Mount Graham Coalition v. Thomas, s. 94-16324

• Decision Date: 24 April 1995
• Docket Number: Nos. 94-16324,94-16632,s. 94-16324
• Citation: 53 F.3d 970
• Parties: , 25 Envtl. L. Rep. 20,904 MOUNT GRAHAM COALITION, et al., Plaintiffs-Appellees, v. Jack Ward THOMAS, Chief of the United States Forest Service; Michael Espy, Secretary of the Department of Agriculture; Bruce Babbitt, Secretary of the Department of Interior; and Mollie Beattie, Director of the United States Fish and Wildlife Service, Defendants-Appellants, State of Arizona Board of Regents, Defendant-Intervenor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 970

53 F.3d 970

40 ERC 1851, 25 Envtl. L. Rep. 20,904

MOUNT GRAHAM COALITION, et al., Plaintiffs-Appellees, v. Jack Ward THOMAS, Chief of the United States Forest Service Michael Espy, Secretary of the Department of Agriculture Bruce Babbitt, Secretary of the Department of Interior; and Mollie Beattie, Director of the United States Fish and Wildlife Service, Defendants-Appellants State of Arizona Board of Regents, Defendant-Intervenor-Appellant.

Nos. 94-16324, 94-16632.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 16, 1994.

Decided April 24, 1995.

Cynthia Holcomb Hall, Circuit Judge, filed dissenting opinion.

M. Alice Thurston, Dept. of Justice, Washington, DC, for defendants-appellants.

Thomas M. Thompson, The University of Arizona, Tucson, AZ (on the briefs), and David C. Todd, Patton Boggs, L.L.P., Washington, DC (on the briefs and argued), for defendant-intervenor-appellant.

Eric Glitzenstein, Meyer & Glitzenstein, Washington, DC (on the briefs and argued), for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Arizona (Tucson).

Before: ALARCON and HALL, Circuit Judges, and KING, ^* Senior District Judge.

ALARCON, Circuit Judge.

This case represents another challenge to the Mount Graham international observatory project. See Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir.1994) ("Red Squirrel IV "); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568 (9th Cir.1993) ("Red Squirrel III "); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir.1992) ("Red Squirrel II "); Mt. Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991) ("Red Squirrel I "). On May 25, 1994, a coalition of environmental groups and individuals ("Coalition") seeking to protect an endangered subspecies of red squirrel filed this action challenging the approval by the United States Forest Service ("FS") and the United States Fish and Wildlife Service ("FWS") (collectively "federal defendants") of a construction site for a large binocular telescope ("LBT") on Peak 10,477 in Mount Graham, Arizona, under the authority of the Arizona-Idaho Conservation Act, Pub.L. No. 100-696, Secs. 601-607, 102 Stat. 4597, 4597-99 (1988) ("AICA"). The University of Arizona ("University"), the party proposing to build the telescope, successfully moved to intervene as a defendant. The Coalition contended that the FS and FWS failed to comply with the requirements of section 7 of the Endangered Species Act, 16 U.S.C. Sec. 1536 ("ESA"), and section 102 of the National Environmental Policy Act, 42 U.S.C. Sec. 4332 ("NEPA"), in approving the construction site for the telescope.

Ruling on cross-motions for summary judgment, the district court agreed. The district court concluded that the exemption from compliance with environmental laws provided in AICA did not encompass Peak 10,477 approved by the FS and FWS. The court granted the Coalition's motion and declared that the federal defendants had violated section 7 of the ESA, 16 U.S.C. Sec. 1536, "by failing to pursue formal consultation before approving the relocation of the [LBT]" and section 102 of the NEPA, 42 U.S.C. Sec. 4332, "by failing to prepare an Environmental Impact Statement ... before approving the relocation of the LBT." The district court permanently enjoined the federal defendants from permitting "any further construction or site preparation activities in connection with the LBT" to take place prior to full compliance with the ESA and NEPA. The federal defendants and the University appealed.

We affirm because we conclude that the AICA does not provide the FS with the authority to locate the LBT at a site other than that indicated in the 1988 biological opinion prepared by the FWS without complying with the requirements of the ESA and NEPA.

I.

Much of the historical background of the current dispute is set out in our prior opinions. Red Squirrel IV, 21 F.3d at 898-901; Red Squirrel III, 986 F.2d at 1569-71; Red Squirrel II, 954 F.2d at 1443-44. We accordingly focus our factual summary upon the events relevant to this matter.

In 1984, the University of Arizona, leading an international consortium, proposed to the United States Forest Service the construction of several telescopes on Mount Graham in the Coronado National Forest in southeastern Arizona. This area was the last remaining undisturbed habitat of the highly endangered red squirrel.

In response, the FS began preparing an Environmental Impact Statement ("EIS") pursuant to NEPA, 42 U.S.C. Sec. 4332(2)(C). In a draft EIS released in October, 1986, the FS identified High Peak in Mount Graham as its "preferred alternative" location for construction of the telescopes. In 1987, the FS completed a biological assessment of this preferred alternative pursuant to section 7 of the ESA, 16 U.S.C. Sec. 1536. Because the FS recognized that the telescope project could adversely affect the red squirrel, it entered into formal consultation under the ESA with the Fish and Wildlife Service to determine whether and under what circumstances the construction could proceed without hastening the extinction of the red squirrel.

Before the consultation was finished, the University modified its proposal to request approval for the construction of three telescopes on High Peak and four on Emerald Peak in Mount Graham, including one on Peak 10,477, along with support facilities and access roads.

The FS conducted a new biological assessment and reinitiated formal consultation with the FWS. Pursuant to section 7 of the ESA, 16 U.S.C. Sec. 1536, in July, 1988 the FWS issued a biological opinion concluding that the red squirrel was "extremely vulnerable to extinction" and that construction of the telescopes was likely to jeopardize their continued existence. Nevertheless, the FWS proposed "reasonable and prudent alternatives" ("RPA") to the action which could allow the project to proceed while providing some protection for the red squirrel.

The FWS found that construction on Emerald Peak could critically damage the red squirrel's likelihood of survival. The FWS therefore recommended either that the project be prohibited altogether, or that the telescopes be built on High Peak only. However, a third RPA ("RPA 3") suggested that construction could be done on Emerald Peak, providing that a detailed list of conditions designed to protect the red squirrel were fulfilled. In RPA 3, the FWS specified that three telescopes, support facilities, and an access road could be built on Emerald Peak if they were "clustered off the west end of the existing fuelbreak" and utilized no more than 8.6 acres. The FWS attached a map indicating the location of the three telescopes and the location of a single access road ("RPA 3 Figure A"). Peak 10,477 was not among the telescope locations noted on this map.

The FWS noted that, under RPA 3, "[t]wo middens ¹ could be directly or indirectly affected." The FWS required that a monitoring program be implemented if RPA 3 were adopted to acquire information relating to the effect of the project on the red squirrel which could be used in decision making regarding future telescope proposals.

At this point, the FS normally would have selected one of the three alternatives. 50 C.F.R. Sec. 402.15. Instead, Congress intervened. In October, 1988, Congress passed the Arizona-Idaho Conservation Act, Pub.L. No. 100-696, Secs. 601-607, 102 Stat. 4597, 4597-99 (1988). Under the AICA, Congress provided that the construction of three telescopes, support facilities, and an access road should proceed "immediately"--without the delay attributable to compliance with the ESA and NEPA. AICA Sec. 602(a). Congress stated that "[s]ubject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied as to the issuance of a Special Use authorization for the first three telescopes." AICA Sec. 602(a). Congress further deemed that the requirements of the NEPA were "satisfied [w]ith reference to the construction of the first three telescopes, related facilities, and the access road." AICA Sec. 607. The AICA also provided that authorization for the construction of four additional telescopes on Emerald Peak would require full compliance with the ESA and NEPA. AICA Sec. 603. The AICA restricted the site for all seven telescopes to 24 acres within a 150-acre area of Mount Graham as depicted on a map referenced in section 601(b) of the AICA. AICA Sec. 601(b).

Shortly after the AICA was enacted, the FS released an EIS on the telescope project. The EIS identified the provisions of RPA 3 as the FS's preferred plan of action. The EIS included a map sketching the locations of the first three telescopes similar to RPA 3 Figure A. Moreover, the EIS described the possibility of siting four additional telescopes on Mount Graham, indicating Peak 10,477 as one potential location.

The AICA and RPA 3 required the University and the Secretary of Agriculture to develop "a management plan to govern the construction and operation of the astrophysical complex and the associated road systems." AICA Sec. 604. In April, 1989, the Secretary of Agriculture issued the University a Special Use Permit and Management Plan. The Permit stated that RPA 3 "is hereby incorporated into this permit by reference." The Management Plan required compliance with RPA 3, and incorporated a site map similar to RPA 3 Figure A.

Subsequent to the issuance of the permit, the University proposed sites for construction. The FS consulted the FWS, evaluated the proposals, and approved locations different from those sketched in RPA 3 Figure A. Ultimately, one telescope was sited roughly 750 feet to the southeast of the spot indicated on RPA 3 Figure A, and the other was also moved a short distance away. The Maintenance Building was located approximately 200 feet southeast of the site...