THE NEW 'SCOPES TRIAL
These are troubled times for University of Arizona astronomers. Their 15-year effort to build a $200 million, seven-telescope observatory atop Mount Graham in southeastern Arizona is in jeopardy.
Environmentalists hope to prevail soon in a long and bitter battle to keep the project out of 470 acres of old-growth spruce and fir forest that is critical habitat for the endangered Mount Graham red squirrel.
"We smell blood," says telescope opponent David Hodges, who's been repeatedly arrested during demonstrations opposing the project.
After losing ten federal lawsuits aimed at stopping the project, the Mount Graham Coalition, a federation of more than 20 environmental and Native American groups, finally won a round before a Tucson federal judge who had routinely rejected their past arguments.
U.S. District Court Judge Alfredo C. Marquez stunned the UofA on July 28 when he stopped all work on the centerpiece of the project, the Large Binocular Telescope, until requirements of the Endangered Species Act and the National Environmental Policy Act are fulfilled.
The ruling is devastating to UofA, which has avoided meeting the requirements of the two environmental laws via 1988 congressional exemptions. UofA spent more than $1 million lobbying Congress for the exemptions after it became clear that federal biologists were against any development in red-squirrel habitat.
Marquez's ruling is a dream come true for environmentalists who were outraged that the environmental laws had been circumvented and that the UofA was even willing to jeopardize an endangered species to build the observatory in Coronado National Forest.
Environmental leaders now are confident that the site selected for the Large Binocular Telescope won't meet the environmental laws' tough standards. Without the LBT, which would be the largest optical telescope on Earth, the entire observatory is threatened.
"If the Endangered Species Act is properly implemented, it would exclude any further development," says Robin Silver, a Phoenix physician and wildlife photographer who has fought the project since 1989.
The UofA and the federal Forest and Fish & Wildlife services have all appealed Marquez's ruling to the U.S. Court of Appeals in San Francisco, where a three-judge panel will hear the case in November.
"We are cautiously optimistic that they won't overturn the district court's ruling," Silver says.
The UofA also appears upbeat about the appeals hearing. "I'm quite confident that they will rule in our favor," says Michael Cusanovich, the university's vice president for research. "I think we have a very, very strong case."
Construction of the LBT is essential to the project. Without the LBT and the hefty revenue it is expected to generate, it is unlikely two smaller telescopes that opened last year will be able to cover the high costs of operating on the 10,000-foot peak in the Pinaleo Mountains.
Marquez's ruling hinges on astronomers' request that the LBT be moved about 1,500 feet from the site specifically approved by Congress. Marquez ruled the new site lies outside the area Congress exempted from environmental laws.
The move was sought after the university belatedly discovered that the site it had Congress approve was, in its own words, "unacceptable" for the LBT. UofA astronomers had grossly underestimated the effects the spruce-fir forest would have on the giant telescope's viewing quality. In other words, they would not be able to see the stars for the trees.
UofA officials are downplaying the error, saying that all the sites considered for the LBT are excellent, but that some are better than others. Cusanovich acknowledges, however, that the site within the congressionally exempt area is the worst of four locations examined.
The university asked the Forest Service for permission to move the LBT to a better viewing site at East Emerald Peak in March 1993.
The Forest Service was warned four months later by a Fish & Wildlife Service attorney that the congressional exemption did not encompass East Emerald Peak and that formal environmental studies were needed before the UofA could build the LBT there.
But in early December, the Fish & Wildlife Service changed its mind and notified the Forest Service that environmental reviews on the possible impact on the red squirrel were not necessary. The Forest Service approved the UofA's request to move the LBT to East Emerald Peak on December 6, despite its own staff biologist's contention that the East Emerald Peak site "is a much better habitat for the red squirrel" than the original site.
The UofA acted immediately.
Two hours before sunrise on the morning of December 7, the UofA began cutting more than 280 old-growth spruce and fir trees on East Emerald Peak. The trees were downed before environmental groups even knew about the Forest Service's administrative order approving the move.
"They elected to break the laws first, and then see if they could get away with it after they cut all the trees," says Bob Witzeman, a Maricopa Audubon Society spokesman.
The Mount Graham Coalition filed suit May 25, claiming that the UofA and the two federal agencies had violated the Endangered Species Act and the National Environmental Policy Act by approving the new location for the LBT without formal environmental assessments.
Marquez agreed with the coalition, prohibiting any work on the LBT site until the requirements of the two environmental laws are met.
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.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you’ll never miss Phoenix New Times' biggest stories.