A federal judge sided against the town of Superior in determining the federal government did not violate the law by making modifications to trails in the Rocky Flats National Wildlife Refuge.

The town had alleged in a lawsuit that the U.S. Fish and Wildlife Service failed to perform the needed environmental review when it adjusted part of the refuge’s trail alignment via a 2018 statement of minor changes. Superior asked a court to halt the trail development plan until a proper environmental assessment took place.

But U.S. District Court Senior Judge Marcia S. Krieger explained that the relatively narrow issue before her was the government’s modification to the trails in the refuge, and not, as the town argued, the larger project of connecting the refuge to other regional amenities.

“The only agency action at issue here are the decisions embodied by the 2018 Statement — namely minor adjustments of trail routings and other inconsequential actions. When the Court’s focus is narrowed to just those issues, none appear to be the subject of meaningful controversy,” she wrote in a Sept. 16 order.

Krieger’s decision marks another legal setback for efforts to derail the completion of the wildlife refuge’s trail system. In July, U.S. District Court Chief Judge Philip A. Brimmer upheld the same environmental action statement amid claims from concerned community groups that the government’s original 2004 environmental analysis was outdated.

“Although plaintiffs sincerely believe that the [Fish and Wildlife Service] allowing any public access to the Refuge is unwise, it is not the Court’s role to review the wisdom of an agency’s decision,” Brimmer wrote at the time.

Rocky Flats was formerly the site of a Cold War-era nuclear weapons production facility, located largely within Jefferson County, 10 miles south of Boulder. It closed in 1993 following a law enforcement raid and was the subject of a $7 billion cleanup to remove 21 tons of potentially radioactive material. Multiple advocacy groups still oppose allowing public access to the site, citing cancer risks.

Eventually, the Fish and Wildlife Service took over the area — with the exception of the portion at the center containing the most extensive contamination — to create the refuge. Following an environmental review released in 2004, the service adopted a comprehensive plan for the refuge in 2005, which envisioned just under 13 miles of trails for pedestrian, equestrian and bicycle use. There would be additional hiking-only trails and other infrastructure for visitors, like parking.

In 2012, planning began for the Rocky Mountain Greenway Project, linking Rocky Mountain National Park near Estes Park and Rocky Mountain Arsenal near Denver. As part of the design, trails in Rocky Flats National Wildlife Refuge would link up with neighboring facilities in Boulder County and Westminster, tying in to the larger project.

When the Fish and Wildlife Service released its environmental action statement in March 2018 focused on modifications to the 2005 trail plan, it mentioned that that the Greenway Project connections were “proposed by adjacent local governments, may or may not occur in the future, and are not included with this determination thus requiring a future NEPA determination(s).”

NEPA refers to the National Environmental Policy Act, the federal law that requires government agencies to review the environmental implications of their proposals before making decisions. The Fish and Wildlife Service determined the 2018 modification to the trails by itself was so minor as to be exempt from another environmental analysis.

The town of Superior, which sits northeast of the refuge, then sued. It alleged a violation the law for the federal government not to perform additional review, given that the refuge’s connection to Greenway Project would have significant environmental effects. In particular, the town claimed the Greenway Project would bring more visitors by trail to the refuge than originally anticipated — from 85,000 annually to now 200,000 annually. It also pointed out the Fish and Wildlife Service redesignated 8.3 miles of trails in the refuge as the “Greenway trail.”

“FWS cannot pretend that its actions in the 2018 EAS are unrelated” to the Greenway Project, the town wrote in its legal filings. “The 2018 EAS decision facilitates and is part of the related decisions to route the Greenway through the Refuge.”

In her order, Krieger acknowledged that NEPA requires agencies to consider environmental consequences for activities connected to the planned course of action. The goal is to prevent the government from splitting up projects into smaller chunks, each of which has a minimal footprint but, taken as a whole, results in a much bigger impact.

But she found there was no reason to perform an environmental review of the refuge’s trail modifications when, to her, the connections to Boulder County and Westminster still remain hypothetical. 

“NEPA specifically requires FWS to consider effects that are ‘reasonably foreseeable’ from the action being considered,” Krieger wrote. “If it can reasonably be foreseen that connecting the Greenway Project to the Refuge’s trails will result in a substantial increase in the number of users of Refuge trails or the manner in which the Refuge will be used, FWS will have to consider those effects as part of its NEPA review of the decision to construct the connectors. But the mere fact that FWS may expect to join its trails to the Greenway Project in the future does not suffice.”

Neither the Fish and Wildlife Service nor the town of Superior immediately responded to requests for comment.

Earlier this year, the Boulder County Board of County Commissioners approved an intergovernmental agreement to fund its grade-separated trail connections to the refuge, The Daily Camera reported. Although those in favor said the risk of getting hit by a car in the absence of such connections would be much larger than developing cancer from the Rocky Flats site, Commissioner Matt Jones remained opposed.

“Yeah, I know the chance is low, but I wouldn’t wish that on anyone,” he said. “I just don’t want to be promoting use out there.”

The case is Superior v. Fish and Wildlife Service et al.