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The Rocky Mountain Arsenal National Wildlife Refuge: on a Rocky Road to Creating a Community Asset, 47 J. Marshall L. Rev. 1401 (2014)

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The Rocky Mountain Arsenal National Wildlife Refuge: on a Rocky Road to Creating a Community Asset, 47 J. Marshall L. Rev. 1401 (2014) UIC Law Review Volume 47 Issue 4 Article 13 Summer 2014 The Rocky Mountain Arsenal National Wildlife Refuge: On a Rocky Road to Creating a Community Asset, 47 J. Marshall L. Rev. 1401 (2014) Rachel Salcido Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Environmental Law Commons, Land Use Law Commons, and the Natural Resources Law Commons Recommended Citation Rachel Salcido, The Rocky Mountain Arsenal National Wildlife Refuge: On a Rocky Road to Creating a Community Asset, 47 J. Marshall L. Rev. 1401 (2014) https://repository.law.uic.edu/lawreview/vol47/iss4/13 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE ROCKY MOUNTAIN ARSENAL NATIONAL WILDLIFE REFUGE: ON A ROCKY ROAD TO CREATING A COMMUNITY ASSET RACHAEL E. SALCIDO* ∗ I. Introduction ....................................................................... 13991401 II. History of the RMA Refuge and its Conversion to a Community Asset ........................................................... 14021404 A. Background – History of the Region and the Rocky Mountain Arsenal. ................................................... 14021404 1. The Denver Region. ............................................ 14021404 2. A Nutshell History of the Rocky Mountain Arsenal. ............................................................. 14051407 B. Legal Backgr ound.................................................... 14071409 III. Faux Nature and the RMA Refuge ..................................... 14111413 IV. A Restor ation in Progr ess ................................................... 14161418 A. Biological Integrity: CERCLA and Risk-Based Corr ective Action. .................................................... 14181416 B. Historical Fidelity: Back to What Past? .................. 14241422 C. Identifying Root Causes and Addressing Sources of Degr adation. ........................................................... 14251423 D. Public Engagement: Connecting with the Public and Encouraging Environmentalism. ...................... 14281426 V. Conc lusion ........................................................................ 14311429 I. INTRODUCTION The Rocky Mountain Arsenal National Wildlife Refuge (RMA Refuge) is located 10 miles northeast of downtown Denver, Colorado. It is home to deer, badgers, prairie dogs, bald eagles, hawks and bison. According to the parties working to transform the arsenal from a Superfund site to a cherished community asset: “[t]he vision for the Rocky Mountain Arsenal is to create perhaps the most unique national wildlife refuge in the country.” 1 One aspect is certainly different than other refuges around the nation: ∗ Professor of Law, Pacific McGeorge School of Law. I would like to thank the organizers of Study Space III, and fellow participants. I would also like to thank Pacific McGeorge and Associate Dean for Faculty Scholarship Thom Main for funding my participation in Study Space III. The experience was transformative. My gratitude also goes to the library staff at Pacific McGeorge, and among others, Dana Botello, Class of 2011, who provided superb research assistance and inspiration. 1 Milestones, The Evolution of the Rocky Mountain Arsenal, brochure containing information contributed by the U.S. Army, Shell Oil Company and several government agencies. Distributed Dec. 2008. 14011399 140214001168 47 JO HN MARS HALL L. REV. 140214001168 Vol. 47:4 thedifferent RMA from Refuge its predecessors,will be a wildlife particularly refuge sincesurrounded it had theby benefiturban development.of two years of2 Residentialplanning. developments define the border of the RMALike Refuge the toshift the in north, conference south scheduling,and west. 3 otherIts well changes-established have takenneighbors place include within Commerce the LatCrit City entity and, Brightonincluding toconcerted the north, efforts the tocommunity continue a ofprocess Montbello of institutionalization. to the south, In recentand theyears, Denver there hasInternational been a growing Airport focus on the on easthow perimeter.to capitalize4 on its critical niche, continueThe othercultivating unique the aspect next is generation that the RMA of critical Refuge scholars,is one of onlyand ensurea handful that of thenational baton wildlife of outsider refuges jurisprudence that was previously is passed used along. as Internally,a military installation.the organization5 In the has40s andshifted, 50s theincluding site was a chemicalgradual changingweapons factoryof the guardfor the in U.S.leadership, Army, soand to laterspeak, was as wellleased as toa downsizingcompanies thatin administration.produced potent Forcommercial example, pesticides. from 2008 As ato priorthe present,site of militarythe Board activities of Dire—ctorsspecifically, was intentionally the production downsized, of deadly with achemical growing weaponsnumber— ofa Boardveil ofseats secrecy being lies occupied over bythe junioractivities law professors.conducted 6there in the past. It is such a heavy veil that despite significantAnother litigation major anddevelopment ongoing pressureis LatCrit’s from theacquisition community, of ita continuesphysical spaceto persist. for the Nonetheless, organization. some The facts property, are undisputed. Campo Sano The RMA(Spanish Refuge for “Campsite wa Heals heavilythy,” orcontaminated more literally, with “Camp toxic Sanity”), chemicals is thata ten threatened-acre parcel the of landhealth located of humans in Central and wildlife.Florida. Indeed,7 Purchased a small by areaLatCrit of thein 2011,refuge the will space be isthe home home to of The contained Living wasteJustice material Center clearedand the fromLatCrit other Community portions Campus.of the site8 The and physical disposed facility of in doubleserves andas a triplemeans line “tod landfills.level the Theplaying U.S. field Army and will give continue LatCrit to activists own that a landfighting in perpetuity.chance to be6 Evenheard.” after9 The billions space areis intended spent to remediate the site, contaminated soils are predicted to pollute the underlying groundwaterto serve for ashundreds the hub of years.of their7 educational, research, advocacy and activism to remedy the imbalance and deficiencies of the current legal system. Having an 2 Judith Kohler, Rocky Mountain Arsenal Gets $7.4M Wildlife Center, ASPEN independentTIMES (June 2 0, physical2009), base has become critical as http://www.aspentimes.com/article/20090620/NEWS/906199953&parentprofileuniversities and law schools increasingly are even less =search) (noting that the refuge will be at the center of a big urban area). 3 Rocky Mountain Arsenal Public Outreach, 2008 Community Improvement Plan for Rocky Mountain Arsenal Contamination Cleanup (2008).Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV4 .Tom LATINO Noel, L. OnceREV. 1Deadly (1997). Arsenal Now a Prairie Oasis, DENVER ROCKY MOUNTAINSee also N EWSLatCrit, Mar. Biennial 3, 2007 (oneConferences reporter, LdescribedATCRIT: LtheATINA arsenal & LasATINO “an islandCRITICAL of natureLEGAL surrounded THEORY, byINC a .sea, http://latcrit.org/content/conferences/latcrit of development.”). - biennial5 The-conferences/ others include (last the visited Johns Julyton Atoll 5, 2013) in the (providing Pacific Ocean, a list of and the Rocky previous conferences,Flats National and Wildlife providing Refuge. direct Neither links are to openview for sympos publicia access. articles The for Fish some yearsand Wildlife (found Service by following maintains the websites respective for bothyear’s refuges. link toFor its further corresponding webpage).information, see www.fws.gov/refuge/johnston_atoll/ and www.fws.gAdditionally,ov/refuge/Rocky_Flats/. LatCrit has developed a substantial body of scholarship from several6 Rocky other Mountain stand-alone Arsenal symposia: National inter Wildlife alia the Refuse South- NorthAct of Exchange,1992, Pub. the L. No.Study 102 Space-402 Sec.2Series, (c)(1) the (1992)International (“The Secretaryand Comparative of the ArmyColloquia. shall LatCritretain Symposiajurisdiction,, Lauthority,ATCRIT: L andATC RITcontrol: LATINA over &all LrealATINO property CRITICAL at the LEGAL arsenal THEORY to be, usedINC., fohttp://latcrit.org/content/publications/latcritr water treatment; the treatment, storage,-symposium/ or disposal (lastof hazardous visited substances,July 5, 2014). pollutants, or contaminants; or other purposes related to response action6 These at the includeArsenal…”). Profe Inssors addition, Marc -theTizoc Secretary González, of theAndrea Army Freeman, is required and to consultCésar Cuahtémoc with the SecretaryGarcía Hernández. of the Interior See About to ensure LatCrit that, supra the “realnote 3property (listing retainedthe professors under onthis theparagraph” LatCrit Boardis identified, of Directors managed and and their otherwise respective used law in aschools). way that is consistent with the purposes of the refuge to the extent “practicable.”7 Campo SanoId. , LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,7 http://www.latcrit.org/content/campoThe Natural Resource Damage Assessment,-sano/ (last preparedvisited July by 5,the 2014). Colorado Department8 Id. of Public Health, emphasizes this shortcoming of the remedial work,9 Id. noting that the Record of Decision (ROD) only required
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