Mt. Graham Red Squirrel v. Madigan
| Decision Date | 21 January 1992 |
| Docket Number | 90-16125 and 90-16172,90-15400,Nos. 89-16138,s. 89-16138 |
| Citation | 954 F.2d 1441 |
| Parties | , 22 Envtl. L. Rep. 20,391 MT. GRAHAM RED SQUIRREL, (Tamiasciurus hudsonicus grahamensis), an endangered species, Sierra Club, a non-profit corporation, National Audubon Society, a non-profit corporation, 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, Wayne Woods, an individual, Plaintiffs-Appellants, v. Edward R. MADIGAN, * in his official capacity as Secretary of Agriculture; F. Dale Roberton, 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, Manuel Lujan, in his official capacity as Secretary of the Interior, Steven Robinson, in his official capacity as Interim Director of the U.S. Fish and Wildlife Service, Defendants-Appellees, and State of Arizona Board of Regents, University of Arizona, Defendant-intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark Hughes, Fern L. Shepard, Thomas T. Ankersen, Sierra Club Legal Defense Fund, Denver, Colo., for plaintiffs-appellants.
William Perry Pendley, Todd S. Welch, C. Thomas Blickensderfer, Mountain States Legal Foundation, Denver, Colo., for applicants for intervention-appellants.
David C. Todd, Sheila M. Foran, Patton, Boggs & Blow, Washington, D.C., for defendant-intervenor-appellee.
Thomas M. Thompson, The University of Arizona, Tucson, Ariz., for defendant-intervenor-appellee.
Richard B. Stewart, Asst. Atty. Gen., Gerald S. Frank, Asst. U.S. Atty., Tucson, Ariz., Larry J. Bradfish, Martin W. Matzen, M. Alice Thurston, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona (Tucson).
Before TANG, FLETCHER and REINHARDT, Circuit Judges.
The opinion filed December 11, 1991, is withdrawn.
This is a case about difficult choices. In 1988, Congress was asked to choose between ensuring that our nation remains a world leader in astrophysical research or protecting from almost certain demise an endangered species on the brink of extinction. Congress attempted a compromise by passing the Arizona-Idaho Conservation Act, Title VI, Mount Graham International Observatory, Pub.L. No. 100-696, 102 Stat. 4571, 4597 (1988). Unfortunately, it did not make its choice as clear as it might, or, perhaps, should have. Inevitably, passage of the Act did not end the conflict between those who would build bigger and better telescopes and those who would shelter the endangered Mount Graham red squirrel from the destruction of its habitat. That ongoing struggle has led directly to the controversy that confronts us today. The courts are now required to make Congress's difficult choice clear.
At the center of the controversy is an area of land located on Mount Graham, which is part of the Pinaleno Mountains in the Coronado National Forest in southeastern Arizona. Among Mount Graham's promontories are High Peak and Emerald Peak. Elevations on Mount Graham exceed 10,000 feet. The mountain, which is surrounded by desert, is far from the lights, noise, and activity of any major population center. It is not, however, untouched by humans. For many years, Mount Graham has been the site of logging, camping, and other human activities. It currently houses a Bible Camp and many summer homes.
Mount Graham's high altitude and relative isolation have provided a unique biological environment, inhabited by plant and animal species found nowhere else in the world. Among those species is the endangered Mt. Graham red squirrel. The red squirrel, which was once thought to be extinct, has a population most recently estimated at 250-300. 1 It is dependent for its survival on the continued existence of old-growth spruce and fir forest habitat, of which very little remains. 2 The red squirrel is now "particularly vulnerable to any disturbance that might bring about further declines in its already precariously low numbers and weakening of genetic viability." Determination of Endangered Status for the Mount Graham Red Squirrel, 52 Fed.Reg. 20,994, 20,998 (1987). According to the Sierra Club, if the red squirrel becomes extinct it will be the first mammalian extinction in the United States since the passage of the Endangered Species Act of 1973, Pub.L. No. 93-205, 87 Stat. 884 ().
The high altitude and isolation of Mount Graham, in addition to providing the unique environment necessary to sustain the red squirrel, make astrophysicists consider that location the best available site in the United States for astronomical research. In 1984, an international consortium led by the University of Arizona ("University") and including the Vatican Observatory, the Max Planck Institute of Radioastronomy of West Germany, Ohio State University, and Arcetri Astrophysical Observatory of Florence, Italy, proposed the construction of the most sophisticated array of telescopes ever assembled, including the world's largest, on Mount Graham. The astrophysical complex, as originally proposed, would include thirteen telescopes, support facilities, and an access road. It would be built in the red squirrel's last remaining undisturbed habitat. Members of the international consortium have indicated that if the astrophysical complex is not built on Mount Graham, it will be built in another country.
In response to the international consortium's proposal and pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370c, in 1985 the Forest Service began to prepare an Environmental Impact Statement 3 regarding the effect of constructing the proposed astrophysical complex on Mount Graham. The draft Environmental Impact Statement that the agency released the following year identified a "preferred alternative" in which only five telescopes would be constructed, and in which the complex would be located on High Peak. In 1987, the Forest Service completed a Biological Assessment 4 of its preferred alternative pursuant to section 7 of the Endangered Species Act, 16 U.S.C. § 1536. Meanwhile, the Fish and Wildlife Service listed the Mount Graham red squirrel as endangered. 5 52 Fed.Reg. 20,994 (1987). Pursuant to section 7 of the Endangered Species Act, the Forest Service initiated "formal consultation" with the Fish and Wildlife Service regarding whether and under what circumstances an astrophysical complex should be permitted on Mount Graham in light of the endangered status of the red squirrel. 6 The Fish and Wildlife Service tentatively concluded that it would agree to development on High Peak, but not to any development on Emerald Peak. Before it could finalize these conclusions, however, the University of Arizona notified the Forest Service that the High Peak alternative did "not provide for or allow a viable cost-effective research facility." The Forest Service suspended formal consultation and requested that the University present its own proposal for a "minimum viable observatory."
In late 1987, the University proposed the construction of three telescopes on High Peak and four telescopes on Emerald Peak, along with support facilities and access roads. The Forest Service prepared a new Biological Assessment, based on the University's proposal, and reinitiated formal consultation with the Fish and Wildlife Service. The Fish and Wildlife Service then issued a Biological Opinion 7 in 1988. The Biological Opinion stated that The Biological Opinion further found that "establishment of the seven telescope Mt. Graham Observatory on Emerald and High Peaks is likely to jeopardize the continued existence of the endangered Mt. Graham red squirrel because this plan significantly increases the existing jeopardy status of this squirrel." Nevertheless, the Biological Opinion contained three "reasonable and prudent alternatives," 8 two of which provided for the construction of an astrophysical complex on Mount Graham. 9 Surprisingly one of the two alternatives, Reasonable and Prudent Alternative Three, provided for construction on Emerald Peak, contrary to the Fish and Wildlife Service's earlier conclusion that development on Emerald Peak would be environmentally unsound. Had Congress not become involved, the next step would have been for the Forest Service to select one of the three alternatives as its preferred proposal. See 50 C.F.R. § 402.15.
Frustrated by the delay, the University sought to circumvent the ordinary procedure through congressional action. In 1988, the University lobbied Congress to pass legislation authorizing the immediate construction of an astrophysical complex on Mount Graham. The University's draft legislation provided: "Notwithstanding any other act, law, rule, or regulation, the Secretary of Agriculture is hereby authorized and directed to enter into a land use agreement with the ... University of Arizona for the establishment of the Mt. Graham International Observatory Research Site."
Although Congress rejected the University's broad...
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