ELR Citation: ELR 20088
No(s). 00-1222 (10th Cir. Aug 21, 2001)

The court holds that the U.S. Forest Service did not violate the National Forest Management Act (NFMA) or the Black Hills National Forest Plan in approving the Hollow Timber Sale in the Black Hills National Forest. The court first holds that the Forest Service did not unreasonably interpret the Black Hills Plan when it determined that the raptor habitat acreage provision of the plan is not binding and overriding. The court next holds that the Forest Service did not act arbitrarily or capriciously in adopting an alternative that favors animal species that prefer earlier successional stages of forest. The Forest Service actively and explicitly balanced the provisions of the Forest Plan and chose the alternative it did because, in the Forest Service's expert assessment, it best balanced the many issues identified in the scoping process and best met the multi-use and diversity requirements of the Forest Plan. The court additionally holds that the Forest Service adequately complied with NFMA §8(m)(2)'s requirement that an exception to trees being harvested before they achieve the culmination of mean annual incremental growth (CMAI) must be subject to public participation. Although the public participation requirements were not met at the time of approval of the Black Hills Plan, those requirements were met at the time of the approval of the Hollow Project. The Hollow Project environmental assessment (EA) sufficiently alerted the public that the actions considered entailed exceptions to CMAI and because those exceptions were subject to public participation at the time of the public scoping process associated with the Hollow Project EA, the Forest Service complied with the commands of §8(m)(2).

Counsel for Plaintiffs
Julie A. Teel
Earthjustice Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Lucero, J. Before Tacha and Reavley, ^* JJ.

* The Honorable Thomas M. Reavley, United States Court of Appeals for the Fifth Circuit, sitting by designation.