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problems of outdated information and inadequate consultation presented here.
| Go to Table of Contents | Go to Top |