ELR Citation: ELR 20016
No(s). 99-1445 (10th Cir. Aug 8, 2001)

The court reverses a district court decision dismissing environmental groups' claim that the U.S. Forest Service's commercial timber harvest plans for the Norbeck Wildlife Preserve in South Dakota violate administrative law, the National Environmental Policy Act (NEPA), and the Norbeck Organic Act. The Forest Service relied on the National Forest Management Act's (NFMA's) interest in overall plant and animal diversity to justify the fact that certain species in the preserve might be compromised as a result of the harvest plans, and the district court found that the Forest Service's plans complied with NEPA. The court first holds that the Norbeck Organic Act requires the protection of game animals and birds, not the overall protection of all plant and animal species. The court also holds that the Norbeck Organic Act permits timber harvests in only limited situations, and contrary to the Forest Service's view, the Act is not subordinate to the NFMA. Thus, for the harvest plans to be consistent with law, they must satisfy the Norbeck Organic Act. On remand, therefore, the Forest Service must show specifically that game animals and birds are protected under the proposed timber harvest plans.

Counsel for Plaintiffs
Jack R. Tuholske
Law Offices of Jack R. Tuholske
P.O. Box 7458, Missoula MT 59807
(406) 721-2729

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

McKay, J. Before Ebel, J., dissenting, and Lucero, J.