                    United States Court of Appeals,

                               Eleventh Circuit.

                                 No. 96-8840.

 SIERRA CLUB, The Wilderness Society, Georgia Forestwatch, Inc.,
The Armuchee Alliance, Rabun County Coalition to Save the Forest,
Inc., Friends of Georgia, Inc., Plaintiffs-Appellees,

                                       v.

 George G. MARTIN, in his official capacity as Forest Supervisor
of the Chattahoochee and Oconee National Forests, Robert C. Joslin,
Regional Forester of the United States Forest Service for Region
Eight, United States Forest Service, Bert Thomas, Cook Brothers
Lumber Company, Parton Lumber Co., Inc., Thrift Brothers Lumber
Co., Inc., Defendants-Appellants.

                               April 29, 1997.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:96-CV-926-FMH), Frank M. Hull, Judge.

Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior
Circuit Judge.

     BLACK, Circuit Judge:

     The United States Forest Service (Forest Service) and a group

of timber contractors, including Bert Thomas, Cook Brothers Lumber

Company, Inc., Parton Lumber Company, Inc., and Thrift Brothers

Lumber Company, Inc. (collectively Timber Contractors), appeal the

issuance of a preliminary injunction on May 8, 1996, ordering the

Forest   Service   to   stop    all   timber   cutting   and   road   building

activities in seven timber projects in the Chattahoochee and Oconee

National Forests in Georgia (collectively Chattahoochee).                   We

reverse.

                                I. BACKGROUND

A. The Litigation

     In 1991, pursuant to the Chattahoochee's land and resource

management plan, the Forest Service proposed to sell the rights to
                                                1
cut timber on seven parcels of land.                The seven parcels—Dunaway

Gap, Tibbs Trail, Upper Swallows Creek, Compartment 59, Compartment

05, Big Net, and South Corn Ridge—encompass approximately 2,103

acres out of the 846,000 acres that comprise the Chattahoochee.

Each       parcel   was   subject   to   a   separate,   formal   environmental

assessment in which an interdisciplinary team of Forest Service

employees, aided by public comment, considered the proposed sale

and possible alternatives.2          By late 1995, after it was determined

that the proposed projects would have no significant environmental

impact, all seven projects were approved and opened for bids.

       On April 17, 1996, a coalition of national and Georgia-based

environmental organizations, including Sierra Club, The Wilderness

Society, Georgia Forestwatch, Inc., The Armuchee Alliance, Rabun

County Coalition to Save the Forest, Inc., and Friends of Georgia,

Inc. (collectively Sierra Club), filed an action challenging the

Forest Service's decision to proceed with the timber projects.3

       1
      The Forest Service's administration of the National Forests
is governed by the National Forest Management Act (NFMA), 16
U.S.C. §§ 1600 et seq., under which the Forest Service has a duty
to "develop, maintain, and, as appropriate, revise land and
resource management plans for units of the National Forest
System." 16 U.S.C. § 1604(a).
       2
      The NFMA directs that land and resource management plans be
prepared in accordance with the National Environmental Policy Act
(NEPA), 42 U.S.C. §§ 4321 et seq., which in turn requires the
Forest Service to prepare environmental impact statements. 16
U.S.C. § 1604(g)(1).
       3
      Sierra Club (or one of the particular environmental
organizations) had previously obtained administrative review of
each project. At the time of the complaint, timber harvesting
and road building activity had begun on two of the seven timber
projects. Road building, but no timber harvesting, had begun on
a third project. One timber project had been sold, but not yet
implemented. The remaining three projects had not yet been
offered for sale.
The complaint alleged that the decision of the Forest Service to

allow timber cutting, logging, clearcutting, road building, and

related activities in the seven parcels violated the Clean Water

Act (CWA), 33 U.S.C. §§ 1251-1387, the Migratory Bird Treaty Act

(MBTA), 16 U.S.C. §§ 703-712,4 the National Forest Management Act
(NFMA), 16 U.S.C. §§ 1600      et   seq.,   and   their   implementing

regulations.   Sierra Club sought a temporary restraining order, a

preliminary injunction, and a permanent injunction. It also sought

a declaratory judgment that the Forest Service was in violation of

the CWA, MBTA, and the NFMA.   On April 19, 1996, in lieu of the

district court's granting a temporary restraining order, Sierra

     4
      In relevant part, the MBTA provides:

               Unless and except as permitted by regulations made
          as hereinafter provided in this subchapter, 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, offer for sale, sell, offer
          to barter, barter, offer to purchase, purchase, deliver
          for shipment, ship, export, import, cause to be
          shipped, exported, or imported, deliver for
          transportation, transport or cause to be transported,
          carry or cause to be carried, or receive for shipment,
          transportation, carriage, or export, any migratory
          bird, any part, nest, or egg of any such bird, or any
          product, whether or not manufactured, which consists,
          or is composed in whole or in part, of any such bird or
          any part, nest, or egg thereof, included in the terms
          of the conventions between the United States and Great
          Britain for the protection of migratory birds concluded
          August 16, 1916 (39 Stat. 1702), the United States and
          the United Mexican States for the protection of
          migratory birds and game mammals concluded February 7,
          1936, the United States and the Government of Japan for
          the protection of migratory birds and birds in danger
          of extinction, and their environment concluded March 4,
          1972 and the convention between the United States and
          the Union of Soviet Socialist Republics for the
          conservation of migratory birds and their environments
          concluded November 19, 1976.

     16 U.S.C. § 703.
Club and the Forest Service stipulated to a 20-day cessation of all

timber-cutting and road-building activities.

B. The Preliminary Injunction

     On May 8, 1996, the district court ordered the Forest Service

to "cause the cessation of all timbercutting and roadbuilding

activities," "not permit the commencement or continuation of those

activities," and "not offer any of those projects that are unsold"

through September 15, 1996.     The district court premised the

preliminary injunction on a finding that there was a substantial

likelihood that Sierra Club would ultimately prevail on the merits

of its claim that the Forest Service's actions violated the MBTA,

and reserved ruling on Sierra Club's remaining claims. On June 17,

1996, the district court allowed Timber Contractors, who had

existing contracts to purchase timber in four of the seven parcels,

to intervene.   Shortly thereafter, the Forest Service and Timber

Contractors instituted the present appeal challenging the district

court's order issuing the MBTA-based preliminary injunction.5

C. The MBTA Claim

     The Chattahoochee is home to numerous species of neotropical

migratory birds, which typically winter in Mexico or the Caribbean

and spend the nesting season in the Chattahoochee.     These birds

include species designated for protection under the MBTA.   Sierra


     5
      On September 15, 1996, the MBTA-based preliminary
injunction expired. Two days later, the district court issued
another preliminary injunction with the same scope that would
remain in effect until trial. This second preliminary injunction
was based on the Forest Service's violations of the NEPA, the
NFMA, the regulations thereunder, and the Chattahoochee's land
and resource management plan. The present appeal does not
concern this NEPA- and NFMA-based preliminary injunction.
Club asserted that the Forest Service's timber contracts violate

the MBTA because they allowed timber cutting during the migratory

bird nesting season and that tree cutting during nesting season

would directly kill at least 2,000 to 9,000 neotropical migratory

birds.6       The Forest Service did not dispute that cutting down a
                                                                         7
tree with an active nest directly killed migratory birds.                    The

district court held that the Forest Service's actions violated the

MBTA because "thousands of migratory birds will be killed directly

by cutting down trees with nests and juvenile birds in them."

Relying on Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60

L.Ed.2d 208 (1979), the district court concluded that Sierra Club

could obtain injunctive relief under the Administrative Procedure

Act (APA), 5 U.S.C. §§ 701-706, for the Forest Service's violation

of the MBTA, even though the MBTA does not create a private right

of action.8      The district court's preliminary injunction extended

only       through   September   15,   1996,   the   date   a   Forest   Service

memorandum identified as the time after which timber cutting would

have "no significant effect on the nesting success of migratory




       6
      Sierra Club (or one of the particular plaintiffs) had
raised MBTA issues in the administrative appeal of four of the
seven timber projects.
       7
      A Forest Service memorandum noted that tree cutting during
nesting season would kill migratory birds: "The loss of
individual nests and or birds is an un-avoidable cost of any type
of land management activity, whether it be agricultural plowing,
mowing, road maintenance, lawn maintenance, clearing land for
construction, or cutting trees."
       8
        The district court also held that Sierra Club had standing.
birds."9

     On appeal, the Forest Service asserts that the MBTA is a

criminal statute which does not address formal agency action;

therefore,     notwithstanding   the   APA's   provisions   for   judicial

review, there is no statutory violation for which a remedy would be

appropriate. Sierra Club counters that it states a claim under the

APA, with the MBTA serving as the predicate law with which the

Forest Service's actions are not in compliance.10

                        II. STANDARD OF REVIEW

         We apply a mixed standard when reviewing the grant or denial

of a preliminary injunction:

     We review the factfindings of the district court, to the
     extent they are properly presented on appeal, under the
     clearly erroneous standard. The district court's application
     of the law is subject to de novo review.      We review the
     district court's grant of injunctive relief for abuse of
     discretion, meaning we must affirm unless we at least
     determine that the district has made a "clear error of
     judgment," or has applied an incorrect legal standard.

SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325,

1333 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 79, 136

L.Ed.2d 37 (1996) (citations omitted).

                            III. DISCUSSION

A. Mootness

     9
      The Forest Service memorandum stated: "Crop Tree Release
conducted between September 15 and March 15 will have no
significant effect on the nesting success of migratory birds."
It appears that the district court interpreted "crop tree
release" to mean any and all timber cutting.
     10
      In addition, Timber Contractors assert that (1) the
district court misinterpreted the MBTA to prohibit timber
harvesting activities and (2) the district court abused its
discretion in issuing a preliminary injunction. We need not
address these arguments because we hold that no violation of the
MBTA could occur by any formal action of the Forest Service.
          Although the preliminary injunction at issue has already

expired, this appeal is not moot to the extent that the injunction

represents a continuing controversy capable of repetition, yet

evading review. To satisfy the "capable of repetition, yet evading

review" exception to mootness, the Supreme Court has required that

(1) there be a reasonable expectation or a demonstrated probability

that the same controversy will recur involving the same complaining

party, and (2) the challenged action is in its duration too short

to be fully litigated prior to its cessation or expiration. Murphy

v. Hunt, 455 U.S. 478, 482-83, 102 S.Ct. 1181, 1183-84, 71 L.Ed.2d

353 (1982);     National Solid Wastes Mgmt. Ass'n v. Alabama Dep't of

Envtl. Mgmt., 924 F.2d 1001, 1003 (11th Cir.), cert. denied, 501

U.S. 1206, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991).

     The seasonal nature of migratory bird nesting makes it likely

that the Forest Service will face another MBTA injunction at the

start of the next nesting season.    In spite of the expedited nature

of the present appeal, the four-month term of the preliminary

injunction was too short to allow for appellate review prior to its

expiration.     Any future MBTA-based injunction in this lengthy and

complex litigation will also be too short to be fully litigated

prior to its expiration.       As a result, the expired MBTA-based

preliminary injunction does not represent a moot controversy.

B. The Migratory Bird Treaty Act

      Sierra Club claims a right to judicial review of the Forest

Service's formal actions under the APA, 5 U.S.C. § 702.11       As a

     11
      5 U.S.C. § 702 provides, in relevant part: "A person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
procedural statute, the APA does not expand the substantive duties

of a federal agency, but merely provides the framework for judicial

review of agency action.      Accordingly, "[t]here is no right to sue

for a violation of the APA in the absence of a "relevant statute'

whose violation "forms the legal basis for [the] complaint.' "          El

Rescate Legal Servs., Inc. v. Executive Office of Immigration

Review, 959 F.2d 742, 753 (9th Cir.1991) (quoting Lujan v. National

Wildlife Fed'n, 497 U.S. 871, 883, 110 S.Ct. 3177, 3186, 111

L.Ed.2d 695 (1990));     see also Preferred Risk Mut. Ins. Co. v.

United States, 86 F.3d 789, 792 (8th Cir.1996) ("[T]he plaintiff

must identify a substantive statute or regulation that the agency

action   had   transgressed    and   establish   that   the   statute   or

regulation applies to the United States.").         Section 706, which

provides the scope of review, confirms this understanding.              It

provides, in relevant part, that a reviewing court shall:

          (2) 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.

5 U.S.C. § 706 (emphasis added).       An agency's actions could only

fail to be "in accordance with law" when that agency's actions are

subject to that law.          The issue then is whether the Forest

Service's actions are subject to the MBTA.         That is, the MBTA's

prohibitions must be addressed to the Forest Service's formal


relevant statute, is entitled to judicial review thereof."
Section 702 does not itself confer jurisdiction to review agency
action. Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980,
985, 51 L.Ed.2d 192 (1977). Jurisdiction stems from 28 U.S.C. §
1331, which provides: "The district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States."
actions in order for the Forest Service to be capable of violating

the MBTA.       See Chrysler v. Brown, 441 U.S. 281, 298-301, 99 S.Ct.

1705, 1716-17, 60 L.Ed.2d 208 (1979) (determining whether the Trade

Secrets Act, 18 U.S.C. § 1905, addresses formal agency action).

      The MBTA, by its plain language, does not subject the federal

government to its prohibitions.             The MBTA makes it unlawful to

"take"     or     "kill"   birds.     The   penalties    for   violating      its

prohibitions are set forth in 16 U.S.C. § 707, which provides that

a "person, association, partnership, or corporation" will be guilty
of a misdemeanor or felony and subject to fine or imprisonment or

both for violating the MBTA.12 Sierra Club nonetheless asserts that

because     the    prohibitions     are   stated   broadly—that   is,   "it    is

unlawful" to "take" or "kill"—it should be unlawful for anybody,

including federal agencies, to "take" or "kill" migratory birds.

     12
          Section 707 provides, in relevant part:

                      (a) Except as otherwise provided in this section,
                any person, association, partnership, or corporation
                who shall violate any provisions of said conventions or
                of this subchapter, or who shall violate or fail to
                comply with any regulation made pursuant to this
                subchapter shall be deemed guilty of a misdemeanor and
                upon conviction thereof shall be fined not more than
                $500 or be imprisoned not more than six months, or
                both.

                     (b) Whoever, in violation of this subchapter,
                shall knowingly—

                     (1) take by any manner whatsoever any migratory
                     bird with intent to sell, offer to sell, barter or
                     offer to barter such bird, or

                     (2) sell, offer for sale, barter or offer to
                     barter, any migratory bird shall be guilty of a
                     felony and shall be fined not more than $2,000 or
                     imprisoned not more than two years, or both.

     16 U.S.C. § 707 (emphasis added).
The MBTA, however, should be read as a whole to derive its plain

meaning.     See Beecham v. United States, 511 U.S. 368, 371-72, 114

S.Ct. 1669, 1671, 128 L.Ed.2d 383 (1994).           The MBTA is a criminal

statute     making   it   unlawful    only   for   persons,    associations,

partnerships, and corporations to "take" or "kill" migratory birds.

Moreover, there is no expression of congressional intent which

would     warrant    holding   that    "person"     includes   the    federal

government, thus enabling the United States to prosecute a federal

agency, or a federal official acting in his official capacity, for

taking or killing birds and destroying nests in violation of the

MBTA.     Congress has demonstrated that it knows how to subject

federal agencies to substantive requirements when it chooses to do

so.   For example, the term "person" in the Endangered Species Act

is defined to include "any officer, employee, agent, department, or

instrumentality of the Federal Government."           16 U.S.C. § 1532(13).

      The   historical    context     of   the   MBTA's   enactment   further

demonstrates that it does not apply to the federal government.             In

1897, Congress established the National Forest System " "[t]o

conserve the water flows, and to furnish a continuous supply of

timber for the people.' "       United States v. New Mexico, 438 U.S.

696, 707, 98 S.Ct. 3012, 3017-18, 57 L.Ed.2d 1052 (1978) (quoting

30 Cong.Rec. 967 (1897)).             In light of that purpose, it is

difficult to imagine that Congress enacted the MBTA barely twenty

years later intending to prohibit the Forest Service from taking or

killing a single migratory bird or nest "by any means or in any

manner" given that the Forest Service's authorization of logging on

federal lands inevitably results in the deaths of individual birds
and destruction of nests.          The application of the MBTA to the

federal    government    would     have   severely     impaired   the   Forest

Service's ability to comply with the congressional directive to

manage the national forests for timber production.

         Congress's subsequent enactment of legislation relating to

management of the National Forest System buttresses the conclusion

that the MBTA does not apply to the federal government.                 In the

NFMA, Congress expressed its intent that the Forest Service manage

forests for multiple uses, including timber production.                 See 16

U.S.C. § 528 ("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.").      Through   the     NFMA,   Congress    has    prescribed    the

procedures the Forest Service is to follow and the factors it is to

consider in making land management decisions.                 See 16 U.S.C. §

1604.    In the process of complying with the NFMA, NEPA, and their

implementing regulations, the Forest Service ensures that the

impact    of   land   management    on    migratory    bird   populations     is

considered in the context of ensuring viability of native species.

36 C.F.R. § 219.19. The viability regulation requires that, in the

context of multiple use planning, habitat be provided within the

forest to support a minimum number of reproductive individuals in

order to "maintain viable populations of existing native and

desired non-native vertebrate species in the planning area."                 Id.

The Forest Service's compliance with the viability regulation is

subject to judicial review in actions challenging timber sales

brought under the APA.           See, e.g., Inland Empire Public Lands
Council v. United States Forest Service, 88 F.3d 754, 759-63 (9th

Cir.1996);    Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401, 1404

(9th Cir.1996).13   Congress intended that the Forest Service follow

the NFMA's regulatory process, rather than the MBTA's criminal

prohibitions, in addressing conservation of migratory birds.

                           IV. CONCLUSION

       The MBTA does not apply to the federal government.     As no

violation of the MBTA could occur by any formal action of the

Forest Service, the Forest Service may not be enjoined under the

APA.

       REVERSED.




       13
      Sierra Club has asserted a claim alleging that the Forest
Service has failed to comply with the viability regulation, but
that claim is not a part of this appeal.
