Court Opinions: 10th Circuit Court of Appeals Opinion from July 19

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

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

The Rocky Flats National Wildlife Refuge covers approximately 6,200 acres of land surrounding a former nuclear defense facility operated by the U.S. Department of Energy. From 1951 to 1989, the DOE manufactured nuclear weapons in the middle of the site known as the Industrial Area. 

In 1989, the Environmental Protection Agency added the site to the Comprehensive Environmental Response, Compensation and Liability Act’s National Priorities List because production at the facility released hazardous substances, including radionuclides, into the surrounding area. The EPA also committed to a large-scale cleanup operation. During the 1990s and early 2000s, the EPA coordinated the cleanup process with the DOE and the Colorado Department of Public Health and Environment. As a part of this process, the agencies collected thousands of soil samples to test radionuclide levels in the soil.

In 2001, while cleanup was ongoing, Congress enacted the Rocky Flats National Wildlife Refuge Act, under which the DOE would be responsible for the Industrial Area, and “the Flats [would] become a National Wildlife Refuge run by the [U.S. Fish and Wildlife Service] as soon as the EPA determined the cleanup was complete.”

In 2004, FWS issued the Final Comprehensive Conservation Plan and Environmental Impact Statement, which confirmed that DOE was completing the cleanup under EPA’s and CDPHE’s oversight and that FWS would receive jurisdiction after completion. It noted “[t]he majority of the site has remained undisturbed since its acquisition, and provides habitat for… two species that are federally listed as threatened (bald eagle and Preble’s meadow jumping mouse).” In 2007, the EPA certified the cleanup had reached the point where DOE would transfer the refuge, excluding the industrial area, to FWS. In doing so, the EPA determined that the refuge posed “no significant threat to public health or the environment and, therefore, no further remedial measures pursuant to CERCLA [were] appropriate.” It left the Industrial Area on the National Priorities List and under DOE’s jurisdiction.

In 2011, FWS began studying whether to acquire an approximately 640-acre parcel adjacent to the southwest boundary of the refuge where several mines previously operated. FWS conducted a site assessment consisting of “research, sampling, and site visits,” which “found no known or observable environmental contaminant issues.”

On Dec. 2, 2011, FWS prepared an EA evaluating whether to expand the refuge, concluding that the annexation would pose minimal risk to public health and safety, was not highly controversial and would not jeopardize any endangered species or damage critical habitats. FWS finalized the annexation in 2012. 

In 2018, FWS issued an environmental action statement. The organization uses an EAS instead of an EA when it concludes the action falls within a categorical exclusion but may be controversial. In the EAS, FWS made changes to the trail configurations proposed in the 2004 CCP — among them was the Rocky Mountain Greenway trail, an eight-mile trail that would run from the northern border of the refuge to the southwest, then continue eastward to the south of the industrial area. The EAS added about one mile to the Rocky Greenway trail, expanding it into the recently annexed parcel “to provide access to the historic Caprock Mine.” 

Shortly after FWS issued the EAS, the Rocky Mountain Peace & Justice Center sued, alleging violations of the Administrative Procedure Act, National Environmental Policy Act, Endangered Species Act and National Wildlife Refuge Systems Administration Act. It claimed FWS should have prepared a new or supplemental EIS based on the significance of the approved trail modifications, incorrectly concluded the approved changes were not extraordinary circumstances and thus erroneously relied on the use of the categorical exclusions, improperly excluded the proposed trail modification in the Wind Blown Area from the NEPA analysis and violated the Refuge Act by opening the refuge for trail use. 

The Center moved for a preliminary injunction to block the construction of the trails and the opening of the refuge. After holding an evidentiary hearing, the district court denied the motion, finding that the Center failed to show irreparable harm and denied its remaining claims. The Center appealed, challenging the district court’s dismissal of its ESA claim for lack of standing, denial of its petition for review regarding its NEPA claims and refusal to supplement the record or consider extra-record evidence.

Establishing Standing 

At the district court and initially on appeal, FWS did not challenge the Center’s standing to bring its NEPA claims. Following the oral argument, the 10th Circuit Court of Appeals ordered the parties to address the Center’s standing. In the supplemental briefs, the Center argued it has standing, and FWS argued it doesn’t. 

According to the court, the Center showed it suffered an injury in fact through Jon Lipsky’s declaration and his testimony at the preliminary injunction hearing, in which he claimed that he “conduct[s] business in the immediate area of the [refuge],” “visit[s] just outside the perimeter of the [refuge]… about once per month,” and “plan[s] to continue this schedule in the future.” Lipsky stated that he reviewed the trail maps FWS provided in the 2018 EAS and determined that “[t]he Trails depicted . . . are significantly different than those previously approved for the Refuge.” He noted that “[t]he new final map includes a trail entering the east side of the Refuge” in the Wind Blown Area. He also noted the creation of “[t]rails on the newly acquired [parcel,]… which was not officially part of the federal property considered ‘Rocky Flats,’” so “there has been no study of the impact to this property of [FWS’s] decision to route the [t]rails through it.” Thus, “[t]he construction and operation of the [refuge] pose a health risk to [him].”

The court also determined the Center showed its NEPA injury is traceable to the agency action and that the injury is redressable, fulfilling the three necessary components to establish standing to bring its NEPA claims. 

The Center also challenged the district court’s dismissal of its ESA claim for lack of standing, relying on Randal Stafford’s interest in the Preble’s meadow jumping mouse. The 10th Circuit determined his interest insufficient to establish standing and further denied standing for failure to show the alleged injury is fairly traceable to the challenged agency action. Stafford’s declaration and accompanying testimony showed his alleged injury stems from the construction of any trail, not the trail modifications made in the 2018 EAS. The 10th Circuit affirmed the district court’s dismissal of the ESA claim. 

NEPA Claims 

The Center argued that FWS violated NEPA by segmenting the proposed trail modification into the Wind Blown Area, relying on categorical exclusions to avoid conducting an EA and failing to prepare a supplemental EIS based on significant new circumstances.

The 10th Circuit Court of Appeals said it sets aside agency actions if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” — if the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” 

The court ruled that the modifications have independent utility, allowing FWS to segment the potential changes from the original analysis; the Center failed to show FWS’s reliance on the categorical exclusions to make the trail modifications was arbitrary or capricious and FWS did not need to prepare a supplemental EIS. 

Regarding all claims, the 10th Circuit Court of Appeals affirmed the district court’s ruling.

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