Black Hills Nat'l Forest's Beetle Infestation Plan Upheld - U.S. Tenth Circuit
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Black Hills Nat'l Forest's Beetle Infestation Plan Upheld

The Black Hills National Forest ("BHNF") straddles Wyoming and South Dakota, and its infestation by pine beetles has made the forest a subject of litigation in South Dakota, Wyoming, and Colorado.

Last week, the Tenth Circuit joined the Eighth Circuit Court of Appeals in denying environmental activist organizations the ability to challenge plans to address the pine beetle infestation in the BHNF, South Dakota Attorney General Marty Jackley announced.

The Plan

The Forest Service is tasked, under federal law, with managing the national forests, which includes promoting diversity of species of plant and animal life in the national forests. In trying to meet several goals, which includes dealing with fire hazards and insect infestation, the Forest Service examined several available alternatives and chose one that, in its view, "would not eliminate the risks of fire and insect infestation, but it would 'minimize negative watershed and wildlife impacts and ... reduce fire suppression costs.'"

The Forest Service noted, "[w]e cannot separate species viability from the effects
of fire and insects in" its plan, but it was willing to accept "'small short-term negative effects on fish, wildlife, and plant populations caused by vegetation treatments that reduce forest density' because it believed 'these treatments protect and provide habitat needed for long-term viability by reducing susceptibility to damaging fires and insect epidemics.'"

The Litigation

Environmental groups initiated two separate actions, one in district court in Wyoming, the other in district court in Colorado. In both cases, the environmental groups argued that the Forest Service violated federal laws and regulations in its approach to deal with the pine beetle infestation in the BHNF. In both cases, the district courts dismissed the actions, and the cases were consolidated on appeal to the Tenth Circuit.

The Tenth Circuit's Decision

In a 101-page opinion, the Tenth Circuit affirmed the Colorado and Wyoming district courts' opinions. The Tenth Circuit found that the Forest Service's plans concerning the BHNF should move forward. Wyoming Governor Matt Mead stated: "In this case we wanted to join the Forest Service in defending agriculture, the timber industry and the health of our forests. I am glad we prevailed."

South Dakota intervened in the action, and Attorney General Marty Jackley also released a statement lauding the Tenth Circuit's opinion. Jackley stated, "While the environmentalist groups have been well intentioned, the pine beetle infestation requires a responsible forestry plan to protect our forest, wildlife, and surrounding private lands and this decision now allows us to continue with this much needed plan."

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