Filed April 24, 1995
Because I think that the AICA confers discretion on the Forest Service to site the telescopes as it sees fit, so long as those locations are within the twenty-four acre "Site" described in section 601 (b) of the AICA, and because I believe we are bound to defer to the Forest Service's own reasonable interpretation of the AICA, I respectfully dissent.
In 1988, Congress attempted to shield the Mt. Graham International Observatory from the otherwise inevitable years of delay in litigation by exempting the construction of the first three telescopes of the Mt. Graham International Observatory - - which eventually will include seven telescopes -- from the section 7 consultation requirements of the ESA:
Subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied . . . and the Secretary shall immediately approve the construction of the following items:
AICA 602 (a) (emphasis added).
Congress also exempted construction of the first three telescopes from the requirements of NEPA:
With reference to the construction of the first three telescopes, related facilities, and the access road within the boundaries of the Site described in section 601, the requirements of section 102 (2) (c) of the National Environmental Policy Act of 1969 shall be deemed to have been satisfied..
AICA 607 (emphasis added).
Section 601 (b) defines the "Site" on which construction is to occur:
"The Site . . . shall include not more than 24 acres within the 150-acre area of the Coronado National Forest, Arizona, as generally depicted on map entitled, "Mount Graham International Observatory Site', dated July 28, 1988."
Nowhere does AICA specifically refer to the schematic map attached as Figure A to RPA 3. Thus, contrary to the majority's assertion, see maj. op. at 12, the statute does not on its face exempt construction from the consultation process only so long as the Forest Service builds the first three telescopes in the precise locations indicated in RPA 3 Figure A. At best, the language could be read to incorporate the map by reference. Even to accept this proposition, however, I would have to believe that Figure A constitutes a "term or condition" of RPA 3. Of this, I remain unconvinced.
First, the "Site" for which Congress crafted the exemption form the environmental laws is different from the "site" described by Figure A, which proposes that only 8.6 acres be used in construction of the first three telescopes. The AICA, however, makes reference to the twenty- four acre "Site" both in its waiver of ESA 7 (AICA 602(a) (3)) and in its waiver of NEPA 102 (2) (c) (AICA 607). Therefore, even if RPA 3 does by its terms limit construction to the locations depicted in Figure A (again, a disputable proposition), I do not believe that Figure A can limit the AICA's explicit and unequivocal exemption for the twenty-four acre Site within the 150 acres described in the July 28, 1988 map. In other words, the "Site" defined in the statute trumps the "site" shown in Figure A, which is only an addendum to RPA 3 -- a document whose mere "terms and conditions" were incorporated by reference.
The majority, however, attempts to minimize the conflict between the "Site" described in the statute and the "site" depicted in Figure A by reasoning that the twenty-four acre "Site" sets the boundaries of all seven telescopes, rather than just the first three that are at issue in this case. See maj. op. at 15 n.4. This argument is not persuasive because it would require us to imbue the phrase "terms and condition" with one meaning in section 601 and another in section 602.
The first section of the AICA orders the Secretary to issue a special use authorization for the "Site." AICA 601(a). Issuance of this authorization for the "Site" is subject to the terms and conditions of RPA 3. Id. Thus, if Figure A is truly a term or condition of RPA 3, the "Site" for which the special use authorization is to issue should also be limited to the 8.6 acres depicted in Figure A. Such a reading, however, would be nonsensical in the face of the explicit statutory language defining the "Site" as twenty-four acres within the 150 acres depicted on the July 28, 1988 map, and the Majority recognizes this in its acknowledgment that all seven telescopes are to be constructed within the boundaries of the Site. Maj. op. at 15 n.4.
Section 602 then uses identical language -- "[s]ubject to the terms and conditions of Reasonable and Prudent Alternative Three" -- in its exemption of the first three telescopes from section 7 of the ESA. Under the majority's approach, Figure A suddenly rises to the level of a "term or condition" for the exemption from the consultation requirement, even though it did not qualify as a "term or condition" for the issuance of the special use authorization. Thus, the majority's reading of "Site" treats Figure A as a "term or condition" for purposes of section 602, but not for section 601. I cannot countenance such an approach. Because Figure A cannot be considered a "term or condition" for purposes of section 601, it cannot be a term or condition for the purposes of section 602.
Furthermore, the FS has consistently acted in a manner that implicitly indicates that it interprets the AICA's grant of authority to build the Observatory Complex to mean that it retains discretion to site the telescopes as it sees fit, so long as the construction zone does not exceed the twenty-four acres to which section 601(b) refers. The majority itself observes:
Subsequent to the issuance of the permit . . . (t)he FS consulted the FWS, evaluated the proposals, and approved locations different from those sketched in RPA 3 Figure A. Ultimately, one telescope was sited roughly 750 feet to the southeast of the spot indicated in RPA 3 Figure A, and the other was also moved a short distance away. The Maintenance Building was located approximately 200 feet southeast of the site noted on RPA 3 Figure A, and the access road was redirected to conform to the terrain and avoid a squirrel midden.
Maj. op. at 7.
The FS has also explicitly referred to Figure A as merely a "conceptual layout" that does not limit its discretion in choosing final locations for the telescopes. For example, in the Final Environment Impact Statement the FS issued shortly after passage of AICA, the Forest Service referred to the layout Figure A depicts as merely "conceptual." See Final EIS at 2-46.
This Court must give substantial deference to the FS's interpretation of the AICA, as evidenced by its actions in making substantial deviations from Figure A in previous siting decisions, and by its written interpretation in the final Environmental Impact Statement. The FS is the federal agency charged with administering the terms of the AICA. As such, we accord it substantial deference in its interpretations of the statute. See Utility Reform Project v. Bonneville Power Admin., 869 F.2d 437, 442 (9th Cir. 1989). Such deference is "especially appropriate" when, as here, "the enabling legislation is highly technical and [the agency] was intimately involved in drafting much of that legislation." Id.
As this Court stated in Mount Graham Red Squirrel v Espy, 986 F.2d 1568, 1575 (9th Cir. 1993),
"[i]t is difficult to believe that Congress intended to force the Forest Service to resort to the procedures for approving new uses every time a change in the monitoring program (or, indeed, any aspect of the observatory project) was found to be desirable." Because the FS's interpretation of the AICA is based on a "permissible construction of the statute," cf. Citizens for Clean Air v. E.P.A., 959 F.2d 839, 844 (9th Cir.1992), this Court should defer to it.
This appeal gives rise to the fifth published opinion from this Court addressing legal challenges to the construction of the Mt. Graham International Observatory. I find this fact remarkable in light of Congress's recognition in 1988 of the "necessity of short-circuiting the customary environmental procedures," Mt. Graham Red Squirrel v Madigan, 954 F.2d 1441, 1445 (9th Cir. 1992), to insure the "immediacy of construction to the first three telescopes." Id. at 1554. I find the further delay imposed by today's decision especially regrettable in light of the fact that the FS appears to have chosen to locate the LBT on Peak 10,477 in good faith and for laudable reasons: Peak 10,477, according to the FWS, is now the location that would cause the least disruption to the squirrel's habitat. I therefore dissent.