United States District Court, D. Colorado
ROCKY MOUNTAIN PEACE & JUSTICE CENTER, CANDELAS GLOWS/ROCKY FLATS GLOWS, ROCKY FLATS RIGHT TO KNOW, ROCKY FLATS NEIGHBORHOOD ASSOCIATION, and ENVIRONMENTAL INFORMATION NETWORK EIN INC., Plaintiffs,
UNITED STATES FISH AND WILDLIFE SERVICE, GREG SHEEHAN, in his official capacity as Acting Director, U.S. Fish and Wildlife Service, RYAN ZINKE, in his official capacity as Secretary of the Interior, DAVID LUCAS, in his official capacity as Project Leader, Region 6, U.S. Fish and Wildlife Service, UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, BRANDYE HENDRICKSON, in her official capacity as Acting Administrator of the United States Federal Highway Administration, and ELAINE L. CHAO, in her official capacity as Secretary of Transportation, Defendants.
A. Brimmer, Judge
matter is before the Court on Federal Defendants' Motion
to Strike Plaintiffs' Declarations and Exhibits Submitted
in Support of Motion for Preliminary Injunction [Docket No.
28] and Federal Defendants' Motion in Limine to Exclude
Certain Witnesses from the Preliminary Injuction [sic]
Hearing [Docket No. 29]. Defendants seek to exclude certain
exhibits attached to plaintiffs' preliminary injunction
motion and to bar certain witnesses from testifying at the
hearing on that motion. This Court has jurisdiction pursuant
to 28 U.S.C. § 1331.
an appeal of administrative actions taken by the United
States Fish and Wildlife Service (the “FWS”) and
the United States Federal Highway Administration (the
“Highway Administration”) that open portions of
the Rocky Flats National Wildlife Refuge (the
“Refuge”) to trail construction and visitors. The
Refuge is located in Jefferson County, Colorado on land
surrounding the decommissioned nuclear processing facility at
Rocky Flats. The processing facility and the land immediately
surrounding it are still administered by the United States
Department of Energy and are not at issue in this litigation,
except insofar as the facility is the source of plutonium
contamination affecting the surrounding area that includes
September 16, 2004, during the ongoing cleanup efforts at
Rocky Flats, the FWS issued the Rocky Flats National Wildlife
Refuge Final Comprehensive Conservation Plan and
Environmental Impact Statement (the “2004 EIS”).
Docket No. 7-3 at 1. The 2004 EIS contemplated that,
following further cleanup, multi-use trails would be created
in the Refuge that would be accessible to the public.
Id. at 5.
the 2004 EIS was issued, the FWS acquired additional land at
the southwest corner of the Refuge that had not previously
been part of Rocky Flats and was not subject to prior cleanup
efforts. See Docket No. 14 at 16. This parcel of
land is referred to by the parties as the “Section 16
Parcel” and contains an old mine. Id.
November 2017, the Highway Administration issued a Scoping
Report for construction of trails within the Refuge. Docket
No. 7-1. The routes of the contemplated trails differ from
those stated in the 2004 EIS and include approximately one
mile of trails located in the Section 16 Parcel leading to
the old mine. Id. at 2.
March 23, 2018, the FWS issued an Environmental Action
Statement (the “2018 EAS”) to make changes to the
comprehensive conservation plan in the 2004 EIS consistent
with the newly planned trail routes. Docket No. 7-13 at 8. In
doing so, the FWS invoked the categorical exclusions under 40
C.F.R. § 1508.4 allowing for “minor changes in the
amounts or types of public use” of public lands
“in accordance with existing regulations, management
plans, and procedures” as well as categorical
exclusions for changes to such plans “when no or minor
effects are anticipated.” Docket No. 7-13 at 4.
1, 2018, plaintiffs filed their complaint in this case.
Docket No. 1. Plaintiffs bring claims for the violations of
the federal Administrative Procedures Act
(“APA”), 5 U.S.C. § 701 et seq.,
and the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4331 et seq.
On May 31, 2018, plaintiffs moved for a preliminary
injunction against trail construction and the opening of
public access to the trails. Docket No. 7. On June 27, 2018,
defendants filed the administrative record. Docket No. 26. On
June 28, 2018, defendants filed the present motions. Docket
Nos. 28, 29.
review of an agency decision is generally limited to review
of the administrative record.” Custer Cty. Action
Ass'n v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir.
2001) (citing Federal Power Comm'n v.
Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331
(1976)). “The circumstances which warrant consideration
of extra-record materials are ‘extremely
limited.'” Id. (quoting American
Mining Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir.
1985)). Nevertheless, “parties have offered
extra-record studies and other evidence under a number of
justifications, including: (1) that the agency action is not
adequately explained and cannot be reviewed properly without
considering the cited materials, (2) that the record is
deficient because the agency ignored relevant factors it
should have considered in making its decision, (3) that the
agency considered factors that were left out of the formal
record, (4) that the case is so complex and the record so
unclear that the reviewing court needs more evidence to
enable it to understand the issues, and (5) that evidence
coming into existence after the agency acted demonstrates
that the actions were right or wrong.” Am. Min.
Cong., 772 F.2d at 626 (10th Cir. 1985) (citations
omitted). Additionally, in the preliminary injunction
context, parties may rely on extra-record evidence “for
the limited purpose of assessing irreparable harm.”
Souza v. California Dep't of Transp., 2014 WL
1760346, at *7 n.1 (N.D. Cal. May 2, 2014).
do not object to plaintiffs presenting evidence for the
purpose of establishing irreparable harm but claim that
plaintiffs should not be able to do so to the extent the
evidence “go[es] to the merits of Plaintiffs'
claim[s].” Docket No. 29 at 6; see also Docket
No. 28 at 5 (“Federal Defendants do not object to the
use of these declarations for that limited purpose, to the
extent that they do not conflict with the Service's
determinations of potential impacts of the EAS.”). In
general, however, the evidence that defendants seek to
exclude goes to the issue of irreparable harm and relates
only tangentially to plaintiffs' merits claims that
defendants violated procedural requirements. In particular,
plaintiffs present declarations and have endorsed witnesses
to testify about the health dangers presented by plutonium
contamination, the extent of such contamination in the Rocky
Flats area, and the likelihood that the trail construction
and use would spread contamination. See, e.g.,
Docket No. 7-18 at 2, ¶ 5 (“Activities that are
planned for the Refuge beginning in the Summer, 2018,
including horseback riding, construction, bicycling, and even
hiking, is likely to cause the suspension into the air of
residual (unremediated) plutonium particles that can be
inhaled immediately and also may migrate downwind for many
miles.”). Such evidence is relevant to the irreparable
harm that plaintiffs must show to secure a preliminary
injunction, namely, that the project presents a risk of
irreparable harm to plaintiffs' members who live in the
area or may visit the Refuge. See, e.g., Docket No.
7-19 at 2, ¶ 8 (“[T]here is a likelihood of
visitor inhalation of the surface plutonium dust and risk to
the public that visit the Refuge. To a lesser bur [sic]
unknown degree this risk is also be [sic] present for those
individuals that live or recreate near the Refuge or are
simply present within several miles of the Refuge. This
plutonium inhalation will in turn cause the mutation of cells
in their body near the inhaled plutonium alpha particles and
could cause immediate latent physical harm, and possibly
cancer after the approximately reportedly 15 to 20 year
latency period.”); Docket No. 7-10 at 4, ¶ 26
(“I conduct business in the immediate area of the Rocky
Flats Refuge and Superfund site. The construction and
operation of the Rocky Flats Refuge poses a health risk to me
while l am in the area.”); Docket No. 7-9 at 3, ¶
16. Testing data from dust and other sources in the Rocky
Flats area presented by plaintiffs relates to and supports
this theory. See Docket No. 7-8. The Court finds
that such evidence is admissible at least for the limited
purpose of showing irreparable harm. The fact that such
evidence may also relate to the merits is not a basis to
strike or exclude it unless the Court determines during the
hearing that its cumulative nature goes beyond standing and
irreparable harm issues and is being used to address the
merits or to attempt to supplement the administrative record.
Accordingly, the Court will deny defendants' motions with
respect to the materials submitted by plaintiffs and their
listed witnesses that plaintiffs assert relates to
irreparable harm. Defendants may still object to particular
testimony offered at the hearing that they believe is
irrelevant or otherwise improper.