89 F.3d 554 (9th Cir. 1996), 96-16017, Mount Graham Coalition v. Thomas

Docket Nº:96-16017.
Citation:89 F.3d 554
Party Name: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 Soci
Case Date:June 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 554

89 F.3d 554 (9th Cir. 1996)

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

June 17, 1996

Submitted to Motions Panel June 12, 1996.

As Amended July 23, 1996.

Page 555

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 ");

Page 556

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...

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