, would have resulted in a steep decline in the quantity and quality of late-successional ecosystems and the eventual loss of these ecosystems in many federal planning areas. FSEIS at 2-69. Past conditions were used as “a reference point for current and future conditions, and to facilitate an understanding of the processes that lead to the development and maintenance of current late-successional ecosystems.” FSEIS 3 & 4-42. The Secretaries acted reasonably in taking this approach. There is adequate scientific support for their decision and adequate discussion of opposing views. See, e.g., FSEIS at F-14-15. There is also no merit to NFRC’s claim that the Secretaries have acted illegally in trying to return the spotted owl to a historic range larger than its present range. The goal, recognizing that only a small fraction of old growth remains, was to comply with the laws based on current conditions. NFRC also contends that the federal defendants have erred in using the owl’s range as the geographic basis for planning for other species as well. To do this, however, was well within the agencies’ discretion. The owl has long been an indicator species, and to plan based on different geographic boundaries for every species in the same ecosystem would be impractical. Finally in this regard, NFRC argues that the agencies are estopped from adopting a plan that contradicts positions they took earlier in judicial proceedings. In the respects now relevant, the agencies’ earlier arguments were rejected by the courts. The federal defendants are responding to court orders directing them to comply with the environmental laws. Under these circumstances, there can be no judicial estoppel. See United States v. Mendoza, 464 U.S. 154, 159-62, 104 S.Ct. 568, 571-74, 78 L.Ed.2d 379 (1984). B. Effect of Sweet Home Decision NFC, FCC, and Save the West contend that the Secretaries have acted contrary to law in disregarding a recent decision of the United States Court of Appeals for the District of Columbia, Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463 (D.C.Cir.1994). Sweet Home, these plaintiffs argue, undercuts an assumption upon which the ROD’s biological assessment depends, i.e., some degree of ongoing protection of spotted owl habitat on nonfederal lands. ESA, which applies to federal and nonfederal entities alike, makes it unlawful to “take” a species listed as threatened or endangered. The statute defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). An implementing regulation provides: “Harm” in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. § 17.3. Thus, a private landowner may not destroy habitat so as to kill or injure an endangered or threatened species. This regulation has been in effect for nineteen years, and its validity has been upheld by the United States Court of Appeals for the Ninth Circuit. In Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir.1988), the court held: The Secretary’s inclusion of habitat destruction that could result in extinction follows the plain language of the statute because it serves the overall purpose of the Act, which is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved____” 16 U.S.C. § 1531(b). The definition serves the overall purpose of the Act since it conserves the [species’] threatened ecosystem____ The Secretary’s construction of harm is also consistent with the policy of Congress evidenced by the legislative history. In Sweet Home, a two-to-one panel in the District of Columbia reversed its own prior decision and held invalid the regulation defining “harm” to include habitat destruction. The word “harm” in the ESA, the court held, must be given a meaning consistent with its accompanying words in the statute, all of which “involve a substantially direct application of force, which the Service’s concept of forbidden habitat modification altogether lacks.” Sweet Home, 17 F.3d at 1465. The Secretaries have responded to Sweet Home in the ROD as follows: We note the recent decision of the Court of Appeals for the District of Columbia in Sweet Home Chapter of Communities for a Greater [sic] Oregon v. Babbitt, [17 F.3d 1463 (D.C.Cir.1994)]. The Secretary of the Interior has filed a motion seeking to stay issuance of the mandate in this matter and has recommended requesting rehearing by the full Court of Appeals. The Secretary believes that the case is wrongly decided and, most importantly, that it is contrary to the law in the Ninth Circuit, as set out in Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106 (1988). Thus, we have determined that the Sweet Home decision has no impact on Alternative 9. ROD at 69. The petition for rehearing has since been denied, and a petition for review by the United States Supreme Court is pending. The plaintiffs are correct that the ROD will have to be reconsidered if Sweet Home becomes applicable in the Ninth Circuit. The FSEIS assessment team recognized the need for nonfederal contributions to spotted owl recovery. See FSEIS at 3 & 4-244. The argument that Sweet Home is now binding in the Ninth Circuit, however, is incorrect. Differences among the circuits are common, and the District of Columbia Circuit has no power to overrule another circuit’s decision. As stated in Johnson v. U.S.R.R. Retirement Board, 969 F.2d 1082, 1093 (D.C.Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1842, 123 L.Ed.2d 467 (1993): Although the decision of one circuit deserves respect, we have recognized that “it need not be taken by the [agency] as the law of the land.” [Citation omitted.] When the [agency’s] position is rejected by one circuit, after all, it should have a reasonable opportunity to persuade other circuits to reach a contrary conclusion. See also Samuel Estreieher and Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989). Here, a contrary conclusion has already been reached by the court of appeals whose rulings are binding on this court. The Palila case, upholding the FWS regulation, is the law of the Ninth Circuit until and unless changed by the Supreme Court or by the circuit itself. It follows that the Secretaries did not act arbitrarily, or contrary to law, in concluding that Sweet Home requires no change in the ROD. If Palila ceases to be the law of the circuit, either because of Supreme Court review of Sweet Home or otherwise, the administrative decision under review will have to be reconsidered. C. 0 & CLA Lands NFRC contends that the Secretary of the Interior has acted contrary to law in his treatment of certain lands in Western Oregon that are subject to the 0 & CLA. These lands, comprising about 2.4 million acres, were ceded by the United States to a railroad in the nineteenth century, and later revested in the government. The ROD designates parts of them as late-successional and riparian reserves. It also creates key watersheds as refugia for at-risk fish stocks, and requires 150-year rotation periods and the retention of some late-successional forests in the matrix areas. 0 & CLA, adopted in 1937, provides that the lands subject to it shall be managed, except as provided in section 1181c of this title [since repealed], for permanent forest production, and the timber thereon shall be sold, cut and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facil[i]ties. 43 U.S.C. § 1181a. In the case chiefly relied upon by NFRC, Headwaters, Inc. v. BLM, Medford District, 914 F.2d 1174 (9th Cir.1990), the court of appeals said that the plaintiffs proposal of “exempting certain timber resources from harvesting to serve as wildlife habitat” would be “inconsistent with the principle of sustained yield.” Id. at 1183-84. In that case, however, the court approved a BLM land management plan allocating more than fifty percent of the management unit in question to non-timber uses, id. at 1183, and the decision dealt with 0 & CLA alone, not with the Secretary’s duty to comply at the same time with other applicable statutes. ESA directs the Secretary to review the programs administered by him, and utilize them in furtherance of ESA’s purposes, and that each agency carry out “programs for the conservation of endangered species and threatened species listed____” 16 U.S.C. § 1586(a)(1). It requires also that all agencies insure that then-actions will not be likely to jeopardize the continued existence of a listed species or cause the destruction or adverse modification of critical habitat. 16 U.S.C. § 1536(a)(2). Federal agencies have “some discretion in ascertaining how best to fulfill the mandate to conserve under section 7(a)(1).” Pyramid Lake Paiute Tribe of Indians v. Dept. of Navy, 898 F.2d 1410, 1418 (9th Cir.1990). Decisions more recent than Headwaters confirm that in managing the 0 & CLA lands the BLM must fulfill conservation duties imposed by other statutes. In Portland Audubon Soc’y v. Lujan, 795 F.Supp. at 1500-02, the court required the BLM to prepare supplemental environmental impact statements for timber management plans in Western Oregon to address new information regarding the presence of northern spotted owls. The court further held that 0 & CLA does not allow the BLM to avoid its conservation duties under NEPA or ESA, nor does it prevent injunctive relief when those duties have been breached. Id. at 1505-07. An injunction that prohibited logging on portions of O & CLA land was issued. Id. at 1510. In affirming the district court, the Ninth Circuit stated: “We find that the plain language of [O & CLA] supports the district court’s conclusion that the Act has not deprived the BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care.” Portland Audubon Soc’y v. Babbitt, 998 F.2d at 709. NFRC cites Platte River Whooping Crane Trust v. Federal Energy Regulatory Commission, 962 F.2d 27 (D.C.Cir.1992), for the proposition that ESA does not empower an agency to do something (in that instance, imposing conditions on renewal hydroelectric power licenses) that it has no power to do under its enabling statute. That decision is inapplicable here because the Secretary of the Interior has, and for many years has exercised, broad authority to manage the O & CLA lands; the BLM is steward of these lands, not merely a regulator. Management under O & CLA must look not only to annual timber production but also to protecting watersheds, contributing to economic stability, and providing recreational facilities. 43 U.S.C. § 1181a. Forty threatened or endangered species may be found within the range of the northern spotted owl; of these, about half use coniferous forest habitat on federal lands. FSEIS at S-6. About three hundred species within the owl’s range are listed, proposed, petitioned, or deemed candidates for listing under ESA. FSEIS, App.G, FWS Biological Opinion at 2. The ROD states, in regard to complying with both O & CLA and ESA: One of the purposes of the Endangered Species Act is the preservation of ecosystems upon which endangered and threatened species depend. A forward-looking land management policy would require that federal lands be managed in a way to minimize the need to list species under the ESA. Additional species listings could have the effect of further limiting the O & C Lands Act’s goal of achieving and maintaining permanent forest production. This would contribute to the economic instability of local communities and industries, in contravention of a primary objective of Congress in enacting the O & C Lands Act. That Act does not limit the Secretary’s ability to take steps now that would avoid future listings and additional disruptions. ROD at 50; see also FSEIS at F-114-115. “An agency’s construction of the laws it administers is accorded considerable weight.” Pyramid Lake, 898 F.2d at 1414. The management decision made