Full opinion text
MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT HAMILTON, District Judge. The principal focus of this case. is fifty acres of diseased and dying red pine trees in the Hoosier National Forest. The United States Forest Service has decided to “clear-cut” forty-six acres, to “shelterwood” cut another four acres, and to dispose of the timber in a salvage sale. Plaintiff Andy Mahler is a nearby resident and frequent visitor to the Hoosier National Forest. He seeks an injunction to stop the salvage operation, arguing that the Forest Service has violated the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. § 1600 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 703 et seq. The Forest Service has lodged the relevant administrative records with the court and the parties have filed cross-motions for summary judgment. After review of the administrative record, the court finds that the defendants are entitled to summary judgment on all of Mahler’s claims. The Challenged Decisions Mahler’s complaint seeks judicial review of two separate decisions. The first was the April 8, 1991, amendment to the Hoosier National Forest Land and Resource Management Plan (“1991 Plan Amendment”). The Land and Resource Management Plan, as amended in 1991, is a long-range strategic planning document that the Forest Service uses to guide all natural resource management activities for the Hoosier National Forest. See 36 C.F.R. § 219.4 (planning levels for Forest Service planning process); see generally Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.1994) (explaining role of forest plan). The 1991 Plan Amendment was adopted after review of a number of alternative management strategies. The amendment process provided for extensive public comment and included preparation of a full Environmental Impact Statement under NEPA. One major result of the 1991 Plan Amendment was to reduce by more than 40 percent the total scale of permitted timber harvest and sales within the Hoosier National Forest. The 1991 Plan Amendment established both forest-wide strategies and then more specific forest management strategies for ten regions within the Hoosier National Forest called “Management Areas.” In his complaint for judicial review, Mahler challenges the management prescription for Management Area 2.8, an area of more than 97,000 acres that includes the fifty acre stand of diseased red pine trees subject to the planned salvage operation. The 1991 Plan Amendment management prescription for Management Area 2.8 states, among other things, that forests in the area are suitable for timber production. Mahler contends that the management prescription for Management Area 2.8 was adopted without giving prior consideration to “potential effects on residual trees and adjacent stands” as required by 36 C.F.R. § 219.27(b)(4), and without assurance that it would “[pjrovide the desired effects on water quantity and quality, wildlife and fish habitat, regeneration of desired tree species, forage production, recreation uses, aesthetic values, and other resource yields,” as required by 36 C.F.R. § 219.27(b)(6). Mahler filed a timely administrative appeal and exhausted his administrative remedies before seeking judicial review of the 1991 Plan Amendment in this action. Second, Mahler challenges on many grounds the Forest Service’s decision of June 10, 1994, authorizing the salvage sale of the fifty acres of pine trees specifically at issue here. The Red Pine Salvage Sale Decision Memo (“Decision Memo”) authorized clear-cutting of forty-six acres of red pine trees and shelterwood cutting of the other four acres. The salvage project would produce a total volume of between 800,000 and 1,000,-000 board feet of timber. Mahler filed an administrative appeal of the Decision Memo pursuant to 36 C.F.R. § 215. Under the applicable administrative appeal procedures, an “appeal reviewing officer” reviews the challenged decision and the appeal. See 36 C.F.R. §§ 215.17-215.19. The appeal reviewing officer then makes a recommendation to the “appeal deciding officer.” In this case the appeal reviewing officer supported the underlying salvage decision but recommended remand for the limited purpose of building the record on mortality, opening and leave areas, and the use of a categorical exclusion under NEPA. The Regional Forester was the “appeal deciding officer” for this decision. He reviewed the original decision and the appeal reviewing officer’s recommendation. He affirmed the Decision Memo’s salvage plan and characterized the appeal reviewing officer’s concerns as showing a desire for more information rather than a flaw in the decision under appeal. The appeal deciding officer found “the record contained adequate information which supported the decision.” Administrative Record Document il at 1. After exhausting his administrative remedies, Mahler now seeks judicial review of the salvage decision. Standard of Review This case comes before the court on the parties’ cross motions for summary judgment. Where the court’s task is to review an administrative record and apply legal standards to that record, summary judgment is an appropriate vehicle for deciding the case. See Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir.1994). The Administrative Procedure Act, 5 U.S.C. § 701 et seq., sets forth the applicable scope of review for administrative decisions. Mahler relies on provisions requiring the reviewing court to: hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; * * * * * (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. § 706(2)(A), (C). This standard requires the court to evaluate whether the decisions were based on a consideration of the relevant factors and whether there has been a clear error of judgment by the administrative body. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). The court should make a searching and careful inquiry into the facts, but the court is not empowered to substitute its judgment for that of the agency. Id. On judicial review, district courts must give due deference to an agency’s interpretations of its own regulations. See, e.g., National Trust for Historic Preservation v. Dole, 828 F.2d 776, 782 (D.C.Cir.1987). The Seventh Circuit has applied the arbitrary and capricious standard when reviewing an agency’s decision not to prepare an environmental impact statement. State of Wisconsin v. Weinberger, 745 F.2d 412, 417 (7th Cir.1984); River Road Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 449 (7th Cir.1985). Decisions will be upheld under the arbitrary and capricious standard if they have been based on a consideration of the relevant factors and made on a rational basis. Weinberger, 745 F.2d at 417 (citations omitted). Based on the Weinberger and River Road Alliance decisions, this court will apply the arbitrary and capricious standard to defendants’ decision to rely on a categorical exclusion under NEPA without undertaking a more elaborate environmental assessment of the planned red pine salvage operation. The Merits I. The 1991 Land and Resource Management Plan Amendment Mahler argues that the Forest Service’s 1991 Plan Amendment violates the National Forest Management Act’s requirements concerning cutting methods for timber harvesting. The NFMA requires the Forest Service to adopt regulations specifying the guidelines for land management plans to: insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an evenaged stand of timber will be used as a cutting method on National Forest System lands only where— (i) for clearcutting, it is determined to be the optimum method, and for other such cuts it is determined to be appropriate, to meet the objectives and requirements of the relevant land management plan. 16 U.S.C. § 1604(g)(3)(F). The 1991 Plan Amendment shows that the Forest Service complied with this requirement as applied to the land management plan process. First, the Plan Amendment contains in Appendix B an extensive discussion of the rationale for deciding when the clearcut method of vegetative management would be optimal: In clearcutting, with the exception of trees that may be left for wildlife or visual purposes, all merchantable trees on an area are harvested at one time. Unmerchantable trees are also felled to eliminate competition with the regeneration. Regeneration develops from natural seeding prior to harvests or sprouting from cut tree stumps. This regeneration method favors the establishment and development of species more intolerant of shade which are generally more desirable commercially. Clearcutting is the method that can slow the change from oak-hickory to the more mesie mixed hardwoods that is presently occurring on the Forest because of natural forces. Clearcutting provides vegetation in an early successional stage. In an unmanaged situation this successional stage could be caused by wildfire, insects, diseases, or windthrow. Without manmade or natural disturbances, the forest tends to move toward a condition dominated by shade-tolerant, late successional vegetation such as sugar maple and beech. Clearcutting is an effective method used to obtain desirable natural regeneration in central hardwood stands although the regeneration of the oaks is still a problem. Clearcutting normally results in more seedlings and new sprouts than any other harvest method. Where regeneration of oak and hickory is of primary importance, advance reproduction of these species is essential prior to harvesting the overstory (Sander and Clark, 1971). Experience has also shown that other factors such as site quality, aspect, and slope position affect the composition of natural regeneration. The oaks and hickories compete better on poor, dry sites with south and west exposure. Clearcutting is especially appropriate for stands where the best trees have been removed in past harvests, or in areas which have insufficient trees to adequately use growing space. Plan Amendment at B-5. The Plan Amendment then identifies more specifically the situations in which clearcutting may be “optimal”: Clearcuts will be used when they are the optimum harvest method to achieve our stated management objectives such as pine to hardwood conversions. Clearcuts will be used to provide habitats for early suecessional species. This type of habitat is important to many forms of wildlife. Oak, tulip poplar, and cherry are the primary species which make up this habitat and are intolerant to intermediate in tolerance to shade. Where oak is the desired primary species in the future stand, at least 435 stems/acre of advanced oak-hickory regeneration should be present prior to overstory removal. Clearcuts will be used to create openings and vistas, where potential for such areas exists and the vegetative composition and visual quality objectives can be met by such management. Clearcuts will be used to remove high-risk and sparse stands and create vigorous, healthy young stands which will enhance overall age-class diversity. These stands can usually not be regenerated by any other means because they lack sufficient numbers of acceptable trees. Many of these stands are on good sites and are in their current condition due to past cutting practices. Once regenerated, they will provide improved wildlife habitat, scenic beauty, and high-quality timber. Clearcutting mil also be used in areas so degraded by insects, disease or weather related damage that retaining any residual portion of the stand would be futile. Clearcutting mil be used to reduce the spread of insect or disease outbreaks. Plan Amendment at B-6 to B-7 (emphasis added). The NFMA does not prohibit clearcutting in national forests. The Act instead strikes a careful balance that allows clearcutting subject to certain substantive restrictions. At the level of forest-wide provisions of the 1991 Plan Amendment, the Forest Service complied with these requirements. See Sierra Club v. Espy, 38 F.3d 792, 798-800 (5th Cir.1994) (the NFMA permits even-aged management techniques where substantive standards are met); Sierra Club v. Robertson, 845 F.Supp. 485, 492-93 (S.D.Ohio 1994) (finding that a land and resource management plan containing very similar language complied with the NFMA and its optimality requirement). Second, the Plan Amendment addresses the NFMA requirements on clearcutting through extensive discussions related to developing the management prescriptions for Area 2.8. The Guidance portion of the Plan Amendment for Area 2.8 notes that clearcutting may be used on a site-specific basis when it is considered the optimal method of harvesting, and then identifies situations where clearcutting may be considered optimal. Plan Amendment at 2-34. One of those circumstances, relevant to the red pine salvage sale, is conversion of pine stands to native hardwood stands. Hardwood stands are native to the Hoosier National Forest. However, pine stands were planted in the forest primarily in the 1940’s and 1960’s on abused, eroded farmland to hold the soil in place. The pines helped to rebuild the soil so that they can now support native hardwoods. Because pines are not native to the area, many of them are declining in health and are slowly dying. Document C-3 at 1. Mahler argues that the Plan Amendment’s Management Prescription for Area 2.8 violates regulations requiring the Forest Service to consider the effects on residual trees and adjacent stands. The pertinent regulations provide: Management prescriptions that involve vegetative manipulation of tree cover for any purpose shall— 4* «i» (4) Be chosen alter considering potential effects on residual trees and adjacent stands; Hi * * * * * (6) Provide the desired effects on water quantity and quality, wildlife and fish habitat, regeneration of desired tree species, forage production, recreation uses, aesthetic values, and other resource yields. 36 C.F.R. § 219.27(b)(4) & (b)(6). Mahler argues there is no indication in the administrative record of the 1991 Plan Amendment that the Forest Service considered potential effects on residual trees and adjacent stands or how the logging in Management Area 2.8 would provide the “desired effects.” Mahler points out that Management Area 2.8 is the largest management area in the Hoosier National Forest, covering 97,232 acres. Final Environmental Impact Statement at 2-12. The regulation does not prohibit clearcutting, shelterwood cutting, or timber production. Subsection (b)(4) requires consideration of effects on residual trees and adjacent stands, and subsection (b)(6) requires that management prescriptions provide the “desired effects,” without specifying what effects should be “desired.” Both the Plan Amendment and the Record of Decision reflect ample consideration of the factors required under section 219.27(b)(4) & (b)(6). The entire Record of Decision shows that the Forest Service balanced a host of sometimes conflicting goals and needs in formulating the overall Plan Amendment and the specific management prescriptions. See, e.g., Plan Amendment at 2-34. Those goals and needs deal with, among other factors, the items specified in section 219.27(b)(4) and (b)(6). In the context of Mahler’s challenge, it is helpful to recall that the 1991 Plan Amendment imposed a 40 percent reduction in the total volume of timber harvesting permitted in the entire Hoosier National Forest. The Forest Service also addressed its compliance with the regulation more specifically in preparing the Draft Environmental Impact Statement on the 1991 Plan Amendment. In Appendix B of the Draft Environmental Impact Statement, the Forest Service explained how it believed it had complied with the requirements of section 219.27, in-eluding subsections (b)(4) and (b)(6). Appendix B shows that the Forest Service planned to consider effects on residual trees and adjacent stands by use of FORPLAN (a computer model for forest management), in development of the “Guidance” portions of the Land and Resource Management Plan, through monitoring of the forest, and, most important, through specific project development and planning. Draft Environmental Impact Statement at B6-6. As the Forest Service pointed out, compliance with some minimum management requirements, including such concerns as effects on residual trees and adjacent stands, requires site-specific analysis. The Plan Amendment provides for such consideration in planning specific projects, such as the red pine salvage sale at issue here. The Draft Environmental Impact Statement also identified the management tools that will be used to ensure continued compliance with (b)(4). The Guidance part of the Plan Amendment for Management Area 2.8 shows consideration of the requirements of (b)(4) as well as (b)(6). See Plan at 2-31 to 2-35. Mahler’s apparent contention that more specific consideration was required is based on a misunderstanding of the required' level of specificity in the Management Area prescriptions. The Plan Amendment need not consider the potential effects in detail for every tree in the entire forest. It is sufficient that the issues were considered as the Plan Amendment was developed and that the plan spelled out the means for ensuring that adequate consideration of these effects would be given in specific situations and projects. To comply with the requirements of section 219.27(b)(6), the Plan Amendment also identified several sources of information, including Guidance, Appendices C, H, I, and K, and site-specific project development and planning. See Draft Environmental Impact Statement at B6-6. Guidance constitutes the heart of the management plan. The Plan Amendment includes forest-wide guidance and more specific guidance for each management area within the forest. Guidance provides the directions governing how and where management activities can take place. See Plan Amendment at 2-4. Plan Amendment Appendix C reviews in considerable detail possible effects on endangered, threatened, and sensitive species. Plan Amendment Appendix I reviews management plans concerning the Forest’s cave resources. Plan Amendment Appendix K reviews mitigation and protection measures for soil and water resources during and after construction of roads and other facilities. Management prescriptions are to be chosen after considering potential effects on the specified topics in 36 C.F.R. §§ 219.27(b)(4) & (b)(6). The administrative record as a whole shows that the Forest Service was considering the issues mandated by law in developing the Plan Amendment. The plan addresses those concerns and potential effects in its forest-wide strategies, in its more specific management prescriptions, and by specifying management practices to ensure careful consideration before site-specific actions are taken. Some effects cannot be considered in more detail at the relatively abstract level of the Plan Amendment in the absence of information specific to a site and project. The Forest Service complied with the . National Forest Management Act in developing the Management Prescription for Management Area 2.8 of the Hoosier National Forest. II. The Red Pine Salvage Sale Mahler raises several objections to the Forest Service’s decision to conduct a salvage sale of fifty acres of red pine trees. First, Mahler argues the Forest Service’s final decision approving the salvage sale was arbitrary and capricious because the appeal deciding officer’s final decision relied on information in the record that Mahler says had nothing to with the actual red pine acreage slated for salvage. Second, Mahler asserts that the clearcutting decision violated 16 U.S.C. § 1604(g)(3)(F), the provision in the NFMA which allows the use of clearcutting only where it is “determined to be the optimum method ... to meet the objectives and requirements of the relevant land management plan.” Third, Mahler asserts that the decision to use shelterwood cutting in part of the area also violated 16 U.S.C. § 1604(g)(3)(F), which allows use of this even-aged technique only where it is “determined to be appropriate, to meet the objectives and requirements of the relevant land management plan.” Fourth, Mahler contends that the red pine salvage sale decision violated NEPA because the Forest Service should not have used a “categorical exclusion” to satisfy NEPA requirements and because the Forest .Service failed to give adequate consideration to other alternatives. Finally, Mahler argues the salvage decision was arbitrary, capricious, and contrary to law because the salvage operation will violate the Migratory Bird Treaty Act by causing the deaths of migratory birds. A. Reliance on the “Wrong” Information Under Forest Service administrative procedures, Mahler pursued an appeal of the Forest Ranger’s decision to go forward with the salvage sale. The first step in that process was review by the appeal reviewing officer. That official did not disagree with the decision to go forward with the salvage sale, but he recommended a remand to develop more information on mortality among the red pines, a better account of “opening and leave areas,” and a better explanation of the reason for reliance on a categorical exclusion to comply with NEPA. The appeal deciding officer concluded that no remand was needed. On the mortality issue, he concluded that the record contained an adequate basis for determining the appropriate management techniques. He cited page 11 of Item B-l of the project file and reports identified as F-l, F-2, and F-3 in the project file. Mahler contends that the decision was arbitrary and capricious because Document F-l deals with shortleaf and Virginia pine, not the red pine at issue here; because document F-2 deals with pine sawfly infestation, not the pine beetles at issue here; and because he says Document F-3 actually supports Mahler’s claims. Document F-l states that a forest health protection officer examined “several areas of pine” in the Forest, and that “these areas include short leaf and Virginia Pine.” The two-page memorandum concludes with the assessment: “The general decline of pine seems confined mostly to short leaf and red pine.” Document F-l does indeed deal with red pine trees. The appeal deciding officer’s reliance upon the document does not show that his decision was arbitrary and capricious. Mahler correctly points out that Document F-2 deals with pine sawfly infestation; however, the document also reports that pine sawflies “commonly” feed on red pines. Document F-3 consists of a report designed to help develop management strategies for pine resources. With respect to red pine stands, the report observed that: (1) large pockets of mortality were present in a couple of tree stands; (2) evidence of two types of beetles and root rots was common; (3) subsequent environmental stress may cause the complete loss of the pine overstory in these stands; (4) one younger stand of red pine did not have serious pest problems, but problems are expected in the near future because this stand was overstocked. Document F-3 at 2. Mahler contends that this report’s management recommendations support his position. The recommendations were qualified, however, and were presented alternatively, with their appropriateness depending on consideration of additional factors: Our silvicultural recommendations depend on the status of the hardwood understory and the composition of species. If the understory has advance regeneration of a desired species, the pine stand could be allowed to deteriorate without intervention, and a new hardwood stand will develop. However, if the composition of the understory is not desirable, silvicultural options include removal of the pine overstory with a controlled bum to kill the undesirable regeneration and to favor oak regeneration. Document F-3 at 4. At most, this recommendation provides some qualified support for Mahler’s view that the pine stands should be allowed to deteriorate on their own. It does not show that the Forest Service decision to the contrary was arbitrary and capricious. B. NFMA: Determination that Clear-cutting was “Optimal” Mahler also contends that the red pine salvage decision will violate the NFMA provision restricting the use of clearcutting. As discussed above, the NFMA imposes restrictions intended to make use of clearcutting more difficult for the Forest Service. The Act provides in relevant part that land management plans must: insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an evenaged stand of timber will be used as a cutting method on National Forest System lands only where— (i) for clearcutting, it is determined to be the optimum method, and for other such cuts it is determined to be appropriate, to meet the objectives and requirements of the relevant land management plan; sfc (v) such cuts are carried out in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of the timber resource. 16 U.S.C. § 1604(g)(3)(F). In Sierra Club v. Espy, the district court issued a preliminary injunction halting the use of even-aged forest management techniques in national forests in Texas. 822 F.Supp. 356 (E.D.Tex.1993). That court determined that the NFMA “contemplates that even-aged management techniques will be used only in exceptional circumstances.” 822 F.Supp. at 363-64. On appeal, the Fifth Circuit vacated the lower court’s ruling, stating: “NFMA does not bar even-aged management or require that it be undertaken only in exceptional circumstances; it requires that the Forest Service meet certain substantive restrictions before it selects even-aged management.” Sierra Club v. Espy, 38 F.3d at 800. Referring to its earlier decision in Texas Comm. on Natural Resources v. Bergland, 573 F.2d 201 (5th Cir.1978), the Fifth Circuit noted: “We then cautioned the Forest Service that clearcutting could not be justified merely on the basis that it provided the greatest dollar return per unit output; ‘[r]ather[,] elearcutting must be used only where it is essential to accomplish the relevant forest management objectives.’ ” Sierra Club v. Espy, 38 F.3d at 799 (quoting Texas Comm. on Natural Resources v. Bergland, 573 F.2d 201 (5th Cir.1978)). Mahler cites this language in support of his contention that the NFMA’s optimality requirement means that elearcutting must be “essential” to be permissible. However, the same court also stated: “That even-aged management must be the optimum or appropriate method to accomplish the objectives and requirements set forth in an LRMP does not mean that even-aged management is the exception to a rule that purportedly favors selection management.” Sierra Club v. Espy, 38 F.3d at 799. Mahler’s argument reads too much into the language of the opinion in Sierra Club v. Espy and does not pay sufficient attention to the language of the statute enacted by Congress. The statutory language does not require that elearcutting be found “essential” to accomplish forest management objectives. The statute is deliberately worded in terms of an “optimum” technique. “Optimum” does not mean “essential.” This carefully chosen language shows that Congress struck a “delicate balance” on this issue, see Sierra Club v. Robertson, 845 F.Supp. at 494, and the courts should not disrupt that balance by using words that Congress chose not to use. The NFMA also sets forth the requirements for land and resource management plans for national forests. The Act provides that plans shall: (2) be embodied in appropriate written material, including maps and other descriptive documents, reflecting proposed and possible actions, including the planned timber sale program and the proportion of probable methods of timber harvest within the unit necessary to fulfill the plan. 16 U.S.C. § 1604(f)(2). The NFMA requires that proposed timber harvests be consistent with the relevant land management plan. 16 U.S.C. § 1604®. The red pine salvage sale decision complies with these requirements. The 1991 Plan Amendment states that Management Area 2.8 is suitable for timber production, balancing uneven-aged and even-aged systems, depending on site-specific characteristics and plant and animal habitat diversity needs. Plan Amendment at 2-33. The Plan then sets forth a number of requirements for timber harvest. Clearcut opening size for pine harvests must not exceed ten acres. Shelterwood cuts must not exceed ten acres. Openings must be of irregular shape, conform to the ecological unit, be varied to avoid uniformity of appearance, and be distributed for biological diversity, visual and site considerations. Plan Amendment at 2-84. “Guidance” for Management Area 2.8 states: “Young hardwood stands (0 to 9-year age class) are important as habitat for some plant and animal species and communities. In general, 4-12 percent of the area should be in these stands.” Plan Amendment at 2-31. The salvage operation at issue here would facilitate conversion from /diseased and aging pine stands to young native hardwood stands. The Guidance on harvesting trees from Management Area 2.8 says: “As trees are harvested to achieve desired plant and animal diversity and to provide forest products, the cutting method selected shall be based on the assurance that the technology and knowledge exist to adequately restock the lands within 5 years of harvest.” Plan Amendment at 2-32. The Plan Amendment also provides that trees shall not be harvested within 250 feet of caves with significant bat populations. Plan Amendment at 2-32. The Plan Amendment sets forth general guidelines for managing the entire forest. Individual management projects must comply with the Plan Amendment and must also comply with additional requirements that are set and satisfied on a site-specific basis. For example, the Plan Amendment explains that “[i]n some cases, compliance with minimum management requirements is dependent on site-specific situations and information. Although some general guidance has been developed to ensure these requirements are met, minimum requirements will be addressed in more detail through project plans and the application of site-specific guidance.” Draft Environmental Impact Statement at B6-4. The Forest Service found expressly that clearcutting was the optimum harvest method for the red pine salvage sale. Substantial evidence supports the finding that the sale complies with the optimality requirement. The April 27, 1994, report prepared jointly by a silviculturalist, a fire specialist and a botanist recommended a clearcut salvage operation. The report noted that these experts had considered the environmental effects and concluded that only minimal adverse impacts would result. The Forest Service also conducted ground and aerial surveys and found widespread infestation, leaving the trees in a diseased and dying condition. Salvage cutting was recommended to halt the spread of infestation and to recover some useful timber before it was lost. The Forest Service determined that clearcutting was the optimum method to halt the spreading pine beetle infestation in the Forest. While the regulations demonstrate that clearcutting should be used sparingly, other pertinent regulations require the Forest Service to protect all forest resources from depredations by forest pests. 36 C.F.R. § 219.1(b)(8). Moreover, the Plan Amendment states specifically that even-aged management practices may be applied to “[prevent the spread of insect and disease damage or salvage losses from them.” Plan Amendment at B-6. The optimality finding is consistent with the Plan Amendment, which states that eleareuts will be used “when they are the optimum harvest method to achieve our stated management objectives such as pine to hardwood conversions,” and in “areas so degraded by insects, disease or weather related damage that retaining any residual portion of the stand would be futile.” Plan Amendment at B-6 to B-7. The record indicates that both conditions are satisfied here. The appeal reviewing officer in the administrative appeal noted that the clearcutting decision was reasonable in light of the infestation problem and was made in accordance with Plan Amendment objectives; the appeal deciding officer noted that the record contained an adequate basis for the clearcutting decision; and the court agrees. Mahler also argues that the Plan Amendment does not cover the sale outlined in the Decision Memo because that sale does not fit the Plan Amendment’s definition of a salvage sale. The Plan Amendment defines “salvage” as follows: “Dead or dying trees which occur in excess of those needed for wildlife, aesthetics, or other purposes. These trees are harvested for production.” Plan Amendment at A-31. Mahler argues that under this definition, “salvage” sales must be done for the purpose of timber production, not for insect control or disease control. The record shows that the red pine salvage operation was prompted by the presence of diseased and dying trees, and that the timber cut would be salvaged for production purposes. That is consistent with the Plan Amendment and management prescriptions. Mahler’s argument assumes a false distinction between goals, benefits, and objectives, or assumes that the salvage operation can have only one purpose. By definition, salvage sales harvest dead and dying trees. It is not disputed that these red pine trees are diseased and dying. C. NFMA: Use of Shelterwood Cuts The NFMA also restricts use of even-aged timber management techniques other than clearcutting, though its restrictions on those techniques, including shelterwood cuts, are less stringent. The Act provides in relevant part: shelterwood cutting, and other cuts designed to regenerate an evenaged stand of timber will be used as a cutting method on National Forest System lands only where— (i) ... for other such cuts [including shelterwood cuts] it is determined to be appropriate, to meet the objectives and requirements of the relevant land management plan. 16 U.S.C. § 1604(g)(3)(F). While eleareuts must meet the higher “optimality” standard, shelterwood cuts must only meet the “appropriateness” standard. On this record, the proposal to clear-cut forty-six acres of diseased and dying red pine trees complies with the NFMA. Shelterwood cutting four acres would be a less intrusive operation, removing most of the timber volume from the area while leaving designated trees to provide seed, shelter, and shade for regeneration. The Plan Amendment explains when shelterwood cuts are appropriate: The shelterwood method is most appropriate for tree species or sites where the shelter of a partial overstory is needed for reproduction, to give tree regeneration of high commercial value an advantage over species of lesser value or where visual concerns warrant. * * * * * * The shelterwood method provides conditions favorable to regeneration of a wide variety of hardwood species such as white oak, red oak, and white ash to name a few. The individual species favored depends on several physical and biological factors such as seed source, soil conditions, seedbed conditions, amount of shade, and microclimatic conditions at the forest floor. ****** Shelterwoods will be used to regenerate softwoods and hardwoods, especially where oak is the desired species. The density of residual stocking will be determined by species composition objectives (tolerant vs. intolerant), visual quality objectives, and condition of the stand before cutting. Plan Amendment at B-4 to B-6 (emphasis added). The management prescription for Management Area 2.8 reflects a concern for visual effects: Woody debris resulting from timber harvest will receive special treatment along the visual foreground of frequently traveled roads, trails and streams to meet the visual quality objective. Plan Amendment at 2-32. The Forest Service decided to use the shelterwood cut method in the salvage operation due to visual concerns: A small, 4 acre, shelterwood area will also be marked next to the French Ridge Road to break up the amount of temporal opening along the road. For visual considerations, the shelterwood method will be used along the roads (except the Terry Road). The hardwood component will be left as part of the residual stand in all stands. Document B-l at 12. Pertinent regulations require that management prescriptions provide the desired effects on aesthetic values. 36 C.F.R. § 219.27(b)(6). Since the NFMA would permit the Forest Service to cleareut the entire fifty acre area at issue, the NFMA would clearly permit the Forest Service to address visual concerns by using the less intrusive shelterwood cut method on four of the fifty acres. Mahler’s argument that the decision is inadequate because it does not explain why clearcutting will be used along one road but not along others comes close to asking the court to review the Forest Service’s plan on a tree-by-tree basis. The planned use of shelterwood cuts does not violate the NFMA. D. NEPA Requirements 1. Categorical Exclusion: Regulations implementing NEPA establish a three-tiered system for evaluating environmental management decisions: environmental impact statements, environmental assessments, and categorical exclusions. Environmental impact statements, the most elaborate system for evaluation, must be prepared for “major federal actions significantly affecting the quality of the human environment.” 40 C.F.R. § 1502.3. Defendants prepared an environmental impact statement in conjunction with the 1991 Plan Amendment. Mahler does not challenge the validity of that environmental impact statement, nor does he argue that NEPA required an environmental impact statement before the 50 acre salvage sale could be undertaken. Mahler argues, however, that NEPA required defendants to prepare an environmental assessment before making the salvage decision. Environmental assessments are concise public documents that provide analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact on the environment. 40 C.F.R. § 1508.9. An environmental assessment must include discussions on the need for the proposal, other alternatives, the environmental impact of the proposal and its alternatives, and other information. Id. A finding of no significant impact must present the reasons why an action not otherwise excluded as a categorical exclusion will not necessitate an environmental impact statement. 40 C.F.R. § 1508.13. To prevent the environmental assessment process under NEPA from becoming unnecessarily burdensome, NEPA regulations allow agencies to adopt “categorical exclusions.” The regulations define categorical exclusion as follows: “Categorical Exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect. 40 C.F.R. § 1508.4. The red pine salvage sale would include elearcutting of forty-six acres of red pine and shelterwood cutting of four acres of red pine for an estimated volume of between 800,000 to 1,000,000 board feet. Decision Memo at 1. The Forest Service did not conduct an environmental assessment of the planned red pine salvage sale. The Decision Memo relied instead on a Forest Service categorical exclusion for small-scale salvage sales: Timber harvest which removes 250,000 board feet or less of merchantable wood-products or salvage which removes 1,000,-000 board feet or less of merchantable wood products; which requires one mile or less of low standard road construction (Service level D, FSH 7709.56); and assures regeneration of harvested or salvages areas, where required. 1909:15 Forest Service Handbook § 30, page 6 of 10. The Handbook also sets forth those extraordinary circumstances that would require an environmental assessment. Extraordinary circumstances include steep slopes or highly erosive soils; threatened and endangered species or their critical habitat; and flood plains, wetlands or municipal watersheds. 1909.15 Forest Service Handbook § 30, page 1 of 10. Mahler argues that the Forest Service did not properly rely on the categorical exclusion here. First, relying on the last sentence in 40 C.F.R. § 1508.4, he argues that the Forest Service failed to make a proper finding that no extraordinary circumstances exist. Second, Mahler argues that extraordinary circumstances were in fact present in the salvage area. He contends the area has steep slopes, highly erosive soils, floodplains, and migratory songbirds. None of these arguments demonstrate that the Forest Service’s decision was arbitrary and capricious or otherwise unlawful. The Decision Memo, written by Tell City District Ranger James E. Denoncour, states: “I find that there are no extraordinary circumstances or effects that will significantly affect the environment.” Mahler takes exception to Denoncour’s use of the word “significantly.” He argues that extraordinary circumstances do not have to be “significant” to render an environmental assessment necessary. This argument lacks merit. The NEPA regulation requires categorical exclusions to provide for “extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” 40 C.F.R. § 1508.4. The finding in the Decision Memo did not evade the requirements of the regulation. Next, Mahler argues that an environmental assessment was required for the salvage sale because he contends the record in fact shows that extraordinary circumstances exist in the area slated for the salvage operation. Mahler points to steep slopes and highly erosive soils, floodplains, and migratory songbirds as examples of extraordinary circumstances requiring the preparation of an environmental assessment. Mahler claims that because maps in the administrative record show several streams in the project area, there must also be floodplains in the area. Mahler argues: The maps included in the Administrative Record show several streams in the project area that have lowlands and relatively flat areas next to the stream. All streams flood sometimes, so there has to be a floodplain associated with the creeks. Plaintiffs Opening Brief at 21. Mahler cites the maps in the administrative record and offers no further support for this argument. The presence of streams does not establish the presence of floodplains in the area. That would depend on the specific topography. Mahler also argues that the presence of steep slopes and highly erosive soils should render use of a categorical exclusion arbitrary and capricious. The April 27, 1994, analysis undertaken by a botanist, silviculturalist, and fire specialist describes the site as follows: Topographically, much of the area is flat narrow ridges with gentle slopes. The majority of the soil is a Wellston silt loam with 2-6 percent slopes; and has a south aspect with a slight to moderate erosion hazard. Surface runoff is medium. Document B-l at 1-2. Mahler takes exception to the words “much” and “majority.” He argues, “the entire area, not just most or the majority of it, must be taken into account.” Pl.’s Opening Brief at 20. However, nothing in this document suggests that the Forest Service only considered most or the majority of the area. Rather, this language merely suggests generalized conclusions reached after completing the required soil analysis. In addition, the challenged memo notes that during the scoping process the Soil Conservation Service determined that the proposal would not cause soil erosion. Document B-l at 4. Mahler questions this assessment. He claims that the administrative record contains no record of communication with the Soil Conservation Service. Mahler acknowledges that the decision documentation cites a Perry County soil survey undertaken by the United States Department of Agriculture Soil Conservation Service from 1969. Document B-l at 9. Mahler has not explained why the 1969 soil survey results should be discounted. Instead, Mahler argues that the reference to the soil conservation service pertains to a letter from the Board of Supervisors of the Perry County Soil and Water Conservation District. That letter states: In our opinion the harvest of pine timber and the thinning of white pine would be beneficial to the forest ecosystem. In addition the proposed treatment should not create a soil erosion problem or damage the environment. Document E. Mahler argues that the letter merely communicated a public opinion held by elected officials, not soil scientists. He also points out that their comment does not rule out soil erosion. If this letter provided the only support for the Forest Service’s conclusion that “highly erosive soils” do not present an extraordinary circumstance related to this project, then Mahler might have a valid argument. However, this letter forms just one small piece of a record that is relatively voluminous (at least in view of the modest action contemplated). In light of the information in the record supporting the conclusion that highly erosive soils are not found in the project site, the Forest Service properly applied a categorical exclusion here. 2. Consideration of Alternatives: Mahler also argues that the Forest Service violated NEPA by failing to give adequate consideration to reasonable alternatives to the salvage plan it adopted. Mahler contends that the Forest Service should have considered using shelterwood cuts in the forty-six acres slated for clearcutting. He also argues that the Forest Service should have considered using uneven-aged management techñiques to deal with the infested and diseased red pines. The categorical exclusion mechanism was designed to eliminate the need to investigate alternatives when the environmental impact of a proposed action would be minimal. The regulations indicate that when a categorical exclusion applies an agency may decide to consider alternatives, but it is not required to do so. See 40 C.F.R. § 1508.4. Categorical exclusions apply to management decisions that simply do not require the level of analysis necessary for compliance with environmental assessment or environmental impact statement regulations. Environmental assessment regulations include a requirement for “brief discussions of the need for the proposal, of alternatives----” 40 C.F.R. § 1508.9. The consideration of alternatives requirement simply does not apply to categorical exclusions. E. MBTA Provisions Mahler also argues that the Forest Service’s salvage decision violates the Migratory Bird Treaty Act. The MBTA provides in relevant part: it shall be unlawM at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, ... any migratory bird, any part, nest, or egg of any such bird ... 16 U.S.C. § 708. Mahler argues that the red pine salvage sale would cause a “taking” of migratory birds that would violate the MBTA. The Forest Service argues that the court lacks subject matter jurisdiction over the MBTA claim because the MBTA is essentially a criminal statute with criminal penalties, see, e.g., United States v. Smith, 29 F.3d 270 (7th Cir.1994); United States v. Van Fossan, 899 F.2d 636 (7th Cir.1990), and because it contains neither an express nor an implied citizen suit provision, see 16 U.S.C. §§ 703-712; see also Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294, 1302-03 (8th Cir.1989). The Forest Service notes correctly that MBTA enforcement decisions are committed to agency discretion. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Alaska Fish & Wildlife Fed’n v. Dunkle, 829 F.2d 933, 938 (9th Cir.1987); see also Defenders of Wildlife, 882 F.2d at 1301. These facts, however, do not deprive the court of subject matter jurisdiction over Mahler’s claim that the salvage sale would violate the MBTA. Mahler is not seeking to enforce the MBTA against a private individual or entity. Instead, he invokes the Administrative Procedures Act, which requires a reviewing court to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). No stretching of statutory language is needed to conclude that a federal agency’s decision to take action that would violate the MBTA would be “otherwise not in accordance with law.” The issue, therefore, is whether the planned harvest of red pine trees would constitute a “taking” of migratory birds. Defendants concede that migratory birds could be nesting in the stands designated for harvest. Mahler argues that the red pine salvage project would indirectly “take” migratory birds by destroying their habitat. Moreover, Mahler argues that logging during nesting season would directly “take” migratory birds. Habitat destruction and logging during nesting season do not produce “takings” of migratory birds within the purview of the MBTA. The MBTA’s implementing regulations define “take” as follows: to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect. 50 C.F.R. § 10.12. Mahler’s “indirect taking” argument has been addressed by other courts. As explained by the Ninth Circuit, the statutory definition of “take” describes “physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute’s enactment in 1918.” Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir.1991). The MBTA and regulations promulgated under it make no mention of habitat modification or destruction. Id. The Evans court noted that the Endangered Species Act used broader language to define “take,” incorporating the words, “harm” and “harass.” Id. at 303. The court held that habitat destruction in the form of logging causes “harm” under the Endangered Species Act but does not “take” birds within the meaning of the MBTA. Id. Cf. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, — U.S. —, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (interpreting Endangered Species Act). While the Seventh Circuit has not addressed the “direct taking” issue, other courts have adopted the same reasoning when asked to apply the MBTA to logging operations. In Citizens Interested in Bull Run, Inc. v. Edrington, the court rejected an MBTA claim designed to halt a logging operation in Mt. Hood National Forest. 781 F.Supp. 1502 (D.Ore.1991). The court stated: I find that the proposed timber sale does not constitute a “taking” of migratory birds within the meaning of the MBTA. I further find that the Act was intended to apply to individual hunters and poachers, ... a “taking” under the MBTA does not include habitat modification resulting from Forest Service sales activity. Id. at 1510; accord Portland Audubon Soc’y v. Lujan, 21 Envt’l L.Rep. (CCH) ¶ 21,341; 1991 WL 81838 (D.Ore. May 8,1991); Seattle Audubon Soc’y v. Robertson, Nos. 89-160WD, C89-99(T)WD, 1991 WL 180099 (W.D.Wash. Mar. 7, 1991) (timber sales did not constitute a “taking” under the MBTA). Congress adopted the MBTA in 1918, with the stated purpose of implementing a treaty between the United States and Great Britain “for the protection of the ‘many species of birds [which] in their annual migration traverse certain parts of the United States and Canada.’ ” United States v. North Dakota, 650 F.2d 911, 913 (8th Cir.1981) (quoting Migratory Bird Treaty Act, 39 Stat. 1702). Generally, the MBTA proscribes the hunting, capture, possession, and sale of migratory birds. North Dakota, 650 F.2d at 913. “On its face, the comprehensive statutory provision is naturally read as forbidding transactions in all bird parts ...” Andrus v. Allard, 444 U.S. 51, 60, 100 S.Ct. 318, 324, 62 L.Ed.2d 210 (1979). The MBTA was designed to forestall hunting of migratory birds and the sale of their parts. The court declines Mahler’s invitation to extend the statute well beyond its language and the Congressional purpose behind its enactment. Conclusion The Forest Service complied with the NFMA and NEPA when it adopted the 1991 Plan Amendment and when it decided to conduct the red pine salvage sale. The red pine salvage operation would not result in a “taking” of migratory birds under the MBTA. The Forest Service’s motion for summary judgment is therefore GRANTED, Mahler’s motion for summary judgment is DENIED, and Mahler’s claims will be dismissed on the merits. Judgment will be entered immediately. ENTRY ON PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT After the court entered final judgment for defendants in this ease, plaintiff Andy Mahler asked the court to reconsider his arguments about the scope of the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. His argument is supported by a new decision from the Northern District of Georgia issued the day after this court entered judgment for defendants. With this new support, plaintiffs “motion to reconsider” deserves careful consideration on the merits, for he has put his finger on a problem concerning the scope of the Migratory Bird Treaty Act that has troubled courts for many years. Background The subject of this case is fifty acres of diseased and dying red pine trees in the Hoosier National Forest. The United States Forest Service decided in 1994 to “clearcut” forty-six acres, to “shelterwood” cut another four acres, and to dispose of the timber in a salvage sale. Plaintiff Mahler is a nearby resident and frequent visitor to the Hoosier National Forest. He brought this action seeking declaratory and injunctive relief to stop the salvage operation, arguing that the Forest Service violated the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. § 1600 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 703 et seq. On May 7, 1996, the court granted defendants’ motion for summary judgment, denied plaintiffs motion for summary judgment, and entered final judgment for defendants. On May 15, 1996, Mahler, a pro se litigant, filed his “Motion for Reconsideration.” He relied upon Fed.R.Civ.P. 59(e), which governs motions to alter or amend judgment. Motions filed under Federal Rule of Civil Procedure 59(e) “may only be granted if there has been a mistake of law or fact or new evidence has been discovered- that is material and could not have been discovered previously.” Figgie Int’l, Inc. v. Miller, 966 F.2d 1178, 1180 (7th Cir.1992). Mahler has not cited any new evidence that is material and could not have been discovered earlier. His sole argument in support of his Rule 59(e) motion is that the court made a mistake of law by deciding that the red pine salvage operation would not violate the MBTA. Mahler relies primarily upon a May 8, 1996, decision from the Northern District of Georgia holding that harvesting trees during nesting season would violate the MBTA. Sierra Club v. Martin, slip op., No. 96-CV-926-FMH (N.D.Ga. May 8, 1996) (granting preliminary injunction under MBTA to delay timber harvest in national forest). For purposes of his Rule 59(e) motion, Mahler does not dispute the court’s decision to grant summary judgment to defendants on his NEPA and NFMA claims. Mahler asks the court to alter its judgment on the claim brought under the Administrative Procedure Act (APA) to prevent what he contends is an imminent violation of the MBTA. The APA requires reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a). Mahler argues that if the red pine salvage operation is conducted during nesting season for migratory songbirds, it would violate the MBTA’s prohibition of “taking” any protected migratory bird species, or their nests, eggs, or parts. Mahler believes that harvesting trees during nesting season would cause “direct takings” of migratory songbirds in violation of the MBTA. Mahler also argues that “[t]o comply with the MBTA, the Forest Service has only to avoid cutting the sale while the migratory birds are nesting.” (PL Reply Brief at 11) The MBTA is a criminal statute. It provides in relevant part: it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, ... any migratory bird, any part, nest, or egg of any such bird____ 16 U.S.C. § 703. The MBTA authorizes employees of the Department of Interior to enforce its provisions by arresting violators, executing warrants, and searching premises under warrant. 16 U.S.C. § 706. The statute contains both felony and misdemeanor provisions. 16 U.S.C. § 707. The MBTA’s implementing regulations define “take” as follows: to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect. 50 C.F.R. § 10.12. The list of birds now protected as “migratory birds” under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine. Although the MBTA initially protected only a small number of birds, in 1971, the Secretary of the Interior expanded its coverage to apply to nearly all birds indigenous to the North America, including the wren, robin, crow, chickadee, oriole, sparrow, warbler, blackbird, bluebird, and many others. 50 C.F.R. § 10.13. See also United States v. Van Fossan, 899 F.2d 636, 637-39 (7th Cir.1990) (noting that common grackle and mourning dove are protected, and that measures used to kill pests “are bound to kill an occasional migratory bird”). In 1974, Congress amended the MBTA to cover “products” of birds or bird parts, nests, and eggs. See 16 U.S.C. § 703; Sen.Rep. No. 851, 93rd Cong., 2d Sess. 3 (1974), reprinted in 1974 U.S.C.C.A.N. 3250, 3252. As discussed in this court’s original opinion, several courts have interpreted the MBTA in connection with logging operations. Those courts have uniformly held that habitat destruction or modification, including change that results from logging operations, does not violate the MBTA. See, e.g., Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir.1991); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F.Supp. 1502, 1510 (D.Ore.1991); Portland Audubon Soc’y v. Lujan, 21 Envt’l L.Rep. (CCH) ¶ 21,341; 1991 WL 81838 (D.Ore. May 8,1991); Seattle Audubon Soc’y v. Robertson, Nos. 89-160WD, C89-99(T)WD, 1991 WL 180099 (W.D.Wash. Mar. 7, 1991). At least for purposes of his Rule 59(e) motion, Mahler does not question the correctness of these decisions. Instead, he tries to limit the holdings of those cases by distinguishing between what he calls “indirect takings” in the form of “habitat modification” (which the MBTA does not prohibit) and what he calls “direct takings,” which he argues will occur if trees with active nests are cut down (and which he argues the MBTA does prohibit). Mahler acknowledges that all logging operations result in habitat modification, but