10th Circuit rebuffs Rocky Flats-skeptic groups’ challenge to refuge trail system | courts

The federal appeals court based in Denver has agreed the government did not violate the law when it approved a set of trail modifications at the Rocky Flats National Wildlife Refuge in 2018 without a more rigorous environmental review.

In reaching its decision, a three-judge panel for the US Court of Appeals for the 10th Circuit suggested a coalition of groups opposed in one form or another to Rocky Flats appeared more interested in challenging the broader, long-settled decision to open the former nuclear weapons site to the public, rather than the more recent realignment of trail segments.

“We repeat,” wrote Judge Scott M. Matheson Jr. in the July 19 opinion, “that many of the Center’s standing arguments hinge on the opening of the Refuge, which is not the agency action before us.”

The Rocky Mountain Peace & Justice Center, Candelas Glows/Rocky Flats Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association and the Environmental Network Inc. filed a complaint in federal court in May 2018. Referred to collectively as “the Center,” the plaintiffs accused the federal government of violating the procedural requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act.

Originally, the federal government acquired the Rocky Flats site in Jefferson County in 1951, which hosted a facility to manufacture nuclear weapons components during the Cold War. The land became so polluted it would eventually cost roughly $7 billion to clean up Rocky Flats, which entailed the removal of 21 tons of weapons-grade nuclear material. Although Rocky Flats stopped producing nuclear triggers in 1989, the government-supervised cleanup took until 2005 to complete.

Congress enacted a 2001 law to eventually convert 6,200 acres of the land to a wildlife refuge. Six years later, the US Fish and Wildlife Service assumed responsibility for the refuge land, or peripheral zone, while the US Department of Energy retained jurisdiction over the former industrial area, or central operable unit, in the core of Rocky Flats. The central operable unit is not accessible to the public.

The Fish and Wildlife Service in 2004 drafted a comprehensive conservation plan and an environmental impact statement, which envisioned a 16-mile recreational trail network. Reportedly, the health risk to visitors would be low, with an estimated chance of six in 10 million that an adult who spent one-third of the year visiting the refuge for 24 years would develop cancer. Furthermore, the US Environmental Protection Agency concluded the refugee posed “no significant threat to public health or the environment.”

When the Fish and Wildlife Service sought to modify parts of the trail network in 2018, it issued an environmental action statement — meaning it deemed the changes so minor that they qualified for a “categorical exclusion” not requiring more rigorous analysis under NEPA. The changes included a one-mile addition to the Rocky Mountain Greenway trail in the southwestern portion of the refuge into a recently-acquired parcel known as Section 16, and a proposed trail shift in the eastern “Wind Blown Area.”

Modifications to the Rocky Mountain Greenway trail in Section 16 (at bottom left, in green) and in the Wind Blown Area (at right) were the subject of the legal challenge.

The Center plaintiffs south, claiming the government located the trails through allegedly more contaminated areas of the refuge without a proper environmental review. Construction could cause airborne plutonium to migrate, they contended. The Center also sought a preliminary injunction to halt trail construction and public access under the Endangered Species Act, based on potential harms to the Preble’s meadow jumping mouse.

US District Court Chief Judge Philip A. Brimmer ruled against the plaintiffs, explaining the only legal question was whether the Fish and Wildlife Service did not follow proper procedures with its 2018 trail modifications.

“Although plaintiffs sincerely believe that the FWS allowing any public access to the Refuge is unwise, it is not the Court’s role to review the wisdom of an agency’s decision,” he wrote in July 2021.

Brimmer observed the EPA had deemed the Section 16 parcel did not need to be cleaned up, and was suitable for “unlimited use and unrestricted exposure.” While the government did not claim there was zero health risk from visiting the refuge, the estimates of cancer were small and the decision-making record did not contradict that finding. Brimmer also found the plaintiffs had no standing for an injunction under the Endangered Species Act.

The Center appealed to the 10th Circuit, arguing the modifications to the trails were highly controversial and should not have qualified for the categorical exclusions designed for minor changes.

“Ultimately, the Service chose to locate the Additional Trails through some of the more contaminated portions of the Refuge without the benefit of a NEPA analysis,” wrote attorney Randall M. Weiner to the 10th Circuit.

The appellate panel appeared skeptical during oral arguments in May about whether the plaintiffs were limiting their challenge to the recent one-mile trail addition and related adjustments.

“It seems like you’re trying to relitigate something that happened 15 years ago,” Matheson said.

The government insisted there were no safety issues to the magnitude of the plaintiffs claimed. Attorney Michelle Melton argued there was an absence of significant new circumstances since the 2004 environmental assessment that would undermine its conclusions. Furthermore, Section 16 was not part of the original Rocky Flats nuclear site, and 2019 soil sampling found low levels of plutonium.

“Forty thousand visitors visited the refuge in the year 2020, enjoying these trails,” she told the panel.

The 10th Circuit upheld the dismissal of the Center’s legal challenge. The changes in the eastern Wind Blown Area and any plutonium contamination there were irrelevant, Matheson wrote, because the Fish and Wildlife Service already acknowledge any trails constructed there would require additional review under NEPA. The addition of a trail in Section 16 was also not deemed a significant new circumstance.

“The Center has failed to show why the trail modifications approved by the 2018 EAS present an added risk to public health,” Matheson wrote. “The Center cannot use the original controversy in 2004 to establish an extraordinary circumstance now.”

The panel also agreed the plaintiffs did not have standing to sue based on concerns about the Preble’s mouse, and that Brimmer did not err when he declined to consider a 2012 study of plutonium concentrations or a 2006 jury verdict finding corporate liability for nearby plutonium contamination.

Construction of the disputed trails is scheduled to begin in fall 2022, the Fish and Wildlife Service told Colorado Politics.

The case is Rocky Mountain Peace & Justice Center et al. v. US Fish and Wildlife Service et al.