The Omnibus Appropriations Bill, containing the Mt. Graham rider offered by Congressman James Kolbe, was passed on Thursday, April 25, 1996 with a vote of 399-24 by the House and with a vote of 88-11 by the Senate. President Clinton signed it into law the following day. The project will now be taking the necessary formal legal steps to get the injunction lifted and proceed with further construction activities.
In December 1993, after a year of studies and evaluation of four different sites for the Large Binocular Telescope, the Forest Service approved construction on site 10477. Biologists from the U.S. Fish and Wildlife Service, the Forest Service and the University of Arizona agreed that the site would have the least impact on the endangered red squirrel population.
Site 10477, to the east of the SMT telescope in the map below, is about 1300 ft to the east of the site referred to as RPA3 on the map. Hatched areas on the map indicate the varying levels of squirrel activity. Site RPA3 was shown as the site for the LBT telescope in a map appended to the Biological Opinion which was cited by Congress in its authorizion of construction of three telescopes on Mt. Graham back in 1988. The Forest Service and the University of Arizona have always interpreted the bill since its passage, to mean that the construction location of RPA3 was approximate, and that the Forest Service had discretion to approve changes based on the available biological information.
In May 1994, the Mount Graham Coalition filed suit alleging that the location change of the Large Binocular Telescope (the last of the three authorized by AICA) was improper and requested a temporary restraining order. The District Court in Tucson ruling against the federal agencies and the University of Arizona in July 1994, entered a permanent injunction against further LBT work on Mt. Graham pending further environmental studies. The UA appealed to the 9th U. S. Circuit Court of Appeals, and oral arguments were heard in November 1994. On April 1995, the 9th Circuit Court of Appeals upheld the District Court by agreeing that, under AICA, the US Forest Service did not have the prerogative of changing the LBT site. While the dissenting opinion argues that the Forest Service is entrusted by the Arizona-Idaho Protection Act to administer the terms of the Act and, in this case, insure the least disruption to the squirrels on Mt. Graham, the 9th Circuit Court has ruled in favor of the District Court's interpretation.
On July 20, 1995 both a petition by the UA for rehearing and a suggestion by the UA for rehearing en-banc were denied.
A strong community support developed to resolve the issues concerning the site for the Large Binocular Telescope. Several townships in the Mt. Graham area and the Board of Supervisors in Graham and Cochise counties passed resolutions calling for an immediate action by Congress to allow for telescope construction. Many felt that Congress should clarify its intention on the Arizona-Idaho Conservation Act passed in 1988. The signing into of the Omnibus Appropriation Bill on April 25, 1996 did just so!