Town of Superior v. U.S. Fish & Wildlife Serv.

• Decision Date: 21 December 2012
• Docket Number: Civil Action Nos. 11–cv–03294–PAB, 12–cv–00034–PAB, 12–cv–00388–PAB.
• Citation: 913 F.Supp.2d 1087
• Parties: The TOWN OF SUPERIOR, a Colorado municipality, City of Golden, Colorado, WildEarth Guardians, Rocky Mountain Wild, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, United States Department of the Interior, Ken Salazar, acting in his official capacity as Secretary of the Interior, Daniel M. Ashe, acting in official capacity as Director of the United States Fish and Wildlife Service, Steve Guertin, acting in his official capacity as Regional Director of the Mountain–Prairie Region of the United States Fish and Wildlife Service, Steve Berendzen, acting in his official capacity as Rocky Flats National Wildlife Refuge Manager, Defendants, and The Board of County Commissioners of the County of Jefferson, Colorado, City of Arvada, Jefferson Parkway Public Highway Authority, Natural Resource Trustees of the State of Colorado, and the Board of Land Commissioners of the State of Colorado, Defendant–Intervenors.
• Court: U.S. District Court — District of Colorado

913 F.Supp.2d 1087

The TOWN OF SUPERIOR, a Colorado municipality, City of Golden, Colorado, WildEarth Guardians, Rocky Mountain Wild, Plaintiffs,

v. UNITED STATES FISH AND WILDLIFE SERVICE, United States Department of the Interior, Ken Salazar, acting in his official capacity as Secretary of the Interior, Daniel M. Ashe, acting in official capacity as Director of the United States Fish and Wildlife Service, Steve Guertin, acting in his official capacity as Regional Director of the Mountain–Prairie Region of the United States Fish and Wildlife Service, Steve Berendzen, acting in his official capacity as Rocky Flats National Wildlife Refuge Manager, Defendants,andThe Board of County Commissioners of the County of Jefferson, Colorado, City of Arvada, Jefferson Parkway Public Highway Authority, Natural Resource Trustees of the State of Colorado, and the Board of Land Commissioners of the State of Colorado, Defendant–Intervenors.

Civil Action Nos. 11–cv–03294–PAB, 12–cv–00034–PAB, 12–cv–00388–PAB.

United States District Court, D. Colorado.

Dec. 21, 2012.

Recognized as Invalid

50 C.F.R. § 402.02

Melanie Joy Granberg, Timothy R. Gablehouse, Gablehouse Granberg, LLC, Neil Levine, Neil Levine Law Offices, Denver, CO, for Plaintiffs.

John H. Martin, III, U.S. Department of Justice–Co–Environmental Enforcement, Stephen D. Taylor, U.S. Attorney's Office, Denver, CO, Ty Bair, U.S. Department of Justice, Washington, DC, for Defendants.

Eric Thomas Butler, Writer Mott, Golden, CO, Christopher K. Daly, Roberto Ramirez, Arvada City Attorney's Office, Arvada, CO, Howard Kenison, Patrick Compton, Lindquist & Vennum, PLLP, Daniel S. Miller, Jason Eric King, David Edgar Hamrick, Heather A. Warren, Colorado Attorney General's Office–Department of Law, Denver, CO, for Defendant–Intervenors.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter comes before the Court on plaintiffs' challenges in three consolidated cases to the final action of the United States Fish and Wildlife Service (“FWS”) approving a land exchange affecting the Rocky Flats National Wildlife Refuge in Colorado. Plaintiff Town of Superior filed its amended complaint on July 19, 2012 alleging violations of the Administrative Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and the Rocky Flats Act (“RFA”). Docket No. 68 at 18–21. Plaintiff City of Golden filed its complaint on January 5, 2012 alleging violations of the APA, NEPA, and the RFA in addition to a violation of the Endangered Species Act (“ESA”). 12–cv–00034–PAB, Docket No. 1 at 16–20. Plaintiffs WildEarth Guardians and Rocky Mountain Wild filed their complaint on February 14, 2012 alleging violations of the APA, NEPA, and the RFA. 12–cv–00388, Docket No. 1 at 18–23. The three cases were consolidated through orders dated January 27, 2012 and May 10, 2012. See Docket Nos. 20 and 38. The Board of County Commissioners of the County of Jefferson, the City of Arvada, the Jefferson Parkway Public Highway Authority (“JPPHA”), the Natural Resources Trustees of the State of Colorado, and the State Board of Land Commissioners have intervened as defendants. The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

I. BACKGROUND

In 1951, the United States government purchased several hundred acres of land northwest of Denver, Colorado to build the Rocky Flats nuclear weapons plant. AR 27233.¹ In 1975, the government purchaseda buffer zone of land around the plant, bringing the total area of the site to approximately 6,200 acres. Id. at n. 2. The plant was operated by the Department of Energy (“DOE”) and its predecessors. AR 27233. Weapons production was concentrated in a small area on the property and the buffer zone was “left mostly undisturbed.” AR 27239. However, over the course of forty years, manufacturing activities, spills, fires, and waste disposal released plutonium and other radionuclides, which were dispersed by wind and rain into the soil and water systems in the buffer zone. AR 27245.

In 1989, the Environmental Protection Agency (“EPA”) added Rocky Flats to the National Priorities List as a Superfund site. AR 27239; see the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9605(a)(8) (2012). In 1992, DOE ceased manufacturing weapons at the site. AR 27240. For the next two decades, EPA, DOE, and the Colorado Department of Public Health and Environment (“CDPHE”) collaborated on cleanup of the site. AR 27245–246, 26940 (1996 Final Rocky Flats Cleanup Agreement).

In 2001, Congress passed the RFA to create the Rocky Flats National Wildlife Refuge (“the Refuge”) out of the Rocky Flats Environmental Technology Site. Pub.L. No. 107–107, §§ 3171–82, 115 Stat. 1012 (2001). As part of the creation of the Refuge, the RFA provides that, upon receipt of a qualifying application, a strip of land along the eastern boundary of the Refuge (the “corridor”) must be transferred to a Colorado governmental entity for transportation improvements. Id. at § 3174(e). In 2006, Congress amended the RFA to encourage federal acquisition of private mineral rights on Rocky Flats. Pub.L. No. 109–163, § 3112, 119 Stat. 3136 (2006).

In 2004, pursuant to the RFA, the FWS issued a Comprehensive Conservation Plan/Environmental Impact Statement (“CCP/EIS”) outlining its plan for managing the Refuge. AR 3046; see RFA at § 3178. The CCP/EIS concludes that transferring a corridor of land for transportation improvements would not significantly impact the Refuge. AR 3260–61.

In September 2006, EPA and CDPHE issued a final cleanup decision, recommending continued DOE jurisdiction over approximately 1,300 acres that required further cleanup, but finding the surrounding 4,900 acres to be “acceptable for unrestricted use and unlimited exposure.” AR 2468. In 2007, EPA removed the buffer zone from the National Priorities List, and DOE transferred jurisdiction over approximately 4,000 acres to DOI to establish the Refuge. 72 Fed.Reg. 29,276; AR 1867–71.

In 2008, the City of Arvada, the City and County of Broomfield, and Jefferson County submitted an application for the transportation corridor to DOE in order to construct part of a thirteen-mile tollway to help complete the beltway around Denver. AR 15782. While awaiting DOE's reply, they formed the JPPHA AR 4262. DOE's reply stated that it had transferred jurisdiction over the corridor to the FWS and no longer had authority to approve the transfer of the corridor. AR 15794. Accordingly, JPPHA redirected its application to the Secretary of the Interior. AR 15784. In March 2010, the FWS entered into discussions with JPPHA and other local government entities regarding the possible transfer of the corridor pursuant to a land exchange. AR 15782.

In May 2011, the City of Golden (“Golden”) submitted an application for the corridor in order to develop a bikeway. AR 15742–61. The FWS evaluated both JPPHA's and Golden's proposals for the corridor pursuant to NEPA and the ESA. See42 U.S.C. § 4321; 16 U.S.C. § 1531. In November 2011, the FWS issued a Biological Opinion (“BiOp”) concluding that the land exchange proposed by JPPHA was not likely to jeopardize the endangered Preble's Meadow Jumping Mouse (the “Preble's mouse”) or its critical habitat. AR 14497–515. The FWS did not issue a statement exempting any accidental “take” of the Preble's mouse at the time,² but in February 2012 it completed a second BiOp, reaching the same conclusion and issuing a statement regarding the possibility of inadvertent take. AR 17974–998. In December 2011, the FWS issued an Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”). AR 15596, 15024–027. In its FONSI, FWS selected JPPHA's proposal for implementation. AR 15024. This decision was subsequently adopted by the Refuge Manager. AR 16408–412.

The land exchange agreements were finalized at the end of January 2012. AR 21018 (email forwarding final escrow agreements), 17900–905. The agreements specify that JPPHA, the City of Arvada, the Colorado Department of Natural Resources, the City and County of Boulder, and Jefferson County will contribute money toward FWS' purchase of (1) approximately 617 acres of land, known as Section 16, which are adjacent to the Refuge and currently owned by the State Land Board; (2) leases for resource extraction on Section 16; and (3) privately owned mineral rights located elsewhere on Rocky Flats. AR 17904–05. In return, the FWS will give JPPHA a quitclaim deed to the transportation corridor. AR 17904.

Plaintiffs Golden, Town of Superior, WildEarth Guardians, and Rocky Mountain Wild filed this case against the FWS, DOI, and four DOI officials in their official capacities,³ alleging that the FWS' approval of JPPHA's application and rejection of Golden's application violated NEPA, the ESA, the RFA, and the National Wildlife Refuge System Administration Act. Plaintiffs seek an order holding unlawful and setting aside the FWS' decision to enter into the land exchange and transfer the corridor to JPPHA.

II. DISCUSSIONA. Standard of Review

Pursuant to the APA, 5 U.S.C. § 701, the Court must determine whether the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at § 706(2)(A). The scope of this review is narrow. See Colo. Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir.2006) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “An agency's decision is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) 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, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.” New Mexico ex rel....