Zimmer, Duncan & Cole

Nature-Lovers, Chainsaws, and a Great Governor

When the Forest Service announced a plan to begin logging the oldest trees in the Black Hills, a pair of environmental groups filed suit to keep the wildlife preserve untouched. The case is called Friends of the Norbeck v. United States Forest Service.

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Since this week’s case involves the Norbeck Wildlife Preserve, we’ll start with a quick detour into the life of one of our greatest governors. Peter Norbeck was an influential “founding father” of our State and the first governor born in South Dakota (to Scandinavian immigrants homesteading in a sod shanty near Vermillion). After college, Norbeck made a successful living as a farmer and well-driller, and then spent the last three decades of his life in public service. Norbeck was a progressive Republican, cut from the same cloth as Theodore Roosevelt.  He started the state cement plant; a state coal mine; and a program for free school textbooks. But above all, Norbeck was fiercely devoted to the cause of conservation.  He first visited the Black Hills at age 35 and spent the rest of his life inspired as its champion. He was the driving force behind Mt. Rushmore, the Needles Highway, Custer State Park, and a federal wildlife preserve surrounding Harney Peak.  Congress renamed the 44-square mile preserve to honor his legacy.

The Norbeck Preserve was established “for the protection of game animals and birds.”  It is pristine forest, untouched by logging, mining, or development. The Preserve is home to hundreds of species of birds and animals, including some that are rare or threatened.  They live among very dense stands of “old growth” ponderosa pine. After years of successfully preventing wildfires, the Forest Service unintentionally created an area that is overgrown and at risk of a catastrophic fire.  Recently, an outbreak of mountain pine beetles began killing off the old pines.  At the current rate, all of the old-growth trees will be dead of natural causes by 2020. To prevent or manage this cataclysm, the Forest Service adopted a plan to thin the forest with controlled burns and logging.  In addition, it adopted a plan to closely monitor and protect twelve “focus” species in the preserve, with the hope that those twelve would be representative of the hundreds found there. 

Two environmental groups challenged the Forest Service plan, suggesting, instead, that the area should be left untouched.  They questioned whether the list of twelve, focus species accurately reflected the range of wildlife to be protected.  And they advocated a ban on cattle grazing in the preserve.

In response, the Forest Service argued its plan was reasonable, even if not perfect. 

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 Federal agencies are the arms of the executive branch:  creating and enforcing rules and regulations that turn Congress’s laws into action. Administrative agencies have a tremendous amount of power with relatively little oversight.  Its officers are not elected, but instead serve at the pleasure of the President. It is very, very difficult to challenge agency decisions in court.  Normally, its actions are upheld, as long as they are not completely arbitrary or in violation of the law.

Courts recognize that there are always numerous ways in which an agency could implement congressional policy.  In addition, an agency is presumed to have more expertise and training than the federal judge looking over their shoulder.  Further, the agency officials are selected by the President, so its decisions are considered an extension of his electoral mandate.

Here, the Forest Service was told by Congress in 1920 to create and manage the Norbeck Preserve “for the protection of game animals and birds.”  This broad mandate was not accompanied by any more specific standards. The federal court here (as in all administrative cases) refused to substitute its judgment for the Forest Service’s.  It deferred, instead, to the biologists and foresters who developed the logging plan.

The court noted the complex interrelationships among species in the Preserve:  thinning the old pines would help some threatened species, but would reduce Merriam’s turkey and white-tailed deer; however, turkey and deer are abundant in other areas of the Black Hills.  Meanwhile, a certain species of woodpecker thrives on mountain pine beetles, but destroys the nesting habitat for other species.

In the end, the court refused to second-guess the Forest Service and approved its logging and management plan for the Norbeck Preserve.