Thomas

This case represents another challenge to the Mount Graham international observatory project. See Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir.1994) (“Red Squirrel TV”); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568 (9th Cir. 1993) (“Red Squirrel III”); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir.1992) (“Red Squirrel II ”); Mt. Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991) (“Red Squirrel I”). On May 25, 1994, a coalition of environmental groups and individuals (“Coalition”) seeking to protect an endangered subspecies of red squirrel filed this action challenging the approval by the United States Forest Service (“FS”) and the United States Fish and Wildlife Service (“FWS”) (collectively “federal defendants”) of a construction site for a large binocular telescope (“LBT”) on Peak 10,477 in Mount Graham, Arizona, under the authority of the Arizona-Idaho Conservation Act, Pub.L. No. 100-696, §§ 601-607, 102 Stat. 4597 , 4597-99 (1988) (“AICA”). The University of Arizona (“University”), the party proposing to build the telescope, successfully moved to intervene as a defendant. The Coalition contended that the FS and FWS failed to comply…

dissenting.

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:

AICA § 602(a) (emphasis added). Congress also exempted construction of the first three telescopes from the requirements of NEPA:

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 a map entitled, ‘Mount Graham International Observatory Site’, dated July 28, 1988.” Nowhere does AICA…