Home Working with Section 106 Section 106 in Action Archive of Prominent Section 106 Cases Summer 2001

Archive of Prominent Section 106 Cases:
Arizona: Power Line Construction for the Mt. Graham International Observatory

Agency: U.S. Forest Service

Criteria for ACHP Involvement:

• The White Mountain Apache Tribe opposes the construction of the University of Arizona's large binocular telescope project on Mt. Graham, and more recently, a power line to the telescopes (Criterion 4).

• The Forest Service has determined that construction of the Mt. Graham power line is exempted from Section 106 review by the Arizona-Idaho Conservation Act, an interpretation that has been challenged in court by the Apache Survival Coalition and other preservationists (Criterion 2).

On April 30, 2001, the Tribal Historic Preservation Officer (THPO) for the White Mountain Apache Tribe requested that ACHP review the Coronado National Forest’s compliance with Section 106 for activities carried out on Mt. Graham, in particular construction of a power line to the Mt. Graham International Observatory. The THPO also requested that ACHP immediately terminate the existing Programmatic Agreement (PA) for Region 3 of the Forest Service. Shortly thereafter, on May 29, the Forest Service forwarded its determination of eligibility for Mt. Graham to the Keeper of the National Register of Historic Places with a request for a formal determination by that office.

ACHP responded to the tribe’s concerns in a letter to the Forest Supervisor, stating that the power line project is an undertaking, as defined in both ACHP’s regulations and the Region 3 PA, as are other permits and approvals for construction and improvements on Mt. Graham. The letter pointed out, however, that the U.S. District Court for the District of Arizona recently ruled that the Arizona/Idaho Conservation Act of 1988 (AICA) exempted the Forest Service from compliance with the National Historic Preservation Act for construction of phase I of the observatory project, including the power line. ACHP also notified the Forest Service of its intent to seek an amendment to the Region 3 PA, which is outdated and fails to provide Indian tribes, local governments, and applicants a meaningful role in consultation.

Mt. Graham, also known as “Dzil nchaa si’an” and the Pinaleno Mountains, is a sacred site to the Western Apache tribes. The mountain is located in the Coronado National Forest and is the site of Mt. Graham International Observatory. The AICA directed the Secretary of Agriculture to issue a special use permit to the University of Arizona for the establishment of the observatory.

AICA stated that, subject to protective measures for the endangered Mt. Graham Red Squirrel, the requirements of the Endangered Species Act and the National Environmental Policy Act were satisfied for the first three telescopes, related facilities, and an access road. Despite this, the observatory project has been the subject of several lawsuits by parties seeking to protect both endangered species and traditional Native American values.

Since 1990, the Apache Survival Coalition, which is comprised of traditional cultural and religious leaders from the San Carlos Apache Tribe, and other preservation organizations have filed five lawsuits seeking to stop constuction. All have been unsuccessful. In the most recent decision by the District Court of Arizona, the court denied the Coalition’s request for a preliminary injunction against construction of a power line on Mount Graham. (This decision is being appealed to the 8th Circuit Court of Appeals.) Although not a party to the lawsuits, the White Mountain Apache Tribe has also come out in opposition to construction of the observatory and the currently proposed power line.

ACHP first became aware of the concerns of traditional Apache Indians in the early 1990s, and in early 1996 the Coalition requested that ACHP seek a determination from the National Park Service of Mt. Graham’s eligibility for the National Register. Given the lack of adequate documentation for such review, ACHP urged the Forest Service to assist the Coalition in developing this information. Through a number of subsequent letters, ACHP has urged the Forest Service to complete its own National Register eligibility determination as quickly as possible to ensure that traditional cultural values are identified and protected.

Fundamental to this case are competing interpretations of AICA. The Forest Service, and now the district court, have interpreted the law as exempting the Forest Service from further compliance with Section 106 for construction of phase I of the observatory project, including the power line. ACHP, in 1996, took the position that the AICA does not offer such an exemption. Local preservation groups are appealing the district court decision, hoping to have it overturned, so that alternatives to construction of a power line to the Mount Graham International Observatory can be considered in consultation with Indian tribes.

Staff contact: Carol Gleichman

Updated June 6, 2002

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