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,
v.
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.
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, ...