Thomas

ORDER

Appellants Mount Graham Coalition and others (“the Coalition”) have filed an emergency motion for a stay pending appeal. The Coalition seeks to stay the order of the District Court for the District of Arizona dissolving its injunction against further construction or site preparation for a telescope on Peak 10,477 in the Coronado National Forest in Arizona. We deny the stay because we conclude that the Coalition’s appeal fails to raise a serious question on the merits. See Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir.), rev’d on other grounds, 463 U.S. 1328 , 104 S.Ct. 10 , 77 L.Ed.2d 1431 (1983).

The history of this dispute over the attempts of the University of Arizona to locate a new telescope in the Mount Graham area of Arizona, where an endangered red squirrel species lives, is recounted in our many earlier decisions dealing with the matter. See Mt. Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991) (“Red Squirrel I”); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir.1992) (“Red Squirrel II”); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568 (9th Cir.1993) (“Red Squirrel III ”); Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir.1994)…

concurring:

On April 24, 1995, this court affirmed the judgment of the district court enjoining construction of a site for the Large Binocular Telescope (LBT) on Peak 10,477 of Mount Graham. We stated: ‘We hold that the AICU does not provide the FS [Forest Service] with the authority to select a site for the LBT other than that indicated in RPA 3 without complying with the ESA and NEPA.” Red Squirrel V, 53 F.3d at 977. On April 25, 1996, the House of Representatives passed as a rider to an appropriations bill the provision that is at issue in this case.

Unpreceded by hearings or committee report, the rider was explained by its sponsor, who asked “Why was this legislation necessary?” and answered his own question by quoting from the losing government brief and the dissenting judge in Red Squirrel V: the language was necessary in order to vindicate these views that the court had rejected. 142 Cong.Rec. H4100 (daily ed. April 25, 1996). The appropriations bill, with the rider virtually irremovable once attached, was passed by the Senate and signed into law by President Clinton on April 26, 1996. Thereafter, appellees, invoking this new legislation, successfully moved the…