To block imminent construction and opening of Rocky Flats trails 2018

(This archive-page is in chronological order of legal events and readers are encouraged to scroll for new items!)

WHEN:     Tuesday, May 1, 2018 – 12:00 noon

WHAT:        News conference to announce a major legal initiative to block imminent construction and opening of a visitor center and public trails at the former Rocky Flats Nuclear Weapons Site.

WHERE:   Outside Entrance to Boulder Public Library Canyon Art Gallery
SE Corner, 9th Street and Canyon Blvd., Boulder, Colorado

                  (site of the new “Facing Rocky Flats” exhibit)
               
WHO:        *  Attorney Randall Weiner – Environmental attorney representing area organizations concerned about the risk of public exposure from lingering radioactive contamination at Rocky Flats
 
                  *  Jon Lipsky former Federal Bureau of Investigation (FBI) Special Agent who led the raid that shut down Rocky Flats for suspected environmental crimes.

                  *  Christopher Allred/Brittany Gutermuth – leaders of successful drive to convince Denver Public Schools Board and six other area school districts to ban student field trips to the Rocky Flats site due to health and safety concerns.

WHY: Tuesday’s court filing will seek to reverse a recent federal decision to build and open trails plus a visitor center at Rocky Flats because required environmental analyses were not conducted. A prior lawsuit was denied without prejudice as “not yet ripe” last year when a judge said no decision had yet been announced.

Plaintiffs in the case include: Rocky Mountain Peace & Justice Center Candelas Glows/Rocky Flats Grows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association, and Environmental Information Network.

Click the link to read the Complaint filed on May 1, 2018.


Thursday, May 31, 2018

GROUPS SEEK FEDERAL COURT PRELIMINARY INJUNCTION

TO BLOCK ROCKY FLATS PLUTONIUM SITE TRAILS, VISITOR CENTER OPENING;

MOTION CITES HEALTH RISKS TO PUBLIC FROM RADIATION EXPOSURE AND

U.S. AGENCIES’ FAILURE TO COMPLY WITH ENVIRONMENTAL LAWS

In a motion filed in federal court in Denver today, attorneys for local groups sought a Preliminary Injunction to block U.S. government plans to open hiking trails and start constructing a visitors’ center this summer at the former Rocky Flats nuclear weapons site. Among other arguments, the motion contends that the U.S. Fish & Wildlife Service (USFWS) did not conduct a recent analysis of impacts from allowing public access to land containing plutonium particles.

The plaintiffs’ attorney Randall Weiner explained, “A Preliminary Injunction will protect the public from the danger of potential exposure to lethal contaminants, a significant risk if the Rocky Flats site is opened without a comprehensive review. Such an order will allow the court time to consider evidence showing that USFWS violated the requirements of the National Environmental Policy Act and the Endangered Species Act.”

The motion for a Preliminary Injunction was backed by several scientific experts. Both micro-meteorologist Walter Gale Biggs, Ph.D., and University of Colorado Professor Emeritus Harvey Nichols raised concerns about buried plutonium particles on the site becoming airborne and being inhaled. Susan Elofson-Hurst, co-founder of the plaintiff group Environmental Information Network, added that her measurements of radiation in smoke from a vegetation burn at Rocky Flats showed that “once airborne the radioactive particles can reach my property very quickly.”

Rocky Flats manufactured plutonium triggers for nuclear weapons. In 1989, the Federal Bureau of Investigation raided the site for environmental violations, and the plant never reopened. Parts of Rocky Flats remain on the Superfund list of the nation’s most contaminated sites. Many questions have been raised about past sampling for plutonium as well as excess cancers reported by neighbors. In recent weeks, seven local school boards have barred field trips to the site.

Plaintiffs in the current suit include: Rocky Mountain Peace & Justice Center, Candelas Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association and Environmental Information Network. Click the links to read the following documents:

Motion for and Memorandum in Support of Preliminary Injunction

Exhibit 1: Rocky Flats National Wildlife Refuge Trails’ Scoping Report

Exhibit 2 – Plutonium Activity Map

Exhibit 3 – CCP and EIA

Exhibit 4 – Flooding Effects

Exhibit 5 – Modified Level III Preacquisition Study

Exhibit 6 – 2004 and 2017 Aerial Photos

Exhibit 7 – Randall Stafford Declaration

Exhibit 8 – Marco Kaltofen Lab Report

Exhibit 9 – Susan Elofson-Hurst Declaration

Exhibit 10 – Jon Lipsky Declaration

Exhibit 11 – DOE Fact Sheet

Exhibit 12 – Merilyn Cook Jury Verdict Form

Exhibit 13 – USFWS Environmental Action Statement

Exhibit 14 – Trail and Plutonium Activity diagram

Exhibit 15 – CDPHE RFNWR visitor

Exhibit 16 – CAD-ROD

Exhibit 17 – America’s Great Outdoors

Exhibit 18 – Walter Gale Biggs Declaration

Exhibit 19 – Harvey Nichols Declaration

Exhibit 20 – Dr Mark B. Johnson, MD, MPH Declaration

Exhibit 21 – Ken Salazar Press Release

Exhibit 22 – USFWS ROD

Exhibit 23 – USFWS 2005 Section 7 Consultation

Exhibit 24 – LeRoy Moore Declaration

Exhibit 25 – Bonnie Graham-Reed Declaration

Exhibit 26 – Merilyn Cook Property Class Area


Monday, June 11, 2018

Federal Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Exhibit 1 – USFWS ROD

Exhibit 2 – USFWS Environmental Action Statement

Exhibit 3 – David Lucas Section 7

Exhibit 4 – David Lucas Declaration

Exhibit 5 – CAD-ROD for COU-POU

Exhibit 6 – June 11, 2007 USEPA Letter

Exhibit 7 – July 12, 2007 USDOI Letter

Exhibit 8 – Preble Jumping Mouse

Exhibit 9 – April 1, 2015 RFNWR Prescribed Burn Smart Ditch

Exhibit 10 – RFNWR Final CCP (please email us for the 14mb file)

Exhibit 11 – August 11, 2011 Section 16

Exhibit 12 – May 24, 2017 Letter of Intent to Sue


Friday, June 15, 2018

Plaintiffs’ Witness List


Tuesday, June 19, 2018

Government Defendants’ Witness List


Thursday, June 21, 2018

NEW PLAINTIFFS’ BRIEF IN ROCKY FLATS REFUGE CASE ALLEGES
TRAILS WILL BE LOCATED OVER AREAS WITH HIGHEST PLUTONIUM ACTIVITY;
JUDGE SETS DAY-LONG HEARING ON PRELIMINARY INJUNCTION
WITH EXPERT WITNESS TESTIMONY FOR TUESDAY, JULY 17, 2018 AT DENVER, COLORADO

In Federal District Court documents filed this week, groups seeking to block federal agencies from opening walking and biking trails as well as a visitors’ center on the former Rocky Flats plutonium bomb trigger production site documented why they should win a Preliminary Injunction temporarily suspending the plan. U.S. Judge Philip Brimmer has scheduled a day-long hearing on the motion for Tuesday, July 17 at the Denver Federal Courthouse.

Assigning a full-day for expert witness testimony on a motion for a Preliminary Injunction will allow Plaintiffs to present testimony from scientists and health researchers detailing the potential harm from opening the Refuge to public access. According to the Plaintiffs new brief, “[T]he primary Public Trail has been located over surface soils found to possess some of the highest concentration of plutonium activity.”

Dr. Harvey Nichols, an emeritus professor of biology at the University of Colorado in Boulder, is one of the experts scheduled to testify at the July 17 hearing. In a recently filed Declaration to the Court, Dr. Nichols explained findings from his research at Rocky Flats, “My work has also shown that contamination in the Refuge has not been remediated at all. . .The plutonium dust remains in and on the Refuge’s soil surface and in and on the Refuge’s vegetation.” He concluded, “While it is impossible to determine who will or will not contract cancer as a result of inhaling plutonium particles from the Refuge, it is likely that a large number of people will over multiple generations do so if the Refuge is open to the public . . ”

Reply in Support of Plaintiffs’ Motion for Preliminary Injunction

Exhibit 1 – Closing the Circle on the Splitting of the Atom

Exhibit 2 – Harvey Nichols Declaration

Exhibit 3 – Studies of Offsite Soil Contamination from Rocky Flats

Exhibit 4 – Emails re Intraservice Section 7

Exhibit 5 – Declaration of Elizabeth Panzer


On June 26, 2018 Federal Defendants’ Notice of Lodging U.S. Fish and Wildlife Service’s Administrative Record was filed.


On June 28, 2018 Federal Defendants’ Motion In Limine to Exclude Certain Witnesses from the Preliminary Injunction Hearing was filed.


On July 2, 2018 Federal Defendants’ Answer was filed.


On July 2, 2018 Joint Case Management Plan for Petitions for Review of Agency Action was filed.


On July 6, 2018 Plaintiffs’ Joint Opposition to Defendants’ Motion In Limine to Exclude Certain Witnesses from the Preliminary Injunction Hearing and Opposition to Defendants’ Motion to Strike Plaintiffs’ Declarations and Exhibits Submitted in Support of Motion for Preliminary Injunction was filed.


FEDS TRY TO BAR EXPERT WITNESS TESTIMONY

AT JULY 17 ROCKY FLATS PRELIMINARY INJUNCTION HEARING;

PLAINTIFFS PRESS FOR OPPORTUNITY TO DEMONSTRATE HARMS

IF WILDLIFE REFUGE OPENED TO PUBLIC

     U.S. government lawyers have filed a motion seeking to block testimony from Mark Johnson, Executive Director of the Jefferson County Health Department, and other scientists at a July 17 Federal Court hearing where plaintiffs are seeking a preliminary injunction to block construction of trails and a visitors’ center at the Rocky Flats Wildlife Refuge. In response, plaintiffs told the Court that the expert witnesses will document “irreparable harms” from opening the site next to a former plutonium production plant and other significant legal problems with the proposal.

     The government motion also seeks to bar statements from Dr. Harvey Nichols, Emeritus Professor in the University of Colorado biology department and Dr. W. Gale Biggs, a meteorologist. Dr. Nichols plans to explain that his work shows, “contamination in the Refuge has not been remediated at all. . .The plutonium dust remains in and on the Refuge’s soil surface and in and on the Refuge’s vegetation.” Dr. Biggs will demonstrate dangers to the public from contamination by windblown plutonium particles from facility construction and visitor activity at the site. Dr. Johnson will testify that an injunction would not be averse to the public interest, one of the arguments plaintiffs need to prove to win a Preliminary Injunction.

Randall Weiner, the Boulder environmental attorney who represents the plaintiffs explained, “Our witnesses will provide evidence addressing ‘irreparable harm’ and the other legal standards to block opening the Refuge to the public. They need to testify so that the judge gains a full understanding of the potential harm to the public.”

Rocky Flats manufactured plutonium triggers for nuclear weapons for several decades. In 1989, the Federal Bureau of Investigation raided the site for environmental violations, and the plant never reopened. Parts of Rocky Flats remain on the Superfund list of the nation’s most contaminated sites

A day-long hearing on the motion for a preliminary injunction is set for Tuesday, July 17 at the United States Courthouse, 901 19th Street, Denver. Plaintiff groups include: Rocky Mountain Peace and Justice Center, Candelas Glows/Rocky Flats Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association, and Environmental Information Network.


On July 11, 2018 US District for Colorado Judge Philip A. Brimmer filed his Case Management Plan.


On July 12, 2018 US District for Colorado Judge Philip A. Brimmer’s Order regarding Plaintiffs’ Expert Witness testimony for the July 17, 2018 Hearing.

JUDGE ALLOWS TESTIMONY FROM NEARLY ALL PLAINTIFFS’ WITNESSES
AT TUESDAY, JULY 17 ROCKY FLATS PRELIMINARY INJUNCTION HEARING;
ONLY DR. MARK JOHNSON EXCLUDED AS EXPERT,
EIGHT OTHERS WILL DOCUMENT “IRREPARABLE HARM”

     The district court judge presiding over next Tuesday’s hearing seeking a preliminary injunction to block construction of trails and a visitors’ center at the Rocky Flats Wildlife Refuge has rejected a federal government request to bar testimony from most of the expert witnesses called by plaintiffs. Instead, Judge Philip A. Brimmer excluded only Dr. Mark Johnson, Executive Director of the Jefferson County Health Department, deeming his statements unnecessary.

Attorney Randall Weiner, who represents plaintiffs, explained, “Our eight remaining witnesses – including experts on residual contamination, site sampling, and wind-borne transport of plutonium – will be addressing the legal standard of ‘irreparable harm’ needed for an injunction.”

A day-long hearing on the motion for a preliminary injunction is set for Tuesday, July 17 at the United States Courthouse, 901 19th Street, Denver. Plaintiff groups include: Rocky Mountain Peace and Justice Center, Candelas Glows/Rocky Flats Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association, and Environmental Information Network.

Rocky Flats manufactured plutonium triggers for nuclear weapons for several decades. In 1989, the Federal Bureau of Investigation raided the site for environmental violations, and the plant never reopened. Parts of Rocky Flats remain on the Superfund list of the nation’s most contaminated sites.


On July 17, 2018 US District Court for Colorado Judge Philip A. Brimmer filed the Courtroom Minutes of the Hearing. The July 17, 2018 Hearing transcript is available by clicking the link. (The transcript headers were corrected). A list of the witnesses and page numbers: John W. Barton pages 28-43; Professor Emeritus Harvey Nichols pages 43-60; Professor Emeritus Michael E. Ketterer pages 61-74; Professor Timothy Mousseau pages 75-86; Elizabeth Panzer pages 89-93; Jon Lipsky pages 93-102; Randall Stafford pages 102-113; David Lucas, USFWS, pages 113-145.


On July 18, 2018 Plaintiffs’ Response to New Authority Presented at Hearing on Motion for Preliminary Injunction was filed. Hearing Exhibit 16 is not readily available.


On July 31, 2018 a letter from “A Seriously Concerned Cold War Veteran” to Judge Brimmer was filed.


On August 9, 2018 Judge Brimmer issued his Order regarding the Motion for Preliminary Injunction.


On August 10, 2018 Plaintiffs Motion to Supplement the Administrative Record and Consider Extra-Record Evidence was filed with the Court.


On August 15, 2018 a letter from Dr Paul Kilburn to Judge Brimmer was filed.


On August 17, 2018 Plaintiffs Opening Brief was filed along with nine (9) Exhibits:

Exhiibit 1 – 2006 Cook Jury Verdict Form

Exhibit 2 – July 17, 2018 2006 Cook Jury Verdict Form

Exhibit 3 – 2011 USFWS email chain re: Section 9 and Section 16

Exhibit 4 – Elizabeth Panzer Declaration

Exhibit 5 – Jon Lipsky Declaration

Exhibit 6 – Susan Elofson-Hurst Declaration

Exhibit 7 – July 17, 2018 Hearing transcript of Randall Stafford

Exhibit 8 – Bonnie Graham-Reed Declaration

Exhibit 9 – LeRoy Moore Declaration


On August 24, 2018 Federal Defendants Response to Plaintiffs Motion to Supplement the Administrative Record and Consider Extra-Record Evidence was filed.


On August 31, 2018 Plaintiffs Reply to Federal Defendants Response to Plaintiffs Motion to Supplement the Administrative Record and Consider Extra-Record Evidence was filed.


On September 7, 2018 Federal Defendants Response to Plaintiffs Opening Brief was filed.


On September 21, 2018 Plaintiffs Reply Brief was filed.


On October 15, 2018 Plaintiffs’ Certification and Notice of Interested Parties was filed.