Pe’ Sla lawsuit tests Forest Service ‘active management’ shift in the Black Hills

PE’ SLA – NDN Collective, Black Hills Clean Water Alliance, and Earthworks have filed suit against the U.S. Forest Service over its decision to allow exploratory drilling next to Pe’ Sla, a sacred Lakota site in the Black Hills, arguing the agency unlawfully bypassed federal environmental review requirements and violated prior commitments to protect the area.

The lawsuit challenges a categorical exclusion (CE) the Forest Service issued in late February for a project proposed by Pete Lien and Sons. The exclusion allows the company to proceed with exploratory drilling adjacent to Pe’ Sla without preparing an Environmental Assessment (EA) or a more detailed Environmental Impact Statement (EIS) under the National Environmental Policy Act, commonly known as NEPA. Tribal and environmental advocates say that decision treats industrial activity next to one of the most important Lakota ceremonial landscapes as if it were a routine, low-impact action.

Pe’ Sla has been a place of prayer and ceremony for the Lakota and other Indigenous peoples for thousands of years. In 2014, the Forest Service and representative Tribal nations of the Oceti Sakowin signed a Memorandum of Understanding (MOU) formally recognizing Pe’ Sla as a place of “profound cultural and religious significance.” The agreement established a two-mile buffer zone around the site and committed the agency to protecting the area from development that would undermine its cultural and spiritual use.

NDN Collective General Counsel Tracey Zephier said the categorical exclusion issued for the Pete Lien project violates both NEPA and the spirit of that 2014 agreement. She argues the project fails to meet basic criteria for a categorical exclusion and triggers what NEPA regulations refer to as “extraordinary circumstances,” which are supposed to prevent agencies from shortcutting environmental review. “The project will adversely impact the religious and cultural uses of Pe’ Sla,” Zephier said. She also contends the drilling cannot reasonably be completed in under a year, another condition for using a categorical exclusion.

Under NEPA, when extraordinary circumstances are present, agencies are barred from relying on categorical exclusions and must instead analyze potential impacts through at least an Environmental Assessment and, if warranted, a full Environmental Impact Statement. Extraordinary circumstances can include effects on endangered or threatened species, designated critical habitat, historic properties, American Indian sacred sites and other cultural or archaeological resources, as well as certain environmentally sensitive areas. The plaintiffs argue that Pe’ Sla clearly falls into those categories and that the Forest Service should be required to conduct a comprehensive review in consultation with tribes rather than allowing exploratory drilling to move forward under a streamlined process.

In a press release announcing the lawsuit, Zephier said the groups are asking a federal court to vacate the Forest Service’s approval of the project and to halt any further action until the agency complies with NEPA. The complaint centers on both the adequacy of the review and the lack of meaningful tribal consultation before issuing the exclusion.

NDN Collective President Wizipan Little Elk Garriott said the use of a categorical exclusion at Pe’ Sla is part of a broader pattern of federal agencies sidestepping environmental safeguards when industrial projects conflict with Indigenous rights and sacred places. He said that by claiming there are no extenuating circumstances, the Forest Service is effectively declaring that drilling near a site long recognized as sacred does not warrant closer scrutiny.

“Getting a categorical exclusion means they don’t have to follow the law, they don’t have to follow NEPA. They don’t have to do an EA or an EIS and they can just move forward with the project,” Garriott said. “The justification for doing that is that there are no extenuating circumstances, when that is just plainly false. If a project is going to last more than a year, then it requires an EA or EIS and has to go through the scoping process.”

Garriott said there has been no thorough analysis of what the exploratory drilling might mean for water, wildlife, or cultural resources in the Pe’ Sla area, and no adequate consultation with tribes who pray and hold ceremonies there. He stressed that Pe’ Sla is not a single point, but an entire landscape imbued with cultural and spiritual meaning. “We have been praying there for thousands of years. It’s not just a single site within the area. The entire area of Pe’ Sla is sacred,” he said. To advance drilling without full review, he added, amounts to an “attack” on that sacred landscape.

According to Garriott, the case at Pe’ Sla reflects what is happening to Indigenous sacred sites across the continent, where mining, drilling and other forms of extraction are expanding even as climate-related stresses increase. “There are sacred sites all over that are being attacked and desecrated, that are under threat. This is just a continuation of a regime that is trying to do away with any kind of environmental protections,” he said. He also framed the issue as one that should concern all residents of the Black Hills, not only tribal nations, pointing to the potential impacts on water resources. “This isn’t just a threat to our sacred sites but is also a threat to just basic clean drinking water in the area,” he said.

The dispute over Pe’ Sla comes as the U.S. Department of Agriculture (USDA) is undertaking a major reorganization of the Forest Service that will shift how national forests, including the Black Hills, are managed and how scientific research is conducted. USDA says it will refocus the agency on “active management,” including increased timber production and other on-the-ground operations, and streamline decision-making by placing more authority in state-based leadership offices.

Under the new structure, the Black Hills National Forest (BHNF) will be overseen by a Northern Plains State Office based in Cheyenne, Wyoming. USDA says the change will improve coordination with local partners and tribes on timber harvests, grazing, wildfire mitigation, and tribal priorities, while cutting bureaucracy. At the same time, the Forest Service plans to close dozens of research facilities and consolidate its research enterprise in Colorado, including shutting down the Rapid City Forest and Grassland Research Laboratory, which has long provided region-specific science to forest and grassland managers.

Forest Service Chief Tom Schultz has defended the consolidation, saying it is intended to organize research “more efficiently” rather than reduce the agency’s commitment to science. But climate and environmental law experts, including the Sabin Center for Climate Change Law at Columbia University, have warned that closing local labs could disrupt long-running experiments and weaken the base of regional ecological knowledge used to guide management decisions.

For critics of the Pe’ Sla decision, the timing of the realignment underscores what they see as a shift away from science-based, locally informed management and toward a model that favors industrial use. They argue that allowing exploratory drilling to proceed next to a site like Pe’ Sla under a categorical exclusion, while simultaneously dismantling local research infrastructure, illustrates how procedural shortcuts and structural changes can work together to undermine both environmental protections and Indigenous rights.

As the lawsuit moves forward, Pe’ Sla may be emerging as a test of how far the Forest Service’s new approach to “active management” will go, and whether existing laws and agreements are strong enough to force the agency to slow down, listen to tribes and fully examine the consequences of development next to sacred ground and water resources.

(Contact Marnie Cook at cookm8715@gmail.com)

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