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10th Circuit urged to revive challenge to hiking trails at nuclear bomb factory

Rocky Mountain Peace and Justice Center sued the U.S. Fish and Wildlife Service in 2018 to stop the site of a former nuclear weapon's facility from opening to the public as a wildlife refuge.

DENVER (CN) — A group of concerned Coloradans asked the 10th Circuit on Wednesday to revive a challenge to the U.S. Fish and Wildlife Service’s proposed trail in the Rocky Flats National Wildlife Refuge. built around the site of a former nuclear weapon production facility.

Rocky Mountain Peace and Justice Center sued the U.S. Fish and Wildlife Service in 2018 in effort to stop the refuge near the city of Golden from opening to the public, citing concerns about the lack of recent environmental assessment given the site’s radioactive history.

From 1952 to 1992, the Rocky Flats Plant produced an estimated 70,000 plutonium pits, the device responsible for detonating nuclear bombs. The plant closed after an FBI raid uncovered mishandling of radioactive materials and the U.S. Environmental Protection Agency declared it a Superfund site.

In 2001, Congress passed the Rocky Flats National Wildlife Refuge Act and allocated $7.7 billion over a decade to clean up the area with plans to open it to the public.

The 1,300-acre core of the refuge where the actual manufacturing took place has been designated a legacy site by the Department of Energy and will be closed indefinitely. But 11 miles of trails encircle the buffer zone, connecting the Rocky Mountain Arsenal National Wildlife Refuge northeast of Denver with the Rocky Mountain National Park just west of Boulder.

In 2018, a federal judge heard arguments and denied Rocky Mountain Peace and Justice Center’s request to halt the project, finding the risk to the public was low. The national park opened to the public that September.

In response to a new mile-long trail proposed along the southwestern edge of the park, Rocky Mountain Peace and Justice Center asked the court to order the U.S. Fish and Wildlife Service to conduct soil testing for potential plutonium contamination.

In 2021, the judge found the federal government appropriately altered its original 2004 plans based on a 2018 assessment, a decision the plaintiffs appealed.

“In my 35 years of practicing law I have never seen an environmental analysis under NEPA so incomplete,” said attorney Randall Weiner on behalf of the environmental group. “The agency made its decision to run a bicycle trail along this area without testing for plutonium, which to me is a no brainer because it’s next to one of the most contaminated areas in the country.”

Weiner argued the judge improperly refused to allow documents into the record that supported the need for further testing at the site.

U.S. Circuit Judge Scott Matheson Jr., appointed by Barack Obama, asked whether adding a new trail really raised new questions.

“As far as the highly controversial extraordinary circumstance argument based on opening the refuge to public hiking, wasn’t that addressed in the 2004 environmental impact statement?” Matheson asked. “Seems like you’re trying to relitigate something that happened more than 15 years ago.”

Weiner said the new trail crosses a parcel of land not previously considered in refuge plans.

“We have no way of knowing why they put the trail there and the lack of a paper trail makes this arbitrary and capricious,” Weiner argued.

U.S. Attorney Michelle Melton explained why the agency determined additional plutonium testing was unnecessary.

“The expert talked to a service land person who was knowledgeable about the potential for plutonium contamination at the site and looked at the history of soil samples along the border at the refuge, which were at or below background levels,” Melton said. “I think that makes it very clear why there was no concern here.”

Matheson asked why Fish and Wildlife considered the new trail a modification of previous plans rather than a new proposal.

“There’s no merit to the argument that there were unique or unknown risks here,” Melton answered.

Although not formally challenged by the U.S. government, Melton also threw a jab at Rocky Mountain Peace and Justice Center's standing to raise the issues.

“My understanding of their argument is they’re concerned that the very minor activities will kick up dust and that dust will entrain itself into the air and blow onto them," Melton said. "We don’t agree as a factual matter with that, but we’ve chosen not to challenge their standing."

Senior U.S. Circuit Judge Paul Kelly, appointed by George W.H. Bush, jointed Matheson in the Byron White Courthouse in downtown Denver. U.S. Circuit Judge Carolyn McHugh, appointed by Obama, rounded out the panel by video from Salt Lake City. The court did not indicate when or how it would decide the case.

Located on Highway 93 across the road from the Rocky Flats Wildlife Refuge, the “Cold War Horse” was erected in 2015 to commemorate the factory workers, with a horse in a hazmat suit and gas mask. (Amanda Pampuro/CNS)

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