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Apache Survival Coalition v. United States

United States Court of Appeals for the Ninth Circuit

August 31, 1993, Argued, Submitted, San Francisco, California ; April 8, 1994, Filed

No. 92-15635, No. 92-16288

Opinion

 [*898]  OPINION

D.W. NELSON, Circuit Judge:

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.  [**2]  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.

Factual and Procedural Background

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  [**3]  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. § 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. § 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.

 [**4]  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  [*899]  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 [**5]  no visible cultural resources were observed.

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21 F.3d 895 *; 1994 U.S. App. LEXIS 6815 **; 94 Cal. Daily Op. Service 2469; 94 Daily Journal DAR 4698; 24 ELR 20854

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.

Prior History:  [**1]  Appeal from the United States District Court for the District of Arizona. Appeal from the United States District Court for the District of Arizona. D.C. No. CV-91-1350 PHX. No. 92-15635, WPC. Robert C. Broomfield, District Judge, Presiding. No. 92-16288, WPC. William P. Copple, District Judge, Presiding.

CORE TERMS

Coalition, Tribe, Forest, telescopes, laches, district court, environmental, observatory, cases, summary judgment, repeal, sites, cultural resources, special use permit, religious, inexcusable delay, relevant agency, injunction, Preservation, compliance, responded, ongoing, Prudent, parties, shrines, powers, input, legal standard, new standard, old law

Governments, Public Improvements, General Overview, Contracts Law, Contract Formation, Consideration, Environmental Law, Natural Resources & Public Lands, Forest Management, National Environmental Policy Act, Legislation, Effect & Operation, Amendments, Endangered Species Act, Federal Agencies, International Trade Law, Trade Agreements, Environmental Provisions, Endangered Species, Interpretation, Expiration, Repeal & Suspension, Federal Government, US Congress, Exemptions, Administrative Law, Separation of Powers, Legislative Controls, Civil Procedure, Judgments, Declaratory Judgments, Defenses, Demurrers & Objections, Affirmative Defenses, Laches, Administrative Proceedings & Litigation, Defenses, Business & Corporate Compliance, Real Property Law, Zoning, Historic Preservation, Appeals, Standards of Review, Abuse of Discretion, Statute of Limitations, Time Limitations, Pleadings, Amendment of Pleadings, Summary Judgment, Opposing Materials, Supporting Materials, Pretrial Matters, Continuances, Discovery & Disclosure, Discovery, Protective Orders