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Western Division Friends of the Norbeck and Native v. U.S. Forest Service and Rick Cables

January 28, 2011


The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge


INTRODUCTION This matter is before the court pursuant to a lawsuit filed by non-profit organizations Friends of the Norbeck and Native Ecosystems Council (collectively "plaintiffs") against the United States Forest Service and Rick Cables, Regional Forester (collectively "Forest Service"). (Docket 10). Plaintiffs' complaint is based on the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. The State of South Dakota and Secretary Jeffrey Vonk entered the case as intervenors with the court's approval. (Docket 28). The parties fully briefed the issues in this case, which are ripe for adjudication on the merits.

FACTS AND PROCEDURAL HISTORY The following recitation consists of facts undisputed by the parties as set forth in their pleadings and memoranda (Dockets 10, 12, 27, 36, 45, & 48), relevant case law, and the administrative record, particularly the Record of Decision and the Final Environmental Impact Statement.

In 1912, Peter Norbeck, a respected state senator, governor, and eventual United States Senator, established the Custer State Forest, now known as Custer State Park. In 1920, Congress passed the Norbeck Organic Act ("NOA"), authorizing the President to create the Custer State Park Game Sanctuary by setting aside 30,000 acres of Harney National Forest, now known as the Black Hills National Forest, to adjoin the existing Custer State Forest (Custer State Park) "for the protection of game animals and birds and be recognized as a breeding place therefor." 16 U.S.C. § 675. Over time, boundaries were adjusted and acreage added. In 1949, Congress renamed the federal portion of the Custer State Park Game Sanctuary as the Norbeck Wildlife Preserve ("Preserve") to honor Peter Norbeck. The Preserve lies adjacent to Custer State Park.

The Preserve "has been largely protected from extensive extractive uses (such as mining, logging, and grazing) and provides valuable wildlife habitat. Significantly, the Norbeck Preserve contains one of the few remaining old growth forests in the Black Hills." Friends of the Norbeck v. U.S. Forest Service, No. 10-cv-2164-AP, 2010 WL 4137500 at *1 (D. Colo. Oct. 18, 2010). "The diverse geography ranges in elevation from 4,500 to 7,242 feet, providing habitat to multiple game animals, such as elk, deer, and mountain goats; over fifty bird species, including species of nuthatch and woodpeckers, the northern goshawk, ruffed grouse and Merriam's turkey; brook trout and other fish species; and to various non-game animals." Sierra Club-Black Hills Group v. U.S. Forest Service, 259 F.3d 1281, 1284 (10th Cir. 2001). The Forest Service manages the majority of the Preserve. Id. The Preserve consists predominately of public lands with some private land. Id. at n. 1.

In 1994 and 1995, the Forest Service approved two harvest projects and timber sales in the Needles and Grizzly areas of the Preserve. Id. The Forest Service approved the projects to enhance wildlife habitat in the Preserve in accordance with the National Forest Management Act ("NFMA"). Id. Litigation over the projects ensued. Id. The Court of the Appeals for the Tenth Circuit found the projects improper and remanded the matter to the Forest Service.

Id. at 1289. The Tenth Circuit directed the Forest Service to prioritize the NOA over the NFMA in its planning process for the Preserve. Id. at 1288-89; Friends of the Norbeck, 2010 WL 4137500 at *1.

In response to this litigation, Congress passed the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States, part of which provided further direction to the Forest Service in its management of the Preserve. Friends of the Norbeck, 2010 WL 4137500 at *1. Section 706 of the Act contained a rider that allowed the Needles and Grizzly projects to proceed, added 3,600 acres of the Preserve to the Black Elk Wilderness,*fn1 and required the Forest Service to consult with the South Dakota Department of Game, Fish and Parks in future management actions within the Preserve. Id. Congress authorized the Forest Service "to use the full spectrum of management tools including prescribed fire and silvicultural treatments to benefit game animal and bird habitat in meeting the purposes of the Norbeck Organic Act." Id.

Pursuant to this congressional directive, on September 7, 2004, the Forest Service and the South Dakota Department of Game, Fish and Parks entered into a Memorandum of Understanding regarding the management and monitoring of the Preserve. In 2006, participants in a Forest Service sponsored course completed a Norbeck Wildlife Preserve Landscape Assessment. The participants spent two weeks in the Black Hills reviewing management information and interviewing various interest groups and stakeholders, including members of the public and federal, state, and local agencies. The purpose of the assessment was to review forest and social conditions and draft recommendations for future planning and management activities within the Preserve. The assessment recommended the agencies, in accordance with the 2004 Memorandum of Understanding, (1) identify game animals and birds;*fn2 (2) design and evaluate habitat enhancement treatments in an integrated manner in the Preserve; and (3) engage interested stakeholders in the planning of management actions within the Preserve. Upon completion of the assessment, an open house was held on October 23, 2006, in Custer, South Dakota, to share information about the Preserve with the public and to discuss possible management options for improving habitat for game animals and birds.

From the assessment, the Norbeck Wildlife Project ("Project") was born. The goal of the Project was to implement wildlife habitat improvements within the Preserve, including prescribed burning within the Black Elk Wilderness. The purpose of the Project was to benefit game animals and birds by improving habitat conditions in the Preserve and to protect those habitats from wildfire escaping from the Black Elk Wilderness.

On July 31, 2007, the Forest Service published in the Federal Register a Notice of Intent to prepare an Environmental Impact Statement ("EIS") for the Project. The purpose of this notice was to encourage public input on the Project. On August 1, 2007, the Forest Service sent a scoping document to approximately 250 individuals, tribal representatives, interest groups, and other governmental entities. The scoping document explained the purpose and need for the Project, provided maps of the Project, and solicited comments on the Project. The Forest Service received 43 responses.

In May of 2008, the Forest Service completed a forest health evaluation of mountain pine beetle activity within the Preserve. The study reported heavy mortality of ponderosa pine because of the pine beetle infestation. The Forest Service modified the Project in part by proposing two additional action alternatives.

On May 14, 2009, the Rapid City Journal published an article discussing the Project and providing notice of a public meeting. This meeting occurred on May 19, 2009, in Hill City, South Dakota, and was open to the public.*fn3 On July 14, 2009, as a result of changes to the Project, the Forest Service published a revised Notice of Intent to prepare an EIS.

On November 27, 2009, the Forest Service published in the Federal Register a Notice of Availability ("NOA"). The NOA announced the availability of the draft EIS and initiated a 45-day comment period. A legal notice of the opportunity to comment on the draft EIS was published in the Rapid City Journal on November 27, 2009. On December 2, 2009, seven members of the public and two employees of the South Dakota Department of Game, Fish and Parks went on a public field trip to the Project area. A total of 49 comment letters on the draft EIS were received during the comment period. The Forest Service determined none of the comments generated a need for re-analysis or required major substantive changes to the draft EIS.

In March of 2010, the Forest Service issued a final EIS disclosing the direct, indirect, and cumulative environmental impacts of the Project. The final EIS identified five significant issues, including effects on wilderness values, effects on wildlife and wildlife habitat, effects on large trees, effects of the mountain pine beetle on wildlife habitat, and the potential for escaped fire. The final EIS considered four alternatives, including a "no action" alternative.

On March 27, 2010, the district ranger for the Hell Canyon Ranger District, Black Hills National Forest, signed the Record of Decision authorizing the Project and selecting alternative four. Alternative four originally called for the implementation of mechanical treatments on about 5,190 acres within the Preserve and 7,502 acres of prescribed burning, including up to 5,291 acres of burning within the Black Elk Wilderness. However, the Record of Decision modified alternative four in that work would take place only outside the Black Elk Wilderness. Project operations were limited to between August 1 through February 28 to address habitat issues such as spring calving and nesting. The Record of Decision also eliminated 246 acres of mechanical treatment originally proposed in alternative four.

Plaintiffs filed separate administrative appeals. The deputy forest supervisor for the Black Hills National Forest reviewed both appeals and recommended their denial. On July 14, 2010, the appeal deciding officer denied plaintiffs' appeals and affirmed the district ranger's decision approving the Project and its implementation.

Having exhausted their administrative remedies, plaintiffs jointly filed this lawsuit on September 3, 2010, in the United States District Court for the District of Colorado. (Docket 1). Plaintiffs sought federal judicial review under the APA. Id. Plaintiffs sought to overturn the Forest Service's decision approving the Project and its implementation, arguing the decision violated numerous environmental protection acts, namely, the NOA, 16 U.S.C. § 675, the NFMA, 16 U.S.C. §§ 1600-1614, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f. Id.

On October 1, 2010, and again on October 6, 2010, plaintiffs amended their complaint. (Dockets 6 & 10). On October 7, 2010, plaintiffs filed a motion for preliminary injunction pursuant to Fed. R. Civ. P. 65, seeking to enjoin the Forest Service from implementing the Project. (Docket 12).

On October 12, 2010, the State of South Dakota and Jeffrey Vonk, in his official capacity as the Secretary of the Department of Game, Fish and Parks (collectively "intervenors"), moved to intervene in the case. (Docket 15). The court granted the motion. (Docket 28). The Forest Service and intervenors denied plaintiffs' claims and ...

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