Last Norbeck Option is Supreme Court

Last Norbeck Option is Supreme Court

Anyone driving west from Mount Rushmore on Highway 244 is confronted by the severe damage being inflicted upon the Norbeck Wildlife Preserve, not by pine beetles but by the US Forest Service. Friends of the Norbeck and Native Ecosystems Council have one last option to stop this senseless logging damage: appealing the Norbeck case to the US Supreme Court.

The Norbeck Wildlife Preserve is one of the most special places on Earth. The soaring granite spires and old-growth forest make this small area an ideal Sanctuary for sensitive wildlife species.

Congress recognized this special character in 1920, when it created the Preserve for the “protection of game animals and birds” and their breeding places. Despite this special wildlife protection mandate, the Forest Service has been trying for decades to extend its commercial timber program into the Norbeck Preserve.

In the Needles/Grizzly litigation beginning in the 1990’s, the Tenth Circuit Court of Appeals rejected the Forest Service’s claims that, by providing a diversity of habitats through logging, it would meet the wildlife mandates of Norbeck, ruling in 2001 that the specific wildlife mandates established by Congress took precedence over forest-wide wildlife management direction.

While the Needles/Grizzly case was in Court, the Forest Service revised the Black Hills Forest Plan, weakening both forest-wide and Norbeck-specific wildlife protections. In addition, the Forest Service redefined the “protection” mandate in a manner that removed any special wildlife obligations under the Norbeck Act.

The resulting massive logging project was immediately challenged by litigation that ended up at the Eighth Circuit Court of Appeals in 2010. The Forest Service argued that the Court should defer entirely to agency discretion, since the “protection” and “breeding place” language of the Norbeck Act was too vague to represent codified legal direction. The Court disagreed with this reasoning.

However, the Eighth Circuit did ultimately rule in favor of the Forest Service, saying they had met their lowest legal obligation by presenting a “reasonable” analysis of their proposed actions. The Eighth Circuit did not address the failure of the Forest Service to meet even its own forest-wide wildlife protection standards for the proposed Norbeck logging actions, standards weaker than those that the Tenth Circuit had previously rejected as failing to give “full force” to the specific Congressional wildlife mandates of the Norbeck Preserve.

So we have Congress (Legislative Branch) establishing the Norbeck Preserve with specific wildlife protection and breeding place mandates; the Forest Service (Executive Branch) arguing that the agency should have sole discretion on Norbeck management; the Tenth Circuit Court of Appeals (Judicial Branch) ruling that the “full force” of the Congressional wildlife mandates must be the controlling legal authority within the Norbeck Preserve; and the Eighth Circuit Court of Appeals (Judicial Branch) ruling that the Forest Service’s “reasonable” justification of its proposed actions was legally sufficient.

The Norbeck case, therefore, represents a disagreement among all three branches of the Federal Government on how to manage the Norbeck Preserve, including among two circuits of the Federal Judiciary, making the case a “percolating issue” ripe for review by the Supreme Court.

We have 90 days from the Eighth Circuit decision to submit the petition to the Supreme Court, making the final deadline next St. Valentine’s Day.