Mt. Graham Red Squirrel v. Espy

Decision Date03 March 1993
Docket NumberNo. 92-15269,92-15269
Parties81 Ed. Law Rep. 439, 23 Envtl. L. Rep. 20,691 MT. GRAHAM RED SQUIRREL, (Tamiasciurus hudsonicus grahamensis), an endangered species; National Audubon Society, a non-profit corporation; Sierra Club, Inc.; National Wildlife Federation, a non-profit association, Arizona Wildlife Federation, a non-profit corporation; Maricopa Audubon Society, a non-profit association; Tucson Audubon Society, a non-profit association; Prescott Audubon Society, a non-profit association; Yuma Audubon Society, a non-profit association; Northern Arizona Audubon Society, a non-profit association; Defenders of Wildlife, a non-profit organization; and Wayne Woods, an individual, Plaintiffs-Appellants, v. Mike ESPY, * in his official capacity as Secretary of Agriculture; F. Dale Robertson, in his official capacity as Chief Forester, U.S. Forest Service; David F. Jolly, in his official capacity as Regional Forester for the Southwestern Region; Bruce Babbitt, ** in his official capacity as Secretary of the Interior; John F. Turner, *** in his official capacity as Director of the U.S. Fish and Wildlife Service, Defendants-Appellees, State of Arizona Board of Regents, University of Arizona, Defendant-Intervenor-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit
**

Mark Hughes, Sierra Club Legal Defense Fund, Denver, CO, for plaintiffs-appellants.

M. Alice Thurston, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

David C. Todd, Patton, Boggs & Blow, Washington, DC, for defendant-intervenor-appellee.

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

Before: O'SCANNLAIN and RYMER, Circuit Judges, and VAN SICKLE, **** District Judge.

O'SCANNLAIN, Circuit Judge:

For the third time within two years we deal with environmental law issues surrounding the construction of an international astrophysical observatory on Mount Graham in southeast Arizona.

I

The background of this dispute is explored at length in this court's opinion in Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1443-48 (9th Cir.1992) (Red Squirrel II ). An abbreviated account is offered here.

The Mount Graham International Observatory project was first proposed in 1984 by the University of Arizona ("University") on behalf of an international consortium. The original proposal contemplated construction of the world's most sophisticated array of telescopes atop Mount Graham, a peak in the Pinaleno range that rises out of the Arizona desert. The proposal immediately engendered opposition from those concerned that the project would greatly magnify threats to the continued survival of the Mount Graham red squirrel. The red squirrel is an endangered species that lives on Mount Graham and exists nowhere else in the world. Once believed to be extinct, a few hundred red squirrels now appear to be extant in the area.

Mount Graham is part of the Coronado National Forest, administered by the United States Forest Service ("Forest Service"). The University was therefore required to take its proposal in the first instance to the Forest Service. This in time led to the initiation of "formal consultation" between the Forest Service and the Fish and Wildlife Service, pursuant to section 7 of the Endangered Species Act, 16 U.S.C. § 1536. Such consultation is required whenever actions authorized or carried out by a federal agency might pose a threat to the continued existence of an endangered species or have an adverse impact on the species' habitat. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. Formal consultation culminates in the issuance of a "Biological Opinion," 50 C.F.R. § 402.02, wherein the Fish and Wildlife Service presents its conclusions regarding the likely effects of the action under consideration. In this case, the Biological Opinion concluded that the plan developed by the University would significantly increase the risks faced by the red squirrel. At the same time, however, the opinion identified three "reasonable and prudent alternatives" to that plan, see id., which, in the judgment of the Fish and Wildlife Service, would avoid the adverse consequences for the red squirrel that were likely to follow from implementation of the University's original proposal.

Under normal circumstances, the Forest Service would have been required to choose a preferred alternative from among the three options presented. See 50 C.F.R. § 402.15. Four years, however, had already passed, and the University, apparently responding to indications that the other members of the consortium might opt to build the observatory complex in another country rather than endure further delay, had decided to ask Congress to intervene. The result was the enactment, in 1988, of Title VI of the Arizona-Idaho Conservation Act ("AICA"). This legislation cleared the way for the immediate construction of three telescopes on Mount Graham, and provided that an additional four might be built in the future if certain conditions were met. The Act declared that the requirements of section 7 of the Endangered Species Act were to be deemed satisfied with respect to the first phase of the project, thus ending the process of formal consultation, and instructed the Secretary of Agriculture "immediately" to issue, through the Forest Service, a "special use permit" allowing construction to go forward. AICA, sec. 602(a).

The permit was issued in April 1989. Three months later, a coalition of environmental groups led by the Sierra Club brought this suit seeking an injunction to halt construction. The complaint named the Forest Service and the Fish and Wildlife Service as defendants (together with the University, 1 the "appellees"), and presented nine claims for relief. The district court granted partial summary judgment for the appellees on seven of those claims and certified an appeal to this court pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The district court thereafter denied requests for injunctive relief grounded in the two remaining claims, apparently believing it was deprived of jurisdiction to entertain such requests during the pendency of the appeal. Appeal was taken from this denial of relief as well.

After hearing oral arguments, this court issued an Order of Limited Remand instructing the district court to conduct an evidentiary hearing without delay to determine whether injunctive relief was warranted on either of the remaining claims. See Mt. Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991) ("Red Squirrel I "). Subsequently, we released an opinion that, having made an exhaustive analysis of the statutory language and legislative history of Title VI of the AICA, affirmed the district court's grant of partial summary judgment. See Red Squirrel II, 954 F.2d at 1450-61.

The present appeal concerns only the two remanded claims. In keeping with the Order of Limited Remand, see Red Squirrel I 930 F.2d at 705, Sierra Club filed an application for a temporary restraining order halting construction. After holding a limited evidentiary hearing, the district court denied the application. A full evidentiary hearing was then scheduled in connection with plaintiff's request for a preliminary or permanent injunction. Ultimately, however, the parties moved jointly to vacate that hearing, stipulating that they had nothing further to present, and that the district court could decide the remaining claims on the merits based on the record before it. The district court entered judgment for defendants, issuing findings and conclusions on November 20, 1991. This timely appeal followed.

II

The AICA makes no specific provision for judicial review of agency decisions taken in pursuance of its requirements. Thus, the scope of review is governed by the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"). See Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.), cert. denied, 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989) (looking to APA for standard of review applicable to agency action under Endangered Species Act). Under the APA, an agency's decisions may be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The district court was thus called upon to determine only whether the Forest Service's decisions challenged by Sierra Club were "based on a consideration of the relevant factors" and did not betray "clear errors in judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). Review under this standard is to be "searching and careful," but remains "narrow," and a court is not to substitute its judgment for that of the agency. Id. This is especially appropriate where, as here, the challenged decision implicates substantial agency expertise. See United States v. Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989) ("Deference to an agency's technical expertise and experience is particularly warranted with respect to questions involving ... scientific matters."), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990).

The district court's conclusions of law rest on its interpretation of the AICA and are therefore reviewed de novo. See, e.g., United States v. City of Rancho Palos Verdes, 841 F.2d 329, 330 (9th Cir.1988) (reviewing interpretation of the Endangered Species Act de novo). The court's findings of fact are reviewed for clear error. Securities & Exchange Comm'n v. American Principals Holding, Inc., 962 F.2d 1402, 1405 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 210, 121 L.Ed.2d 150 (1992).

Sierra Club suggests that we must conduct a de novo review of the factual questions presented here because the district court simply entered the findings proposed by the appellees without engaging in any independent analysis and without...

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