The opinion filed December 11, 1991, is withdrawn.
REINHARDT, Circuit Judge:
This is a case about difficult choices. In 1988, Congress was asked to choose between ensuring that our nation remains a world leader in astrophysical research or protecting from almost certain demise an endangered species on the brink of extinction. Congress attempted a compromise by passing the Arizona-Idaho Conservation Act, Title VI, Mount Graham International Observatory, Pub.L. No. 100-696, 102 Stat. 4571, 4597 (1988). Unfortunately, it did not make its choice as clear as it might, or, perhaps, should have. Inevitably, passage of the Act did not end the conflict between those who would build bigger and better telescopes and those who would shelter the endangered Mount Graham red squirrel from the destruction of its habitat. That ongoing struggle has led directly to the controversy that confronts us today. The courts are now required to make Congress's difficult choice clear.
At the center of the controversy is an area of land located on Mount Graham, which is part of the Pinaleno Mountains in the Coronado National Forest in southeastern Arizona. Among Mount Graham's promontories are High Peak and Emerald Peak. Elevations on Mount Graham exceed 10,000 feet. The mountain, which is surrounded by desert, is far from the lights, noise, and activity of any major population center. It is not, however, untouched by humans. For many years, Mount Graham has been the site of logging, camping, and other human activities. It currently houses a Bible Camp and many summer homes.
Mount Graham's high altitude and relative isolation have provided a unique biological environment, inhabited by plant and animal species found nowhere else in the world. Among those species is the endangered Mt. Graham red squirrel. The red squirrel, which was once thought to be extinct, has a population most recently estimated at 250-300.
The high altitude and isolation of Mount Graham, in addition to providing the unique environment necessary to sustain the red squirrel, make astrophysicists consider that location the best available site in the United States for astronomical research. In 1984, an international consortium led by the University of Arizona ("University") and including the Vatican Observatory, the Max Planck Institute of Radioastronomy of West Germany, Ohio State University, and Arcetri Astrophysical Observatory of Florence, Italy, proposed the construction of the most sophisticated array of telescopes ever assembled, including the world's largest, on Mount Graham. The astrophysical complex, as originally proposed, would include thirteen telescopes, support facilities, and an access road. It would be built in the red squirrel's last remaining undisturbed habitat. Members of the international consortium have indicated that if the astrophysical complex is not built on Mount Graham, it will be built in another country.
In response to the international consortium's proposal and pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370c, in 1985 the Forest Service began to prepare an Environmental Impact Statement
In late 1987, the University proposed the construction of three telescopes on High Peak and four telescopes on Emerald Peak, along with support facilities and access roads. The Forest Service prepared a new Biological Assessment, based on the University's proposal, and reinitiated formal consultation with the Fish and Wildlife Service. The Fish and Wildlife Service then issued a Biological Opinion
Frustrated by the delay, the University sought to circumvent the ordinary procedure through congressional action. In 1988, the University lobbied Congress to pass legislation authorizing the immediate construction of an astrophysical complex on Mount Graham. The University's draft legislation provided: "Notwithstanding any other act, law, rule, or regulation, the Secretary of Agriculture is hereby authorized and directed to enter into a land use agreement with the ... University of Arizona for the establishment of the Mt. Graham International Observatory Research Site."
Although Congress rejected the University's broad language, it did enact legislation providing for the establishment of an astrophysical complex on Mount Graham. In the Arizona-Idaho Conservation Act,
The Arizona-Idaho Conservation Act splits the construction of the astrophysical complex into two phases. It first states that "Subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied as to the issuance of a Special Use Authorization for the first three telescopes and the Secretary shall immediately approve the construction of ... (1) three telescopes to be located on Emerald Peak; (2) necessary support facilities; and (3) an access road to the Site." Arizona-Idaho Conservation Act, sec. 602(a). The Act further provides that "[t]he Secretary shall, subject to the requirements of the Endangered Species Act and other applicable law, authorize the construction of four additional telescopes on Emerald Peak. Consultation under section 7(a)(2) of the Endangered Species Act with respect to the four additional telescopes ... shall consider, among other things, all biological data obtained from monitoring the impact of construction of the first three telescopes upon the Mount Graham red squirrel." Id. sec. 603. The Act requires that the University, with the concurrence of the Secretary of Agriculture, develop and implement a Management Plan "consistent with the requirements of the Endangered Species Act and with the terms and conditions of Reasonable
In April 1989, the Secretary of Agriculture issued the University a permit for the first phase of construction of the astrophysical complex. The permit allows construction of the first three telescopes on Emerald Peak. Construction will take place on a total of 8.6 acres of the 1,750 acres designated in the Biological Opinion as a Refugium for the red squirrel.
The Sierra Club and a coalition of environmental organizations ("Sierra Club") seek an immediate halt to all construction relating to the first phase of the project — the first three telescopes — alleging violations of the Endangered Species Act, the National Forest Management Act, and the terms and conditions of the Arizona-Idaho Conservation Act. Their allegations primarily center on the existence of factual circumstances requiring that the Forest Service and the Fish and Wildlife Service reinitiate formal consultation; they also allege monitoring and road closure violations, a violation by the Fish and Wildlife Service regarding failure to designate critical habitat, and a violation by the Forest Service regarding failure to maintain sufficient habitat for a viable population of red squirrels. The most significant dispute between the parties is whether the Endangered Species Act requires further consultation between the Forest Service and the Fish and Wildlife Service before construction on the first phase of the project may proceed. The plaintiffs' complaint seeks both declaratory and injunctive relief. On appeal, we address not only the plaintiffs' allegations, but also the district court's denial of a motion by Mountain States Legal Foundation and a coalition of business interests to intervene.
Ultimately, we conclude, with respect to the principal issue, that no further consultation is required prior to the construction of the first three telescopes. However, as we have already noted, when Congress chose the governing statutory language it failed to make that decision clear. Moreover, the process by which Congress reached its decision was less than satisfactory. No committee hearings were held and no committee reports issued. Following passage of the Act, individual members of Congress sought reconsideration. However, they were all unsuccessful. We are therefore required to make the best sense we can of the legislation as originally enacted, regardless of any questions we may have as to its wisdom. It is in that light that we proceed to resolve this part of the appeal — and do so in favor of the defendants. With respect to the other issues
II. PROCEDURAL HISTORY
On July 26, 1989, Sierra Club filed a complaint in the United States District Court for the District of Arizona against the Secretary of Agriculture, the U.S. Forest Service, the Secretary of the Interior, and the U.S. Fish and Wildlife Service. The complaint stated nine claims for relief, resting on alleged violations of the Endangered Species Act, the National Forest Management Act, and the Arizona-Idaho Conservation Act. The history of this case involves numerous proceedings in the district court as well as multiple appeals. We describe the nature and history of each appeal separately.
A. The "Road Appeal"
On August 22, 1989, Sierra Club moved for a preliminary injunction barring construction of the astrophysical complex. The district court scheduled a hearing on the motion for September 8, 1989. On August 30, however, while presiding over a hearing on the University's motions to intervene as a defendant and to dismiss the complaint with prejudice,
B. The "Summary Judgment Appeal"
On June 4, 1990, the district court granted summary judgment to the defendants on seven of Sierra Club's nine claims.
C. The "Jurisdictional Appeal"
In June 1990, at the request of Senators McCain and DeConcini of Arizona, the General Accounting Office investigated the question whether the Biological Opinion was biologically unsound. It concluded that Reasonable and Prudent Alternative Three was unsupported by biological studies, that the Fish and Wildlife Service regional director who mandated the inclusion
Relying on the Biological Update, Sierra Club moved to enjoin construction pursuant to claims 5 and 9 — the only claims on which the district court had not granted summary judgment.
Following oral argument, we issued an order of limited remand to the district court directing it to consider one of the issues raised in the "Jurisdictional Appeal": whether it should temporarily enjoin construction based on Sierra Club's allegation that the monitoring program, which was intended to measure the impact of construction on the red squirrel, was being conducted in violation of the Arizona-Idaho Conservation Act. See Mount Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991). Our limited remand regarding the monitoring program did not dispose of the "Jurisdictional Appeal" in full. In this opinion, we address the remaining issues.
D. The "Intervention Appeal"
On October 26, 1989, Mountain States Legal Foundation ("Mountain States")
III. THE MERITS OF THE VARIOUS APPEALS
A. The "Road Appeal"
By delaying a hearing on Sierra Club's motion to enjoin construction of the
Before we had an opportunity to rule on the "Road Appeal," the district court granted summary judgment to the defendants on seven of Sierra Club's nine claims. The "Road Appeal" raises the same issues that we decide infra in connection with the "Summary Judgment Appeal." Thus, we are asked to review simultaneously a denial of preliminary injunctive relief and an ultimate decision on the merits. Our disposition of the "Summary Judgment Appeal" affirms the district court's grant of summary judgment. Given that fact, a reversal of its denial of preliminary injunctive relief would have no practical consequences. Accordingly, we dismiss the "Road Appeal" as moot.
Our dismissal does not alleviate our dismay at the district court's refusal to schedule a hearing on Sierra Club's motion for a preliminary injunction barring construction of the access road. Construction of the road represented a major portion of the alleged harm to the red squirrel.
B. The "Summary Judgment Appeal"
1. Reinitiation of Consultation Claims
In two of the claims on which summary judgment for the defendants was granted, Sierra Club asserted that, prior to engaging in any construction, the Forest Service was required to reinitiate formal consultation with the Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act. That section requires a "Federal agency" — in this case, the Forest Service — to initiate formal consultation with the Fish and Wildlife Service whenever an action by that agency is likely to affect an endangered species or its critical habitat. 16 U.S.C. § 1536(a)(2). Formal consultation concludes with the issuance of a Biological Opinion by the Fish and Wildlife Service. Id. § 1536(b)(3)(A). See generally Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985).
Under section 7, new circumstances may require reinitiation of formal consultation. Regulations promulgated by the Fish and Wildlife Service provide that reinitiation of consultation shall occur in the following circumstances:
50 C.F.R. § 402.16. Reinitiation of consultation requires the Fish and Wildlife Service to issue a new Biological Opinion before a project may go forward.
Sierra Club argues that under paragraphs (b), (c), and (d) of the regulation, factual circumstances now exist to trigger reinitiation of formal consultation regarding construction of the first phase of the Mount Graham astrophysical complex.
a. Statutory Language
Section 602(a) of the Arizona-Idaho Conservation Act reads as follows:
Three possible constructions exist. First, Sierra Club argues that the language "as to the issuance of a Special Use Authorization" demonstrates that Congress deemed section 7 satisfied for purposes of issuing the special use authorization only. That argument makes no sense either practically or as a matter of linguistics. If Sierra Club were correct, then the project would be subject to the reinitiation of consultation on the day following the issuance of the special use authorization, even before the Secretary could "immediately approve" construction. The interpretation conflicts directly with the statutory requirement that the Secretary authorize immediate construction. Accordingly, we reject Sierra Club's reading of section 602(a).
There is a more reasonable variation of Sierra Club's argument which, although not raised by Sierra Club, should be considered. Section 602(a) could be read to deem section 7 satisfied as to both the issuance of the special use authorization and the Secretary's immediate approval of construction; however, if following the issuance of the Secretary's approval circumstances exist that warrant the reinitiation of consultation, then section 602(a) would not bar such action. Under this interpretation, section 602(a) would serve to expedite
The final possible construction is that of the defendants: they argue that section 602(a) deems section 7 of the Endangered Species Act satisfied as to the entire first phase of the project. Under this interpretation, Congress intended that the first three telescopes be built and that section 7 be deemed complied with in order to achieve that goal. Factual circumstances that would otherwise trigger the reinitiation of consultation would not do so with respect to construction of the first three telescopes; the issue whether the first phase of construction may proceed has, in that view, already been resolved.
The basic question to be answered in interpreting section 602(a) is the following: Did Congress intend to waive the requirements of section 7 until after the construction of the first three telescopes was completed, or did it intend only to hasten the project through the stage of the Secretary's authorization but leave the actual construction process subject to further environmental consultation? The language of section 602(a) does not answer the question clearly. The reference to "the issuance of a special use authorization" renders the scope of the section 7 waiver ambiguous. In order to interpret section 602(a), we must examine the structure and history of the statute as well as its purpose. See Martin v. Occupational Safety & Health Review Comm'n, ___ U.S. ___, 111 S.Ct. 1171, 1176, 113 L.Ed.2d 117 (1991); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (1987) ("[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy") (quoting, inter alia, Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (1986)).
b. Statutory Structure
Immediately apparent is the different treatment that Congress accorded to the first and second phases of construction. The statute establishes a Mount Graham International Observatory Site to consist of seven telescopes, all on Emerald Peak. Arizona-Idaho Conservation Act, sec. 601(a). The first phase of construction involves the first three telescopes, and the second phase involves the next four. Although Congress explicitly recognized that the second phase must proceed in a manner consistent with all applicable environmental laws, it adopted special waiver provisions in the case of the first phase. While section 603(a) expressly applies the requirements of the Endangered Species Act, in full, to the construction of the second four telescopes, section 602(a) provides for at least a partial waiver of section 7 requirements with respect to the first three. Similarly, while section 607 expressly applies the requirements of section 102(2)(C) of the National Environmental Policy Act, in full, to the second phase of construction, it deems those requirements satisfied as to the first phase of construction. Moreover, approval for the second phase is expressly conditioned on a consideration of "all biological data obtained from monitoring the impact of construction of the first three telescopes upon the Mount Graham red squirrel." Arizona-Idaho Conservation Act, sec. 603(b). The defendants argue, with some force, that the distinctions between the two phases suggest that Congress reached a compromise in which the first three telescopes would be constructed immediately but the next four would be constructed in strict compliance with all otherwise applicable environmental laws.
Sierra Club counters that the broad waiver language of section 607 (involving National Environmental Policy Act requirements), compared with the ambiguous language of section 602(a) (the provision before us) demonstrates that Congress intended a lesser waiver in the latter section than in the former. The argument that Congress knew how to use unambiguous waiver language when it intended a complete waiver, and that it failed to use that
Sierra Club also argues that section 601 contemplates the issuance of more than one future Biological Opinion, and that Congress therefore must have foreseen that there might be future Biological Opinions for the first as well as the second phase of construction. This argument has no merit. The plural reference in section 601 can be explained solely by the fact that there will be a second phase of construction. That phase alone may have more than one Biological Opinion. The plural reference does not in any way suggest that additional Biological Opinions may be needed for the first phase.
On balance, a reading of the statute as a whole suggests that Congress intended that the first three telescopes be built immediately, without being subject to the possibility of delay inherent in any reinitiation of consultation. The significantly differing treatment accorded the two phases of construction, while not dispositive, points in that direction. However, the statute does not contain a policy statement telling us expressly that regardless of what might subsequently be determined to be the environmental consequences, Congress was committed to having the first three telescopes built without additional safeguards; and the ambiguity of the statute plus Congress's failure to employ broad waiver language similar to that used in section 607 gives us considerable pause. Accordingly, we are required to proceed further in our effort to ascertain Congress's intent. We next proceed to examine the legislative history. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 511, 109 S.Ct. 1981, 1985, 104 L.Ed.2d 557 (1989).
c. Legislative History
It is naive, or disingenuous, to suggest that courts should not consider legislative history when attempting to determine the meaning of statutes. It is true that in some instances statutes are clear on their face and that no further interpretive assistance is required. In those cases it is proper to look only to the statute's plain language. In other instances, however, the language of the statute is uncertain or ambiguous, and legislative statements, particularly committee reports, can be extremely helpful in understanding what Congress intended — in determining what the statute means.
Admittedly, on some occasions when the statutory language is ambiguous, legislative history will not tell us much. When it doesn't, we should acknowledge that fact, and utilize whatever other techniques of statutory construction would be most useful. The extent to which legislative history is helpful to our effort to determine a statute's meaning can best be determined on a case by case basis. Statutory construction is an area in which absolutist rules do not lead to sensible or accurate results. The many and varied canons of statutory construction amply demonstrate this point. Common sense not dogma is what is needed in order to explore the actual meaning of legislative enactments.
Whatever the imperfections inherent in the use of legislative history, there is no justification for trashing the concept itself. Ignoring the relevant legislative history in all cases would unquestionably serve to denigrate the role of Congress. We would be doing a disservice to our system of checks and balances were we to abandon so useful and well-established an interpretive device simply because we have become disenchanted with Congress' performance or because we disagree with the political philosophy that motivates the majority of its members.
In the present case, the legislative history regarding the Arizona-Idaho Conservation Act is exceedingly sparse; it is nonetheless critical to the outcome. The legislation was passed quickly; no committee hearings were held. The bill originated in the Senate where it was sponsored by both Arizona Senators. One week after the bill's passage in the Senate, it was adopted
The statements made on the floor of the Senate and House consistently support the defendants' interpretation of the Arizona-Idaho Conservation Act. For instance, Senator McCain of Arizona, one of the sponsors and a Republican, first emphasized the fact that the German participants in the international consortium had threatened to withdraw if construction of the observatory was not approved quickly. 134 Cong.Rec. § 15,740 (daily ed. Oct. 13, 1988). He then specifically discussed the question of the immediacy of construction and the role of consultation, stating:
Id. at 15,741.
Senator DeConcini, the other Senator from Arizona, also a sponsor but a Democrat, explained the differences between the two phases of construction in similar fashion. Like Senator McCain, he stated that the first group of telescopes would be constructed immediately and that consultation would occur with respect to the second group. He said:
Id. at 15,740.
Similar views regarding the immediacy of construction of the first three telescopes were echoed in the House. Representative Jones of North Carolina observed to his colleagues:
134 Cong.Rec. H10,553 (daily ed. Oct. 20, 1988) (emphasis added).
Id. at H10,546.
Sierra Club concedes that the floor statements indicate a different congressional intent regarding the two phases of construction. Nevertheless, it argues that the legislative history shows a congressional belief that the statute would leave the requirements of the Endangered Species Act intact as to both phases. In support of its view, Sierra Club cites, out of context, one portion of Representative Jones's statement:
Id. at H10,553. When both parts of Representative Jones's statement are read together, however, it is clear that his comments do not support the proposition urged by Sierra Club. Instead, Representative Jones's views, like those of his Senate colleagues, show that those speaking on behalf of the bill believed that it represented a practical compromise: the legislation did not waive the provisions of section 7 of the Endangered Species Act with respect to the Mount Graham project — the entire seven telescope venture. Rather, it provided that the first phase of construction (the first three telescopes) should proceed immediately, but that the second phase (the remaining four telescopes) would remain subject to all the normal requirements of the Endangered Species Act. Viewed in this light, Representative Jones's statements fully support the defendants' position.
Sierra Club next urges us to consider an exchange between Senators Burdick and DeConcini:
134 Cong.Rec. S15,739 (daily ed. Oct. 13, 1988). That exchange also supports rather than contradicts the defendants' position. What Senator DeConcini said in answer to Senator Burdick's question was quite clearly that the terms and conditions of Reasonable and Prudent Alternative Three would fully apply. He did not say that the requirements of the Endangered Species Act would apply to both phases of construction, and, in fact, remained silent on that subject notwithstanding his colleague's direct question.
Viewed as a whole, the legislative history of the Arizona-Idaho Conservation Act, even more than the statutory structure itself, supports the defendants' view that the requirements of section 7 of the Endangered Species Act are deemed satisfied as to the entire first phase of construction. The legislative history is clear, and it provides our best insight into the purpose of the statute. Congress was asked to enter the battle and render a decision regarding the future of the Mount Graham Observatory at a time when it had become apparent to all concerned that further delay might cause the international coalition behind the project to dissolve. The dilemma that Congress faced did not stem simply from a scientific dispute over the location or number of telescopes, but from a dispute over whether, in view of the endangered species issue, the project should be built at all. Congress was fully aware that delay caused by the need to comply with environmental procedures might threaten the project's very survival. The legislative history clearly tells us that given the choice between proceeding immediately with the project or taking the risk that it might be lost, Congress opted for immediate construction of the first three telescopes.
d. Post-Enactment Legislative Comments
The best argument that Sierra Club advances to overcome the conclusion suggested by the contemporaneous legislative history consists of the post-enactment statements of individual legislators. The issuance of the Biological Update by the Fish and Wildlife Service after passage of the Arizona-Idaho Conservation Act prompted all five Representatives from Arizona and one of Arizona's two Senators to say publicly that they interpreted the Act to permit the reinitiation of consultation regarding the first phase of construction. A joint press release by Representatives Jim Kolbe, Jay Rhodes, Jon Kyl, and Bob Stump, and Senator John McCain, stated:
News Advisory, Congress of the United States, House of Representatives (Aug. 6, 1990) (emphasis added). Similarly, Representative Udall stated in a press release issued that same day:
Press Release, Rep. Morris K. Udall (Aug. 6, 1990).
These statements, while seemingly relevant, cannot, unfortunately, serve as reliable indicators of congressional intent. See Blanchette v. Connecticut Gen. Ins.
e. Agency Interpretation
Both parties urge us to consider the interpretation given to the Arizona-Idaho Conservation Act by its administering agency, although they disagree whether the administering agency is the Forest Service or the Fish and Wildlife Service. We agree with the defendants that the administering agency is the Forest Service, which Congress specifically charged with the administration of the statute. See, e.g., Arizona-Idaho Conservation Act, sec. 605(b)-(d). Nevertheless, we do not find that in this case the Forest Service's views are entitled to any weight. Prior to the initiation of the present litigation, the Forest Service indicated its belief that the Arizona-Idaho Conservation Act permitted the reinitiation of consultation regarding the first phase of construction. Subsequent to the filing of this lawsuit, the agency's position changed. Given this fluctuation over the course of two years, we decline to rely on the Forest Service's "expertise." See Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 809 (9th Cir.1989) (courts should consider "the thoroughness of the agency's consideration, the validity of its reasoning, and the consistency of its position over time").
f. All Things Considered
Our analysis of the language, structure, policy, and history of the Arizona-Idaho Conservation Act leads us to conclude that, despite its inartful wording, that statute deems the requirements of section 7 of the Endangered Species Act satisfied as to the entire first phase of construction of the astrophysical complex.
Our conclusion is strengthened by the fact that were we to interpret the Arizona-Idaho Conservation Act otherwise, and hold that the section 7 waiver applied only through the Secretary's authorization phase but not afterwards, the result would be to give the statute little practical significance. Congress knew at the time of passage that, under the Fish and Wildlife Service regulations,
Our conclusion that the Arizona-Idaho Conservation Act deems the requirements of section 7 of the Endangered Species Act satisfied with respect to construction of the first three telescopes renders irrelevant Sierra Club's assertions that a factual basis now exists to invoke reconsultation pursuant to section 7. The district court properly granted summary judgment on Sierra Club's section 7 reconsultation claims, and we affirm that part of its decision.
2. National Forest Management Act Claim
The district court also granted summary judgment to the defendants on Sierra Club's claim that the Forest Service violated the National Forest Management Act and its implementing regulations by failing to maintain a minimum viable population of red squirrels. The National Forest Management Act requires the Forest Service to promulgate regulations for the development and revision of land management plans that will "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives...." 16 U.S.C. § 1604(g)(3)(B). The regulation promulgated pursuant to that mandate states:
36 C.F.R. § 219.19.
According to Sierra Club, the fact that a viable population of red squirrels no longer exists is proof that the Forest Service violated the National Forest Management Act and its implementing regulations. The defendants respond that the Forest Service is not required to maintain a minimum viable population of an endangered species, which is by definition no longer viable. We need not decide which party is correct. The Arizona-Idaho Conservation Act precludes us from granting the relief Sierra Club seeks on the National Forest Management Act claim.
We have already decided that Congress, having considered the endangered status of the red squirrel, opted for immediate construction of the first three telescopes. See supra Part III.B.1. Clearly, the fact that there might no longer be a viable population of red squirrels was part of what Congress considered in balancing the competing interests. Sierra Club's claim that the red squirrel population is no longer viable therefore is not a basis for us to halt construction of the first three telescopes.
3. Critical Habitat Claim
The district court granted summary judgment to the defendants on Sierra Club's claim that the Fish and Wildlife Service violated section 4 of the Endangered Species Act by failing to designate critical habitat in a timely manner. Section 4 requires that critical habitat be designated generally within one year, but in no event longer than two years, after the publication of a notice proposing to list a species as endangered. See 16 U.S.C. § 1533(b)(6)(A)(ii), (b)(6)(C). The Fish and Wildlife Service published a notice proposing to list the red squirrel as endangered
Sierra Club initially sought a judicial order for the Fish and Wildlife Service to declare critical habitat for the red squirrel. Because critical habitat has been declared, the requested relief is moot. Sierra Club now argues that if the critical habitat had been declared in a timely manner, the Fish and Wildlife Service could not legally have issued a Biological Opinion including Reasonable and Prudent Alternative Three. See 50 C.F.R. § 402.02 (prohibiting the issuance of a reasonable and prudent alternative authorizing the "destruction or adverse modification" of critical habitat). That argument is also moot. While it is essential that the Fish and Wildlife Service, like all other government agencies, comply with the law, no purpose would now be served by declaring the Biological Opinion invalid. Regardless of the legality of the Biological Opinion, Congress adopted it and enacted it into law. Whether Congress was acting under a misapprehension of fact or law is irrelevant once legislation has been enacted. See Moor v. County of Alameda, 411 U.S. 693, 709, 93 S.Ct. 1785, 1795, 36 L.Ed.2d 596 (1973). In any event, the relief Sierra Club now seeks is the reinitiation of consultation. We have already held that the first phase of construction is immune from reconsultation requirements. See supra Part III.B.1. Accordingly, we affirm the grant of summary judgment on Sierra Club's critical habitat claim.
C. The "Jurisdictional Appeal"
The parties agree that the district court denied Sierra Club's motion to enjoin construction pursuant to claims 5 and 9 because it believed that the pendency of the "Summary Judgment Appeal" deprived it of jurisdiction over that motion. They have now appealed that decision to us. The parties agree that a ruling by us on the question whether the district judge had the authority to rule on the motion would not advance this litigation, and they urge us to reach the merits of the motion. Because all parties have briefed the merits, we grant that request.
1. Reconsultation Allegations
The reconsultation segment of the "Jurisdictional Appeal" is closely related to the reconsultation section of the "Summary Judgment Appeal," supra Part III.B.1. According to Sierra Club, Reasonable and Prudent Alternative Three of the Biological Opinion, as incorporated into the Arizona-Idaho Conservation Act, includes a provision relating to reconsultation. We disagree. It is Sierra Club's position that a paragraph governing reconsultation contained in the conclusion of the Biological Opinion is a part of Reasonable and Prudent Alternative Three. The paragraph is textually distinct from that Alternative and cannot reasonably be considered to be a part of it. When Congress adopted Reasonable and Prudent Alternative Three, it did not adopt general introductory or conclusory remarks set forth in the remainder of the Biological Opinion.
2. Other Allegations
Sierra Club also seeks to enjoin construction on the basis of alleged road closure violations and monitoring program violations. We have previously issued an order of limited remand concerning the monitoring allegations. See Mount Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991). At oral argument, Sierra Club conceded that the road closure allegations would not support the issuance of a preliminary injunction barring construction of the astrophysical complex. Instead, Sierra Club admitted, the road closure violations could only be remedied through an
D. The "Intervention Appeal"
Mountain States argues that intervention is necessary in order to protect the economic, recreational, and tourism interests of persons who would be affected by road and trail closures on Mount Graham. Its appeal from the denial of intervention was filed more than sixty days after the denial of its motion to intervene, but within sixty days of the denial of its untimely motion for reconsideration.
A motion for reconsideration tolls the time in which a party must lodge an appeal if the filing of the motion is timely, but ordinarily does not do so otherwise. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) (the time limits of Fed.R.App.P. 4 are "mandatory and jurisdictional"); Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir.1986); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.1984). Under the "unique circumstances" doctrine, an appellate court may hear a late-filed appeal if the delay was induced by affirmative assurances from the district court that the appeal would be timely. Slimick v. Silva (In re Slimick), 928 F.2d 304, 310 (9th Cir.1990). However, Mountain States has cited no affirmative representations by the district court that caused it to postpone filing its appeal.
Mountain States contends that the district court's ruling on the merits of its untimely motion for reconsideration within the sixty day appeal period made it reasonable for Mountain States to assume that the appeal time had been tolled, although the district court made no comment with respect to the timeliness of the motion or of any prospective appeal. In so arguing, Mountain States relies on Barry v. Bowen, 825 F.2d 1324, 1329 (9th Cir.1987), and United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267-70 (9th Cir.1985). Subsequent decisions of the Supreme Court and of our court, however, have invalidated the good faith and reasonable reliance standard espoused by these opinions and have limited the unique circumstances test to instances where "a court has affirmatively assured a party that its appeal will be timely." Slimick, 928 F.2d at 310; see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 993, 103 L.Ed.2d 146 (1989) (unique circumstances exist "only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done" (emphasis added)). In Slimick, we expressly disapproved as inconsistent with Osterneck the holding in Barry, 825 F.2d at 1329, that appellant was entitled to rely on the district court's consideration of its untimely motion for clarification of the judgment. 928 F.2d at 310 n. 8. The cases that Mountain States relies on, while once valid, are no longer good law.
In short, the present rule in this circuit is that "ambiguous or implicitly misleading conduct by courts does not release litigants from their appeal deadlines. If a party believes a court has acted ambiguously as to an appeal deadline, it bears the
While we lack jurisdiction over the merits of the district court's denial of the motion to intervene, we do have jurisdiction over Mountain States' appeal from the denial of its motion for reconsideration because the notice of appeal was filed within sixty days of that judgment. To review the denial of the motion for reconsideration we need consider only new information. There is no allegation of mistake, inadvertence, surprise, or excusable neglect.
The possible extinction of an endangered species is not a threat that we take lightly. 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. As we expand our horizons by building bigger and better telescopes, we would do well to remember that we also have much to learn from the plant and animal life in the world around us. By contributing to the extinction of an endangered species, we limit our horizons at least as seriously as we do by delaying or even disallowing the construction of new telescopes.
In passing the Arizona-Idaho Conservation Act, Congress has balanced the competing interests — albeit through an expedited process that may not have permitted it to consider fully concerns that it otherwise might have addressed. Moreover, the balancing may not have consisted exclusively of weighing one lofty purpose against another, i.e., the advancement of scientific knowledge against species preservation. There is another element that may have been present here as well — the prestige and pride of local institutions and other parochial interests. In that context, the lowly Red Squirrel's chances for a fair hearing may have been considerably reduced. Whether in other circumstances the result would have been the same, and whether if Congress had considered the question more carefully or fully it would have taken a position on reconsultation that was more protective of the squirrel, we cannot say. The resolution it reached is the one that we are bound to enforce. We can only hope that Congress's decision will prove to be a wise one.
AFFIRMED IN PART; REMANDED IN PART; DISMISSED IN PART AS MOOT.
TITLE VI — MOUNT GRAHAM INTERNATIONAL OBSERVATORY
Establishment of the Mount Graham International Observatory Site
Sec. 601. (a) The Secretary of Agriculture (hereinafter in this title referred to as the "Secretary") shall issue a Special Use Authorization, subject to the terms and conditions of Reasonable and Prudent Alternative Three of the United States Fish and Wildlife Service Biological Opinion, dated July 14, 1988 (hereinafter referred to as "the Biological Opinion"), to the State of Arizona Board of Regents on behalf of the
(b) The Site referred to in subsection (a) 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. Copies of the map shall be available for public inspection in the Office of the Chief, Forest Service, United States Department of Agriculture, Washington, District of Columbia, and the Forest Service office located in Tucson, Arizona.
Sec. 602. (a) Subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied as to the issuance of a Special Use Authorization for the first three telescopes and the Secretary shall immediately approve the construction of the following items:
(b) Until the road described in subsection (a)(3) above is constructed, the Secretary shall allow the University of Arizona to use forest roads FR 507 and FR 669 to the extent permitted in the Biological Opinion.
Additional Telescope Construction Authorization
Sec. 603. (a) The Secretary shall, subject to the requirements of the Endangered Species Act and other applicable law, authorize the construction of four additional telescopes on Emerald Peak.
(b) Consultation under section 7(a)(2) of the Endangered Species Act with respect to construction of the four additional telescopes referred to in subsection (a) shall consider, among other things, all biological data obtained from monitoring the impact of construction of the first three telescopes upon the Mount Graham red squirrel. Authorization by the Secretary for the construction of four additional telescopes shall be consistent with requirements deemed necessary to avoid jeopardizing the continued existence of any species listed under and pursuant to the Endangered Species Act.
Sec. 604. (a) The University of Arizona, with the concurrence of the Secretary, shall develop and implement a management plan, consistent with the requirements of the Endangered Species Act and with the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, for the Site.
(b) Such management plan shall include provisions for the construction, operation and maintenance of the Site, access to the Site, and related support facilities.
(c) The management plan shall be included in any Special Use Authorization issued by the Secretary to the University of Arizona.
Existing Special Use Authorizations
Sec. 605. (a) Those Special Use Authorizations now in effect for the Columbine Summer Home Tract area and the Arizona Bible School Organization Camp shall continue, subject to the terms and conditions of the authorizations, for the duration of the term specified in each authorization. Prior to the termination, nonrenewal or modification of those Special Use Authorizations for the areas noted above, the Secretary shall, with the assistance of the United States Fish and Wildlife Service, conduct a biological study to determine the effects of such special use authorizations upon the Mount Graham red squirrel and other threatened or endangered species. In making this determination, the Secretary shall consider the small amount of land under
(b) Pursuant to title 2300 of the Forest Service Manual, special use terminations, nonrenewals, or modifications shall not take effect until ten years from the last date of the tenure of existing special use authorizations described in subsection (a). Unless the biological study or the biological opinion issued by the United States Fish and Wildlife Service after consultation under the Endangered Species Act concluded that an earlier date was necessary to avoid jeopardizing the continued existence of the Mount Graham red squirrel or any other threatened or endangered species, such actual terminations, nonrenewals, or modifications shall not take effect before completion of a biological study by the United States Fish and Wildlife Service to begin in the year 2000. This additional study shall be subject to the same requirements and involve the same participants as described in subsection (a).
(c) If, after completion of these studies, termination, modification or nonrenewal of special use authorizations described in subsection (a) are prescribed, the United States Forest Service shall, with the cooperation and approval of the holders of these special use authorizations, develop a relocation plan for such individuals and entities.
(d) Nothing in this section is intended to preclude the termination of special use authorizations for breach by the permittee of terms and conditions of the authorizations.
Sec. 606. In implementing this title, all costs directly associated with construction and site preparation for telescopes, support facilities, a new access road, the biological monitoring program for the Mount Graham red squirrel as contained in the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, and the retention of an onsite biologist, shall be funded by the University of Arizona.
Environmental Impact Statements
Sec. 607. With reference to the construction of the first three telescopes, related facilities, and the access road within the boundaries of the Site described in section 601, the requirements of section 102(2)(c) of the National Environmental Policy Act of 1969 shall be deemed to have been satisfied. The Environmental Impact Statement for the Site, currently in process, shall continue and shall use the information developed to date and any additional appropriate information in analyzing the impacts of the four additional telescopes authorized under section 603 of this title.
Census Date Population Estimate Fall 1990 250-300 Spring 1990 132-146 Fall 1989 162-185 Spring 1989 116-167 Fall 1988 178-226
The requirements for formal consultation are spelled out in 50 C.F.R. § 402.14. The duty to consult is ongoing, and formal consultation must be reinitiated in specified circumstances, including the discovery of "new information reveal[ing] effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered." 50 C.F.R. § 402.16.
Reasonable and Prudent Alternative Two would permit the development of 2-3 telescopes at High Peak. It deferred a decision on the development of additional telescopes pending the results of a ten-year study on the effect of construction on the red squirrel. However, any request before the expiration of ten years to reinitiate formal consultation and make a decision regarding additional development, including development on Emerald Peak, would be accommodated. This alternative would provide for the immediate removal of the Bible Camp and summer homes currently existing on Mount Graham, and for the reforestation of those areas. Various other mitigation measures would also be taken. The alternative would permit an "incidental take" of six red squirrels per year. "Incidental take" means "takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant." 50 C.F.R. § 402.02. The Forest Service would be required to reinitiate consultation with the Fish and Wildlife Service if the incidental take provision was exceeded.
Finally, Reasonable and Prudent Alternative Three would permit the development of three telescopes on Emerald Peak. It deferred a decision on the development of additional telescopes pending the results of a ten-year study regarding the effect of construction on the red squirrel. Like Reasonable and Prudent Alternative Two, this alternative would require that any request to reinitiate formal consultation and make a decision regarding further development on Emerald Peak before the expiration of ten years be accommodated. No development would be permitted at any time on High Peak. A new, shorter access road would be constructed and existing roads would be closed and reforested. This alternative would also provide for the immediate removal of the Bible Camp and summer homes currently existing on Mount Graham, and for the reforestation of those areas. Various other mitigation measures would also be taken. The alternative would permit an "incidental take" of six red squirrels per year. The Forest Service would be required to reinitiate consultation with the Fish and Wildlife Service if the incidental take provision was exceeded.
Since the permit was issued, the area known as a Refugium has been officially designated as critical habitat for the red squirrel. See 55 Fed.Reg. 425 (1990).
Finally, Sierra Club urges that a recent drop in the population of red squirrels constitutes "new information" triggering the need for reinitiation of consultation pursuant to 50 C.F.R. § 402.16(b). The potential for a dramatic drop in population under existing biological conditions was hardly an unforeseen circumstance — it was precisely because Congress anticipated that a drop might occur, due to existing circumstances or circumstances caused by construction, that it compromised by authorizing immediate construction of the first three telescopes but delaying construction of the next four. The compromise would be rendered of little significance if we were to interpret the statute as permitting the reinitiation of consultation as to the first three telescopes on the basis of a drop in the red squirrel population.