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Apache Survival Coalition v. United States



The Apache Survival Coalition (Coalition) appealed the district court’s denial of a preliminary injunction against further construction of the Mount Graham International Observatory (observatory) on top of Mt. Graham in southeastern Arizona. The Coalition argued that the U.S. Forest Service (Forest Service) did not comply with the National Historic Preservation Act of 1966 (NHPA).[1] The Ninth Circuit affirmed the denial of a preliminary injunction based on laches and the Coalition’s failure to raise serious questions on the merits.

This case represents one in a series of challenges to the observatory project.[2] In May of 1994 several environmental groups obtained a district court order enjoining construction of one telescope at a new location because it was not authorized by the Arizona-Idaho Conservation Act.[3] The Coalition was not part of the court action resulting in the injunction. Instead of participating in the litigation, the Coalition chose to object to the Forest Service via fax. On April 26, 1996 Congress passed the “Kolbe Rider” to the Omnibus Consolidated Rescissions and Appropriations Act of 1996.[4] Section 335 of the Act provided explicit approval for a new telescope to be built in the controversial Mt. Graham area. The district court subsequently dissolved its injunction. On June 17, 1996, the Coalition filed the case at hand asking for an injunction against further construction. The main argument of the Coalition was that the Forest Service violated the NHPA by failing to recognize that Mt. Graham in its entirety was sacred to practitioners of the traditional Western Apache religion, and the Forest Service considered only specific shrines while preparing its Environmental Impact Statement.

The Ninth Circuit considered two reasons for affirming the district court’s denial of the injunction requested by the Coalition. First, the Ninth Circuit evaluated the defense of laches. To establish an adequate defense under the doctrine of laches, the defendant must show prejudice caused by the opposing party’s lack of diligence in pursuing its claim. The Ninth Circuit held that the Coalition’s failure to join the previous litigation effort aimed at enjoining the construction of the observatory illustrated that the group lacked diligence. The Coalition chose to pursue administrative strategies to challenge the project. However, the efforts taken in the administrative challenge were held to be minimal, and therefore a finding of unreasonable delay was not precluded. Accordingly, the affirmative defense of laches was held applicable to bar the Coalition’s request for an injunction.

The second reason the Ninth Circuit affirmed the denial of the Coalition’s request for an injunction was that the Coalition failed to raise a serious question on the merits of the case. Specifically, the Coalition never explained how shifting the location of the telescope 1300 feet to its new location would cause a new injury. The challenge to the original location of the telescope failed in an earlier case,[5] and the Coalition did not convince the Ninth Circuit that the new location of the telescope would cause any new or different harm than that alleged and rejected in the previous case. Therefore, the Ninth Circuit held the Coalition could not obtain an injunction, based on the doctrine of laches and the lack of a serious question on the merits.[6]

[1]16 U.S.C. §§ 470-470mm (1994).

[2]See Mount Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir. 1991) (“Red Squirrel I”); Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir. 1992) (“Red Squirrel II”); Mount Graham Red Squirrel v. Espy, 986 F.2d 1568 (9th Cir. 1993) (“Red Squirrel III”); Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir. 1994) (“Apache Survival I”); Mount Graham Coalition v. Thomas, 53 F.3d 970 (9th Cir. 1995) (“Mt. Graham I”); Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996) (“Mt. Graham II”).

[3]Pub. L. No. 100-696, 102 Stat. 4597-4599 (1988).

[4]Pub. L. No. 104-134, 110 Stat. 1321 (1996).

[5]Apache Survival I, 21 F.3d at 895.

[6]However, the court did counsel the Coalition that nothing in the present opinion should discourage it from seeking the inclusion of Mt. Graham in the National Register of Historic Places, thereby avoiding many of the problems the Coalition sought to redress.

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