Apache Survival Coalition v. U.S., s. 92-15635
| Decision Date | 08 April 1994 |
| Docket Number | 92-16288,Nos. 92-15635,s. 92-15635 |
| Parties | 24 Envtl. L. Rep. 20,854 APACHE SURVIVAL COALITION, et al., Plaintiffs-Appellants, v. UNITED STATES of America, and James Abbott, in his official capacity as Supervisor, Coronado National Forest, Defendants-Appellees, and The University of Arizona, Defendant-Intervenor-Appellee. APACHE SURVIVAL COALITION, et al., Plaintiffs-Appellants, v. UNITED STATES of America, and James Abbott, in his official capacity as Supervisor, Coronado National Forest, Defendants-Appellees, and The University of Arizona, Defendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael R. Lozeau, San Francisco, CA, for plaintiffs-appellants.
M. Alice Thurston, U.S. Dept. of Justice, Washington, DC, for defendants-appellees U.S., et al.
William N. Poorten, III, Snell & Wilmer, Tucson, AZ, for intervenor-appellee University of Arizona.
Appeals from the United States District Court for the District of Arizona.
Before: CHOY, D.W. NELSON, and NORRIS, Circuit Judges.
Opinion by Judge D.W. NELSON
This is the fourth time in three years that this court has considered challenges to the Mount Graham international astrophysical observatory project. 1 In this case, the Apache Survival Coalition ("Coalition"), a nonprofit corporation created under the laws of the State of Arizona in May 1990, seeks to halt construction of several telescopes on Mount Graham, Arizona, basing its challenge on constitutional and statutory grounds. Concluding that the Coalition's constitutional arguments are without merit and that its statutory claim is barred by laches, we affirm the judgment of the district court.
Much of the history concerning the dispute over the Mount Graham observatory project and the subsequent congressional intervention is set out in this court's prior opinion in Mt. Graham Red Squirrel v. Madigan (Red Squirrel II), 954 F.2d 1441, 1443-48 (9th Cir.1992). We recount only those events relevant to the Coalition's claims.
In 1984, an international consortium proposed the construction of an observatory complex on Mount Graham that would include "construction of the most sophisticated array of telescopes ever assembled." Red Squirrel II, 954 F.2d at 1444. In response to the proposal and pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Sec. 4321 et seq. (1988), the Coronado National Forest Service ("Forest Service" or "Service") began to prepare an Environmental Impact Statement ("EIS"). In conjunction with its NEPA review, the Service also commenced a "Section 106 review process" pursuant to the National Historical Preservation Act ("NHPA"), 16 U.S.C. Sec. 470f (1988), to determine if any cultural resources existed on Mount Graham. 2 This included both a literature review and physical inventory of the area.
In 1985, the Forest Service located what it termed three "shrines" 3 on two of Mount Graham's summits: Hawk Peak and High Peak. The Service concluded that these sites qualified for the National Historical Register because of the shrines' potential religious significance to living American Indian tribes. The Forest Service recommended to the State Historical Preservation Officer ("SHPO") that efforts be taken to mitigate any adverse effect on the shrines during the construction of the telescopes, and it was contemplated that a mitigation plan would be developed in consultation with nearby Indian tribes and the University. In furtherance of this task, the University of Arizona ("University"), working with the Forest Service, contacted nineteen local tribes concerning the find, including the San Carlos Apache, but only two, the Ak-Chin and Hopi, responded. Subsequently, the SHPO determined that the planned telescopes would have no adverse affect on the shrines, but that additional surveys should be conducted on two of Mount Graham's other summits, Emerald Peak and Plainview Peak, to determine if there were cultural resources at those locations as well. Both were inspected in 1985 and no visible cultural resources were observed.
At the same time that the Forest Service conducted its NEPA and NHPA review, it also prepared a Forest Plan Draft Environmental Statement ("FEIS") pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. Sec. 1600 et seq. (1988). This document included details of the Service's NHPA review. In September 1985, attorneys for the San Carlos Apache requested a copy of the FEIS and met with the forest supervisor. In its October response the Tribe raised issues pertaining only to its property, mineral, and grazing rights. No religious objections were raised.
In December 1985, the University of Arizona provided the Forest Service with a report on the shrines. In addition to recommending mitigation measures, the report stated that a number of Indian tribes, including the San Carlos Apache, had been informed of the existence of the shrines and sent a copy of the report. Although the Apache did not respond, representatives of one of the other listed tribes, the Zuni tribe of New Mexico, requested permission to visit the site. On August 6, 1986, after extensive consultation with that tribe, the Forest Service determined that the telescopes would have no adverse impact on the cultural sites it had identified. The SHPO agreed, believing that excavations could mitigate any adverse effect; finally, the Advisory Council on Historical Preservation (AC) also concurred. Accordingly, the Forest Service published a Draft Environmental Impact Statement ("DEIS") in October 1986. Various interest groups, Indians tribes, and associations commented on the DEIS, and a copy was sent to the San Carlos Apache. Following the comment period, the Forest Service conducted further cultural surveys and prepared a status report responding to the various concerns raised. The preferred alternative identified in the report was to build five telescopes on High Peak. The SHPO and AC once again concurred in a finding of "no adverse impact," but on the condition that the shrines would be protected in their current location and would not be excavated. Subsequently, the University proposed the placement of one of the five telescopes on Emerald Peak.
Developments hit a snag in 1987 when, shortly after the Forest Service completed its Biological Assessment of its preferred alternative as required by section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. Sec. 1536 (1988), the red squirrel was discovered on Mount Graham. The Department of Fish and Wildlife put the squirrel on the endangered species list shortly thereafter. See generally Red Squirrel II, 954 F.2d at 1444-45. After initiation of formal consultations with the Forest Service, the Department "tentatively concluded that it would agree to development on High Peak, but not to any development on Emerald Peak." Id. at 1445. Finding this unacceptable, the University submitted its own proposal in late 1987. This new proposal called for construction of three telescopes on High Peak and four telescopes on Emerald Peak, which had been surveyed in July and again in October. For the purposes of NHPA, a revised determination of "no adverse effect" was prepared for High Peak, and a finding of no cultural resources for Emerald Peak. On the condition that the site on High Peak was adequately protected, the SHPO and AC concurred.
The Department issued a Biological Opinion in 1988. It provided three "reasonable and prudent alternatives" to the University's proposal. In contrast to the Department's earlier position that the construction of any telescopes on Emerald Peak was inappropriate, Reasonable and Prudent Alternative Three ("Alternative Three") provided for the construction of all seven telescopes on Emerald Peak. See Red Squirrel II, 954 F.2d at 1445-46. Although no cultural resources had been recovered during surveys in the Emerald Peak area, the Forest Service conducted further intensive ground surveys. Again, no cultural resources were located, clearance was recommended, and the SHPO concurred.
In May 1988, the Forest Service sent the San Carlos Apache and other tribes a card asking if they wished to receive a copy of the final EIS or to remain on the Forest Service's mailing list. Although the San Carlos Apache asked to be removed from the mailing list, the Forest Service kept the Tribe on it. A final EIS was issued in the fall of 1988; it stated that no further cultural resources had been discovered in the Mount Graham area since the original discoveries. A copy was sent to the San Carlos Apache.
At this juncture the University, fearing that further delay would imperil the project, took its case to Congress and lobbied for legislation authorizing immediate construction of the observatory. In late 1988, Congress enacted the Arizona-Idaho Conservation Act of 1988 ("AICA"), Pub.L. No. 100-696, 102 Stat. 4571. As described in Red Squirrel II, Congress "essentially assumed the role the Forest Service would ordinarily have played and made a selection among the three 'reasonable and prudent' alternatives, choosing Alternative Three." Red Squirrel II, 954 F.2d at 1446.
Title VI of the Act provides for the construction of seven telescopes on Emerald Peak only, but bifurcates the project into two distinct phases: the first concerns the construction of the first three telescopes, and the second deals with the remaining four. For the first phase, AICA provides that "[s]ubject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements 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, and orders the Secretary immediately to approve construction of the telescopes and associated support facilities and access roads, see id. ...
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