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Court: Claim vs. Mount Graham observatory moot

Posted to NDN AIM by ErthAvengr

By ARTHUR H. ROTSTEIN Associated Press Writer 12/03/2002

azdailysun.com/non_sec/nav_includes/story.cfm?storyID=54513

TUCSON -- A federal appeals court ruled Monday that arguments by opponents of the University of Arizona's 23-mile power line on Mount Graham are moot.

The ruling essentially means environmental foes and two Apache organizations who have fought the Mount Graham International Observatory project for more than a decade have little left to try to block the first phase from completion.

"Clear precedent establishes that this court must first determine whether this appeal is moot," a three-judge panel said. Circuit Judges Andrew J. Kleinfeld and Johnnie B. Rawlinson, and Senior District Judge Justin L. Quackenbush from Washington state upheld a finding by U.S. District Judge Alfredo C. Marquez in Tucson.

Marquez found moot the claim by Mount Graham Coalition, the Apache Survival Coalition and Apaches for Cultural Preservation. The groups challenged the power line under the National Historic Preservation Act.

"The coalitions' NHPA claim is moot because the harm that the coalitions seek to prevent has already occurred and no effective relief for the alleged NHPA violation can be given," the panel found. "The power line is completely installed with power running through it to the telescopes and other means of electricity have been used for decades on Mount Graham."

The university is working with a scientific consortium to complete construction of the Large Binocular Telescope, one of the world's most powerful optical instruments.

The eastern Arizona observatory encompasses 8.6 acres on Mount Graham's 10,470-foot Emerald Peak in the Pinaleno Mountains.

Two smaller telescopes were completed on the mountaintop, about 110 miles northeast of Tucson, in 1994.

Partners with the university in building the LBT, which will feature twin mirrors 28 feet in diameter, include Italy's Arcetri Astrophysical Observatory, Ohio State University, Notre Dame University, Tucson-based Research Corp. and a group of German astronomy institutes.

Construction already has been completed on a power line that runs underground up the mountain -- which San Carlos and White Mountain Apaches, along with the Mount Graham Coalition, sued to block.

"Clear precedent establishes that this court must first determine whether this appeal is moot," a three-judge panel said. Circuit Judges Andrew J. Kleinfeld and Johnnie B. Rawlinson, and Senior District Judge Justin L. Quackenbush from Washington state upheld a finding by U.S. District Judge Alfredo C. Marquez in Tucson.

Marquez found moot the claim by Mount Graham Coalition, the Apache Survival Coalition and Apaches for Cultural Preservation. The groups challenged the power line under the National Historic Preservation Act.

"The coalitions' NHPA claim is moot because the harm that the coalitions seek to prevent has already occurred and no effective relief for the alleged NHPA violation can be given," the panel found. "The power line is completely installed with power running through it to the telescopes and other means of electricity have been used for decades on Mount Graham."

In May 2001, Marquez ruled that the university could build the power line, intended to replace power provided by diesel generators, although Apache tribal members contended that the power line would desecrate the mountain and disrupt Indian graves.

The judge found that congressional action exempted the university from environmental and other laws restricting land use in the area. In 1988, Congress authorized construction of at least three telescopes on the mountain, with the possibility of allowing a fourth.

"This demonstrates once again that the University of Arizona is the first university in the United States to lobby their exemption from all native American religious and cultural protection laws," said Robert Witzeman, a spokesman for the Mount Graham Coalition, a group of more than 20 environmental organizations.

William Carpenter, an attorney in Eugene, Ore., representing the coalition and the Apache organizations, said his clients had argued that construction of the power line meant continuing harm to the mountain. "The question is, 'is this appeal over or not yet?"' he said.

Buddy Powell, associate director of the university's Steward Observatory, said the university will continue to work with the Apache tribes and other stakeholders but is pleased with the court ruling. "I hope it's the end," he said.

Last year, Dr. Robin Silver, a physician and member of the Center for Biological Diversity and the Maricopa Audubon Society who has helped lead the fight against the project, said if the power line appeal failed, "there's probably nothing that we can do until they try to expand further."

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