IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Transcription

1 Civil Action No. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CITY OF GOLDEN, COLORADO, v. Plaintiff UNITED STATES FISH AND WILDLIFE SERVICE, DANIEL M. ASHE, in his official capacity as Director of the United States Fish and Wildlife Service, STEVE GUERTIN, in his official capacity as Regional Director, Region 6, United States Fish and Wildlife Service, and STEVE BERENDZEN, in his official capacity as Refuge Manager for Rocky Flats National Wildlife Refuge, Defendants. COMPLAINT Plaintiff City of Golden, Colorado ( Golden ), files this Complaint seeking declaratory and injunctive relief against the United States Fish and Wildlife Service ( FWS ); Daniel Ashe, in his official capacity; Steve Guertin, in his official capacity; and Steve Berendzen, in his official capacity, to enforce the Rocky Flats National Wildlife Refuge Act of 2001, Pub. L. No , , 115 Stat ( Rocky Flats Act ); the National Environmental Policy Act, 42 U.S.C ( NEPA ); the Endangered Species Act, 16 U.S.C ( ESA ); and the Administrative Procedure Act, 5 U.S.C , ( APA ). 1

2 Notice of Related Case A related case is currently pending in the United States District Court for the District of Colorado. The Town of Superior v. U.S. Fish and Wildlife Serv. et al., Civil Case No. 11-CV AP (filed Dec. 15, 2011). In that case, the Town of Superior also challenges FWS s December 14, 2011 decision discussed below, although on different grounds than those Golden asserts here. The case has been assigned to Judge Philip A. Brimmer. Introduction 1. The City of Golden, Colorado, challenges the decision of FWS to grant a 300- foot-wide right-of-way ( ROW ) to the Jefferson Parkway Public Highway Authority ( JPPHA ) to construct a four-lane, high-speed, tolled highway through the eastern edge of the Rocky Flats National Wildlife Refuge ( Refuge ) and to deny Golden s application to use the ROW for a much needed bikeway ( Bikeway ). The proposed Jefferson Parkway will have extensive impacts on the Refuge, including taking critical habitat of the federally threatened Preble s Meadow Jumping Mouse ( Preble s Mouse ), increasing noise within the Refuge to the detriment of ground-nesting birds and other species, creating a significant barrier to wildlife movement between the Refuge and open space to the east, and adversely impacting rare xeric tallgrass and xeric needle-and-thread grasslands. It will also cause increased traffic and levels of noise and air quality pollutants within Golden, affecting public health, City-owned buildings, and property values. 2. FWS made its decision without analyzing the environmental impacts of the Jefferson Parkway, without obtaining documentation as to how JPPHA would minimize the impacts of the Jefferson Parkway on the Refuge, and without comparing the environmental 2

3 impacts of the Jefferson Parkway to the Bikeway. Because FWS did not study the impacts of the proposed Parkway, did not provide for minimization of impacts, and does not plan to study the impacts before transferring ownership of the ROW to JPPHA, Golden seeks a declaration that FWS s decision to grant JPPHA a 300-foot-wide ROW along Indiana Street on the eastern edge of the Refuge for use as a four-lane, tolled expressway violated NEPA, the Rocky Flats Act, the ESA, and the APA. Golden seeks declaratory and injunctive relief to redress the injuries caused by these violations of law. The Parties 3. The Plaintiff, City of Golden, Colorado, is a home rule city in the State of Colorado. Golden submitted an application to FWS to acquire a 300-foot-wide ROW along of Indiana Street on the eastern edge of the Refuge for use as a bicycle transportation facility on May 19, 2011, which was amended on July 1, Golden will be negatively affected by the Jefferson Parkway, which will cause increased traffic, noise and air pollution within Golden, as well as the lost opportunity to construct a bikeway. 4. FWS manages the National Wildlife Refuge System, including the Rocky Flats National Wildlife Refuge. FWS rejected Golden s application on December 14, 2011, granting the ROW instead to JPPHA for construction of the Jefferson Parkway. 5. Daniel Ashe is sued in his official capacity as Director of the United States FWS. In that capacity, he is responsible for the activities of the FWS, including assuring compliance with NEPA, the Rocky Flats Act, and the ESA. On December 8, 2011, he approved the decision to transfer the ROW to JPPHA. 3

4 6. Steve Berendzen is sued in his official capacity as Refuge Manager for the Refuge. In that capacity, he is responsible for the activities of the Refuge and for assuring compliance with NEPA, the Rocky Flats Act, and the ESA. 7. Stephen Guertin is sued in his official capacity as Regional Director, Region 6, of the FWS. On December 2, 2011, he signed a Finding of No Significant Impact ( FONSI ), paving the way for conveyance of the ROW to JPPHA without further NEPA review. Jurisdiction and Venue 8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331, as this action presents a case and controversy arising under the Rocky Flats Act; NEPA; the ESA; and the APA. 9. Venue lies in this district under 28 U.S.C. 1391(e) because the federal defendants are agencies of the United States and a substantial portion of the events or omissions giving rise to the claims stated herein occurred in this judicial district. JPPHA and all of its activities are also located in this judicial district. 10. Golden has standing to pursue this challenge because it applied to FWS to acquire the ROW along the eastern edge of the Refuge for use as a bikeway, but its application was rejected in favor of JPPHA s application to construct a four-lane tolled highway. The standalone Bikeway would have been an important transportation improvement for Golden because it would have permitted connection to existing trails, paths and bike lanes leading to Golden and provided City residents with improved access to the Refuge, Boulder County destinations, northern Jefferson County and Broomfield, as well as allowing for connections by bicycle and pedestrian access with neighboring open space owned by Boulder, Boulder County, Superior, 4

5 and Westminster. The Jefferson Parkway, on the other hand, would increase traffic through Golden, leading to increased levels of noise and air quality pollutants within Golden and affecting residents health, City-owned buildings and property values. General Allegations History of the Refuge 11. The Refuge occupies most of the site formerly occupied by the Rocky Flats Environmental Technology Site, a nuclear defense facility operated by the United States Department of Energy ( DOE ). The Refuge is located in unincorporated Jefferson County, Colorado, approximately 16 miles northwest of Denver, Colorado. 12. Weapons manufacturing was performed in a 600-acre area in the middle of the Rocky Flats Environmental Technology Site known as the industrial area. 13. Weapons manufacturing at the Rocky Flats Environmental Technology Site ceased in 1992 and environmental cleanup and closure of the site began. Rocky Flats Act 14. In 2001, Congress passed the Rocky Flats National Wildlife Refuge Act of 2001, which provided for the creation of the Refuge at the former Rocky Flats Environmental Technology Site. Pub. L. No , The Rocky Flats Act provided that once Rocky Flats was cleaned up and United States Environmental Protection Agency ( EPA ) certified the completion of cleanup, administrative jurisdiction of the site would transfer from the DOE to the Secretary of Interior. Pub. L. No ,

6 16. The Rocky Flats Act required that once transfer to the DOI was completed, the DOI would establish a wildlife refuge at the site. Pub. L. No , In addition to providing for creation of the Refuge, the Rocky Flats Act directed the United States to retain all its right, title and interest in the Refuge with one exception. Up to 300 feet of land along the eastern boundary of the Refuge could be made available for the sole purpose of transportation improvements along Indiana Street, provided that an application to acquire the corridor met three specified requirements: (a) the land must be requested for the sole purpose of transportation improvements along Indiana Street, Pub. L. No , 3174(e)(1)(A); (b) proposed improvements must be included in the Denver metropolitan area s regional transportation plan, id. at 3174(e)(2)(B)(ii); and (c) the applicant must submit documentation demonstrating that the proposed transportation improvements are carried out so as to minimize adverse effects on the management of Rocky Flats as a wildlife refuge. Id. at 3174(e)(2)(B)(i). 18. The Rocky Flats Act also explicitly states that any action taken with respect to the ROW shall be taken in compliance with applicable law. Pub. L. No (e)(1)(D). Applicable law includes the FWS s Rights-of-Way General Regulations (50 C.F.R ), NEPA and the ESA. 19. In 2004, in anticipation of the creation of the Refuge and transfer to the DOI, FWS prepared a plan for management of the Refuge and prepared an EIS to study the proposed management plan, entitled the Final Comprehensive Conservation Plan and Environmental Impact Statement ( CCP/EIS ), available at 6

7 20. Among the several options for managing the Refuge, the CCP/EIS considered the potential impacts of using 50, 100, or 300 feet along Indiana Street as a transportation corridor. See CCP/EIS at The CCP/EIS did not study the impacts of any particular type of transportation project because a definitive analysis of the direct impacts of the potential transportation improvements is outside the scope of this CCP/EIS.... Id. The CCP/EIS analysis was intended to characterize the types of impacts that could result from transportation improvements around the Refuge and was not completed in response to any particular plans or proposals. Id. 22. The CCP/EIS anticipated that additional NEPA study of environmental impacts and mitigation measures of any specific transportation use of the ROW would be necessary. Id. 23. In the context of that preliminary, conceptual review, the CCP/EIS identified a number of ways in which use of the ROW could adversely impact the Refuge and outlined a number of conceptual mitigation measures that would be needed to minimize those impacts. However, the CCP/EIS did not provide a specific program of mitigation for any specific transportation improvement. Id. 24. In 2007, the DOE completed cleanup and closure of the site in accordance with the Rocky Flats Cleanup Agreement under oversight from the EPA and Colorado Department of Public Health and Environment. 25. In 2007, most of the Rocky Flats Environmental Technology Site was transferred to the DOI and became the Refuge. A portion was retained by the DOE. 7

8 26. Since becoming a National Wildlife Refuge in 2007, the Refuge has remained closed to the public due to a lack of appropriations for refuge management operations. 27. The Refuge includes critical habitat for the federally threatened Preble s Mouse, hundreds of acres of rare xeric tallgrass prairie, and populations of state game species such as mule deer and elk. It also is home to a variety of other wildlife species, including: black-tailed jackrabbit, black-tailed prairie dog, painted turtle, prairie rattlesnake, red-tailed hawk, northern harrier, peregrine falcon, western meadowlark, killdeer, yellow warbler, and red-winged and yellow-headed blackbird. 28. The Refuge provides the potential for an important link to existing open space in the Denver metropolitan area. Applications for the Right-of-Way Golden s Application 29. On May 19, 2011, pursuant to the provisions of the Rocky Flats Act, Golden applied to acquire a 300-foot-wide ROW along Indiana Street on the eastern edge of the Refuge from FWS for construction of a bikeway and associated pedestrian facilities. 30. The City amended its application on July 1, 2011, in order to provide additional documentation and information regarding its proposal and to offer to purchase the ROW pursuant to either a land exchange or a direct sale. With a land exchange, FWS would be able to retain the proceeds of the sale of the ROW within the Refuge, or within the Service, as opposed to a direct sale, which would require the funds to go straight into the United States Treasury. 31. The Bikeway would provide an important transportation improvement for Golden. The Bikeway would provide a connection to bicycle routes and widened shoulders on SH 128 8

9 and McCaslin Boulevard that connect north and east to Superior, Broomfield, Boulder and Louisville, as well as existing or proposed bicycle paths or routes south and east in Westminster and Arvada. It would also allow regional connections to the west (along SH 128, SH 72 or the two proposed east-west multi-use trails planned for the Refuge itself). 32. Golden s application met the requirements of the Rocky Flats Act. 33. First, Golden demonstrated that its proposed improvements were included on Denver s regional transportation plan ( RTP ). See Pub. L. No , 3174(e)(2)(B)(ii). The RTP identifies a community bicycle corridor along and within 1,000 feet of Indiana Street between SH 72 and SH 128 and includes that project in the list of project eligible for funding in the fiscally constrained regional transportation plan. DRCOG, 2035 Metro Vision Regional Transportation Plan at 43, 69, App. C (Feb. 2011), available at Second, Golden documented the steps it would take to minimize any adverse impacts of the Bikeway on the management of the Refuge. 35. Golden also provided documentation demonstrating that the Bikeway would minimize impacts on the Refuge compared to JPPHA s plan to construct a four-lane highway, including minimizing the footprint of improvements; minimizing effects to critical habitat for and thus promoting conservation of the Preble s Mouse, and regionally important ground nesting bird species; offering adequate and safe corridor crossing for a wide variety of wildlife in the way most consistent with migration patterns; reducing disruption to soils and the potential for weed vectors; minimizing impacts to imperiled vegetation communities and animal habitats, such as rare xeric tallgrass grassland and upland shrubland communities; reducing pollutant 9

10 loadings to the surrounding habitat from runoff over impervious surface cover; and reducing motor vehicle emissions in the corridor. JPPHA s Application and the Proposed Jefferson Parkway 36. On April 29, 2008, Jefferson County, the City of Arvada and the City and County of Broomfield requested that the Secretary of Energy transfer a 300-foot ROW pursuant to the Rocky Flats Act. 37. In May, 2008, the City of Arvada, the City and County of Broomfield, and Jefferson County created JPPHA as a public highway authority pursuant to the Colorado Public Highway Authority Law, C.R.S et. seq. The express purpose of JPPHA is to finance, construct, and operate the Jefferson Parkway. 38. On August 11, 2008, JPPHA sought transfer of the ROW in its own name. 39. JPPHA plans to use the ROW to construct the proposed Jefferson Parkway, a four-lane, divided, high-speed, tolled highway. The proposed Jefferson Parkway will connect State Highway 128 in Broomfield and State Highway 93, north of W. 58 th Avenue, north of Golden s limits. 40. Development of nearby property is the primary purpose of the Jefferson Parkway, the construction of which will facilitate 11,482,000 square feet of nonresidential construction and 4,645 new residential units within 20 years, mostly in areas that are west of State Highway 93 or lie on the southern edge of the Refuge. 41. Golden submitted numerous written comments to the Secretaries of Energy and Interior beginning in June 2008 explaining why JPPHA had not met the requirements of the 10

11 Rocky Flats Act for transfer of the ROW and why the Parkway was not otherwise an appropriate use of the ROW. 42. On January 26, 2010, JPPHA filed a new application to purchase the ROW from FWS through a direct sale. This application was filed within a week of DRCOG s approval of the inclusion of the Jefferson Parkway in the fiscally-constrained RTP. 43. In its 2010 application, JPPHA failed to provide documentation demonstrating how it would minimize the adverse effects of the Jefferson Parkway on management of the Refuge. Although it cited to the 2004 CCP/EIS and to a subsequent environmental study prepared by the Colorado Department of Transportation, JPPHA did not commit to perform any of the mitigation measures set forth in those studies, and did not commit to perform any additional environmental review or to implement any mitigation measures whatsoever. JPPHA s Proposed Land Exchange 44. In March 2010, JPPHA, the Colorado State Land Board (State Land Board) and local municipalities, including Jefferson County, the City of Boulder and the County of Boulder, began discussions with FWS regarding a land-for-land exchange rather than a direct sale of the ROW from the United States to JPPHA. 45. The proposed land exchange would involve transferring most of a section of school trust land currently owned by the State of Colorado and managed by the Colorado State Land Board as state trust land. The parcel is located in the sixth Principal Meridian, Township 25 South, Range 70 West, Section 16, and is commonly referred to Section 16. Section 16 abuts the southern part of Refuge s western border. 11

12 46. Section 16 contains rare xeric tallgrass prairie and critical habitat for the Preble s Mouse. The value of the Section 16 land proposed to be transferred to the U.S. has been estimated at nearly $9.5 million. 47. The proposed land exchange would work as follows: (1) JPPHA, Jefferson County, Boulder County, and the City of Boulder would convey approximately $9.5 million to the State Land Board for the Section 16 land; (2) the State Land Board would transfer ownership of the surface and some mineral rights of the Section 16 land to the United States for incorporation into the Refuge; and (3) FWS would convey the 300-foot ROW to JPPHA. 48. Under the parties agreement, JPPHA would contribute $2.8 million toward the purchase price of Section 16 (the estimated value of the 300-foot ROW) and Jefferson County, Boulder County, and the City of Boulder would contribute the remaining approximately $6.7 million. The payment to the State Land Board would be placed in escrow until the ROW is transferred to JPPHA. The land exchange also provides for the purchase and transfer of certain mineral rights and existing leases on Section 16. On November 4, 2011, the State Land Board approved a non-simultaneous direct exchange whereby the State Land Board will transfer ownership of 617 acres of surface and 640 acres of aggregate mineral rights within Section 16 to the United States in exchange for the $9,437,000. Closing of the transaction is contingent upon FWS expanding the boundaries of the Refuge to include the Section 16 parcel. 49. In scoping comments filed with FWS on July 29, 2011 in regard to FWS s EA to study the proposed land exchange, JPPHA informed FWS that the addition of the acreage in Section 16 to the Refuge would easily mitigate the impacts of the Jefferson Parkway. JPPHA offered no analysis of the impacts, however, nor did it provide specifics as to how acquisition of 12

13 Section 16, which admittedly provides conservation benefits to the Refuge, would mitigate or minimize the impacts of a four-lane divided highway running along the edge of the Refuge. FWS s Review Process 50. Having received Golden s application, FWS informed Golden officials by letter dated June 9, 2011, that FWS would consider and compare the Golden and JPPHA proposals for conveyance of the ROW as part of FWS s NEPA analysis of the proposed transfer of the ROW and land exchange. 51. FWS held a public scoping meeting and accepted scoping comments on its NEPA process in July On September 30, 2011, FWS issued its Draft Environmental Assessment ( Draft EA ), which focused only on expansion of the boundary of the Refuge to accommodate the Section 16 land. The Draft EA identified the major federal action being considered as a decision whether to expand the boundary of the Refuge by acquiring additional land. Draft EA at 1.3. The Draft EA described the proposed action as expanding the boundary of the Refuge and completing a land exchange for the ROW. Id. at In the Draft EA, FWS s No Action alternative contemplated a direct sale of up to 300 feet of the eastern boundary of the Refuge for $2,800,000 for transportation improvements along Indiana Street. Id. at 2.2. However, FWS is under no compulsion to transfer the ROW at this time or approve any particular proposal for transportation improvements. 54. In the Draft EA, FWS stated that any future construction of transportation improvements on the ROW would be beyond the Service s jurisdiction..... Id. 13

14 55. Contrary to prior representations by FWS, the Draft EA did not analyze the environmental impacts of either the Jefferson Parkway or the Bikeway, nor did it compare their respective impacts. FWS stated that it would not perform those analyses in the Final Environmental Assessment ( EA ) or in any future NEPA process. 56. On October 31, 2011, Golden and other parties provided extensive comments on the Draft EA, explaining, inter alia, why FWS s failure to analyze the impacts of the proposed uses of the ROW violated NEPA, the Rocky Flats Act and other law. FWS s Decision 57. FWS issued its EA and FONSI on December 12, On December 14, 2011, FWS issued a letter formally denying Golden s application to acquire the ROW. 59. Also on December 14, 2011, FWS announced that it would convey the ROW to JPPHA as part of JPPHA s proposed land exchange. 60. Governing law and regulations provide for no mandatory administrative appeal of these decisions by FWS. Accordingly, these are final agency actions and are subject to challenge in federal district court under the APA. Consequences of FWS s Actions 61. Although FWS did not study the impacts of the transfer of the ROW, the consequence of its decision is to set in motion a complex land exchange, the center of which is the transfer of the ROW to JPPHA to construct the Jefferson Parkway. 14

15 Impact on Golden 62. FWS denied Golden s request to acquire the ROW for a bicycle and pedestrian transportation route, thus depriving Golden and the region of important transportation facilities and recreational opportunities. Instead, the FWS permitted the development of a four-lane highway along the Refuge boundary. 63. The proposed toll road will have substantial negative impacts on Golden. Increased traffic on such a highway would increase traffic congestion to critical levels on a number of roads and at a number of key intersections in Golden. In addition, the increased traffic and congestion would increase levels of noise and air quality pollutants within Golden, affecting health, City-owned buildings and property values. Impact on Refuge 64. The impacts to the Refuge of construction of the Jefferson Parkway are extensive. 65. Use of the full 300-foot ROW as proposed for the Jefferson Parkway will take 8.2 acres of Preble s Mouse habitat. The Refuge s Preble s Mouse habitat has been designated as critical habitat by the FWS. 66. Increased traffic and vehicle speeds on the Jefferson Parkway will significantly increase noise within the Refuge to the detriment of ground-nesting birds and potentially other species within the Refuge. Even the generic study in the CCP/EIS acknowledged that increased noise along any of the adjacent corridors could displace or alter the behavior and productivity of some wildlife species on the Refuge. CCP/EIS at The Jefferson Parkway will be a significant barrier to wildlife movement between the Refuge and open space to the east. 15

16 68. The Jefferson Parkway will also adversely impact 4.0 acres of rare xeric tallgrass grassland, an additional 9.2 acres of xeric needle-and-thread grassland, and would disturb 3.5 acres of vital wetlands within the Refuge. 69. The CCP/EIS also acknowledged that [c]onstruction along any of the roadway corridors has the potential to exacerbate existing problems with noxious weeds at Rocky Flats, which could further impact native plant communities and wildlife habitat throughout the Refuge. CCP/EIS at Despite its own acknowledgement that a road would have such impacts, FWS did not study the extent to which the Jefferson Parkway would impose such impacts, nor did FWS assure that JHHPA had committed to mitigation measures to minimize those and other impacts. FWS failed to take a hard look at the direct and indirect consequences of approving the transfer of the ROW to JHHPA for the construction of a multi-lane, high-speed toll road. First Claim for Relief: Violation of NEPA and the Administrative Procedure Act By FWS in Granting Right-of-Way to JPPHA 71. Golden incorporates by reference the allegations set forth in paragraph 1 71 as if restated here in full. 72. NEPA requires that FWS take a hard look at the direct and indirect environmental impacts of its decision to transfer the ROW and expand the Refuge boundaries, including the foreseeable uses of the ROW after transfer. 73. The use of the ROW as a divided, multi-lane high-speed highway, as set forth in JPPHA s application, was foreseeable. 16

17 74. FWS violated NEPA by failing to take a hard look at the environmental impacts of transferring the ROW to JPPHA for use as a divided, multi-lane high-speed highway, excluding these impacts from the scope of its EA. 75. FWS improperly relied upon the CCP/EIS, which did not study the environmental impacts of the proposed Jefferson Parkway, to conclude that transfer of the ROW to JPPHA would not significantly impact the environment. 76. FWS also violated NEPA by failing to consider the full range of cumulative impacts of the Jefferson Parkway, a reasonably foreseeable action associated with transfer of the ROW to JPPHA. 77. NEPA requires a federal agency to prepare an environmental impact statement if the direct and indirect effects of the agency s decision would have significant environmental impacts. Construction of a divided, multi-lane high-speed highway would have significant environmental impacts. Accordingly, FWS violated NEPA by failing to prepare an environmental impact statement. 78. FWS s EA/FONSI violates NEPA and is otherwise arbitrary and capricious, not supported by substantial evidence, and an abuse of discretion in violation of the APA. Second Claim for Relief: Violation of the Rocky Flats Act and the Administrative Procedure Act By Improperly Rejecting Golden s Right-of-Way Application 79. Golden incorporates by reference the allegations set forth in paragraph 1 71 as if restated here in full. 80. The Rocky Flats Act provides that transfer of the ROW requires that proposed improvements be included in the Denver s RTP and that the applicant submit documentation 17

18 demonstrating that the improvements will minimize adverse effects on the Refuge. Pub. L. No , 3174(e)(2)(B)(i)-(ii). 81. Golden s application for the ROW met the criteria of the Rocky Flats Act because (1) the Bikeway is included Denver s regional transportation plan; (2) Golden documented how the Bikeway would minimize adverse impacts on the management of the Refuge; and (3) Golden documented how the Bikeway would impose fewer adverse impacts on the management of the Refuge than would JPPHA s proposal. 82. Despite the fact that Golden s application met the standards for approval under the Rocky Flats Act, FWS rejected Golden s application on December 14, FWS s rejection of Golden s application was arbitrary and capricious, not supported by substantial evidence and an abuse of discretion in violation of the Rocky Flats Act and the APA. Third Claim for Relief: Violation of the Rocky Flats Act and the Administrative Procedure Act By Deciding to Transfer the Right-of-Way to JPPHA 84. Golden incorporates by reference the allegations set forth in paragraph 1 71 as if restated here in full. 85. The Rocky Flats Act requires that an applicant must submit documentation demonstrating the proposed transportation improvements are carried out so as to minimize adverse effects on the management of Rocky Flats as a wildlife refuge. Pub. L. No , 3174(e)(2)(B)(i). 86. JPPHA failed to submit documentation of how it would minimize impacts to the Refuge with its application. 18

19 Refuge. 87. FWS failed to study how JPPHA s proposal would affect management of the 88. FWS also violated the Rocky Flats Act by failing to study and compare the impacts of the two proposed uses of the ROW and determine which of those uses minimized impacts on the Refuge. 89. Without adequate information about the impacts of JPPHA proposal on the Refuge and a commitment to implement mitigation measures to minimize such effects, FWS could not determine whether JPPHA s application met the Rocky Flats Act s minimization requirement. 90. The Rocky Flats Act also requires that any action taken with respect to the transportation ROW shall be taken in compliance with applicable law. Pub. L. No (e)(1)(D). 91. FWS s Rights-of-Way General Regulations (50 C.F.R ) require, among other things, a determination by FWS that the ROW is compatible with the fulfillment of the National Wildlife Refuge System mission and the purposes of the Refuge. FWS failed to make this determination and to comply with other provisions of the regulations at 50 C.F.R FWS s decision to transfer the ROW to JPPHA was arbitrary and capricious, not supported by substantial evidence and an abuse of discretion in violation of the Rocky Flats Act and the APA. Fourth Claim for Relief: Violation of the Endangered Species Act and the Administrative Procedure Act 93. In accordance with Section 7 of the Endangered Species Act, 16 U.S.C et seq., FWS was required to engage in intra-agency consultation regarding the impacts of the 19

20 proposed land exchange and transfer of the ROW to JPPHA on the Preble s Mouse and its critical habitat. 94. FWS issued a Biological Opinion in which it studied the impacts of the land exchange on the Preble s Mouse and its critical habitat, but did not study the impacts of construction of the Parkway. 95. FWS issued an Incidental Take Statement noting that the proposed land exchange would not result in incidental take of the Preble s Mouse, but that future use of the transportation ROW might result in take, which it would study once a project has been proposed. 96. In the Incidental Take Statement, FWS made no conservation recommendations to minimize or avoid adverse effects on the Preble s Mouse and habitat, nor did it require any mitigation or monitoring. In past incidental take statements issued on the Refuge, FWS has required mitigation, habitat enhancement and post-implementation monitoring. 97. FWS did not consider whether the proposed Bikeway would impact the Preble s Mouse and its critical habitat to a lesser extent that the Jefferson Parkway would. 98. FWS violated the ESA in issuing this Biological Opinion without studying the impacts of the Jefferson Parkway, without studying the impacts of the Bikeway, and without requiring any mitigation or monitoring in conjunction with conveyance of the ROW. Fifth Claim for Relief: Permanent Injunction to Prevent Transfer of the Right-of-Way to JPPHA 99. Golden incorporates by reference the allegations set forth in paragraph 1 94 as if restated here in full The FWS s failure to comply with NEPA and the Rocky Flats Act has and will continue to cause irreparable injury to Golden. 20

21 101. Golden does not have an adequate remedy at law Any harm the injunction would cause Defendants is outweighed by the harm not issuing an injunction would cause Golden and the public An injunction to prevent transfer of the ROW to JPPHA is in the public interest. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment in favor of Plaintiffs and against Defendants as follows: 1. Declare that Defendant FWS has violated NEPA; the Rocky Flats Act; and the ESA. 2. Enjoin on a permanent basis FWS from transferring, and JHHPA from accepting, a transportation right-of way in the Rocky Flats National Wildlife Refuge for the purpose of constructing the Jefferson Parkway; 3. Remand to FWS for further analysis to ensure that the proposed transportation improvement will be carried out so as to minimize adverse effects on the management of Refuge and to require adequate environmental analysis under NEPA. 4. Award Plaintiff its costs and expenses, including reasonable attorneys fees; and 5. Grant Plaintiff such other relief as the Court deems just and equitable. 21

22 Respectfully submitted on this 5th day of January, 2012 s/john E. Putnam John E. Putnam W. Eric Pilsk Lisa A. Reynolds Kaplan Kirsch & Rockwell LLP 1675 Broadway, Suite 2300 Denver, CO Phone: (303) Facsimile: (303) Attorneys for Plaintiff, City of Golden, CO 22