By Kimberly Peterson

Arizona Daily Wildcat

A group that appealed to a federal court last year to halt the Mount Graham International Observatory project was turned down Friday.

Still, members of the Apache Survival Coalition said they refuse to give up.

The United States Court of Appeals for the Ninth Circuit had examined the appeal since it was argued in San Francisco on Aug. 31, said University of Arizona attorney Thomas Thompson.

The coalition appealed an Aug. 19, 1991 suit it filed against the U. S. Forest Service.

The coalition argued that members of the San Carlos Apache tribe did not receive sufficient correspondence with the UA concerning the project.

They also argued that the 1988 Arizona-Idaho Conservation Act was unconstitutional because it violated the constitutional doctrine of separation of powers.

The Arizona-Idaho Act states that the Mount Graham Observatory is exempt from certain environmental laws only if the first three telescopes are built on Emerald Peak.

In a unanimous decision, a panel of three Ninth Circuit judges affirmed a previous trial court's decision denying the coalition's environmental and religious claims regarding the observatory project.

In a 43-page report, Judges Herbert Choy, D.W. Nelson and William Norris concluded that "the coalition's constitutional arguments are without merit."

The court decided the Arizona-Idaho Act was beyond challenge because it was not unconstitutional, Thomas said.

"Congress has absolute control over how land belonging to the government is used," he said. "Congress is the only one that gets to decide that."

The judges' report noted that the Apache Survival Coalition reflects the interests of both its own members and members of the San Carlos Apache Tribe.

Not true, said Mike Davis, vice chairperson of the Apache Survival Coalition. The two groups are separate, he said.

Thompson agreed.

"The Apaches were taken bad advantage of on (that statement)," he said.

The judges' report also said that the San Carlos Apache tribe was "content to stand on the sidelines" when the project was first begun.

But Davis said that two letters were sent to the UA in 1989 protesting the project. One letter was from Friends of Mount Graham and another was from then-tribal chairman Buck Kitcheyan.

Michael Cusanovich, UA research vice president, said he was pleased with the judges' decision.

"(The decision) addresses in part these claims that we trampled on (the Apaches') rights," he said. "We obviously didn't, we acted in good faith and did everything we could possibly do."

"We will continue to work with the tribe to mitigate any effects and resolve any concerns," he said.

Apache Survival Coalition members said they will continue to fight to remove the telescopes.

"Our struggle is going to be continued," said Ola Cassadore Davis, coalition chairperson. "This is not going to stop me. I feel that this mountain is still going to be won yet by public support." Read Next Article