Case 138

Apache Survival Coalition v. United States, (Apache Survival II), 118 F.3d 663 (9th Cir. 1997).

Plaintiff, Apache Survival Coalition, sought to enjoin construction of the Mount Graham International Observatory, arguing that defendant, the U.S. Forest Service, failed to comply with the National Historic Preservation Act (NHPA). Up until this point, there had been an injunction in place from a suit brought by another group, Red Squirrel V, that sought the same injunction, but it had recently expired and construction was underway again.

As in Apache Survival I (see Case 125), the district court decided this case on the doctrine of laches. To establish the defense of laches, a party must show prejudice caused by the opposing party's lack of diligence in pursuing its claim. The court emphasized that the Coalition did not come forward with its claim at the same time Red Squirrel V sought its injunction, and instead waited two years until that injunction was dissolved. The court thought this especially inexcusable in light of the "strong wake-up call" of Apache Survival I, and it denied the injunction.

The Ninth Circuit began its discussion of the case by acknowledging that, like NEPA cases, NHPA cases require that laches be "invoked sparingly." Nevertheless, it proceeded to affirm the denial of the injunction.

In affirming the denial, the Ninth Circuit found the Coalition's argument that it had been attempting to use other routes of resolution (i.e. "administrative strategy") unconvincing. If the Coalition did in fact pursue its claims through an administrative strategy, mainly lobbying, there was little evidence of its efforts in the record. The court stated that the Coalition's tactical decisions were remarkably similar to that used in Apache Survival I. The tactic in those cases was to wait to bring suit until the challenges launched by other parties had failed. Further, the Coalition failed to explain how the three telescopes in their present configuration represent any greater desecration than they would have in their original, already approved, configuration.

The court remanded the case to the trial court and stated that if there is no additional or different proof, it is likely that the district court will find in favor of the Government. It did, however, state that nothing in this opinion is meant to discourage the Coalition from seeking the placement of Mount Graham on the National Register of Historic Places, which would alleviate many of the problems of outdated information and inadequate consultation presented here.

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