SAN FRANCISCO -- A federal appeals court has ruled that construction of a $200 million observatory in Arizona may continue, despite the threat it poses to the endangered Mount Graham red squirrel.
Noting that Congress had specifically waived the environmental restrictions on the first phase of the project, which will include the world's largest telescope, the three-judge panel of the 9th U.S. CircuitCourt of Appeals was unanimous in its decision, though it said that the case posed "difficult choices."
Congress passed special legislation in 1988 permitting construction of the first three of seven planned telescopes on Mount Graham in the Coronado National Forest of southeastern Arizona.
The legislation exempted that phase from further environmental review, despite the potential danger to the environment where the red squirrel lives.
Because of that legislation, which was sought to speed construction of the vast international observatory, the court is barred from extending further protection to the animal at this stage, the ruling said.
The University of Arizona, which is in Tucson and was the defendant in the case, has said that the observatory will have the most advanced array of telescopes ever assembled. So far, an access road has been built, the site has been cleared and footings and foundations have been poured for the first two telescopes.
Mark Hughes, a staff lawyer with the Sierra Club Legal Defense Fund in Denver, said that while the ruling appeared to settle the legal issues regarding the special legislation passed by Congress in 1988, he expected that there would be further appeals of certain factual issues, including whether proper monitoring of the squirrels was being done.
The Sierra Club led a coalition of environmental organizations, including the National Audubon Society and the National Wildlife Federation, in seeking to halt the project.
The ruling, which was announced late Wednesday, was written by Judge Stephen Reinhardt. He acknowledged that allowing the construction of the telescopes could lead to the extinction of the red squirrel, which has been listed as a species "in danger of extinction" under the Endangered Species Act.
"If the Mount Graham red squirrel becomes extinct as a result of the astrophysical research project, then the new telescopes will not represent an unqualified step forward in our quest for greater knowledge," the panel said.
The debate arose because two peaks of Mount Graham more than 10,000 feet above the desert represent not only what experts say is the most nearly ideal location in the United States for astronomical research, but also a unique biological environment inhabited by plant and animal species found nowhere else in the world.
Among them is the tiny red squirrel (Tamiasciurus hudsonicus grahamensis) which was once thought to be extinct and whose population is now estimated to be about 300.