Judge Delays Construction of Arizona Observatory

The endangered red squirrel gets a 120-day reprieve, while Congress reconsiders its support of Mount Graham complex TUCSON -- Two years ago, astronomers and their supporters climbed up Capitol Hill and won approval for a $200 million observatory on an Arizona mountaintop. Many people thought that was the end of a four-year struggle between astronomers and people who opposed observatory development (The Scientist, Nov. 28, 1988, page 5; and Jan. 22, 1990, page 4). But last month, a federal court temporarily halted construction on the Mount Graham site. And within days of that decision by United States District Judge Alfredo C. Marquez, Rep. Morris K. Udall (D-Ariz.) requested that the House subcommittee on national parks and public lands hold an oversight hearing about the matter. In short, the fate of the mountain is far from settled. At the core of this latest flare-up is a U.S. Fish and Wildlife Service assessment of the state of an endangered squirrel and the impact of development on it. The assessment, called a biological opinion, is required by the Endangered Species Act. The agency concluded that careful construction of the observatory on 10,717-foot Mount Graham wouldn't threaten this rare subspecies of red squirrel with extinction. That opinion was used by observatory proponents to garner congressional support for three new-era telescopes said to be crucial to U.S. prominence in ground-based astronomy. But the basis for that opinion has been thrown into question by the testimony of two federal biologists who helped prepare the opinion, bringing with it the possibility that Congress may have been deceived. Sam Spiller, who directs the U.S. Fish and Wildlife Service office in Phoenix, testified that superiors instructed him to conclude that the observatory could coexist with the squirrels. The July 14, 1988, opinion, he said, reflected a "predetermined intent." Spiller also testified that he considered the biological opinion to be scientifically sound even with this predetermined premise. But a biologist working under him, Leslie Fitzpatrick, who compiled biological assessments to support the conclusion, testified that insufficient information existed to make such a conclusion. "As a professional biologist, I would have had to conclude that we did not know enough to allow for development in the near term, and we needed much more information on the squirrel and its habitat before a decision to site the project should have been made," Fitzpatrick told lawyers in a court-ordered deposition. Based in part on that testimony, Marquez on March 26 ordered a 120-day delay in construction. And now, the two Arizona senators have asked the Government Accounting Office for an analysis of that opinion. Lawyers for the Justice Department and the University of Arizona, the observatory's principal sponsor, say the opinion of Michael Spear, the regional Fish and Wildlife Service director, is the only one that matters. Spear said in an affidavit that he and his staff concluded "some thoughtfully prescribed arrangement" would make coexistence possible. The court-ordered delay poses problems for observatory proponents, who now must wait until almost August to begin preparing the site. They had hoped to construct and weatherproof, before the fall snows, buildings that would house a 10-meter submillimeter telescope, sponsored by West Germany's Max Planck Institute, and a 1.8-meter Vatican Observatory telescope that would test a new mirror technology. Now those instruments may have to wait until next spring for their debuts. Marquez also rejected a key argument of observatory lawyers that Congress had exempted the Mount Graham squirrel from further action under the Endangered Species Act. He ruled that the Arizona-Idaho Conservation Act, which authorized the observatory, contained no such blanket exemption. And he said the delay would provide time for further squirrel studies and give Congress the option of reviewing its approval. The judicial language raises the prospect of further delays, depending on what new studies reveal. Observatory proponents say that would increase the cost of the project and could, ultimately, undermine U.S. leadership in ground-based astronomy. "I would say that if it were to become a permanent thing and not just a four-month delay, you could kiss it goodbye," said Eugene Capriotti, chairman of the astronomy department at Ohio State University. Ohio State is a partner in the planned Columbus Project, an 11.3-meter binocular telescope now scheduled for construction on Mount Graham within a couple of years. Environmental groups, reacting to Marquez's ruling, announced that they would push Congress to revoke its approval of the project. Lawyers for the Sierra Club, which had requested the delay as part of a broader legal battle to stop construction, say the squirrel population, now estimated at between 100 and 200, is too low to assure its survival. A spokesman for Rep. Jim Kolbe (R-Ariz.) said the congressman, a leading supporter of the project, believes no deception occurred. Udall has expressed concern that politics may have influenced the biological opinion. The delays, they say, could cost $1.4 million in idled personnel, threaten almost $1 million in NSF funding, and increase the likelihood that telescope sponsors will go here. Sen. John McCain (R-Ariz.) believes the time may be at hand for Congress to call oversight hearings, an aide said. Meanwhile, lawyers for observatory proponents are appealing Marquez's ruling. Mark Holman Turner is a freelance writer based in Tucson.

Judge Delays Construction of Arizona Observatory

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