ELR Citation: ELR 20904
No(s). s. 94-16324, -16632 (9th Cir. Apr 24, 1995)

The court holds that the U.S. Forest Service must comply with Endangered Species Act (ESA) §7 and National Environmental Policy Act (NEPA) §102 before relocating the construction site for a large binocular telescope on Mount Graham in Arizona. In the Arizona-Idaho Conservation Act (AICA), Congress exempted from ESA and NEPA requirements three telescope construction sites for the University of Arizona's Mount Graham international observatory project. Congress adopted the three sites in AICA based on the U.S. Fish and Wildlife Service's third proposed "reasonable and prudent alternatives" (RPA 3) contained in the Forest Service's 1988 biological opinion. A map attached to RPA 3 as Figure A specified the three construction sites.

The court first holds that the defendants have not demonstrated that the new telescope falls within the parameters of the AICA's exemption. The court also holds that defendants failed to show that the AICA afforded the Forest Service discretion to select a site different from that indicated in RPA 3 Figure A. Also, the district court's finding that the proposed access road to the site did not qualify as a single access road as depicted in RPA 3 was not clearly erroneous. The court further holds that the AICA evidences Congress' intent that the telescope project get promptly underway after the Act's passage. Congress referenced and incorporated RPA 3 to facilitate immediate action and to preclude lengthy debate on the construction sites for the initial three telescopes. It is inconsistent with this aim to suggest that Congress would sanction the delays that would result from the selection of a different site and the litigation that would surely ensue. The court notes that its conclusion that AICA does not provide the Forest Service with the authority to select a site for the telescope other than that indicated in RPA 3 Figure A without complying with the ESA and NEPA does not compel the construction of the telescope on the site noted in RPA 3 Figure A. Rather, the court simply holds that, to relocate the telescope, the Forest Service must comply with ESA and NEPA requirements.

[Earlier decisions in this litigation are published at 22 ELR 20391 and 23 ELR 20691. Pleadings filed in related litigation are digested at ELR Pend. Lit. 66277].

Counsel for Plaintiffs
Eric Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendant
David C. Todd
Patton, Boggs & Blow
2550 M St. NW, Washington DC 20037
(202) 457-6000

Before Alarcon, Hall, and King,^* JJ.: