Friends of the Norbeck v. United States Forest Serv., No. 11–1661.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtMURPHY
Citation73 ERC 1769,661 F.3d 969
Docket NumberNo. 11–1661.
Decision Date16 November 2011
PartiesFRIENDS OF THE NORBECK; Native Ecosystems Council, Appellants, v. UNITED STATES FOREST SERVICE; Rick Cables, Regional Forester, Appellees,State of South Dakota; Jeff Vonk, in his official capacity as Secretary of the South Dakota Department of Game, Fish, and Parks, Intervenors below-Appellees.

661 F.3d 969
73 ERC 1769

FRIENDS OF THE NORBECK; Native Ecosystems Council, Appellants,
v.
UNITED STATES FOREST SERVICE; Rick Cables, Regional Forester, Appellees,State of South Dakota; Jeff Vonk, in his official capacity as Secretary of the South Dakota Department of Game, Fish, and Parks, Intervenors below-Appellees.

No. 11–1661.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 18, 2011.Filed: Nov. 16, 2011.


[661 F.3d 971]

John Philip Meyer, argued, Kelly Elizabeth Purcell Bennett, Bozeman, MT, for appellant.

Allen M. Brabender, argued, Alison D. Garner, on the brief, Washington, DC, for

[661 F.3d 972]

appellees United States Forest Service and Rick Cables.

Diane Patrick Best, AAG, argued, Sioux Falls, SD, Charles David McGuigan, AAG, Pierre, SD, for appellees State of South Dakota and Jeff Vonk.

Before MURPHY, BYE, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

Friends of the Norbeck and Native Ecosystems Council (collectively Friends of the Norbeck) brought this action against the United States Forest Service in connection with its Norbeck Wildlife Project (the Project). The State of South Dakota and the South Dakota Department of Game, Fish, and Parks (collectively South Dakota) intervened to defend the Project. The district court 1 dismissed the complaint, concluding in relevant part that Friends of the Norbeck failed to exhaust the administrative remedies for their National Environmental Policy Act (NEPA) claim and that the Project was not arbitrary, capricious, or contrary to the Norbeck Organic Act (NOA). On appeal, Friends of the Norbeck argue that the Forest Service violated NEPA and the NOA by approving the Project. We affirm.

I.

The Norbeck Wildlife Preserve is located within the Black Hills National Forest in South Dakota. The Forest Service manages the approximately 28,000 acres of public land within the Preserve. The NOA created the Preserve in 1920 by stating that the land “be set aside for the protection of game animals and birds, and be recognized as a breeding place therefor.” 16 U.S.C. § 675. It contains one of the last old growth forests in the Black Hills and provides habitat for many species of animals and birds, some of which have been designated as rare or sensitive.

Years of wildfire suppression in the Preserve have led to the predominance of ponderosa pine in overly dense stands, decreasing the prevalence of other types of habitat and creating a substantial risk of catastrophic fire. Additionally, in 2006 the mountain pine beetle began killing ponderosa pine stands within the Black Elk Wilderness at the center of the Preserve. The outbreak is expected to spread throughout the Preserve by 2013 and kill nearly all of the late successional pines by 2020. The Forest Service developed the Project, which consists of thinning trees through controlled fire and select logging on 6,000 acres, to respond to these two threats and to “improve the habitat for game animals and birds.”

The Forest Service's past management actions in the Preserve have been the subject of federal litigation and congressional legislation. In 1994 and 1995, the Forest Service approved two unrelated logging projects in the Preserve, which were challenged by the Sierra Club Black Hills Group. The Tenth Circuit remanded for the Forest Service to reconsider the projects, holding that the Forest Service must develop projects that comply first with the “narrow parameters” of the NOA, supplemented with the more general mandate of the National Forest Management Act (NFMA). Sierra Club–Black Hills Group v. U.S. Forest Service, 259 F.3d 1281, 1288–89 (10th Cir.2001).

In 2002 Congress explicitly authorized the two logging projects that the Tenth

[661 F.3d 973]

Circuit had addressed and stated generally that the Forest Service “is authorized to use the full spectrum of management tools including prescribed fire and silvicultural treatments to benefit game animal and bird habitat in meeting the purposes of the Norbeck Organic Act.” Pub.L. No. 107–206 § 706(h). Congress also required the Forest Service and the South Dakota Department of Game, Fish, and Parks (South Dakota Parks Department) to enter into a memorandum of understanding on procedures for monitoring the effects of management activities, consulting on habitat management, and reviewing and recommending any changes to the direction of the Preserve. Id. § 706(i).

In response to the congressional directive, the Forest Service and South Dakota Parks Department began a joint assessment of the Preserve. Because the unique habitat needs of the Preserve's game animal and bird species sometimes conflict with one another and it is not possible to design management activities around every species, the Forest Service and South Dakota Parks Department biologists, with stakeholder input, selected twelve species that use key habitat elements with the objective that habitat management for those species “will provide for all game animals and birds” in the Preserve. This is referred to as the focus species list, and the Project is designed around the habitat needs of these game animals and birds.

The Forest Service began preparing an Environmental Impact Statement (EIS) in 2007 with a proposed action plan and a no action alternative. It then added two additional alternatives to take into account the mountain pine beetle outbreak and included all four alternatives in the EIS. The Forest Service released the final EIS in March 2010. The Forest Service district ranger issued a Record of Decision, selecting alternative 4, which proposed prescribed burning and logging throughout the Preserve, with modifications to eliminate any action in the Black Elk Wilderness and to adjust the timing of the activities to minimize the impact on spring breeding.

Friends of the Norbeck challenged the decision in administrative proceedings, and the administrative appeals officer affirmed. Friends of the Norbeck then filed this action in federal court, and South Dakota intervened in support of the Project. The district court dismissed the complaint, concluding in part that Friends of the Norbeck failed to exhaust the administrative remedies for their NEPA claim and that the Project was not arbitrary, capricious, or contrary to the mandate of the NOA. On appeal, Friends of the Norbeck pursue only their claims that the Forest Service violated NEPA by not preparing an EIS for the focus species list and that the Project violates the NOA because it will kill or displace game animals and birds as well as damage their habitat.

II.

We first address whether Friends of the Norbeck can bring their NEPA claim in federal court. While NEPA does not authorize a private right of action, the Administrative Procedure Act (APA) permits judicial review of whether an agency's action complied with NEPA. Sierra Club v. Kimbell, 623 F.3d 549, 558–59 (8th Cir.2010). NEPA's purpose is to ensure a fully informed and well considered decision, Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), and disclosure to the public that the agency has considered environmental concerns in its decisionmaking.

[661 F.3d 974]

Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). As such, NEPA's mandate is “essentially procedural” and its rules do not govern the substance of the decision itself. Vt. Yankee Nuclear Power Corp., 435 U.S. at 558, 98 S.Ct. 1197. An agency “is not constrained by NEPA from deciding that other values outweigh the...

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26 practice notes
  • Fond Du Lac Band of Lake Superior Chippewa v. Wheeler, Case No. 19-CV-2489 (PJS/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 16 février 2021
    ...rights that depend on the census and the apportionment" (citation omitted)); Friends of the Norbeck v. U.S. Forest Serv. , 661 F.3d 969, 975 (8th Cir. 2011) (holding that a statutory provision designating a preserve "for the protection of game animals and birds" and "as a breeding place the......
  • Temple v. Horses, CIV. 15-5062-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 19 février 2016
    ...be given an opportunity to correct before being hailed into federal court. See Friends of the Norbeck v. United States Forest Serv. , 661 F.3d 969, 974 (8th Cir.2011). It is also more efficient for Mr. Temple to take up these disputes directly with the BIA rather than through litigation in ......
  • Northport Health Servs. of Ark., LLC v. U.S. Dep't of Health & Human Servs., No. 20-1799
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 1 octobre 2021
    ...agency action violates the APA." Simmons v. Smith, 888 F.3d 994, 998 (8th Cir. 2018) (quoting Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011) ); see also 5 U.S.C. § 706 ("[T]he reviewing court shall decide all relevant questions of law, interpret constitutiona......
  • Fond du Lac Band of Lake Superior Chippewa v. Wheeler, Case No. 19-CV-2489 (PJS/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 16 février 2021
    ...representational rights that depend on the census and the apportionment" (citation omitted)); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011) (holding that a statutory provision designating a preserve "for the protection of game animals and birds" and "as a br......
  • Request a trial to view additional results
26 cases
  • Fond Du Lac Band of Lake Superior Chippewa v. Wheeler, Case No. 19-CV-2489 (PJS/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 16 février 2021
    ...rights that depend on the census and the apportionment" (citation omitted)); Friends of the Norbeck v. U.S. Forest Serv. , 661 F.3d 969, 975 (8th Cir. 2011) (holding that a statutory provision designating a preserve "for the protection of game animals and birds" and "as a breeding place the......
  • Temple v. Horses, CIV. 15-5062-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 19 février 2016
    ...be given an opportunity to correct before being hailed into federal court. See Friends of the Norbeck v. United States Forest Serv. , 661 F.3d 969, 974 (8th Cir.2011). It is also more efficient for Mr. Temple to take up these disputes directly with the BIA rather than through litigation in ......
  • Northport Health Servs. of Ark., LLC v. U.S. Dep't of Health & Human Servs., No. 20-1799
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 1 octobre 2021
    ...agency action violates the APA." Simmons v. Smith, 888 F.3d 994, 998 (8th Cir. 2018) (quoting Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011) ); see also 5 U.S.C. § 706 ("[T]he reviewing court shall decide all relevant questions of law, interpret constitutiona......
  • Fond du Lac Band of Lake Superior Chippewa v. Wheeler, Case No. 19-CV-2489 (PJS/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 16 février 2021
    ...representational rights that depend on the census and the apportionment" (citation omitted)); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011) (holding that a statutory provision designating a preserve "for the protection of game animals and birds" and "as a br......
  • Request a trial to view additional results

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