Mount Graham Desecration Continues: Judge Rules Against Apaches
by Evelyn Horne and Roger Beatty

For 15 years the University of Arizona (UA) has been an outlaw. Bumbling along while trashing environmental laws and trampling human rights, it has been able to accomplish its environmental and cultural jihad only with the help of congressional crooks and dim-witted judges.

Recently, the UA decided that it needed a powerline to fuel the Columbus Project, a massive telescope built on the formerly pristine Emerald Peak of Mount Graham. This corporation, posing as a university, chose to scrape a powerline corridor through the second largest national forest roadless area in Arizona, across land held sacred by traditional Western Apaches. The Mount Graham Coalition, Apaches for Cultural Preservation and Apache Survival Coalition filed a lawsuit in the District Court of Arizona to stop this project.

Originally assigned to be heard before Judge Zapata, the plaintiffs expected a fair hearing. Unfortunately, Judge Alfredo Marquez had retained jurisdiction over this case and came out of retirement. Marquez, long a friend of the UA (he has free tickets to UA football games), was there to make sure the university's interests were protected. Once again, Marquez ruled in favor of corporate interest.

If nothing else, the recent Mount Graham federal district court decision that allows a 23-mile powerline to rip through irreplaceable sacred land and critical habitat brings us ever closer to properly pronouncing the antiquated legal term res judicata. It rhymes with "raced you to ca-ca." Fitting, since that's exactly what the district judge, the UA and the Forest Service did in this case. In an ongoing frantic scramble around cultural, religious and environmental protection laws, the so-called interpreter and guardian of these laws shirked his duties to apply a judge made law and avoid judging the case on its merits.

The doctrine of res judicata is misapplied in this case. When correctly applied, it is a fabulous judicial resource-saving device that bars repeat litigation. More commonly known as "claim preclusion," res judicata is the "one bite at the apple" rule. A claimant only gets to sue on the same claim once and must ask for all the rights to relief properly encompassed in that claim. Otherwise, when the claimant brings a second claim, the judgment in the first case may stop that claimant from litigating the second case. To satisfy res judicata, the same plaintiff must sue the same defendant, and the claims must be identical. Neither element is met in this case.

First, the judge neglected to consider that the Apaches for Cultural Preservation were not plaintiffs in the earlier case. So, applying res judicata violates their constitutional right of due process. Also, Marquez used enormous discretion in deciding that the earlier claim encompassed the powerline controversy. The UA prevailed on that claim only after spending millions of dollars convincing Congress that they needed an exemption from environmental laws to disturb 8.6 acres for three telescopes supported by a generator. The exemption, granted in 1988, said nothing about a powerline that would make its own distinctive mark across the mountain, well outside the 8.6-acre congressionally approved limit. Moreover, the '88 exemption was only an exemption from environmental protection laws. For these reasons and because of another judge-made legal doctrine called "justiciability," the issues regarding the powerline and the National Historic Preservation Act were never litigated. Justiciability requires that a controversy be "ripe" for resolution. A lawyer may not litigate a dispute based on mere speculation. Judges need to see the actual blood and guts of a matter before correctly ruling on it. So it is no wonder that, during the earlier lawsuit to stop three telescopes, environmental lawyers never litigated a powerline issue. According to the UA administrator's list of operational support requirements, there was no powerline issue because there was no powerline.

Just in case the judge's most recent bias was lost on any of us or on the Apache elders who made the long, hot road trip from the reservation to the federal building that day, he further flexed his insensitive discretionary muscle to hold that laches—a legal term indicating that plaintiffs waited too long to bring a complaint to court—applied to the claim. Now, there is no brightline rule for when a claimant has excessively delayed in bringing a claim. But in his second deferential gesture to his cronies, the judge declared that six months was just too long to wait to bring a case. It matters not that Mount Graham's legal defenders work without the cushy resources that the federal government and UA enjoy when preparing a case. What matters, apparently, is this judge's sick desire to leave the Apache elders feeling that their only recourse is to sit down in front of the powerline construction and play a nice long game of cards.

Though that sounds fun and effective, they will also appeal this terrible legal decision. Hopefully this time we'll catch the UA with its pants down, though the Apache elders may not want to see it. After all, they're subject to the university's ongoing public exposure, as the telescopic erections protrude from the side of the mountain that faces their reservation. It's not a pretty sight.

© Earth First! Journal June-July 2001