an astrophysical research site...

A Summary of Past Legal Actions 

Congress has passed two laws dealing with the Mount Graham International Observatory.

The Arizona Wilderness Act of 1984 designated a 3,500-acre potential astrophysical research study area in the Pinaleño Mountains at the same time as 62,000 acres of the mountain range was designated as a federal wilderness study area.

The Arizona-Idaho Conservation Act of 1988 (AICA) incorporated the terms of the U.S. Fish and Wildlife Service (USFWS) Biological Opinion, agreed to by the U.S. Forest Service (USFS) and The University of Arizona (UA), into federal law. AICA authorized the UA and its partners to build three telescopes and an access road on Emerald Peak as the first phase of the observatory. AICA also provided that if a USFWS biological study performed after the first phase showed no serious impact on the endangered Mount Graham red squirrel, the UA and its partners could build four more telescopes so long as the entire seven-instrument observatory, support buildings and roads occupied no more than 24 acres. The Biological Opinion required the UA, to construct a new narrow two-mile access road, to restore an old road leading to the site, occupying 60 acres, to its natural state. The legislation also required the UA to implement a red squirrel monitoring program for ten years to study the impact of construction on the red squirrel.

In the summer of 1989 the Sierra Club Legal Defense Fund filed a nine-claim lawsuit against the Forest Service and the Fish and Wildlife Service, seeking to halt construction. The UA intervened in the suit as a co-defendant in August of that year because it was obvious that the University's project was the real target of the litigation.

A U.S. District Court judge in Tucson granted a summary judgment to the federal agencies and the UA on seven of the nine claims in June of 1990. The observatory opponents then appealed that ruling to the Ninth U.S. Circuit Court of Appeals, which upheld the District Court ruling in December 1991.

In October 1991, the District Court in Tucson ruled in favor of the federal agencies and the UA on the two remaining claims of the Sierra Club lawsuit. The opponents again appealed to the Ninth Circuit, which once more upheld the lower court in May 1992, bringing that lawsuit to an end.

Meanwhile, after the first U.S. District Court ruling against the Sierra Club's suit, a Tucson- based group sued the Forest Service in August 1991 in another attempt to halt the project. This group, the Apache Survival Coalition, contained some of the same environmental opponents who had been active in the Sierra Club lawsuit and does not officially represent any Native American tribe. Coalition lawyers have made many of the same arguments presented in the Sierra Club suit. Because, once again, the UA is the obvious target of this lawsuit, the University has also intervened in this matter as a co-defendant.

In May 1992 a U.S. District Court judge in Phoenix denied the coalition's motions and granted a motion by the Forest Service and the UA to dismiss the suit. Lawyers for the Survival Coalition appealed the dismissal to the Ninth Circuit Court of Appeals. On April 8, 1994, the Appeals Court upheld the District Court's decision, finding the Arizona-Idaho Conservation Act to be constitutional and the Coalition's objections to the project were brought after "inexcusable delay."

Congress passes Mt. Graham legislation!!!

The Omnibus Appropriations Bill, containing the Mt. Graham rider offered by Congressman James Kolbe, was passed on Thursday, April 25, 1996 with a vote of 399-24 by the House and with a vote of 88-11 by the Senate. President Clinton signed it into law the following day. Project construction proceeded quickly after taking the necessary formal legal steps to lift the injunction.

Here are the details on how we got there:

In December 1993, after a year of studies and evaluation of four different sites for the Large Binocular Telescope, the Forest Service approved construction on site 10477. Biologists from the U.S. Fish and Wildlife Service, the Forest Service and the University of Arizona agreed that the site would have the least impact on the endangered red squirrel population.

Site 10477, to the east of the SMT telescope in the map below, is about 1300 ft to the east of the site referred to as RPA3 on the map. Hatched areas on the map indicate the varying levels of squirrel activity. Site RPA3 was shown as the site for the LBT telescope in a map appended to the Biological Opinion which was cited by Congress in its authorization of construction of three telescopes on Mt. Graham back in 1988. The Forest Service and the University of Arizona have always interpreted the bill since its passage, to mean that the construction location of RPA3 was approximate, and that the Forest Service had discretion to approve changes based on the available biological information.

In May 1994, the Mount Graham Coalition filed suit alleging that the location change of the Large Binocular Telescope (the last of the three authorized by AICA) was improper and requested a temporary restraining order. The District Court in Tucson ruling against the federal agencies and the University of Arizona in July 1994, entered a permanent injunction against further LBT work on Mt. Graham pending further environmental studies. The UA appealed to the 9th U. S. Circuit Court of Appeals, and oral arguments were heard in November 1994. On April 1995, the 9th Circuit Court of Appeals upheld the District Court by agreeing that, under AICA, the US Forest Service did not have the prerogative of changing the LBT site. While the dissenting opinion argues that the Forest Service is entrusted by the Arizona-Idaho Protection Act to administer the terms of the Act and, in this case, insure the least disruption to the squirrels on Mt. Graham, the 9th Circuit Court has ruled in favor of the District Court's interpretation.

On July 20, 1995 both a petition by the UA for rehearing and a suggestion by the UA for rehearing en-banc were denied.

A strong community support developed to resolve the issues concerning the site for the Large Binocular Telescope. Several townships in the Mt. Graham area and the Board of Supervisors in Graham and Cochise counties passed resolutions calling for an immediate action by Congress to allow for telescope construction. Many felt that Congress should clarify its intention on the Arizona-Idaho Conservation Act passed in 1988. The signing into of the Omnibus Appropriation Bill on April 25, 1996 did just so!

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Last modified: February 18, 2008