Ruling will allow construction of Mount Graham telescopes

By Staff and Wire service
Arizona Daily Wildcat
June 5, 1996

A federal judge Friday rescinded a two-year-old injunction that banned construction of a telescope on Mount Graham in southeastern Arizona.

U.S. District Judge Alfredo Marquez, who has ruled twice before on construction of the Mount Graham International Observatory, granted the injunction in 1994 at the request of environmental groups.

But he lifted it Friday after the University of Arizona argued that Congress has now clarified its original intent in 1988 to let the school build its Large Binocular Telescope.

Marquez said circumstances have changed from when he issued the injunction because of Congress' action in April.

He also said Congress' action was not a constitutional violation, as opponents contended.

Marquez granted a 10-day stay of Friday's order to allow opponents time to appeal.

Environmental groups vow to appeal

Anne Carl of the Student Environmental Action Coalition said the environmental groups will make an appeal before the 10-day stay ends.

"We are appealing and are hopeful things will change," said . SEAC is one of the environmental groups involved in the litigation.

One of the arguments the groups will use is that Congress cannot overturn a Ninth Circuit Court of Appeals decision, which happened when Congress approved legislation regarding the Mount Graham project, Carl said.

The injunction was upheld last year by a federal appeals court after being won by Mount Graham Coalition attorney Eric Glitzenstein.

It prohibited work on the planned Large Binocular Telescope until new studies were conducted under the Endangered Species Act and the National Environmental Policy Act.

Glitzenstein argued successfully nearly two years ago that in moving the site for the LBT, the university had gone outside the boundaries Congress authorized in 1988 in approving the project. The court agreed the move required new environmental studies be cause of potential extinction of an endangered subspecies of red squirrel found only on Mount Graham.

Earlier in May, the university asked that the ban be ended on the basis of a rider that Congress approved in April. The rider to a budget appropriation bill said that when the U.S. Forest Service authorized the site change in 1993, it did so within permis sible terms of Congress' 1988 act authorizing the telescope.

Glitzenstein argued in court papers that the university did not explain why the rider should be interpreted as overturning Marquez's and the 9th U.S. Circuit Court of Appeals' rulings.

He also contended that the rider violates the constitutional separation of powers, citing a 1995 Supreme Court ruling that involves court orders designed to safeguard endangered species.

''The court should not, and constitutionally may not, vacate its judgment on the grounds set forth in the university's motion,'' Glitzenstein wrote.

Attorneys representing the Justice Department and its Environment and Natural Resources Division filed a two-paragraph statement saying they do not oppose the injunction being lifted.

Glitzenstein said he has asked the U.S. Fish and Wildlife Service to again start a study or consultation under the Endangered Species Act ''to ascertain the impacts of the fire on the red squirrels' survival and recovery,'' but said he had not received a response.

UA expects to win future court battles

Michael Cusanovich, UA vice president of research, said he feels the university can win future court battles because the "law is quite clear."

Cusanovich stated in a press release that the university "will be absolutely certain that every step in the process has full approval from all relevant agencies, such as the Forest Service and U.S. Fish and Wildlife Service, before proceeding."

Lawyers for the government said federal agencies ''are currently addressing... whether re-initiation of consultation'' might be required because of the fire.

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