Rocky Mountain Peace & Justice Center v. United States Fish and Wildlife Service

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs' Motion for and Memorandum in Support of Preliminary Injunction [Docket No. 7]. Plaintiffs seek a preliminary injunction against trail construction and the opening of public access to the trails at the Rocky Flats National Wildlife Refuge (the “Refuge”). Docket No. 7 at 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.

         I. BACKGROUND^[1]

         This is 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 reroute sections of trails planned for construction in the Refuge and open the Refuge to visitors from the general public beyond guided tours.

         The Refuge is located in Jefferson County, Colorado on land surrounding the decommissioned nuclear processing facility at Rocky Flats. The so-called “industrial area, ” where the processing facilities were located, and the land immediately surrounding it are still administered by the United States Department of Energy (“DOE”) and are not at issue in this litigation, except insofar as the facility was the source of plutonium contamination affecting the Refuge.

         In 2001, Congress passed the Rocky Flats National Wildlife Refuge Act, Pub. L. No. 107-107, 115 Stat. 1012 (2001) (the “Refuge Act”). Congress determined that the “national interest requires that the ongoing cleanup and closure of the entire site be completed safely, effectively, and without unnecessary delay and that the site thereafter be retained by the United States and managed so as to preserve the value of the site for open space and wildlife habitat.” Id., § 3172(a)(4). Congress also found that the “Rocky Flats site provides habitat for many wildlife species, including a number of threatened and endangered species, ” and that “[e]stablishing the site as a unit of the National Wildlife Refuge System will promote the preservation and enhancement of those resources for present and future generations. Id., § 3172(a)(5).

         On 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 CCP”). R. at 1327. The 2004 CCP noted that the DOE was responsible for the ongoing cleanup of Rocky Flats, with oversight from the Environmental Protection Agency (“EPA”) and the Colorado Department of Public Health and Environment (“CDPHE”). R. at 1361. Upon certification by the EPA that the cleanup was complete, the Rocky Flats site would be divided into two jurisdictions. Id. The DOE would retain jurisdiction over the industrial area and its immediate surroundings to “protect cleanup facilities and monitoring systems.” Id. The FWS would assume responsibility for the other portions of the Rocky Flats site, with these transferred portions forming the Refuge. Id. The 2004 CCP contemplated that, following the creation of the Refuge, multi-use trails would be created in the Refuge that would be accessible to the public. R. at 1368 (“Visitor use facilities would include about 16 miles of trails, a seasonally staffed visitor contact station, trailheads with parking, and developed overlooks. . . . Most trails would use existing road corridors. Public access would be by foot, bicycle, or horse, with limited car access to two parking areas on the Refuge.”). The 2004 CCP stated that FWS “believe[d] that the health risk from working on or visiting Refuge lands would be low” and disclosed that “the estimated increased cancer risk from exposure to residual soil contamination of 7 pCi/g is 1 in 1 million for the Refuge worker, and 0.6 in 1 million (or 6 in 10 million) for the Refuge visitor." R. at 1363.^[2] These values were calculated based on the added radiation exposure of a Refuge worker spending "4 hours indoors and 4 hours outside for 250 days a year for 18.7 years" and of a Refuge visitor spending "2.5 hours outside for 100 days a year for 6 years (child) or 24 years (adult)." Id. The 2004 CCP also noted that "the majority of the public use facilities would be located in areas where the residual contamination is much lower (less than 1 pCi/g)." Id. On February 16, 2005, the FWS issued a record of decision ("2005 ROD") adopting the 2004 CCP for the Refuge. R. at 1326. The 2005 ROD included a map of the approved trail system for the Refuge:

         (Image Omitted)

         R. at 1319 (trial map from 2005 ROD).

         On May 25, 2007, the EPA published a notice in the Federal Register certifying that the portion of the Refuge site that would be transferred to the Department of Interior and form the Refuge “poses no significant threat to public health or the environment and, therefore, no further remedial measures pursuant to CERCLA are appropriate.” R. at 5515, National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List, 72 Fed. Reg. 29276 (May 25, 2007); see also R. at 5508 (map of transferred area in letter of transfer to FWS); R. at 5511 (June 11, 2007 EPA certification letter). “CERCLA” refers to the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as the “Superfund, ” enacted on December 11, 1980 and codified at 42 U.S.C. § 9601 et seq. See also Superfund Amendments and Re-authorization Act, Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986). Under this law, the EPA established standards and procedures for cleanup of radioactive materials at Superfund sites like Rocky Flats. See 42 U.S.C. § 9602; 40 C.F.R. Ch. I, Subch. J, Pt. 300.

         After the Refuge came under the supervision of the FWS in 2007, the FWS acquired additional land at the southwest corner of the Refuge, which had not previously been part of Rocky Flats and which was not subject to prior cleanup efforts. See Docket No. 14 at 16; R. at 4. This parcel of land is referred to by the parties as the “Section 16 Parcel” and contains an old coal and clay mine. Id.; R. at 1044. Before the land was acquired, the FWS conduced a survey of the area, finding “no known or observable environmental contaminants issues.” R. at 1038. The August 11, 2011 survey report did note the presence of debris in the area, including a “rusted storage barrel at the water's edge” near the old mine that “appear[ed] to be empty.” R. at 1048. The report recommended removing the barrel and other refuse from the Section 16 Parcel. R. at 1038.

         On December 15, 2010, the FWS issued a final rule revising the designation of critical habitat for the threatened Preble's Meadow Jumping Mouse (“Preble's mouse”) in Colorado. Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Preble's Meadow Jumping Mouse in Colorado, 75 Fed. Reg. 78430 (Dec. 15, 2010). The FWS “determined that lands on the Rocky Flats Site are essential to the conservation of the species.” Id. at 78437. The land designated as critical habitat for the Preble's mouse within the Refuge includes Rock Creek, Walnut Creek, and Woman Creek as well as the land 120 meters to either side of these creeks. R. at 3237; see also R. at 3177 (“In total, the revised designation [of critical habitat in Colorado] includes approximately 411 miles of rivers and streams and 34, 935 acres of streamside habitat in Boulder, Broomfield, Douglas, El Paso, Jefferson, Larimer, and Teller counties, Colorado.”)

         On September 21, 2011, the EPA and CDPHE sent a letter in response to the FWS's questions requesting “additional information regarding residual risk” at the Refuge. The letter stated that the health risks at the Refuge “are within or below the acceptable CERCLA risk range (10-4 to 10-6 risk of excess cancer incidence) and that radiation doses are below State standards.” R. at 5487. The letter noted that the average concentrations of radioactive materials was “about 3.2 pCi/g” even in the eastern portion of the Refuge, which is downwind of the industrial area (based on the prevailing winds) and therefore expected be more contaminated, and that this level is “well below the 9.8 pCi/g that corresponds to a 1 x 10-6 risk for a [Refuge visitor].” R. at 5488. Based on this testing data, the EPA and CDPHE stated that the “lands comprising the Refuge are suitable for unlimited use and unrestricted exposure.” Id.

         In November 2017, the Highway Administration issued a Scoping Report for construction of trails within the Refuge. Docket No. 7-1. On March 23, 2018, the FWS issued an Environmental Action Statement (the “2018 EAS”) to make changes to the 2004 CCP. R. at 1. 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.” R. at 9. At issue here, the 2018 EAS made changes to the trail routes planned in the 2004 CCP. R. at 7-8. As reflected in the 2018 EAS map below, the FWS changed the Walnut Creek trail in the northeast of the Refuge into a loop, ...