EDITOR'S NOTE: This story originally misidentified the group Rocky Flats Right to Know.
A coalition of communities united around their opposition to the planned Rocky Flats National Wildlife Refuge filed a federal lawsuit on Wednesday in Denver seeking to block its opening until it has complied with a series of environmental laws to ensure its safety.
The lawsuit was filed in U.S. District Court and names as defendants the U.S. Fish and Wildlife Service, its acting director, James Kurth, and Secretary of the Interior Ryan Zinke.
The plaintiffs in the case are the Boulder-based Rocky Mountain Peace and Justice Center, the community activist groups Candelas Glows/Rocky Flats Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association and the Environmental Information Network Inc.
Representing the plaintiffs in the suit, which labels the Flats as "among the nation's most polluted places," is Randall Weiner, a Boulder environmental law specialist who has litigated environmental cases around the nation.
In an interview after the suit was filed, Weiner said, "Federal agencies have to comply with environmental statutes before they engage in significant actions that impact the public.
"In this case, nothing could be more significant than opening up a plutonium-contaminated site for trails and biking and horseback riding, when there are significant questions about lingering plutonium in the environment."
Weiner added, "The case only seeks what the environmental laws require: that the agency take a hard look at its plans before its actions are irreversible."
Ryan Moehring, a spokesman for the Fish and Wildlife Service's Mountain-Prairie Region, said in an email, "We do not comment on active litigation, per U.S. Fish and Wildlife Service policy."
Specifically, the suit seeks full compliance with the National Environmental Policy Act, commonly known as NEPA, which requires public involvement to review decisions that might impact the environment.
Under NEPA, Weiner said, "They have to at least prepare an environmental assessment. They have done absolutely nothing as far as NEPA is concerned, and have plans to commence construction this summer."
The suit also asks that plans to open the 5,237-acre refuge be placed on hold until the Fish and Wildlife Service can show it is in compliance with the National Wildlife Refuge Systems Administration Act and federal Executive Order 11990, which requires federal agencies to minimize impacts of federal activities on floodplains and wetlands.
Mark Squillace, a professor specializing in environmental law at the University of Colorado School of Law, worked twice at the Department of Interior — which oversees the U.S. Fish and Wildlife Service. His second stint there was as special assistant to its head solicitor at the tail end of the Clinton administration.
"I think they have a strong case," Squillace said of the plaintiffs, after reading the complaint.
"In my mind, there is little doubt they (Fish and Wildlife) at a minimum have to prepare an environmental assessment before they go ahead, and they have to engage the public. At least they have to provide the public with some information about the potential environmental consequences" of welcoming the public onto the refuge.
The Fish and Wildlife Service on Monday night in Arvada hosted the fourth and final of its "sharing" sessions to inform the public about plans for the refuge on the site of the former nuclear weapons plant south of Boulder, which it intends to open to the public in the summer of 2018, replete with a $8.3 million, 3,500-square-foot visitor's center.
Monday's session specifically focused on the issue of visitor safety, and was highly attended. Some of those on hand voiced the long-held skepticism that has long persisted among many critics, who don't accept findings by the Colorado Department of Public Health and Environment, the Environmental Protection Agency and the Department of Energy that there is no lingering danger to humans from exposure to any residual contaminants from its 40 years of operation.
Production at Rocky Flats came to a halt in 1992, followed by a $7.7 billion cleanup that was completed in October 2005. That cleanup included decommissioning, decontaminating, demolishing and removing more than 800 structures, including six plutonium-processing and fabrication building complexes.
The Department of Energy removed more than 500,000 cubic meters of low-level radioactive waste
The DOE's Office of Legacy Management has responsibility for the long-term surveillance and maintenance of the roughly 1,300-acre Central Operable Unit at the core of the Rocky Flats site — closed to the public and surrounded by, but not part of, the refuge.
'Thumbing its nose'
The suit challenges what it alleges are outdated assessments of the ability of buried plutonium to migrate beyond the closed core area.
"The plutonium contaminated building materials in the COU are covered with little more than dirt," the suit states. "Such dirt is continually brought to the surface by burrowing animals, where winds of up to 90 mph can suspend surface contaminants and deposit them onto Rocky Flats' visitors, and throughout the region."
The suit also states, "By avoiding the NEPA mandate, FWS is virtually thumbing its nose at its obligations to consider the impacts of its plans on the human environment."
Squillace, the CU law professor, said he met a few years ago with the Fish and Wildlife Service over its controversial plans for a controlled 700-acre burn to reduce its fuel load and invasive species. He did so out of concern that they had not subjected that plan to an environmental assessment.
Plans for that burn were later abandoned, but Squillace was not assuaged by the agency's response to his concerns.
"I thought at that time and I think today that, for whatever reason, this local office of the Fish and Wildlife Service does not understand its obligation under NEPA," Squillace said.
In a news release on Wednesday, Boulder resident LeRoy Moore, a consultant to the Rocky Mountain Peace and Justice Center, said, "We want to make certain that pollutants in the soil at Rocky Flats, including plutonium, beryllium and uranium, do not contaminate members of the public, who FWS unfortunately plans to invite onto the site."
In addition to asking for an injunction blocking this summer's planned launch of construction of public trails and the visitor center until an environmental assessment is performed, the suit also seeks to recover plaintiffs' costs and attorneys fees.