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Town of Superior v. United States Fish and Wildlife Service

United States District Court, D. Colorado

September 19, 2019

UNITED STATES FISH AND WILDLIFE SERVICE, GREG SHEEHAN, in his official capacity as Acting Director of the Fish and Wildlife Service, and DAVID LUCAS, in his official capacity as Project Leader and Refuge Manager, Region 6 of the Fish and Wildlife Service, Defendants.



         THIS MATTER comes before the Court on the Plaintiff’s Motion to Remand and/or Supplement the Administrative Record, and to Conduct Discovery (# 17), the Defendants’ response (# 26), the Plaintiff’s reply (# 28). Several additional motions are also pending (# 22, 23, 25).

         I. BACKGROUND

         The area known as “Rocky Flats, ” located northwest of Denver, Colorado, was previously the location of manufacturing facilities for the production of nuclear weapons. Decommissioned in or about 1992, the site was notorious for its environmental hazards, including plutonium residue and other contaminants left over from manufacturing operations. Intensive cleanup efforts occurred, and in or about 2007, a roughly 4, 000-acre parcel was transferred to the management of the United States Fish and Wildlife Services (“FWS”), where it became the Rocky Flats National Wildlife Refuge (“the Refuge”).

         In or about 2005, the FWS began drafting a conservation plan and environmental impact statement (the “CP/EIS”) to address how the Refuge would be managed and made available for public use. The CP/EIS that was ultimately approved included authorization for creation of roughly 15 miles of bicycle and pedestrian trails within the boundaries of the Refuge. As the Court understands, and as discussed below, it does not appear that these trails were actually constructed. The drafting, approval, and implementation of the 2005 CP/EIS is not at issue in this action.

         The FWS decision at issue in this lawsuit was proposed in or about 2018. The record is not completely clear on exactly what constituted the FWS’ 2018 proposal, but as the Court understands it, FWS was proposing to actually build some portion of the trail network previously authorized by the 2005 CP/EIS. The trails in question would largely be created by converting existing roads within the Refuge to dedicated bicycle/pedestrian trails, although there would be some modification or re-routing of existing trails as well.

         The centerpiece of the proposal was the construction of an 8-mile long trail, from a point inside the eastern boundary of the Refuge near Indiana Street, passing along the south and west sides of the Refuge before terminating at the northern boundary of the Refuge near Colorado Highway 128. The proposal identified this trail as the “Rocky Mountain Greenway” (see below). It also identified two locations at the ends of the Greenway trail as “proposed trail connections” to other pedestrian and bicycle trail networks outside the Refuge, but with the express indication that approval and construction of those connections were deferred to future planning and were “not included in this determination”.[1] Because the FWS concluded that the proposed 2018 actions were minor, uncontroversial, and consistent with the 2005 CP/EIS, the FWS concluded that it was not required to conduct a new environmental assessment before approving the project. Instead, in March 2018, it issued a final notice (“the 2018 EAS”) that simply approved the project on the basis of the environmental assessment in the existing 2005 CP/EIS.

         The Plaintiff here, the Town of Superior (“Superior”) contends that the proposed action is neither minor, noncontroversial, nor consistent with the 2005 CP/EIS. As Superior explains, the designation of the 8-mile trail segment as the Rocky Mountain Greenway is a substantial step towards a plan that will have the ultimate consequence of significantly increasing the number of visitors to the Refuge, eventually causing it to exceed the conservative assumptions and expectations about public use that supported the decisions made in the 2005 CP/EIS. The Rocky Mountain Greenway (hereafter, “the Greenway”) is a project planned by a consortium of federal, state, and local entities, envisioning a large system of bicycle and pedestrian trails connecting major parcels of open space around the Denver metropolitan area and beyond, providing enhanced transit routes for recreational and commuter use. The Greenway project contemplates that the Refuge would become one of the “anchor points” of this trail network, and would significantly increase the number of visitors traveling to and through the Refuge. Superior and other community members who believe that the soil at the Refuge still contains substantial amounts of unremediated environmental contaminants are concerned that increased use of the Refuge caused by the Greenway project will lead to greater disruption of contaminated soils, both as a direct result of authorized and unauthorized visitor use itself and indirectly, by near the contemplated trail connection at the northern edge of the Refuge. Like the trail connections, the contemplated multi-purpose building is expressly noted as falling outside the scope of the current action proposed by the FWS. virtue of the FWS’ eventual need to construct additional infrastructure (such as visitors centers, bathrooms, and roads and parking areas) to support increased visitor numbers.

         Superior commenced this action asserting three claims for relief, all touching on FWS’ alleged noncompliance with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.: (1) that FWS’ 2018 EAS constitutes “impermissible segmenting” - that is, the future construction of additional trails, connections to other portions of the Greenway project, and other development are all foreseeable actions connected to the FWS’ designation of the 8-mile trail as being part of the Greenway, such that the FWS should be required at this time to assess the environmental impacts under NEPA for the entirety of the Greenway project, not just the environmental impacts relating solely to the proposed action; (2) that FWS’ conclusion that no further NEPA analysis was necessary because the 2018 proposal constituted only minor and uncontroversial changes to the uses contemplated by the 2004 EIS was erroneous, and that a full environmental assessment is necessary; and (3) that FWS’ decision to approve the 2018 proposal without conducting an environmental assessment violates NEPA.

         Presently pending are several motions that must be resolved before the Court can ultimately turn to the merits of this action. Most significantly, Superior moves (# 17) to supplement the administrative record (# 15) to include certain documents, as discussed more fully below. Superior’s motion also requests leave to conduct “limited discovery” relating to some of these supplementary materials. Also pending are several motions (## 22, 23, 25) that seek to adjust briefing and other deadlines in this action due to the pending motion to supplement and other intervening events. Because the parties have now completed their merits briefing, the Court denies these latter motions as moot, leaving only the motion to supplement the record for resolution.


         Typically, an “agency’s action is entitled to a presumption of validity, and the burden is upon the petitioner to establish the action is arbitrary or capricious.” Sorenson Commc’ns Inc. v. FCC, 567 F.3d 1215, 1221 (10th Cir. 2009). Once agency action is challenged, a district court reviews the action as if it were an appellate court, applying the Administrative Procedure Act. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). The Court can set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Sitting in judicial review of the agency, this Court generally lacks the authority to conduct de novo proceedings and is confined to the administrative record. Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991). “The complete administrative record consists of all documents and materials directly or indirectly considered by the agency.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993).

         Circumstances warranting “consideration of extra-record materials are extremely limited.” Custer Cty. Action Ass’n v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001). The Tenth Circuit explained in Franklin Savings that such circumstances could include “where the administrative record fails to disclose the factors considered by the agency”; for the purpose of “determining whether the agency considered all relevant factors including evidence contrary to the agency’s position”; or in order to “explain technical terms or complex subject matter.” 934 F.2d at 1137. The court of appeals has previously listed other possible justifications for expanding the record: (1) the agency action is inadequately explained and cannot be reviewed properly without further materials, (2) the record is deficient because the agency ignored relevant factors it should have considered, (3) the agency considered factors left out of the record, (4) the case is so complex that more evidence is necessary to understand the issues, and (5) new evidence demonstrates the validity of the agency action. See Am. Mining Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985).


         Superior asks the Court to remand this action to the Service to add information to the administrative record or, in the alternative, to allow Superior to supplement. (The Court summarily rejects the request for a remand.) Superior’s motion proposes that the record be supplemented to include 23 separate exhibits, which are grouped into four major categories. The Court discusses each category in turn.

         A. Exhibits 1 through 5

         Superior proposes to supplement the record with certain documents relating to applications that members of the Greenway project consortium have made to obtain funding for development of ...

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