In 1990, sworn testimony to Congress by the U.S. General Accounting Office (GAO) revealed the failure of the Fish and Wildlife Service to comply with the requirements and protections of the Endangered Species Act. GAO pointed out that the Draft Biological Opinion (BO) prepared for the USFWS on August 31, 1987 would not have allowed the authorization of a telescope complex within the high quality, vulnerable, Emerald Peak squirrel habitat. It stated:
"Emerald Peak, regardless of access, is an extremely important red squirrel habitat. Placement of a facility here would require clearing of spruce-fir habitats and would adversely affect middens both directly and indirectly through windthrow, solar drying and other effects. Destruction of habitat on Emerald Peak for siting an observatory would have greater detrimental impacts than the proposed siting on High Peak. Furthermore, those impacts on Emerald Peak could not be reduced below jeopardy with reasonable and prudent alternatives."
That 1987 USFWS Mt. Graham red squirrel "jeopardy" Biological Opinion opposing telescopes on Emerald Peak was unacceptable to UA's astronomers. The GAO investigation revealed that UA demanded a Biological Opinion placing the project on Emerald Peak, regardless of the endangered species harms it would inflict. The reason UA wanted Emerald Peak was that it was broad, flat, easily deforested and capable of being converted into a city of telescopes. What UA failed to recognize, was that flat mountaintop terrain is actually unsuitable for astronomy. Inexplicably, UA ignored the careful National Optical Astronomy Observatories (NOAO) studies of 1984 and 1987 which pointed out that such flat topography was incompatible with world-class astronomy. UA's own belated 1992 studies described East Emerald Peak as "unsatisfactory" to "marginal," and Emerald Peak as being even worse. But this is where UA insisted on siting its observatory.
GAO testimony confirmed that political intimidation exerted on the USFWS personnel in Phoenix and Albuquerque on behalf of UA astronomers by congressional and UA staff was intense and unforgiving. It culminated with UA officials meeting specially with USFWS officials in May 1988. A few months later, the USFWS' 1987 Biological Opinion was suddenly changed and a procedurally and substantially defective Biological Opinion allowing a highly destructive Emerald Peak telescope project was issued.
Five months after the May 1988 meeting, the "fudged," or fraudulent Emerald Peak Biological Opinion, was then unsuspectingly relied upon by Congress in allowing UA's precedent-setting, anti-environmental rider, bypass legislation. UA lobbyists sneaked this through during the final hours of the 1988 legislative session.
The actual words of the letter of GAO Director, James Duffus III (Nov. 9, 1990) to U.S. Representative Gerry Studds spell out how Michael Spear and the USFWS broke the law and what was clearly fraudulent, and indefensible in his actions:
"We continue to hold the view that the Emerald Peak development alternative contained in FWS' biological opinion was not supported by available biological evidence" (page 1)
"In our view, the previous studies do not support the Emerald Peak development alternative under any circumstances. Biologists who authored these studies concluded then, and continue to believe, that any loss of critical habitat on Emerald Peak poses an unacceptable threat to the Mt. Graham red squirrel's existence." (Page 3)
"The Regional Director and his staff who pressed for the Emerald Peak alternative's inclusion in the biological opinion could point to no data or studies to specifically support their position." (page 14)
"The only relevant issue in assessing the proposed project's impact is whether the loss of habitat associated with the project poses an unacceptable threat to the red squirrel's survival. On the basis of the best scientific data, the majority of biologists we interviewed believe the threat is unacceptably high." (page 15)