On Friday, Sept. 13, 2002, Biodiversity Conservation Alliance of Laramie and Brian Brademeyer of Rapid City, South Dakota asked a U.S. District Court judge to strike down as unconstitutional recent legislation that suspended all laws and existing court orders in order to allow logging, thinning, and road construction in some of the last remaining wildlands of the Black Hills National Forest under the guise of wildfire control. The Black Hills provision, known as a rider (an unrelated legislative provision tacked on to an appropriations bill) was pushed by South Dakota Senator Tom Daschle.

We are challenging the fact that Congress violated the constitutional principle of separation of powers by allowing environmentally destructive actions in the Beaver Park Roadless Area and Norbeck Wildlife Preserve of the Black Hills National Forest. Separation of powers is violated where Congress has directed certain implementation or findings in pending litigation but has not changed any underlying law. The Rider mandates specific results and actions on the Black Hills National Forest and mandates how laws are to be executed, a discretion that lies within the executive branch, not Congress. The Rider also authorizes, logging, thinning, and road construction to proceed in contravention of two successful lawsuits we filed to protect the natural values of Beaver Park and Norbeck. In a blatant attempt to restrict the ability of citizens to protect our environment, the Rider further orders that the courts cannot review the Rider, eliminating all opportunity to ensure the health of our environment and our communities is protected.

"The United States Forest Service has previously failed to show that logging in Beaver Park and Norbeck can proceed without violating environmental laws - laws that are in place to protect the forest, its natural values, and the health of our communities" said Jeremy Nichols with Biodiversity Conservation Alliance. "Instead of complying with the law, they asked Congress for a loophole and, unfortunately, Senator Daschle was willing to oblige." Daschle's Rider passed in August 2002, allowing lawless logging in Beaver Park and Norbeck, two of last three remaining roadless areas to exist on the Black Hills National Forest and two of the most biologically diverse areas of the Forest. Some of the last remnants of naturally occurring old growth ponderosa pine, habitat that is virtually nonexistent on the forest, exist in these wildlands, providing habitat for imperiled native species.

"Senator Daschle greatly overstepped the boundaries of Congressional authority in this misguided legislation," stated Brian Brademeyer of Rapid City. Consequently, Brademeyer and Biodiversity Conservation Alliance filed a motion asking a Federal Judge in Denver, Colorado to rule the Rider as unconstitutional. A ruling is expected in mid-October.

While the Rider purports to address "emergency conditions" by reducing the risk of wildfire to protect lives and homes in the Black Hills, it is highly unlikely that the Rider could ever achieve these results.

According to U.S. Forest Service research by Jack Cohen, effective treatments that mitigate the impacts of wildfire to homes and communities must focus on the home and its immediate surroundings. Cohen's research shows that it is not wildfire behavior (e.g., size and intensity) that determines whether a home will burn, but how ignitable a home and its surroundings are. Cohen has concluded that unless fire protection addresses home ignitability, or the likelihood that a home will ignite from nearby flames, then

Explained Nichols, "Congress and the U.S. Forest Service claim that to protect lives and property the natural values within the Black Hills must be sacrified. However, the Forest Service's own research shows otherwise."

Biodiversity Conservation Alliance also questions whether the legislation can actually have any effect on fire behavior. "According to Forest Service information, the entire Black Hills National Forest has been logged at least twice in the past century. If logging and thinning were the solution to any 'fire risk' on the Black Hills, there should be no problem," said Nichols. "The real issue here is people living in an environment where fire is and will continue to be a major ecological force. We'll never change fire on the Black Hills, but we can change our behavior."

"The bottom line is this Rider isn't good for the Black Hills and it's not good for the health of our communities. You don't burn the constitution to control wildfire," said Nichols.