ELR Citation: ELR 20854
No(s). s. 92-15635, -16288 (9th Cir. Apr 8, 1994)

The court affirms a district court decision that Title VI of the Arizona-Idaho Conservation Act of 1988 (AICA), which provides for construction of seven telescopes on Emerald Peak of Mount Graham in Arizona, does not violate the constitutional separation-of-powers doctrine, and that a native American coalition's challenge to the project under the National Historic Preservation Act (NHPA) is barred by laches. The AICA provides that the issuance of a special use permit for the first three telescopes is deemed to satisfy the requirements of the Endangered Species Act (ESA) and orders the Secretary of the Interior to approve immediately the construction of the telescopes and associated support and access facilities. The AICA further provides that the requirements of the National Environmental Policy Act (NEPA) are deemed met for purposes of approving construction of the first three telescopes and directs the U.S. Forest Service (Forest Service) to develop and implement a plan consistent with the construction of seven telescopes on Emerald Peak. The AICA provides that the remaining four telescopes and related facilities must be authorized and constructed in accordance with all applicable law. The court first holds that the AICA does not violate the constitutional separation-of-powers doctrine, because it mandates a change in law, not specific results under old law. Nothing in the statute directs a court to apply the requirements set forth in the project's construction plan in any specific manner. Also, the AICA does not usurp the Forest Service's authority to decide if the requirements of the ESA or NEPA have been met. Rather, it exempts the project from those requirements and substitutes new ones. The AICA left intact the Forest Service's power to ensure that the project conformed with the new requirements.

Turning to the coalition's argument that the Forest Service violated the NHPA in finding that the Emerald Peak contained no cultural resources, the court holds that the district court failed to apply the appropriate standard for determining if the coalition's claim was barred by laches. The court holds that the appropriate standard is the NEPA laches standard, under which the laches doctrine is invoked sparingly, because the two statutory schemes are closely related and the NHPA's implementing regulations contemplate that NEPA and NHPA review should be integrated closely. The court holds that the district court abused its discretion by applying the wrong standard, but decides not to remand for further factual development, because the factual record is sufficiently developed and resolving the issue furthers judicial economy by obviating the need to reach the merits.

The court holds that the coalition's claim is barred by laches, because the coalition brought its claim with inexcusable delay and allowing the coalition's claim to proceed would result in undue prejudice to respondents. The court holds that the coalition and the San Carlos Apache tribe, to which the Forest Service sent notice of its environmental impact statement (EIS) for the project and which demanded cessation of the project, should be treated as a single entity for puposes of laches analysis. The coalition is composed of members of the tribe and its stated purpose is to protect and preserve traditional Apache culture. Also, the coalition's primary arguments focus on how the Forest Service's implementation of the NHPA ignored the interests of the San Carlos Apache as a tribe.

The court finds that the coalition asserted its rights in this action with inexcusable delay, because the tribe was solicited for input concerning Mount Graham and its cultural resources starting in 1985. In 1986, the tribe failed to respond to the Forest Service's request for comments on its draft EIS, and in 1988, the tribe asked to have its name taken off the mailing list for the final EIS. The Forest Service sent the tribe the final EIS nevertheless, but the tribe failed to provide comment or input. The court holds that laches should be measured not from the issuance of the special use permit, but from the onset of the NHPA review process beginning with the Forest Service's first attempts to elicit the tribe's input in 1985, because the agency action the coalition challenges could have been remedied had the tribe not removed itself from the NHPA process. Also, no parties other than the tribe will suffer from measuring the laches period from 1985, and case law supports using 1985 as the beginning of the laches period. The court holds that the tribe's communications with the Forest Service do not preclude a finding of unreasonable delay, because the tribe was informed in the mid-1980s that telescopes might be constructed on Mount Graham and yet purposefully shunned the NHPA process. The coalition did not bring suit until more than two years after the issuance of the special use permit, and although the tribe informed the Forest Service briefly and in general terms that it had objections to the issuance of the permit prior to filing suit, it ignored the Forest Service's prompt expression of its willingness to listen to the tribe's concerns and proposals. The coalition then delayed filing for over one year, while construction of the facilities on Mount Graham proceeded. Based on caselaw and the coalition's failure to file suit until two years after the relevant agency action, the court holds that the delay of six years between 1985 and the date the coalition filed suit was unreasonable. The court rejects the argument that the coalition is also challenging ongoing NHPA violations, which are not barred by laches, because the alleged ongoing violations would not be occurring if the tribe had not consistently ignored the NHPA process. Finally, the court finds delaying the project would result in substantial prejudice to respondents, because at the time the coalition filed its complaint, construction was 35 percent complete and respondents had expended almost $4 million. Also, in light of the AICA and the progress on the project to date, the telescopes would not be removed from the mountain even if an injunction were issued, and thus the harm the coalition fears has become irreversible.

[Decisions in related litigation are published at 22 ELR 20391 and 20691. Pleadings in this litigation are published at PEND. LIT. 66277.]

Counsel for Plaintiffs
Michael R. Lozeau
709 Baker St., San Francisco CA 94115
(415) 775-4520

Counsel for Defendants
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000