83 



Under EPA regulation "only discharges from four activities related to 

 silvicultural enterprises (rock cursing, gravel washing, log sorting and log 

 storage facilities) are considered point sources.... subject to NPDES 

 permitting requirements." 



(2) Migratory Bird Treaty Act (MBTA): The Sierra Club alleges that 

 the Forest Service's approval of the challenged timber sales violates the 

 MBTA. The Council's brief stated that "The Court should recognize that 

 acceptance of this grandiose theory would virtually halt timber harvesting 

 over a large proportion of the forested United States, and would subject 

 other innocent landowners to the threat of criminal prosecution or 

 injunctions against ordinary land use." 



Virtually ail birds in the U.S. are covered by international treaties and the 

 MBTA. If the MBTA allows an injunction against a land use or habitat 

 modification that would injure a single migratory bird or nest, the MBTA 

 would significantly constrain land uses nationwide. 



The MBTA., like all statutes, should be interpreted to avoid such absurd 

 or odd results. The Court should not so expand the MBTA without a 

 strong showing that Congress recognized and intended that the MBTA 

 impair Fifth Amendment property rights on such an extraordinarily broad 

 scale. This legislative intent cannot be discerned in the limited MBTA 

 statute enacted in 1918, when Congress's intent was to stop poaching. 



(3) National Forest Management Act (NFMA): The Sierra Club's claim 

 that the Forest Service must keep current population trend data on all 

 "sensitive species" is not enforceable. Neither the NFMA nor its 

 implementing regulations explicitly require information on all "sensitive 

 species." The Forest Service is only regulated to conduct appropriate 

 inventorying of resources during the process of preparing a forest plan 

 and the regulations leave the decision on the appropriate level of such 

 inventorying to the agency. 



Instead of requiring information on each of the thousands of species in a 

 given national forest or on all "sensitive species", the Forest Service 

 selects a "management Indicator Species".... a smaller group of species 

 used to "indicate the effects of management activities" on certain habitats. 

 It would be prohibitively expensive to repetitively survey each of the 

 749,000 acres in the Chattahoochee National Forest to obtain accurate 

 population counts and population trend information for dozens of 

 "sensitive species." The Court should be sensitive to the separation of 

 powers issues in demanding a level of information on "sensitive species" 

 that exceeds the legislative appropriation. 



