The decision caught the UofA off guard.
"I think that they believed there was so much water under the bridge on this project, that it had gone through so much litigation, that they didn't face any real risks," says Washington, D.C., attorney Eric Glitzenstein, who argued the case before Marquez on behalf of the coalition.

Less than a month before Marquez ruled, Cusanovich had labeled coalition's lawsuit as frivolous, saying, "I don't see anything there."

Marquez certainly did. He wrote, "It is obvious that formal [environmental assessment] is mandated before this project can proceed."

Despite the gloomy outlook, UofA officials are not ready to concede defeat. The UofA has asked Marquez for permission to continue to work at the East Emerald Peak site as long as such activities do not permanently damage the chances of reforestation. The work the UofA seeks to do includes road construction, leveling, construction of a retaining wall and installation of utilities.

Environmentalists see little likelihood that Marquez would allow such destruction at the East Emerald Peak site prior to a ruling from the appeals court.

If the UofA loses its appeal, Steward Observatory Director Peter Strittmatter says the university will simply go back to the original, "unacceptable" LBT site.

Environmental groups are ready to counter this move as well. When Congress approved the exemption, it also included a provision that limits the number of acres the UofA can cut for the LBT and the two smaller telescopes to 8.6 acres.

Witzeman says the university bumped up against this limit when it cut the trees on December 7, making it impossible to go back to the congressionally approved site.

Strittmatter, who considers telescope opponents to be "essentially terrorists," laughs off Witzeman's assertion. Strittmatter claims the UofA was only following the directives of the federal agencies when it cut the trees on December 7, and can't be blamed if the order was an error.

"If a mistake was made, then a mistake was made," Strittmatter says.
Strittmatter says the UofA will simply subtract the one acre it cut on December 7 at East Emerald Peak from its 8.6 acre limitation and transfer it to the original site.

"It is only a matter of defining which part of [the cut acreage] belongs to the observatory," Strittmatter says.

Witzeman says Strittmatter is engaging in wishful thinking.
"They can never build a telescope at the original site," Witzeman says. "They have cut their hands off. It is this site, or none.

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