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High Court offers last change to save wildlife


High court offers last chance to save wildlife

6:54 PM, Dec. 14, 2011
Sioux Falls Argus Leader

Written by
Brian D. Brademeyer

My Voice

Brian D. Brademeyer, 61, of Rapid City is the executive director of Friends of the Norbeck and the Black Hills regional director of the Native Ecosystems Council.

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 U.S. 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 U.S. 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 1990s, the 10th U.S. 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 forestwide wildlife management direction.

While the Needles/Grizzly case was in court, the Forest Service revised the Black Hills Forest Plan, weakening both forestwide 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 immediately was challenged by litigation that ended up at the 8th U.S. 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 8th Circuit ultimately did rule in favor of the Forest Service, saying it had met the lowest legal obligation by presenting a reasonable analysis of its proposed actions. The 8th Circuit did not address the failure of the Forest Service to meet even its own forestwide wildlife protection standards for the proposed Norbeck logging actions, standards weaker than those that the 10th Circuit previously had rejected as failing to give full force to the specific congressional wildlife mandates of the Norbeck Preserve.

So we have Congress establishing the Norbeck Preserve with specific wildlife protection and breeding place mandates, the Forest Service arguing that the agency should have sole discretion on Norbeck management, the 10th Circuit ruling that the full force of the congressional wildlife mandates must be the controlling legal authority within the Norbeck Preserve, and the 8th Circuit ruling that the Forest Service's reasonable justification of its proposed actions was sufficient legally.

The Norbeck case, therefore, represents a disagreement among all three branches of the federal government on how to manage the Norbeck Preserve, making the case a percolating issue ripe for review by the Supreme Court.

We have 90 days from the 8th Circuit decision to submit the petition to the Supreme Court, making the final deadline St. Valentine's Day.


Mission Statement

"Defenders of the Black Hills is a group of volunteers without racial or tribal boundaries whose mission is to preserve, protect, and restore the environment of the 1851 and 1868 Treaty Territories, Treaties made between the United States and the Great Sioux Nation."

Speaking about radioactive fallout, the late President John F. Kennedy said,

"Even then, the number of children and grandchildren with cancer in their bones, with leukemia in their blood, or with poison in their lungs might seem statistically small to some, in comparison with natural health hazards. But this is not a natural health hazard and it is not a statistical issue. The loss of even one human life, or the malformation of even one baby who may be born long after we are gone, should be of concern to us all. Our children and grandchildren are not merely statistics toward which we can be indifferent."

July 26, 1963 upon signing the ban on above ground nuclear tests