ELR Citation: ELR 20391
No(s). s. 89-16138 et al (9th Cir. Jan 21, 1992)

After withdrawing its December 11, 1991, opinion in this case, the court holds that the Arizona-Idaho Conservation Act (AICA), which establishes the Mount Graham International Observatory, deems the requirements of Endangered Species Act (ESA) §7 satisfied with respect to the first phase of construction of the astrophysical complex. An international consortium, including the University of Arizona, proposed building the world's largest and most sophisticated array of telescopes on Mount Graham in Arizona. Frustrated by delays resulting from environmental concerns and statutory implications over the Mount Graham red squirrel, the University of Arizona lobbied Congress to pass legislation authorizing the immediate construction of the complex on Mount Graham. Subsequently, Congress passed the AICA in 1988. Environmental groups challenged the AICA claiming the limitations in the Act on further consultation and review of environmental impacts to the red squirrel during the first phase of construction violated the ESA and the National Forest Management Act (NFMA).

Turning to the merits of the numerous appeals in this case, the court first holds that it has jurisdiction to review the district court's decision to delay a hearing on the environmental groups' motion to enjoin construction of the complex until after the access road had been substantially completed. Since a reversal of the district court's denial of preliminary injunctive relief would have no practical consequences, the appeal is dismissed. However, the court notes its dismay over the district court's denial of a hearing on the environmental groups' motion for a preliminary injunction regarding construction of the access road, since construction of the road represented a major portion of the alleged harm to the red squirrel.

The court next holds that Congress intended to waive ESA §7 requirements for construction of the first three telescopes comprising phase one even though the AICA is ambiguous on its affect on the ESA and the NFMA, and was passed without committee reports and with only limited floor statements. Although a comparison of the broad waiver language of AICA §607, involving National Environmental Policy Act requirements, and the ambiguous language of §602(a), involving ESA requirements, demonstrates that Congress knew how to use unambiguous waiver language when it intended a complete waiver, a reading of the whole AICA suggests that Congress intended that the first phase be built immediately without being subject to delay from any reinitiation of consultation. Congress was fully aware that delay caused by the need to comply with environmental procedures might threaten the project's survival, and Congressopted for immediate construction of the first three telescopes. The court observes that although all of Arizona's representatives and one of Arizona's two senators publicly stated after the bill was passed that they interpreted the AICA to permit the reinitiation of consultation regarding the first phase of construction, post-enactment statements of individual legislators may not be used as reliable indicators of congressional intent. Moreover, the court declines to give weight to the AICA's administering agency, the U.S. Forest Service, because prior to this litigation the agency indicated that it believed the AICA permitted reinitiation of consultation regarding first phase construction, but after this suit was initiated the agency changed its position. The court also holds that because the U.S. Fish and Wildlife Service has finally declared critical habitat for the red squirrel under ESA §4, even though long after the agency was required to declare the habitat, the environmental groups' challenge requesting the court to make the agency declare the critical habitat is moot.

The court holds that when Congress adopted the alternative to proceed with construction in two phases on Mount Graham, it did not adopt general introductory or conclusory remarks in the remainder of the biological opinion governing reconsultation. The court holds that while the district court did not consider the merits of the claim for preliminary relief from the alleged road closure violations citing jurisdictional grounds, the district court is now free to reach the merits of that claim, and that portion of the jurisdictional appeal is remanded for that purpose. Finally, the court holds that although it lacks jurisdiction over the merits of the district court's denial of the motion to intervene, it has jurisdiction to review new information regarding the denial of the motion for reconsideration. However, no new information has been introduced and thus the district court did not abuse its discretion in denying the motion for reconsideration.

Counsel for Plaintiffs-Appellants
Mark Hughes, Fern L. Shepard, Thomas T. Ankersen
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants-Appellees
Gerald S. Frank, Ass't U.S. Attorney
120 W. Broadway, Box 73, Tucson AZ 85701
(602) 792-6511

Larry J. Bradfish, Martin W. Matzen, M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000