Mount Graham Coalition v. Thomas, 96-16017

• Decision Date: 23 July 1996
• Docket Number: No. 96-16017,96-16017
• Citation: 89 F.3d 554
• Parties: 110 Ed. Law Rep. 1063, 96 Cal. Daily Op. Serv. 4491, 96 Daily Journal D.A.R. 6959, 96 Daily Journal D.A.R. 9093 MOUNT GRAHAM COALITION; National Audubon Society; Friends of the Earth; Defenders of Wildlife; Save America's Forests; Sierra Club; Humane Society of the U.S.; Maricopa Audubon Society; Huachuca Audubon Society; Northern Arizona Audubon Society; Prescott Audubon Society; Tucson Audubon Society; Yuma Audubon Society; Arizona Wildlife Federation; Biodiversity Legal Foundation; Southwest Center for Biological Diversity; Student Environmental Action Coalition, Southwest Chapter; Sky Island Alliance; Robin Silver; David Hodges; Roger Featherstone, Plaintiffs-Appellants, 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; Mollie Beattie, Director of the United States Fish and Wildlife Service, Defendants-Appellees, and State of Arizona Board of Regents, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 554

89 F.3d 554

110 Ed. Law Rep. 1063, 96 Cal. Daily Op. Serv. 4491,

96 Daily Journal D.A.R. 6959,

96 Daily Journal D.A.R. 9093

MOUNT GRAHAM COALITION; National Audubon Society; Friends of the Earth; Defenders of Wildlife; Save America's Forests; Sierra Club; Humane Society of the U.S. Maricopa Audubon Society; Huachuca Audubon Society Northern Arizona Audubon Society; Prescott Audubon Society Tucson Audubon Society; Yuma Audubon Society; Arizona Wildlife Federation; Biodiversity Legal Foundation Southwest Center for Biological Diversity; Student Environmental Action Coalition, Southwest Chapter; Sky Island Alliance; Robin Silver; David Hodges; Roger Featherstone, Plaintiffs-Appellants, 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; Mollie Beattie, Director of the United States Fish and Wildlife Service, Defendants-Appellees, and State of Arizona Board of Regents, Defendant-Intervenor-Appellee.

No. 96-16017.

United States Court of Appeals, Ninth Circuit.

Submitted to Motions Panel June 12, 1996.

Decided June 17, 1996.

As Amended July 23, 1996.

Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, D.C., for Plaintiffs-Appellants.

Mark R. Haag, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

David C. Todd, Patton Boggs, Washington, D.C., for Defendant-Intervenor-Appellee.

Appeal from the United States District Court for the District of Arizona; Alfredo C. Marquez, District Judge, Presiding.

Before: CANBY, JOHN T. NOONAN and LEAVY, Circuit Judges.

ORDER

Appellants Mount Graham Coalition and others ("the Coalition") have filed an emergency motion for a stay pending appeal. The Coalition seeks to stay the order of the District Court for the District of Arizona dissolving its injunction against further construction or site preparation for a telescope on Peak 10,477 in the Coronado National Forest in Arizona. We deny the stay because we conclude that the Coalition's appeal fails to raise a serious question on the merits. See Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir.), rev'd on other grounds, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983).

The history of this dispute over the attempts of the University of Arizona to locate a new telescope in the Mount Graham area of Arizona, where an endangered red squirrel species lives, is recounted in our many earlier decisions dealing with the matter. See Mt. Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991) ("Red Squirrel I "); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir.1992) ("Red Squirrel II "); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568 (9th Cir.1993) ("Red Squirrel III "); Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir.1994) ("Red Squirrel IV "); Mount Graham Coalition v. Thomas, 53 F.3d 970 (9th Cir.1995) ("Red Squirrel V ").

In 1988, while the University was dealing with the Forest Service and the Fish and Wildlife Service concerning compliance with the Endangered Species Act ("ESA") and the National Environmental Protection Act ("NEPA"), Congress intervened by enacting a provision of the Arizona-Idaho Conservation Act ("AICA"), 102 Stat. 4597, 4597-99 (1988), that selected one of the Forest Service's Alternatives, known as RPA 3, for locating the telescope project and directed the Secretary of Agriculture to approve it. The Act specified that, for the portion of the project within RPA 3, the requirements of Section 7 of the Endangered Species Act "shall be deemed satisfied," as shall the requirements of Section 102(2)(c) of NEPA. Id. at 4597, 4599. The effect was to obviate further need for compliance with ESA and NEPA in locating the telescope according to RPA 3. Thereafter, the University decided that its preferred location for its Large Binocular Telescope ("LBT") was Peak 10,477. The Forest Service was willing, and designated Peak 10,477 as alternative site 2 ("ALT 2").

Further dispute then arose as to whether Peak 10,477 was within the RPA 3 area approved by Congress. The district court determined that it was not, and that the University, the Forest Service, and the Fish and Wildlife Service had violated ESA and NEPA by relocating their planned telescope site to Peak 10,477. The district court accordingly enjoined the University from further work or site preparation on Peak 10,477 until ESA and NEPA requirements were met. We agreed with the district court and upheld its injunction in Red Squirrel V, 53 F.3d at 977. We stated: "Our conclusion does not compel the construction of the LBT on the site noted in RPA 3 Figure A regardless of new environmental information or the effect it could have on the red squirrel. Rather, we simply hold that, in order to relocate the LBT, the FS must comply with the requirements of the ESA and NEPA." Id. at 977.

In 1996, long after Red Squirrel V had become final, Congress enacted a rider to the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. 104-134, § 335, which provided:

The United States Forest Service approval of alternative site 2 (ALT 2), issued on December 6, 1993, is hereby authorized and approved and shall be deemed to be consistent with, and permissible under, the terms of Public Law 100-696 (the Arizona-Idaho Conservation Act of 1988).

Alternative site 2, as we said, is Peak 10,477. Upon the passage of this legislation, the University moved the district court for relief from judgment under Fed.R.Civ.P. 60(b). The district court dissolved its injunction, enabling the University to proceed with preparation of its site on Peak 10,477. Upon motion of the Coalition, Judge Canby entered a temporary stay of the district court's order in order to permit this motions panel to address the Coalition's emergency motion for stay. The motions panel heard telephonic arguments on June 12, 1996. We now deny the stay.

The Coalition contends that Congress's recent rider violates the separation of powers, as recently delineated in Plaut v. Spendthrift Farm, Inc., --- U.S. ----, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Specifically, the Coalition argues that Congress has impermissibly overturned a final judgment of an Article III court.

In our view, no serious question is raised that Congress's rider accomplishes that forbidden result, or that Plaut is applicable. Plaut invalidated an attempt of Congress to revive claims that had been dismissed as untimely in earlier, final judicial decisions. The Supreme Court held that, "[b]y retroactively commanding the federal courts to reopen judgments, Congress has violated [the] fundamental principle" that the judiciary is established to render dispositive judgments. Id. at ----, 115 S.Ct. at 1453.

Plaut was careful, however, to point out that cases like Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855), in which congressional legislation "altered the prospective effect of injunctions entered by Article III courts" were different. "These cases distinguish themselves; nothing in our holding today calls them into question." Plaut, --- U.S. at ----, 115 S.Ct. at 1459.

The rider in issue does not purport to revive a dead claim. To the extent that the district court may have granted declaratory relief that the Forest Service, the Fish and Wildlife Service, and the University had violated ESA and NEPA, that declaration is unaffected by the rider. The rider states that ALT 2--the Peak 10,477 site--"is hereby" approved and "shall be deemed" to be authorized by AICA. Those are terms of present and future, not retroactive, effect. At the very least, the rider is reasonably susceptible to such prospective interpretation, when to read it as somehow undoing past judgments would render it unconstitutional. We are required to adopt a constitutional reading when such an interpretation is reasonable, as it is here. George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933). ¹

Thus this case falls squarely within Wheeling Bridge, in which a bridge had been declared to be a nuisance to navigation and had been ordered removed by an Article III court. Congress intervened with legislation declaring the bridge to be a lawful road passage, and its exercise of that power was upheld and the bridge was spared by the courts. The Supreme Court acknowledged that if there had been a damages award, it would have been beyond the power of Congress to modify, but because the decree was prospective, Congress's statute could be given effect.

If, in the meantime, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain that the decree of the court cannot be enforced.... Suppose the decree had been executed, and after that the passage of the law in question, can it be doubted but that the defendants would have a right to reconstruct it? And is it not equally clear that the right to maintain it, if not abated, existed from the moment of the enactment?

Id. at 431-32. Thus in Wheeling Bridge, as here, there was no violation of separation of powers. See also Hodges v. Snyder, 261 U.S. 600, 603-04, 43 S.Ct. 435, 436-37 (1923) (judgment enforcing a public right, obtained by individuals for their own benefit, may be annulled by subsequent legislation).

Nor is the rider here rendered suspect because it is targeted at a single controversy. The legislation in Wheeling Bridge was similarly targeted, as was Congress's recent legislation known as the Northwest Timber Compromise, which declared that adherence to it provisions would constitute compliance with the existing statutes that were the basis of two named pending cases. See Robertson v. Seattle Audubon Society, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992). Indeed, Plaut itself makes the point that particularity does not render legislation suspect....