Full opinion text
ORDER THRASH, District Judge. This action challenges the approval by the United States Forest Service of seven timber cutting projects in the Chattahoochee National Forest in North Georgia. It is before the Court on the Motion for Summary Judgment [Doc. No. 54] of the Plaintiffs, and Cross-Motions for Summary Judgment [Doc. Nos. 62 and 63] by the Defendants and Intervenors. For the reasons set forth below, the Court denies the Plaintiffs’ Motion for Summary Judgment and grants the Cross-Motions for Summary Judgment of Defendants and Intervenors. I. INTRODUCTION The Chattahoochee National Forest consists of approximately 750,000 acres of public land spread across North Georgia. The Forest Service has approved timber cutting projects for seven sites in the Chattahoochee National Forest. For each project, the Forest Service proposed to enter into a contract to sell the timber to a private contractor. The contractor would then cut the timber and remove it from the National Forest. The seven timber cutting projects involve cutting timber on 1,797 acres of land in the Chattahoochee National Forest. The Plaintiffs have various recreational, aesthetic, business and/or environmental interests that will be affected by the timber cutting projects. The Plaintiffs’ interests are within the zone of interests protected by the pertinent statutes and are not merely generalized grievances shared by the citizenry at large. Worth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Consequently, they have standing to assert these claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-563, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Plaintiffs’' claims implicate multiple statutes, including the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528 et. seq., the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et. seq., the National Forest Management Act of 1976, 16 U.S.C. § 1600 et. seq., the Endangered Species Act, 16 U.S.C. § 1531 et. seq., and the Administrative Procedure Act, 5 U.S.C. § 501 et. seq. If the Plaintiffs’ position prevails, timber cutting in the Chattahoochee National Forest and the Oconee National Forest will cease for the foreseeable future, notwithstanding the Congressional mandate that the National Forests are to be managed for timber production as well as recreational and other uses. If the Defendants and the Intervenors prevail, numerous stands of 60 to 90 year old trees will be cut down and tons of dirt, rock and debris will be washed into the streams of North Georgia. Plaintiffs claim that the resulting injury to the environment and wildlife of the Chattahoochee National Forest will be irreparable. The Southern Appalachia region is one of the most diverse in terms of plant and animal life of the entire North American continent. More than 2000 plant and 500 animal species live in the Chattahoochee National Forest. Due to the wide range of topography, the region is home to plant and animal species found as far south as the coastal lowlands and as far north as the forests of Canada. The forests of Southern Appalachia were virgin hardwood forests when first seen by Europeans. Agriculture, logging, reforestation and the American chestnut blight all in turn transformed these forests into what they are today. The majority of the Chattahoochee National Forest was cut for timber between 1880 and 1930. As a result, natural old growth stands of long life tree species such as oak usually occur on steep, rough land that was not logged or logged only selectively. There are 186,726 acres of the Forest that are set aside as old growth areas that are not available for timber harvesting. In all, 27 percent of the Forest is withdrawn from timber harvesting. The Chattahoochee and Oconee National Forests are home to many species of threatened and endangered plants and wildlife. Approximately 175 species of plants, birds, mammals, reptiles, amphibians, insects, mussels and fish are included on state or federal lists of threatened and endangered species or are considered as “sensitive species” by the Forest Service. This includes plants such as the small whorled pogonia, purple sedge, northern pitcher plant, pink ladyslipper, snowy hydrangea, Virginia bluebell and dwarf ginseng. Other threatened,, endangered or sensitive species include the bald eagle, the peregrine falcon, the red-eoekaded woodpecker, the South Appalachian cottontail, the pygmy shrew, Sherman’s fox squirrel, the bog turtle, the green salamander, the blue shiner, the amber darter and the brook trout. The Chattahoochee National Forest has about 19,000 lakes and 1500 miles of perennial trout streams. The annual precipitation varies from 54 inches in the foothills to 80 inches in the extreme northeastern mountains. Most of the Chattahoochee National Forest exhibits the rugged mountainous terrain typical of the Southern Appalachians. A small area near Toceoa is classified as Upper Piedmont. . A small area near Dalton is classified as Ridge and Valley. Most of the Chattahoochee National Forest is of an Appalachian oak forest type. Major tree species include white and red oak, hickory, yellow poplar, shortleaf pine, Virginia pine and Eastern white pine. The Oconee National Forest is one seventh the size of the Chattahoochee National Forest, but provides about ope third of the timber cut from both forests. This is due to the combination of good growing conditions and easy access. The Oconee National Forest is predominantly a yellow pine forest. Approximately 45 percent of the land within the boundary of the Chattahoochee National Forest is publicly owned. Typically, the publicly owned National Forest lands are on the mountains and ridgetops with private land concentrated in the developed valleys. Rabun County contains the highest percentage of National Forest land with 63 percent of its area in federal ownership. It is not uncommon to have small isolated tracts of the National Forest fully or partially surrounded by private land. Similarly, there are many small scattered private tracts surrounded by National Forest ownership. Increasing public ownership within the National Forest boundary is accomplished through land acquisition, land exchanges and land donations. Features of national significance in the Chattahoochee National Forest include the Chattooga National Wild & Scenic River, the Appalachian Trail, Plott Cove Research Natural Area, Cohutta Wilderness Area, Ellicott Rock Wilderness Area and the Southern Nantahala Wilderness Area. The Chattahoochee National Forest provides recreational activities ranging from modern campgrounds to wilderness areas. There are 34 developed recreation areas in the Forest. These vary from roadside overlooks and picnic areas to large campgrounds offering swimming, boating, picnicking and camping. There are 600 miles of hiking trails. The beginning point and 79.5 miles of the Appalachian Trail are in the Chattahoochee National Forest. There are 13 Wildlife Management Areas. They encompass 47 percent of the land in the Chattahoochee National Forest. They are managed by the Georgia Department of Natural Resources Game & Fish Division. The environment of the Chattahoochee National Forest is threatened not only by logging but by over use of some of these recreational sites. For example, the Forest Service road to Earl’s Ford (a popular fishing spot and access point for boaters) is heavily used, severely eroded and is a source of sediment laden runoff into the Chattooga River. This case presents the clash of two visions of the appropriate use of the Chattahoochee National, Forest. Mr. Edmon Nicholson has submitted an affidavit in support of the Plaintiffs’ Motion for a Temporary Restraining Order and a Preliminary Injunction. He has lived in Atlanta for eight years. He spends much of his free time in the Chattahoochee National Forest. He enjoys backpacking, camping, canoeing, swimming, fly-fishing for trout, bird watching and nature study. His favorite river for fishing is the Chattooga National Wild and Scenic River. The Chattahoochee National Forest provides him with the opportunity to fish for trout in clear, cold mountain streams while enjoying the scenic beauty' of the North Georgia mountains. Mr. Nicholson does not always get the opportunity to enjoy the Forest as he wishes because of conflicting uses. He has seen the West Fork of the Chattooga River when it is unfishable after a moderate rainstorm due to heavy discoloration of the water from runoff. One of the tributaries of the West Fork is Big Creek. The last time that Mr. Nicholson fished Big Creek, a light rain of less than two hours duration made the stream too muddy to fish because of runoff from a logging road. He contrasts these conditions with Dukes Creek or the Jacks River in the Cohutta Wilderness area where the water remains clear even after heavy rains because they are not affected by runoff from logging activities. Mr. Nicholson is concerned that six miles of new logging roads from the Compartment Five, project will dump an additional 63.6 tons of sediment into tributaries of the Chattooga River. A contrasting vision of the appropriate use of the Chattahoochee National Forest is presented by Mr. Bert Thomas, one of the Intervenors. He lives in Morgantown, Georgia. He and his family make their living cutting timber. He has been involved in the timber business in North Georgia for over 20 years. He has ten employees who work directly for him. In addition, there are five contract truckers who rely upon his business for a substantial portion of their work. Approximately 85 percent of his business comes from the National Forest Timber Sale Program. A reliable timber sale program for the Chattahoochee National Forest is critical to the future of his business. ■ Mr. Thomas is the purchaser of the Big Net and Upper Swallows Timber Sales. He was the high bidder for both projects. When he submitted his bid for the Big Net tract, he was required to furnish a cash bond of $3000 to the Forest Service and an initial down payment of $2800. Mr. Thomas had cut approximately 20 percent of the.timber in the Big Net project when he stopped work due to this litigation. When he submitted his bid for the Upper Swallows Timber Sale, he was required to furnish a cash bond of $2000 to the Forest Service and an initial down payment of $1500. He had cut approximately two thirds of the timber for this project when he stopped work due to this litigation. Mr. Thomas finances his business from log sales and lines of credit from two local banks. The lines of credit are secured by his equipment, his home and 70 acres of timberland that he owns. His bankers will not loan him any additional money without additional collateral. The delay in completing the timber projects has seriously jeopardized his business and the financial security of his family and employees. If further work is prohibited in the two projects, he will lose (or may have already lost) a $90,000 sale of special order veneer logs. People like Bert Thomas and the other Intervenors appreciate the beauty of the North Georgia mountains and the Chattahoochee National Forest as much as anyone. However, for them, the National Forests are not only a source of aesthetic satisfaction and recreational opportunities. To them, the National Forests are their livelihood and their way of life. Their work is hard and dirty, but it is honest and honorable labor. The events leading to the clash of these two visions of the appropriate use for the Chattahoochee National Forest began in 1985. At that time, the Forest Service adopted the Forest Plan and the Final Environmental Impact Statement for the Chattahoochee and Oconee National Forests. That Plan authorized timber cutting in the areas of the National Forest where the seven projects are located. Then in 1991, the Forest Service began proposing the seven timber cutting projects that are at issue in this litigation. For each project, the Forest Service performed an Environmental Assessment in which an interdisciplinary team of Forest Service employees considered the proposed timber sales and possible alternatives. After the Forest Service determined that the proposed projects would have no significant environmental impact, the projects were put out for bids. Prior to the filing of this action, four of the projects were awarded to individual purchasers, the first on August 21,1995. Logging began on three of the projects before there was a voluntary stay on April 19, 1996, after this lawsuit was filed. The remaining projects were scheduled to have bids opened in the Summer and Fall of 1996. The Dunaway Gap project involves the logging of 557 acres in the Coosa River Basin. It involves the construction of 4.1 miles of road. Tibbs Trail is a project to log 365 acres. It will involve the construction of 6.4 miles of road. The Upper Swallows Creek project involves the logging of 83 acres in the Hiawassee River Basin. It involves the building of 1.4 miles of road. The Compartment 59 project is a project to log 154 acres in the Chattooga River Basin. One mile of road will be built. The Compartment 05 project is a project to log 623 acres in the Chattooga River Basin. It will involve building 5.3 miles of roads. The Big Net project involves logging 115 acres in .the Hiawassee River Basin. Approximately one mile of road is to be built. The South Corn Ridge project is a project to log 164 acres in the Hiawassee River Basin. It will require the building of 1.6 miles of road. The timber cutting and road building activities will result in many tons of sediment being washed into nearby streams. The trees that will be cut in these projects include 60 to 70 year old white pines, 60 to 80 year old scarlet oaks, 80 to 90 year old shortleaf pines, 60 year old white oaks, red oaks and hickory trees, 60 to'70 year old yellow poplars and 70 to 80 year old Virginia pines. II. HISTORY OF THIS LITIGATION This action was filed on April 17, 1996. The Plaintiffs are nationwide environmental organizations, such as the Sierra Club and The Wilderness Society, and local organizations concerned with conservation and protection of the environment in North Georgia. In their Complaint, the Plaintiffs alleged violations of the Clean Water Act, 33 U.S.C. § 1251 et. seq.; the Migratory Bird Treaty Act, 16 U.S.C. § 703; the National Forest Management Act; the Administrative Procedure Act and the implementing regulations of the statutes. The Plaintiffs sought temporary and injunctive relief to prevent the Forest Service from proceeding with the seven timber cutting projects. Plaintiffs alleged that without such relief, the Forest Service “will commence tree cutting and road building, with resultant discharge of pollutants to water; death of migratory birds; and adverse affect on designated sensitive species.” (Complaint, ¶ 10). With respect to the Clean Water Act, Plaintiffs claimed that the construction of logging roads and other timber cutting activities would result in the discharge of sediment into nearby streams and that this discharge of sediment constitutes the discharge of unpermitted pollutants in violation of the Act. (Complaint, ¶¶ 45-75). With respect to the Migratory Bird Treaty Act, the Plaintiffs claimed that timber cutting, road building and related activities will kill young migratory song birds and cause adult birds to abandon their nesting sites in violation of the Act. (Complaint, ¶¶ 76-87). With respect to the National Forest Management Act, the Plaintiffs claimed that the Forest Service approved the seven timber projects without having adequate quantitative population data as to “sensitive species” as required by the Act and the implementing regulations. (Complaint, ¶¶ 88-106). The Plaintiffs further claimed that the Forest Service approval of the seven timber projects was unlawful, arbitrary and capricious, and an abuse of discretion in violation of the Administrative Procedure Act. (Complaint, ¶ 106). Plaintiffs moved for a Temporary Restraining Order and a Preliminary Injunction. In support of this motion, Plaintiffs submitted a copy of a Freedom of Information Act (5 U.S.C. § 552 et. seq.) request served upon the Forest Service. The Freedom of Information Act request sought documents with “population data” on four species of birds, six species of mammals, four species of reptiles, three species of amphibians, and 26 species of fish listed by the Forest Service as “sensitive species.” In addition, the Freedom of Information Act request asked for documents with “population trend data” on the identified species. The Chattahoochee National Forest Supervisor responded with a letter in which he stated that the Forest Service had few documents which would be considered population data for the species in question. He also stated that the Forest Service had not conducted any population trend analysis for any of the listed species. He identified one mammal, two reptiles and three amphibians as species for which the Forest Service had some population data. The Plaintiffs rely heavily upon this response to the Freedom of Information Act request in arguing that the Forest Service has not complied with its own regulations in approving these seven timber sales. In support of their motion for equitable relief, Plaintiffs asserted violations of the Clean Water Act, the Migratory Bird Treaty Act and the National Forest Management Act. With respect to the Clean Water Act, Plaintiffs claimed that the discharge of tons of rock and sand into nearby streams and rivers constitutes unpermitted discharge of pollutants in violation of § 301 of the Act, 33 U.S.C. § 1311. (Plaintiffs’ Brief, pp. 7-8). The Migratory Bird Treaty Act makes it unlawful “at any time, by any means, or any manner” to kill migratory birds. 16 U.S.C. § 703. The Plaintiffs alleged that cutting timber and related activities in the seven project areas will kill many migratory songbirds in violation of the Act. (Plaintiffs’ Brief, p. 9). Finally, Plaintiffs alleged that the Forest Service failed to follow its own regulations regarding the availability of quantitative population data for sensitive species in approving the seven timber cutting projects. Plaintiffs identified 36 C.F.R. '§§ 219.12(d), 219.19, 219.26 and Forest Service Manual §§ 2670.5 and 2672.41 as the regulatory provisions that were violated. By means of selective quotation from these regulations, Plaintiffs argued that the Forest Service was required to have quantitative population data, including “population trend analysis,” for each sensitive species in the Chattahoochee National Forest before it could approve the seven timber sales. (Plaintiffs’ Brief, pp. 11-12). Plaintiffs argued that a reduction of timber cutting in the National Forests of Southern Appalachia would not adversely affect the nation’s timber supply. The National Forests contain 2.6 million acres of timberland, or about 18 percent of the timberland in the region as a whole. The National Forests have supplied only ten percent of the timber harvested in the Southern Appalachia region since 1980. In Georgia, of the 1,302 million cubic feet of timber cut from 1980 through 1993, only 6.6 million cubic feet (0.5%) came from National Forest lands. Plaintiffs do contend that the seven timber cutting projects will damage the environment, kill migratory song birds and reduce the diversity of plant and animal species in the Chattahoochee National Forest. In support of their Motion for a Temporary Restraining Order and a Preliminary Injunction, the Plaintiffs submitted the affidavit of Dr. J. Christopher Haney, a zoologist currently employed as an Adjunct Research Associate at the North Carolina State Museum of Natural Sciences. Dr. Haney states that the Chattahoochee and Oconee National Forests are home to numerous species of neotropical migratory birds. These birds typically winter in Mexico or the Caribbean and spend the nesting season, April through August, in these forests. He states that the population of these birds is declining. He calculates that the seven timber projects will result in the destruction of a low of .848 broods to a high of 2,840 broods. He calculates that a low of 3,431 to a high of 15,794 birds will be “affected” such as displacement of adult birds to other nesting sites. The Plaintiffs also submitted the affidavit of Barry Sulkin regarding the erosion and sedimentation of nearby streams caused by timber cutting and related activities. He states that the 275 tons of sediment from the seven sale areas and 155 tons of sediment from construction of logging roads will likely have long term detrimental impacts to area streams and rivers. Sediment in a stream has a smothering effect that can kill the bottom dwelling organisms that are food for fish and other wildlife. Eggs of fish and aquatic organisms can also be smothered by sediment. Organic matter created by tree cutting that is washed into a stream will decompose in the water, consuming the dissolved oxygen that fish and aquatic organisms require for survival. He states that Best Management Practices relied upon by the Forest Service and its contractors to prevent erosion and sedimentation are not always followed and are not an adequate substitute for the permitting process of the Clean Water Act. The Defendants answered and denied the material allegations of the Complaint. They filed the Administrative Record and opposed the Motion for a Temporary Restraining Order and a Preliminary Injunction. With respect to the Clean Water Act claims, they pointed out that the regulations issued by the Environmental Protection Agency exclude natural runoff due to “harvesting operations, surface drainage, or road construction and maintenance” associated with timber cutting from the definition of “point sources” that are required to have a permit. See 40 C.F.R. § 122.27(b). (Defendant’s Brief, pp. 11-12). With respect to the Migratory Bird Treaty Act, the Defendants argued that .there is no private right of action against the government under the Act. (Defendants’ Brief, pp. 16-17). Finally, the Defendants denied that the Forest Service regulations required them to have population inventories for all sensitive species before approval of the seven timber cutting projects. (Defendants’ Brief, pp. 26-29). Defendants, therefore, contended that there was insufficient' likelihood of success on the merits for the Court to issue injunctive relief. The Forest Service submitted the affidavit of Ray M. Ellis, Natural Resources Staff Officer for the Chattahoochee/Oeonee National Forest, with respect to the sedimentation effect of the seven timber projects. He states that the timber purchasers for these projects may be involved in the construction of new roads, the reconstruction of existing roads, or the creation of temporary roads to allow access to the timber. The timber purchasers are required to comply with contractual specifications for erosion control and water quality. These Best Management Practices are designed to limit as much as possible the discharge of soil and rock into nearby streams. He states that the effect of using Best Management Practices is that the sedimentation effects that do occur are usually only slightly larger (typically about 7%) than would have occurred if there was no timber cutting activity. Mr. Ellis claims that reconstruction of logging roads in accordance with Best Management Practices has the effect of reducing the amount of erosion and sediment deposition to levels significantly below that prior to the timber sales. After the timber is cut, Mr. Ellis states that the timber purchasers are required to close temporary roads and take a number of measures to control erosion and insure water quality. Temporary roads are scarified, seeded, fertilized and mulched to encourage germination of grasses and to minimize erosion. He claims that the vast majority of road building in the seven projects will be for temporary roads and that the deleterious effects on nearby streams from sedimentation will be temporary and minimal. The sediment that does reach a stream is quickly flushed downstream. According to Mr. Ellis, any sediment reaching the Chattooga River has been diluted to several thousandths of its original concentration. The Forest Service has also submitted the affidavit of Gaylord Morris, the Forest Wildlife Biologist' for the Chattahooehee/Oconee National Forest from 1989 through 1995. He states that Dr. Haney has vastly overstated the loss of migratory songbirds that will be caused by the seven timber cutting projects. He also states that the effect upon migratory songbirds from timber cutting is de minimis compared to the effects of agricultural activity, tornadoes, hurricanes, wild fires, microbursts and droughts that destroy wild birds. He also addressed the claim of the Plaintiffs that the seven timber cutting projects will result in less “wildlife diversity.” Mr. Morris contends that the projects will result in an increase in diversity of both wildlife species and habitats. He states that adding a grass and shrub component in an area dominated by mature forests will provide additional habitat for species such as the redtail hawk that hunt their prey in forest openings, and prairie warblers, indigo buntings and yellow-breasted chats that feed and nest near forest openings. He states that at any point in time, less than five percent of the National Forest is in the early successional (0-10 year age class) condition. Thus, he states that there is minimal early successional habitat available for those species dependent upon openings in the forest canopy for hunting, nesting and brood rearing habitat. On the other hand, habitat for species that depend upon mature forests is available in abundance (95 percent of the National Forest land). After the Complaint was filed, the Defendants and the timber purchasers agreed to a voluntary stay of activities in the seven projects. The Court scheduled oral argument for May 1, 1996. On April 26, 1996, the Southern Timber Purchasers Council, Mr. Bert Thomas, Cook Brothers Lumber Company, Inc., Parton Lumber Company, Inc., and Thrift Brothers Lumber Company, Inc. filed a Motion to Intervene on the Side of the Defendants. They are representatives of the southeastern timber industry who harvest timber in the Chattahoochee and Oconee National Forests. They claim that their legal and economic interests would be adversely affected by the relief requested by Plaintiffs. The Motion to Intervene was granted as to all but the Southern Timber Purchasers Council. On May 8, 1996, this Court granted Plaintiffs’ Motion for a Preliminary Injunction. The Court held that Forest Service approval of the timber cutting' projects violated the Migratory Bird Treaty Act, and, therefore, was unlawful within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The Court reserved ruling upon the Clean Water Act and National Forest Management Act claims. The Intervenors and the federal Defendants appealed the Preliminary Injunction Order to the Court of Appeals for the Eleventh Circuit. The Court of Appeals reversed, holding that the Migratory Bird Treaty Act does not apply to federal agency actions that result in the death of migratory birds or the destruction of their nests. Sierra Club v. Martin, 933 F.Supp. 1559 (N.D.Ga.1996), reversed 110 F.3d 1551 (11th Cir.1997). Accordingly, Defendants’ and Intervenors’ motions for summary judgment on the Migratory Bird Treaty Act claim should be granted. While the appeal to the Eleventh Circuit was pending, this Court granted the Plaintiffs’ Motion for a Preliminary Injunction on their claims pursuant to the National Forest Management Act and the National Environmental Policy Act. The Court concluded that the Plaintiffs would ultimately prevail upon their claims that the Defendants violated the National Environmental Policy Act, the National Forest Management Act, the Forest Service regulations implementing the National Forest Management Act and the Chattahoochee- National Forest Land Resource Management Plan itself. Sierra Club v. Martin, 1996 WL 452257 (N.D.Ga.1996). That Order was not appealed. Count I of the Plaintiffs’ Complaint containing their Clean Water Act claims was voluntarily dismissed. After discovery, the Plaintiffs moved for summary judgment. The federal Defendants and the Intervenors filed cross-motions for summary judgment. On August 15, 1997, this case was one of almost 300 open civil eases that were reassigned to the undersigned upon his appointment to the United States District Court for the Northern District of Georgia. In support of their motion for summary judgment, the Plaintiffs rely upon the Court’s previous Orders granting their motions for preliminary injunctive relief. They contend that the findings of fact and conclusions of law of the prior Orders mandate a final judgment in their favor. However, findings of fact and conclusions of law reached at the preliminary stages of this litigation do not bind the Court on final disposition of the case on the merits. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); E. Remy Martin & Co., S.A. v. Shaw-Ross Intern. Imports, Inc., 756 F.2d 1525, 1528 (11th Cir.1985). In the Court’s -view, its duty was to engage in a de novo review of the entire file, including the Administrative Record, in order to arrive at a final decision on the merits of this case. That is what the Court has done. In addition, the Court concludes that the previous Orders are inconsistent with the weight of authority that has developed during the pendency of this litigation. Finally, the Court’s prior conclusion that the Plaintiffs were likely to succeed on the merits of their Migratory Bird Treaty Act claim has been overruled by the Eleventh Circuit. For the reasons set forth below, the Court feels compelled to reach a different conclusion from that of the Court in ruling upon the preliminary injunction motions. In a Motion for Leave to File Supplemental Brief filed on November 10, 1997, Plaintiffs argue that the seven timber projects violate that National Forest Management Act provision that requires that even-aged timber cutting (also known as “clear cutting”) is to be used only when it is “consistent with the protection of soil, watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of the timber resource[es].” 16 U.S.C. § 1604(g)(3)(F)(v). Plaintiffs cite the recent decision in Sierra Club v. Glickman, 974 F.Supp. 905 (E.D.Tex.1997). Until this pleading was filed, Plaintiffs’ only claim regarding this section of the statute was that the Forest Service violated it by killing migratory birds in violation of the Migratory Bird Treaty Act. (Amended Complaint, ¶ 107). That claim has no merit in view of the ruling by the Eleventh Circuit in this case. The Court finds that the Plaintiffs failed to raise this new claim in a timely fashion before this Court. See U.S. v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-8, 73 S.Ct. 67, 97 L.Ed. 54 (1952); Glisson v. U.S. Forest Service, 55 F.3d 1325, 1326 (7th Cir.1995); Sharps v. U.S. Forest Service, 28 F.3d 851, 854-55 (8th Cir.1994). Therefore, this claim will not be considered and the Motion for Leave to File Supplemental Brief [Doc. No. 84] is DENIED. III. NATIONAL FOREST LEGISLATION AND REGULATIONS Congress passed the Organic Administration Act of 1897 in order to give direction for the management of forest reserves on federally owned land. In 1905, Congress transferred virtually all administrative responsibilities for the nation’s forest reserves to the Department of Agriculture. Shortly thereafter, the Division of Forestry (headed by Gifford Pinchot) was renamed as the Forest Service and the forest reserves were designated as National Forests. Charles F. Wilkinson and H. Michael Anderson, Land and Resource Planning in the National Forest, 64 Or.L.Rev. 1, 18 (1985) [hereinafter cited as “Wilkinson & Anderson”]. Pinchot was an innovative leader who believed that planning would allow the use and preservation of all of the resources of the National Forests. He required planners to prepare detailed inventories, to monitor the condition of the reserves, determine sustainable use levels, and to exclude specific areas from certain uses where necessary to protect the watershed and other resources. Id. at 23. These were the building blocks of “scientific forest management.” Prior to the 1950s, the Forest Service was able to manage the National Forests without significant controversy. Management of range, timber and non-commercial resources did not often interfere with each other. Id. at 28. This changed after World War II due to the explosion of demand for timber and an equally large increase in recreational use of the National Forests. During the late 1950s, the agency was under increasing pressure to change its management policies. Lumber interests sought further increases in the allowable rate of timber cutting while preservation interests urged legislation to prohibit the agency from harvesting or developing the remaining wilderness in the national forests. The agency responded to these pressures for ‘overuse’ and ‘single use’ by proposing legislation mandating multiple use. Id. at 29. The result was the Multiple-Use Sustained-Yield Act of 1960. The Act provided in part that: “It is the policy of the Congress 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. In other words, the Forest Service was directed to manage the National Forests for conflicting and sometimes opposing uses. The Act gave no clue as to how to reconcile these conflicts. . Wilkinson & Anderson, p. 286. During the 1960’s, the Forest Service continued to increase timber sales and expanded the use of clear cutting. Wilkinson & Anderson, p. 41. Environmentalists claimed that the Forest Service was destroying the National Forests in order to satisfy timber interests. The lawsuits began. In 1975, the Court of Appeals for the Fourth Circuit held that clear cutting was prohibited by the 1897 Organic Act that authorized the Forest Service to sell dead or mature trees that had been marked and designated before sale. West Virginia Division of Izaak Walton League of America, v. Butz, 522 F.2d 945, 948 (4th Cir.1975). This spurred intense debate in Congress regarding the timber harvesting policies of the Forest Service. As a result of that debate, the National Forest Management Act of 1976 was passed and signed into law. Wilkinson & Anderson, pp. 40-42. The National Forest Mánagement Act provided that the National Forests would continue to be managed through “coordination of multiple-use and sustained-yield opportunities as provided in the Multiple-Use Sustained-Yield Act of 1960...” 16 U.S.C. § 1600(3). See also 16 U.S.C. § 1607. The Act provided that the Forest Service would develop national forest system land and resource management plans for each unit of the national forest system. The land resource management plans were to be prepared by interdisciplinary teams “based on inventories of the applicable resources of the forest...” 16 U.S.C. § 1604(f)(3). The Forest Service was directed to promulgate regulations setting out the “process for the development and revision of the land management plans----”16 U.S.C. § 1604(g). The regulations were to specify procedures for complying with the National Environmental Policy Act, including direction on when and for what plans an environmental impact statement should be prepared. 16 U.S.C. § 1604(g)(1). The regulations were to specify guidelines (1) for the identification of the suitability of lands for resource management; (2) provide for obtaining inventory data on the various renewable resources, soil and water; and (3) 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)(2-3). The Act also stated that forest system regulations should be adopted to insure that timber will be harvested from forest system lands only where (1) soil, slope or other watershed conditions will not be irreversibly damaged; (2) there is assurance that harvested areas can be adequately restocked within five years; (3) protection is provided for streams, stream banks, shorelines, and other bodies of water where timber harvesting is likely to seriously and adversely affect water conditions or fish habitat; and (4) the harvesting system to be used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber. 16 U.S.C. § 1604(g)(3)(E). The statute also required the adoption of guidelines that would restrict clear cutting in some circumstances. 16 U.S.C. § 1604(g)(3)(F). The statute further provided that resource plans, permits, contracts and other instruments for the use and occupancy of national forest system lands “shall be consistent with the land management plans.” 16 U.S.C. § 1604(f). The Act directed the Secretary of Agriculture to appoint a committee of scientists to assist in the adoption of the regulations. 16 U.S.C. § 1604(h)(1). The regulations adopted pursuant to the National Forest Management Act are set forth in 36 C.F.R. § 219.1 et seq. The regulations are not models of clarity. Indeed, they provide a persuasive argument against allowing a committee of scientists to draft regulations having legal consequences. In a very real sense, the Forest Service has brought this litigation upon itself by imposing upon itself the broad, sweeping and - extravagantly general duties and responsibilities set forth in the regulations. The Plaintiffs’ principal claim in this case is that the Forest Service has acted arbitrarily and capriciously by failing to follow its own regulations in approving the seven timber sales. The Plaintiffs rely upon four sections of the regulations in arguing that the Forest Service was required to conduct population inventories and trend analyses for sensitive species before approving the timber • sales. The regulations will be examined individually to determine (1) whether the regulation applies to a site-specific decision such as approval of a timber sale, and (2) whether the regulation requires the sort of quantitative population data and trend analysis 'demanded by Plaintiffs. Plaintiffs first rely upon a portion of 36 C.F.R. § 219.12(d) in - support of their argument that population inventories and population trend analyses for sensitive species were required prior to approval of the timber sales. In order to address this argument, the regulation as a whole must be examined. Section 219.12 is entitled: “Forest Planning-Process.”. Subsection (a) states: General requirements. The preparation, -revision, or significant amendment of a forest plan shall comply with the requirements established in this section. The planning process includes at least those actions set forth in paragraphs (b) through (k)- of the section. Some actions may occur simultaneously, and it may be necessary to repeat an action as additional information becomes available. The environmental impact statement, for each forest plan shall be prepared according to NEPA procedures. To the extent feasible, a single process shall be used to meet planning and NEPA requirements. 36 C.F.R. § 219.12(a). Subsections (b) and (e) deal with the planning process and criteria. Subsection (d) then provides as follows, with the portions relied upon by Plaintiffs italicized: Inventory Data and Information Collection. Each Forest Supervisor shall obtain and keep current inventory data appropriate for planning and managing the resources under his or her administrative jurisdiction. The supervisor will assure that the interdisciplinary team has access to the best available data. This may require that special inventories or studies be prepared. The interdisciplinary team shall collect, assemble, and use data, maps, graphic material and explanatory aids, of a kind, character, and quality, and to the detail appropriate for the management decisions to be made____ • 36 C.F.R. § 219.12(d) [emphasis added]. This regulation is fraught with ambiguity. However, it appears to the Court that it was intended to apply only to the process of preparing the Land Resource Management Plans required by Section 6 of the National Forest Management Act, 16 U.S.C. § 1604(a). The regulation begins with the explicit statement that it governs the “preparation, revision or significant amendment of a forest plan.” It then describes the planning process and the criteria to guide the planning process. Subsection (i) provides that the Forest Supervisor shall recommend to the Regional Forester a preferred alternative in the “proposed plan.” Subsection (j) provides that the Regional Forester “shall review the proposed plan and final environmental impact statement and either approve or disapprove the plan in accordance with § 219.10(c).” Subsection (k) sets forth the monitoring requirements to be identified in the forest plan. Subsection (d) of 36 C.F.R. § 219.12 does state that the Forest Supervisor shall obtain and keep current inventory , data appropriate for “planning, and managing” the, resources under his or her jurisdiction. This vague and ambiguous prescription may be construed to apply to site-specific decisions such as timber sales because of the inclusion of the term “managing” in addition to “planning.” However, even assuming that subsection (d) applies to a decision to sell a tract of timber, it only requires that Forest Supervisor to have the data that is “appropriate” for the decision. Subsection (d) neither authorizes nor requires a District Court Judge to require the Forest Service to have any particular type or quantum of data before approving a timber sale. ' Significantly, the initial draft of Section 219.12 provided that the Forest Service should inventory “existing vegetation or biotic communities and associated fish and wildlife resources.” This language was deleted as being “unduly burdensome on the agency.” Wilkinson & Anderson, pp. 304-305, note 1623. The regulation proposed by the Committee of Scientists required the Forest Service to obtain “quantitative” data as to timber species, range conditions and forage availability. It did not impose a requirement for “quantitative” inventories of fish and wildlife. Final Report of the Committee of Scientists, 44 Fed.Reg. 26650 (May 4, 1979). The regulation now in effect does not require the Forest Service to have quantitative data as to timber or. fish and wildlife. As the Defendants point out, the regulation as finally adopted does not even mention the term “sensitive species.” Accordingly, the Court rejects the Plaintiffs’ argument that 36 C.F.R. § 219.12(d), either alone or in conjunction with other regulations, imposes upon the Forest Service the burden of having quantitative population data and population trend data for all “sensitive species” in the Forest before approving the timber sales at issue in this litigation. Plaintiffs also contend that 36 C.F.R. 219.19 requires the Forest Service to conduct population inventories and population trend data for sensitive species. The initial paragraph of the regulation states: Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued exis: tence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area. 36 C.F.R. § 219.19. Again, it appears to the Court that this vague and ambiguous prescription was intended to apply to the formulation and monitoring of forest plans rather than site-specific decisions such as approval of a timber sale. “Planning area” is defined as the national forest area covered by a “forest plan.” 36 C.F.R. § 219.3. Therefore, maintaining viable populations is a mandate that applies with respect to the Forest as a whole and not to each area affected by a site-specific decision, such as a timber sale. Wilkinson & Anderson, p. 297, note 1587. In any event, the regulation requires the Forest Service to manage “habitat.” It does not authorize or require a reviewing Court to impose upon the Forest Service the duty to obtain any particular type or quantum of data before approving a timber sale. As Defendants again point out, the regulation does not even mention “sensitive species.” The Court cannot read into the Regulation a requirement to survey particular species of plants and wildlife when such a requirement is plainly not stated in the regulation. Plaintiffs argue that the necessity for maintaining quantitative data can be inferred from the mandate of maintaining viable populations of existing species. If the necessity of maintaining quantitative data is to be inferred from the objective of “maintaining viable populations,” this would require the Forest Service to have this data as to all “existing native and desired non-native vertebrate species in the planning area.” For this data to be meaningful in terms of site-specific decisions, the Forest Service would also have to have quantitative population data on all desirable vertebrate species in each individual site. Furthermore, to follow the Plaintiffs’ argument to its conclusion, the Forest Service would also have to have quantitative data as to all species at the forest level and at the site-specific level over sufficient chronological intervals to make meaningful judgments as to population trends. The Court is not convinced that the Forest Service meant to impose upon itself such a manifestly onerous burden before it could approve a timber sale. In addition to the general statement set forth above, subsection (a) of Section 219.19 directs the Forest Service to identify certain “management indicator species” to be selected “because their population changes are believed to indicate the effects of management activities.” 36 C.F.R. § 219.19(a)(1). Subsection (a)(2) then provides: “Planning alternatives shall be stated and evaluated in terms of both amount and quality of habitat and of animal population trends of the management indicator species.” Subsection (a)(6) states: “Population trends of the management indicator species will be monitored and relationships to habit changes determined.” This is one of only two sections of the regulations that refer to population trends. Once again, this regulation does not even refer to “sensitive species.” It neither directs nor requires the Forest Service to maintain any particular type or quantum of data regarding “sensitive species.” The Court concludes that the intent of the regulation is that population trends of management indicator species must be monitored for the formulation and implementation of forest plans. The regulation does not require population data for sensitive species for approval of site-specific decisions such as a timber sale. If the. Forest Service was required to have population data for all sensitive species, there would be no need to use the management indicator species concept at all. Counsel for Plaintiffs submitted a letter brief following oral argument on the pending motions. In it, counsel suggested that the Forest Service could and should engage in “periodic quantitative surveys, with sampling and statistical analysis” for the management indicator species and sensitive species. The Court agrees that such surveys would provide useful information and should be performed in an ideal world. However, the issue is not what is desirable in an ideal world, but what is required by the applicable statute" and regulations. The issue to be decided is "whether the Forest Service acted arbitrarily-and capriciously in approving the seven timber sales without performing such surveys as to the many sensitive species in the Chattahoochee National Forest and the 20 management indicator species. There is no basis in the statute or the regulations for reaching such a conclusion. In the real world, the Forest Service may properly take the position that its limited resources may be better spent than, performing the type of surveys suggested by Plaintiffs. For example, the Forest Service might decide that it should spend its resources on land acquisition or on erosion and sediment control measures on the old logging roads affecting the West Fork of the Chattooga River rather than on quantitative surveys with sampling and statistical analyses that will withstand the most demanding methodological critique. Plaintiffs also rely upon 36 C.F.R. § 219.26 to argue that the Forest Service must collect inventory data that includes past and present quantitative data regarding sensitive species. The regulation states: Forest planning shall provide for diversity "of plant and animal communities and tree species consistent with the overall multiple-use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition. For each planning alternative, the interdisciplinary team shall consider how diversity will be affected by various mixes of resource outputs and uses, including proposed management practices. 36 C.F.R. § 219.26. The regulation makes no mention of “sensitive species” at all. Once again, it appears to the Court that this is a regulation intended to govern the process of formulating forest plans rather than making site-specific decisions such as timber sales. Once again, if the requirement for quantitative population data is to be inferred from the goal of advancing “diversity of plant and animal communities,” the Forest Service would have to obtain such data for all plant and animal species in the Forest. For such data to be meaningful for site-specific decisions such as a timber sale, the Forest Service would-also have to obtain this data for every species for every area that might be subject to a timber sale and it would have to have the data at sufficient chronological intervals to compare present and prior conditions. This regulation is another example of poor draftsmanship. It is a textbook example of the mischief that arises when a concept that is useful in one context gets applied in a broader context. The concept of “diversity” entered into the debate over National Forest management in terms of maintaining a diversity of forest tree species. One of the concerns that led to enactment of the National Forest Management Act vyas the concern that Forest Service approved clear cutting of the National Forests would turn them into uniform “pine tree farms.” Wilkinson & Anderson, p. 294. One goal of the Act was to mandate preservation of a diverse forest that would include harvestable pine trees as well as the old growth hardwoods that take decades to replace. The discussion of the diversity regulation in the Report of the Committee of Scientists focused almost exclusively upon this issue of conversion of timber stands from one type of the species to another. Final Report of the Committee of Scientists, 44 Fed.Reg. 26608-9 (May 4, 1979). Maintaining quantitative data as to the diversity of tree species is both feasible and useful. Trees can be counted. They do not hide in burrows during daylight hours or, like the spotted salamander, appear above ground to mate only a few days of the year. Trees do not wander about the forest. Meaningful quantitative surveys can be made of the number of oak trees in the Forest versus the number of loblolly pine trees in the forest in 1990 versus 1980. With respect to wildlife, it appears to the Court that diversity measured in terms of available habitat is the objective of the Act and of 36 C.F.R. § 219.26. Therefore, the Court is compelled to reject the Plaintiffs’ argument that this regulation imposes a mandate upon the Forest Service to have quantitative population data and population trend analysis for all sensitive species in the Forest before it can approve timber sales such as' those at issue in this litigation. In addition to the regulations, the Plaintiffs also rely upon certain provisions in the Forest Service Manual. The manual provides that the Forest Service will develop and implement management practices to insure that species do not become threatened or endangered because of Forest Service actions. Forest Service Manual § 2670.2(1). It will maintain viable populations of “all native and desired non-native wildlife, fish and plant species in habitats distributed throughout their geographic range on national forest system lands.” Forest Service Manual § 2670.2(2). It will also develop and implement management objectives for “populations and/or habitat of sensitive species.” Forest Service Manual § 2670.2(3). It will, as part of the National Environmental Policy Act process, review programs and activities “through a biological evaluation, to determine their potential effect on sensitive species.” Forest Service Manual § 2670.3(2). It will avoid or minimize impacts to species whose viability has been identified as a concern. Forest Service Manual § 2670.3(3). It will “[¡Identify, manage, and protect essential and critical habitats to meet legal requirements and recovery objectives for Federally listed species; identify, protect and manage habitat necessary to meet sensitive species objectives.” Forest Service Manual § 2670.46(2). The manual provides specific guidance as to the process and content of a biological evaluation to be performed as a part of the National Environmental Policy Act process. It must be performed by a biologist or a botanist. Forest Service Manual § 2672.42. The biological evaluation must identify all Endangered Species Act listed, proposed and Forest Service identified sensitive species (the “PETS” species) known or expected to be in the project area or that the project potentially affects. Forest Service Manual § 2672.42(1). It must identify and describe all occupied and unoccupied habitat recognized as essential for “listed or proposed species recovery, or to meet Forest Service objectives for sensitive species.” Forest Service Manual § 2672.42(2). It must contain “[a]n analysis of the effects of the proposed action on species or their occupied habitat or on any unoccupied habitat required for recovery.” Forest Service Manual § 2672.42(3). Nothing in the excerpts from the Forest Service Manual submitted to the Court impose upon the Forest Service the duty to have and maintain the sort of quantitative population data and population trend analysis data that Plaintiffs demand before approval of site-specific decisions such as timber sales. A final observation applies to all of the regulations discussed above. If the regulations apply to site-specific decisions, they are so vague and general that they create no judicially enforceable standard for the Court to determine when the agency has sufficient data and when it has insufficient data. If the Court remanded this case to the agency based upon Plaintiffs’ interpretation of the regulations, it could only order it to collect more data without articulating how much more is enough. If the Court remanded this ease to the agency, it would, in effect, take over the management of the Chattahoochee National Forest with respect to timber sales. That is not the role of a reviewing Court under the Administrative Procedure Act. This analysis of the National Forest Management Act and the regulations is generally consistent with the developing case law in this area. An important case is the recent decision of the Ninth Circuit in Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d 754 (9th Cir.1996). In that case, the plaintiffs alleged that the Forest Service failed to comply with. 36 C.F.R. § 219.19 in approving eight timber sales. The court did hold that the regulation applied to site-specific projects such as timber sales. As in this case, the- plaintiffs claimed that the Forest Service was required to have population data, including population trend data, for the sensitive species living in each project area. The Ninth Circuit rejected this claim, and held that the Forest Service can comply with § 219.19 by maintaining sufficient habitat to assure viability of each species. The court held that the Forest Service is entitled to rely upon reasonable assumptions in its environmental analyses. The court noted that for the smaller, more reclusive species such as the pileated woodpecker, there is no technically reliable and cost-effective method of counting individual members of the species. Accordingly, the court upheld the dse of the management indicator species concept in terms of assessing indirect and cumulative effects of Forest Service action. Claims similar to those made by the Plaintiff in this case were also rejected in Krichbaum v. Kelley, 844 F.Supp. 1107 (W.D.Va. 1994), aff'd 61 F.3d 900, 1995 WL 449668 (4th Cir.1995). The court there rejected the argument that 36 C.F.R. §§ 219.12 and 219.26 required the Forest Service to have detailed lists of the plants and animals in each area of a timber sale. The court also upheld the use of the management indicator species list as a proxy for other plant and animal species. The court observed that the “diversity” requirement of the regulation was so vaguely defined that “the court is hard-pressed to find in it any substantive command to consider any particular creature.” Id., 844 F.Supp at 1114. The court then concluded that the process employed by the Forest Service (virtually identical to what was done here) was not arbitrary and capricious, and granted judgment in favor of the defendants. See also Sharps v. U.S. Forest Service, 823 F.Supp. 668, 679 (D.S.D.1993), aff'd 28 F.3d 851 (8th Cir.1994); Seattle Audubon Soc. v. Moseley, 80 F.3d 1401, 1404 (1996); Environment Now v. Espy, 877 F.Supp. 1397, 1422 (E.D.Cal.1994). Plaintiffs also rely upon the National Environmental Policy Act. They contend that the Forest Service acted arbitrarily and capriciously and unlawfully in performing the Environmental Assessments for the subject timber project without having the quantitative data that Plaintiffs say must be considered in making a site-specific decision under the National Forest Management Act and the Forest Plan for the Chattahoochee National Forest. Pursuant to the National Environmental Policy Act, a federal agency must prepare an environmental impact statement for any major federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). In order to determine whether the environmental impact statement should be prepared, the agency may first prepare an “environmental assessment.” 40 C.F.R. §§ 1501.3. This environmental assessment has been described as a “rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement ... is necessary.” Cronin v. U.S. Dept. of Agriculture, 919 F.2d 439, 443 (7th Cir.1990). See also 40 C.F.R. § 1508.9. An Environmental Assessment is expected to be brief and concise. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir.1996); Sierra Club v. U.S.