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

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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)

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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 physicalcontinues spaceto persist. for the Nonetheless, organization. some The facts property, are undisputed. Campo Sano The (SpanishRMA Refuge for “Campsite wa Heals heavilythy,” or contaminated more literally, with “Camp toxic Sanity”), chemicals is athat 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 are is 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 2 Judithdeficiencies Kohler, Rockyof the Mountain current Arsenal legal Gets system. $7.4M Wildlife Having Center, an 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 Flatsconferences, National and Wildlife providing Refuge. direct Neither links are to openview for sympos publicia access. articles The for Fish some andyears Wildlife (found Service by following maintains the websites respective for bothyear’s refuges. link toFor its further corresponding information,webpage). 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 jurisdiction,Symposia, 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 Césarconsult 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 excavation to a Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 14031401

The organizers of Study Space III were aware of how unique and important the RMA Refuge is to the history and development of the Denver region. 8 During our stay in Denver, the participants in Study Space were given a tour of the RMA Refuge that included two parts: the ongoing cleanup activities with immense areas of dredged soil and landfills, and the sections open to the public with prairie dog habitat, clear lakes, dusty fine grass prairie, and bison. The RMA Refuge’s future is markedly at odds with its past legacy of environmental degradation. This dramatic contrast provides a unique window into the increasingly dominant impulse— frequently in the context of mitigating the impacts of urban development—to focus on restoration and creation of “faux nature” as a substitute for environmental conservation. This paper examines the RMA Refuge restoration in terms of key benchmarks of successful restorations: 1) biological integrity; 2) historical fidelity; 3) identifying root causes of and addressing practices leading to environmental degradation; and finally, 4) public engagement, connecting with the public and encouraging environmentalism. Restoration is a choice among a variety of land use options, and I emphasize the need for community acceptance and involvement because the element of choice is often subsumed by conflicts over historic conditions and what is natural. My thesis is that the restoration will become a community asset only if the lessons of the past are taught side by side with the ecological success of restoration at the site. While I conclude that in several areas the restoration is achieving identified objectives, the areas where the RMA Refuge restoration falls short of those benchmarks provide opportunities for refining expectations regarding restorations in general. The RMA Refuge is a work-in-progress, yet it has already produced lessons for managing public response to restoration projects and how image control can thwart public support. As succinctly stated by the Remediation Venture Office (RVO)9: “[r]eturning the Arsenal to a community asset requires a comprehensive effort.” 10 depth of 5 feet in some areas and 10 feet in others. Press Release, Colo. Dep’ts of L. & Pub. Health & Env't, The Natural Resource Damage Assessment, (Oct. 29, 2007) at 3-22 (citing specifically to South Plants Central Processing Area and Former Basin F). The reduction in amount of NRD ultimately reached by the settlement indicates that the plume may be shrinking at a faster rate than anticipated. 8 Study Space III: Private and Public Lands in the Post-Colonial North American West took place in December 2008. Study Space III was a project of LatCrit and the Georgia State University College of Law Center for the Comparative Study of Metropolitan Growth. Study Space provided a unique opportunity for participants to engage in deep reflection on place and history within a diverse group of scholars.

9 The RVO refers to the partnership between Shell, the US Army and Fish and Wildlife to transform the site into a wildlife refuge. 10 Milestones, The Evolution of the Rocky Mountain Arsenal, brochure 140414021168 47 JO HN MARS HALL L. REV. 140414021168 Vol. 47:4

Moredifferent than from in itsa predecessors,physical sense, particularly the return since requires it had thea shift benefit in mindsetof two years and ofacceptance planning. by the community. A community that has been Likealternatively the shift deceived,in conference shut outscheduling, of decision other-making changes and havehad takenits concerns place withinmarginalized; the LatCrit a community entity, including that continues concerted to expressefforts toskepticism, continue afear, process and of institutionalization.hope for the future In recentall at years, once. there By hascommunicating been a growing both focusthe successeson how to of capitalize the RMA on Refuge its critical restoration niche, continueand the cultivatingshort-sighted the mistakes next generation and past of failures critical toscholars, protect andthe ensureenvironment that , the a batomoren of outsiderprecautionary jurisprudence approach is passed to along.using Internally,environmental the restorationorganization efforts has as shifted, mitigation including of the aimpacts gradual of changingurban development of the guard can inbe leadership,encouraged. so Simply to speak, burying as well the aspast a downsizingand marketing in theadministration. fabulous new For open example, space gives from only 2008 a pyrrhicto the present,victory tothe thoseBoard seizingof Dire ctorson restorationwas intentionally as the downsized, new path with to aenvironmental growing number protection. of Board seats being occupied by junior law professors. 6 II. Another HISTORY major OF THE development RMA REFUGE is ANDLatCrit’s ITS CONVERSION acquisition TO Aof a physical space for the organization.COMMUNITY ATheSSET property, Campo Sano (Spanish for “Camp Healthy,” or more literally, “Camp Sanity”), is a A.tenBackground-acre parcel of– Historyland located of the in Region Central and Florida. the Rocky7 Purchased Mountain by LatCrit in 2011, the space is homeArsenal. to The Living Justice Center and the LatCrit Community Campus. 8 The physical facility serves 1.asThe a meansDenver “to Region. level the playing field and give LatCrit activists a fighting chance to be heard.”9 The space is intended The vast holdings of federal public lands, and thus the influenceto serveof the asfederal the hubgovernment of their on educational, the patterns research, of land use and economicadvocacy anddevelopment, activism areto remedycritical theto imbalanceunderstanding and the politicsdeficiencies of the West. of 11the Some current have legalexpressed system. the Havingview thatan the federalindependent government physicalis akin tobase a colonizinghas become power critical in the asregion, seekinguniversities to maximize and thelaw extractionschools increasingly of natural areresources even less from a colony to serve the conquering empire. While this is not a perfect analogy, it is helpful to understanding the sense of occupation Namingexpressed and by Launching Coloradans, a New Denver Discourse being of the Critical location Legal of Scholarshiptwo military, 2 HinstallationsARV. LATINO L. generatingREV. 1 (1997). dangerous wastes, Rocky Mountain ArsenalSee alsoand LatCrit Rocky BiennialMountain Conferences Flats. 12, ConsiderLATCRIT: Lthat,ATINA when& LATINO the CmilitaryRITICAL LwasEGAL lookingTHEORY , forINC a., sitehttp://latcrit.org/content/conferences/latcrit to produce deadly weapons, a- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous locationconferences, far andfrom providing either directcoast linksto guardto view from sympos attackia articles and forone some far fromyears large(found population by following centers the respective was desirable. year’s link Denver to its fit corresponding that bill. webpage).Denver is in many ways an artificial City—it is not located in a climateAdditionally, that LatCritis hospitable has developed to agriculture, a substantial it bodyis far of fromscholarship abundant from several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit containingSymposia, informationLATCRIT: L ATcontributedCRIT: LATINA by the& U.S.LATINO Army, CRITICAL Shell OilLEGAL Company THEORY and, severalINC., http://latcrit.org/content/publications/latcritgovernment agencies. Distributed Dec. 2008.-symposium/ (last visited July11 5, Much2014). as the City Beautiful movement is the result of the new progressives,6 These includetheir Profeinfluencessors wasMarc -significantTizoc González, in changing Andrea Freeman,the policy and of disposingCésar Cuahtémoc of federal García lands Hernández. for a retention See Aboutpolicy LatCritthat retained, supra lands note 3in (listing public ownership.the professors The onwest, the whereLatCrit much Board of ofthe Directors land was and challenging their respective to cultivate, law bearsschools). the legacy of this shift in policy promoted by the new progressives. See generally,7 Campo G EORGESano, CLAMERONATCRIT: LCATINAOGGINS AND, ET L ALATINO, FEDERAL CRITICAL PUBLIC LEGAL LANDS THEORY AND, RINCESOURCES, http://www.latcrit.org/content/campo LAW. 78-80 (5th ed., 2002) (discussing-sano/ (last homesteading). visited July 5, 2014). 128 Id. Rocky Flats was the site of nuclear weapons production. As previously noted,9 Id. it has also become a National Wildlife Refuge. Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 140514011403 waterThe sources, organizers either of Studyfor municipalSpace III wereuses awareor for of tranhowsporting unique andcommerce. important Instead, the RMA Denver Refuge became is to thea historydestination and developmentbecause of ofdetermined the Denver entrepreneurs,region. 8 During ourwho stay importantly in Denver, theensured participants the landlockedin Study Space town werehad agiven rail aconnection tour of the and RMA national Refuge bank. that13 included Today, twoDenver parts: is an the urban ongoing archipelago, cleanup activitiesattracting withnew immenseresidents areaswith itsof dredgedcity amenities soil and andlandfills, natural and thebeauty. sections14 Denver open to-area the publicgrowth with is prairiesubstantial, dog habitat,registering clear in lakes, the 2009 dusty U.S. fine census grass asprairie, 25th amongand bison. the mostThe RMArapidly Refuge’s growing future cities is with markedly populations at odds over with 100,000. its past15 legacy of environmentThe urbanizational degradation. of Denver This involveddramatic thecontrast “City providesBeautiful” a movementunique window which influencedinto the theincreasingly development dominantof many U.S.impulse cities.— Amongfrequently the ingoals the ofcontext world -ofclass mitigating buildings the and impacts art that of urbanwould developmentattract new —residentsto focus onand restoration international and acclaim,creation ofDenver’s “faux nature”Mayor asSpeer a promotedsubstitute a forgoal environmental of including conservation.ample public Thisrecreational paper examinesspaces. 16 Thethe RMACity Refugewas designed restoration with in wide terms parkways of key benchmarks lined with treesof successful and central restorations: parks 1)that biological persist integrity;today. However,2) historical the developmentfidelity; 3) identifyingof Denver rootinto causesa “beautiful” of and cityaddressing with lush practices green parklandleading torequired environmental replacement deg radation;of indigenous and plantfinally, and 4) animalpublic speciesengagement, that wereconnecting at home with on thethe aridpublic plains. and17 Changingencouraging the existingenvironmentalism. ecosystem Restorationprocesses wasis a partchoice of amongthe transformation, a variety of land as wasuse options,the introduction and I emphasize of exotic the plants need forand communitygrasses to acceptancemeet the contemporaryand involvement vision because of parks the inspiredelement byof Frederickchoice is oftenLaw Olmstead.subsumed by conflictsIn Denver, over ashistoric elsewhere conditions in the and U.S., what the is t ermnatural. “park” My evokesthesis theis that image the restorationof lush greenery, will become notwithstanding a community assetthe climateonly if theof Colorado.lessons of Indigenousthe past areplant taught species side may by not side be withthe most the appealingecological tosuccess Denver of restorationresidents with at the a differentsite. image of beautiful nature. For example,While when I conclude the City thatrecently in severalbegan transforareas mingthe restoration various local is parksachieving into identifiednative grass objectives, and plant the areaslife, somewhere citizens the RMA complained Refuge aboutrestoration the falls“weeds” short invadingof those benchmarkstheir parks provideand theopportunities lack of maintenance.for refining 18expectations To these regardingcitizens, wildrestorations grasses belongedin general. outside The theRMA borders Refuge of isurbanized a work -Denver.in-progress, yet it has already produced lessons for managing public response to restoration projects and how image control can thwart public support. As succinctly stated by 13 theKATHLEEN Remediation A. BROSNAN Venture, UNITING Office MOUNTAIN (RVO) AND9: P“[r]eturningLAIN 10-38 (2002) the (detailingArsenal theto arise community of Denver through asset requiresthe efforts aof comprehensiveentrepreneurs such effort.” as John10 Evans, William Byers, Chaffee, Moffat, Porter). 14 James R. Rasband, The Rise of Urban Archipelagoes in the American West:depth Aof New5 feet Reservation in some areas Policy? and 31 10 E feetNVTL in. L.others. 1 (2001) Press (discussing Release, theColo. shifting Dep’ts preferenceof L. & Pub. for Health preservation & Env't, ofThe natural Natural resourc Resourcees asDamage urban Assessmentwest populations, (Oct. 29,expand). 2007) at 3-22 (citing specifically to South Plants Central Processing Area and 15Former U.S. Census Basin F).News The Release, reduction July in 1,amount 2009, Tableof NRD 1: ultimatelyPopulation reached Estimates by thefor thesettlement 25 Fastest indicate Growings that U.S.the plumeCities withmay bePopulations shrinking over at a 100,000faster rate in 2008, than anticipated.available at www.census.gov/newsroom/releases/xls/cb09-99_Table1.xls (last visited8 Study 12-20 Space-13). III: Private and Public Lands in the Post-Colonial North American16 STEPHEN West tookJ. L EONARDplace in &December THOMAS 2008. J. N OELStudy, D ENVERSpace :III M wasINING a projectCAMP TOof MLatCritETROPOLIS and 140the- 149Georgia (1990). State Lead Univeby Spear,rsity DenverCollege park of Lawacreage Center was doubledfor the fromComparative 1904 to 1912.Study Id. of atMetropolitan 145. Growth. Study Space provided a unique opportunity17 This process for participants was undertaken to engage in manyin deep parts reflection of the west,on place and andsome history have lamentedwithin a diverse how little group we of havescholars. studied the changes in the environment. In a discussion specific to ranching in the west see DONALD WORSTER, UNDER WESTERN9 The RVOSKIES refers: NATURE to the AND partners HISTORYhip INbetween THE AMERICAN Shell, the W ESTUS Army45 (1992). and Fish and18 Wildlife Peter Zoschg,to transform City theof Denver site into Arborist, a wildlife Presentation refuge. to Study Space III Participants,10 Milestones, Denver, The CO Evolution (Dec. 2, 2008).of the Rocky Mountain Arsenal, brochure 140614041168 47 JO HN MARS HALL L. REV. 140614041168 Vol. 47:4 different It fromis thus its ironicpredecessors, that the particularlymilitary base since imposed it had on the Denver benefit is nowof two the years largest of planning. open space in the metropolitan area. 19 By sheer accident,Like themuch shift of inthe conference buffer areasscheduling, surrounding other changesthe central have takenoperations place of withinthe base the were LatCrit a de entity facto, refugeincluding for concertednative species efforts of toplants continue and awildlife. process Tofhe institutionalization. serendipity of discovering In recent years,bald eaglesthere hasroosting been ata growingthe site focus will onmean how tocontinued capitalize federal on its criticalownership niche, of continueuninhabited cultivating land in thean nextarea generationotherwise ofexperiencing critical scholars, significant and ensureurbanization. that theThe bato likelihoodn of outsider of maintaining jurisprudence this is areapassed as along.open Internally,space, absent the the organization extreme contamination has shifted, of theincluding site seems a gradual rather changingremote. 20 ofThus, the inguard some in sense, leadership, the federal so to governmentspeak, as well is againas a downsizingdeciding what in isadministration. best for Denver For andexample, the nationfrom —2008a National to the present,Wildlife theRefuge Board—rather of Dire thanctors extended was intentionally residential downsized, or commercial with adevelopment. growing number While of BoardDenver seats struggle being soccupied to adoptby junior density law professors.requirements,6 enhance transportation options for more sustainableAnother patterns major ofdevelopment living, and theis like,LatCrit’s21 thousands acquisition of acres of ofa physicalwildlife habitatspace forhas the been organization. re-constructed The aproperty, short distanceCampo Sanofrom (Spanishdowntown. for This “Camp is theHeal ultimatethy,” or morewildland literally,-urban “Campborder Sanity”),created inis areverse ten-acre by parcelthe introduction of land located of wildland in Central rather Florida. than urbanization.7 Purchased by LatCritDenver in 2011, residents the spaceare nois homestrangers to The to wildlandLiving Justice-urban Centerborder andissues. the In LatCrit fact, Denver Community has in Campus. recent years8 The hired physical a wildlife facility ecologist serves asbecause a means it is “to faced level with the playingsuch recurring field and inter giveface LatCrit issues. activists Among a fightingother responsibilities chance to be heard.”the City9 Thewildlife space ecologist is intended acts as liaison with the public. The wildlife ecologist educates the public so that speciesto thatserve perceive as the the hub developed of their areas educational, of the City research,as supportive habitatadvocacy can live andin harmonyactivism with to remedypeople. 22 theIt isimbalance a most challenging and job. Fordeficiencies example, ofcoyotes the currenthave become legal wellsystem. established Having in anvarious neighborhoodsindependent in southeastphysical Denver,base has such become as Greenwood critical asVillage universities and law schools increasingly are even less

19 Jeremy P. Meyer, Evicted By War, Restored By Peace, DENVER POST, Oct.Naming 22, 2006,and atLaunching C1, available a New at http://www.denverpost.com/ci_4531146.Discourse of Critical Legal Scholarship , 2 HARV20 .The LATINO NRD L. settlement REV. 1 (1997). is being hailed as an important victory because it will See enable also the LatCritstate to preserveBiennial landsConferences surrounding, LAT theCRIT arsenal.: LATINA A press& LATINO CreleaseRITICAL states LEGAL that “theTHEORY settlements, INC., willhttp://latcrit.org/content/conferences/latcrit allow for the protection of threatened - biennialland parcels-conferences/ in areas around(last visited the Arsenal July 5, 2013)before (providing they are fore a listver of lost the to previous conferences,development.” and Press providing Release, directColorado links Attorney to view General, sympos Coloradoia articles Settles for some yearsRocky Mountain(found by Arsenal following Suit the (May respective 29, 2008), year’s link to its corresponding webpage).http://www.coloradoattorneygeneral.gov/press/news/2008/05/29/colorado_settle s_rocky_mountain_arsenal_suit.Additionally, LatCrit has developed a substantial body of scholarship from several21 Denverother stand Mayor-alone Hick symposia:enlooper inter has alia initiated the South a -planNorth for Exchange, sustainable the development.Study Space SeeSeries, Federico the InternationalCheever, Edward and ZieglerComparative and James Colloquia. Van Hemert,LatCrit SymposiaOp-Ed., What, LAT WillCRIT It: TakeLATC RITFor: aL ReallyATINA Green& LATINO Denver? CRITICAL DENVER L EGALPOST , TJulyHEORY 30,, 2006,INC., athttp://latcrit.org/content/publications/latcrit E1, available at http://www.denverpost.com/perspective-symposium/ (last/ci_4104578. visited TheJuly 5,authors 2014). note that “For Denver’s initiative to be more than symbolic, Greenprint6 These willinclude have Profeto addressssors MarcDenver’s-Tizoc contribution González, toAndrea regional Freeman, sprawl and theCésar environmental Cuahtémoc Garcíadamage Hernández. it causes.” Id.See About LatCrit, supra note 3 (listing the 22professors Ashley Dulop, on the City LatCrit of Denver Board Wildlife of Directors Ecologist, and Presentation their respective to Study law Spaceschools). III Participants, Denver, CO (Dec. 2, 2008). See also Christopher N. Osher,7 Campo Denver Sano Urges, L "Hazing"ATCRIT: LofATINA Urban AND Coyotes LATINO, DENVER CRITICAL POST L, EGALFeb. 26,THEORY 2009,, atINC , B3,http://www.latcrit.org/content/campo available at http://www.denverpost.com/breakingnews/ci_11783558-sano/ (last visited July 5, 2014). (citing8 Id. Dulop as urging the “hazing” or frightening away coyotes, who have adopted9 Id. to suburban living and may provide benefits such as rodent control). Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 140714011405

and TheBroomfield. organizers23 Aof Studycoyote Spexterminatorace III were awarewas hiredof how tounique kill andaggressive important individual the RMA coyotes Refuge that is tothr theeaten history people and ordevelopment pets, but ofcitizens the Denver sympathetic region. to8 Duringthe animals our stay sought in Denver, to thwart the hisparticipants efforts. 24 Itin Studyshould Spacecome wereas littlegiven surprisea tour of thatthe RMA some Refuge people that may included have troubletwo parts: embracing the ongoing the introduction cleanup activities of a wildland with immense border. Theareas fact of thatdredged the soil refuge and landfills, is touted and asthe ansections excel openlent torecreational the public withand educationalprairie dog habitat,experience clear downplays lakes, dusty this fine fact grass and prairie, emphasizes and bison. the restorationThe RMA Refuge’sas less naturalfuture isor markedly wild and atmore odds managed with its for past people legacy to safelyof environment enjoy its alpresence. degradation. This dramatic contrast provides a unique window into the increasingly dominant impulse— 2.frequentlyA Nutshell in History the context of the Rockyof mitigating Mountain the Arsenal. impacts of urban development—to focus on restoration and creation of “faux nature” as aThe substitute first inhabitants for environmental of the area conservation.were Native Americans.This paper25 Theyexamines too theimpacted RMA Refugethe natural restoration habitat, in termsthough of keyoften benchmarks in subtle ways.of successful They were restorations: removed from 1) thebiological plains sointegrity; that agriculture 2) historical could befidelity; expanded 3) identifyingby luring eastern root causes farmers of to and Denver. addressing26 But the practices Native leadingAmericans’ to presenceenvironmental as an importdegradation;ant part andof the finally, history of4) thepublic site engagement,will be memorialized. connecting As withpart ofthe the publicrestoration, and theencouraging site will environmentalism.contain a re-creation Restoration of a traditional is a choice Native among American a variety tepee of landand useinterpretational options, and materialI emphasize provided the needto guestsfor community to understand acceptance the andplaced involvement artifacts. because the element of choice is often subsumed by conflictsBy the over1880s, historic the area conditions was farmland. and what The is Eglinatural. farm My was thesis one isof severalthat the that restoration occupied willthe becomesite. The a Eglicommunity farmhouse, asset although only if putthe lessonsto different of theuses past throughout are taught these side past by decades, side with still thestands ecological where successit was built.of restoration It too will at constitute the site. a historical marker and tether to the past.While I conclude that in several areas the restoration is achievingIn 1942, identified the U.S. objectives, Army obtained the areas much where of the the land RMA comprising Refuge restorationthe arsenal fallsby eminentshort of domain.those benchmarks Condemnation provide hearings opportunities held on forJune refining 15, 1942, expectations resulted inregarding 20,000 acres restorations of farmland in general.being seized The RMAfor the Refuge operation is a workof the-in -progress,arsenal. yetThe it U.S.has alreadyArmy beganproduced to lessonsmanufacture for managing chemical publicweapons, response including to restorationmustard gas, projects Lewisite, and howand chlorineimage control gas. Initially,can thwart the public arsenal support. was hastily As succinctly constructed stated to bycatch the up Remediationwith Germany’s Venture chemical Office weapons (RVO) program9: “[r]eturning and to servethe Aras senala deterrent. to a community The napalm asset bombs requires dropped a comprehensiveby U.S. forces oneffort.” Japan10

depth of 5 feet in some areas and 10 feet in others. Press Release, Colo. Dep’ts of L.23 &Id. Pub. Health & Env't, The Natural Resource Damage Assessment, (Oct. 29, 242007) Ann at Schrader, 3-22 (citing Greenwood specifically Village to SouthMakes PlantsFirst Coyote Central Kill, Processing DENVER Area andPOST Former, Feb. 24, Basin 2009, F). available The reduction at in amount of NRD ultimately reached by thehttp://www.denverpost.com/breakingnews/ci_11773393; settlement indicates that the plume may be shrinking Tom at McGhee,a faster rate Critics than anticipated.Could Block Efforts to Kill Bad Coyotes in Greenwood Village, DENVER POST, Mar.8 31,Study 2009, Space available III: Private at and Public Lands in the Post-Colonial North http://www.denverpost.com/breakingnews/American West took place in December 2008.ci_12033409 Study Space; see alsoIII was Michael a project of Davidson,LatCrit and Coyote the IssuesGeorgia Persist State After Unive Broomfieldrsity College Kills Pack,of Law D ENVERCenter P OSTfor, the JuneComparative 4, 2009, Studyavailable of atMetropolitan Growth. Study Space provided a unique http://www.denverpost.com/breakingnews/ci_12518914.opportunity for participants to engage in deep reflection on place and history within25 The a diverse Native group Americans of scholars. that lived in the region that became Colorado included the Utes, Cheyenne and Arapaho Indians. KATHLEEN A. BROSNAN, UNITING9 The MRVOOUNTAIN refers AND to thePLAIN partners 39 (2002).hip between Shell, the US Army and Fish and26 Wildlife Id. to transformSee also the siteRocky into a wildlifeMountain refuge. Arsenal Site History, http://www.rma.army.mil/site/sitefrm.html10 Milestones, The Evolution of the Rocky (last visitedMountain July Arsenal,22, 2009). brochure 140814061168 47 JO HN MARS HALL L. REV. 140814061168 Vol. 47:4 ondifferent March from 9 and its 10,predecessors, 1945, were particularly produced atsince the itRocky had theMountain benefit Arsenal.of two years In additionof planning. to providing weapons during World War II the arsenalLike also the contributedshift in conference to the cold scheduling, war arms other race. changes27 The Armyhave takenlater leasedplace withinparts theof theLatCrit site entityto Shell, including Chemical concerted Company, efforts a todivi continuesion of Shella process Oil Company, of institutionalization. in 1952, which In producedrecent years, herbicides there hasand beeninsecticides a growing there. focus on how to capitalize on its critical niche, continueThe Armycultivating discontinued the next its generation production of of criticalchemical scholars, weapons and in 1969,ensure but that Shell the continuedbaton of outsidermanufacturing jurisprudence there until is passed 1982. along.While shiftingInternally, from the wartime organization use to peacetimehas shifted, industrial including use, thea gradualarsenal stillchanging manufactured of the guard products in leadership, intended soto tobe speak,toxic. asThese well manyas a activitiesdownsizing left in theadministration. arsenal heavily For example,contaminated from with2008 wartimeto the manufacturingpresent, the Board by- productsof Directors as wellwas asintentionally pesticide productdownsized, and with by- producta growing residues. number The of pollutionBoard seats spread being from occupied the site, byand junior impacted law neighboringprofessors. 6 farms. Litigation over property damage and health impactsAnother predates major the developmentdecision to transformis LatCrit’s the acquisitionsite into wildlife of a habitat.physical spaceInitially, for thethe organization.discovery ofThe pollution property, impacting Campo Sanothe neighboring(Spanish for “Campcommunities Healthy,” was or also more dealt literally, with “Camppolitically Sanity”), as the is leadersa ten-acre of Denverparcel ofsought land resolutionlocated in Central from the Florida. federal 7 government.Purchased by LatCritIn 1984in 2011, the theArmy space began is home to investigateto The Living the Justiceextent Centerof the contamination,and the LatCrit and Community as a result Campus. the site8 Thewas physicalplaced on facility the National serves Prioritiesas a means List “to (NPL)level thein playing1987. Thefield NPLand giveis aLatCrit list of activiststhe most a seriouslyfighting chance contaminated to be heard.” sites9 The in space the is intendedUnited States, which prioritizes the need for cleanup. As with many post-military sites, the arsenalto serve ranked as amongthe hub the ofmost their polluted educational, places on research, the Earth. Inadvocacy 1986, the and U.S. activism Army discoveredto remedy athe roost imbalance of bald eaglesand on the site.deficiencies28 At first, of scientiststhe current were legal concerned system. aboutHaving the anhealth impactsindependent to the birds, physical which basewere hasprotected become by thecritical Endangered as Speciesuniversities Act and theand Baldlaw Eagleschools Act. increasingly29 Researchers are evencaptured less the birds and took blood and tissue samples, leading to the conclusion that the eagles were healthy. 30 Policymakers’ discussions led to the decision to transform the site to a wildlife refuge, which was Naming and Launching a New Discourse of Critical Legal Scholarship, 2 proposedHARV. LATINO by L. RtheEV . 1 National(1997). Wildlife Federation, a prominent environmentalSee also LatCrit organization. Biennial 31Conferences To accomplish, LATCRIT this: L ATINAgoal, &Congress LATINO passedCRITICAL theLEGAL Rocky THEORY Mountain, INC. , Arsenalhttp://latcrit.org/content/conferences/latcrit National Wildlife Refuge Act- (RMANWRbiennial-conferences/ Act) in (last1992. visited32 July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage). 27Additionally, GERALD N ASHLatCrit, THE has AME developedRICAN W ESTa substantial TRANSFORMED body: TofHE scholarship IMPACT OF from THE SseveralECOND otherWORLD stand WAR-alone (Ind. symposia: Univ. Press, inter 1985)(focusing alia the South on-North the impact Exchange, of WWII the toStudy the west).Space Series, the International and Comparative Colloquia. LatCrit Symposia28 Jeffrey, LAT Cohn,CRIT: AL ATMakeoverCRIT: L forATINA Rocky & MountainLATINO C RITICALArsenal: LTransformingEGAL THEORY a, ISuperfundNC., http://latcrit.org/content/publications/latcrit Site into a National Wildlife Refuge-symposium/, 49 BIOS CIENCE(last 273visited-275 (1999).July 5, 2014). 296 TheseId. include Professors Marc-Tizoc González, Andrea Freeman, and César30 IdCuahtémoc. The health García effects Hernández. of contamination See About haveLatCrit been, supra studied note specific 3 (listing to mammals,the professors birds onand the insects, LatCrit with Board varying of effectsDirectors due andto many their different respective factors law includingschools). exposure pathways. For further discussion of the studies see id. at 275-7277. Campo The ROD,Sano, infraLATC RITnote: L37,ATINA also ANDaddresses LATINO how C RITICALthe cleanup LEGAL will T addressHEORY, Iwildlife.NC, http://www.latcrit.org/content/campo -sano/ (last visited July 5, 2014). 318 Id. Id . 329 Id. Rocky Mountain Arsenal National Wildlife Refuge Act of 1992, Pub. L. Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 140914011407

AmongThe organizers its provisions, of Study the Sp Actace restricted III were theaware sale of of how part unique of the landand importantstill containing the RMA waste Refuge and isremediation to the history facilities, and development which the U.S.of the Army Denver will region. continue8 During to own. our stayApart in fromDenver, those the sections, participants the vastin Study acreage Space was were set given to bea tourmanaged of the byRMA the Refuge Federal that Fish included and Wildlifetwo parts: Service the (FWS).ongoing cleanup activities with immense areas of dredgedSeveral soil andevents landfills, are andheralded the sections as points open toof thelight public in withthis rprairieestoration. dog habitat,In 2004, clear 4,930 lakes, acres dusty of land fine was grass transferred prairie, and from bison. the ArmyThe RMA to the Refuge’s Department future ofis themarkedly Interior at to oddsbe managed with its bypast FWS. legacy In 2006of environment another 7,266al degradation. acres was Thistransferred. dramatic These contrast are areasprovides that a canunique now windowbe visited intoby thethe public. increasingly In 2007, bisondominant were returnedimpulse —to thefrequently RMA. Thein herdthe contextwill be partof mitigating of an effort the to improveimpacts theof healthurban ofdevelopment bison as —a tospecies, focus byon maintainingrestoration and a stockcreation of bisonof “faux genetically nature” distinctas a substitutefrom other herds.for environmental33 conservation. This paper examinesUnrelated the RMA to the Refuge cleanup restoration efforts, butin termsnonetheless of key newsworthy,benchmarks aof Naturalsuccessful Resources restorations: Damages 1) (NbiologicalRD) settlement integrity; was 2) reached historical by thefidelity; parties 3) inidentifying 2009. Colorado root causes Natural of Resourceand addressing Trustees practices sought NRDsleading fromto environmentalShell and the degArmyradation; to compensate and finally, for water4) public and wildlifeengagement, losses. connecting The NRD with assessment the public prepared and byencouraging Colorado trusteesenvironmentalism. supports furtherRestoration compensation is a choice beyond among res a torationvariety ofof landthe RMAuse options, Refuge, and in I partemphasize resting the on need the forfact community that the acceptancecompleted cleanupand involvement will still becauseresult in thecontamination element of remainingchoice is often at the subsumed site and inby surroundingconflicts over areas historic for conditionsdecades. 34 andAn agreementwhat is natural. in principle My thesis was reachedis that thethat restoration would give will $35 becomemillion ato community the state to asset compensate only if thefor naturallessons resourceof the past damages. are taught35 The sidevision by for side the withregion the is aecological corridor successof open ofspace, restoration which at willthe sibete. funded by the NRDs from this settlement.While 36I Theconclude Colorado that Attorney in several General areas has the claimed restoration that theis Refugeachieving is theidentified lynchpin objectives, of this corridor. the areas where the RMA Refuge restoration falls short of those benchmarks provide opportunities for refining expectationsB. Legaregardingl Background. restorations in general. The RMA Refuge is a work-in-progress, yet it has already produced lessonsAlthough for managing the RMANWR public response Act of to1992 restoration set forth projects the legaland how image control can thwart public support. As succinctly stated by the Remediation Venture Office (RVO)9: “[r]eturning the No.Arsenal 102-402 to (1992).a community asset requires a comprehensive effort.” 10 33 Press Release, Pilot Bison Project at Rocky Mountain Arsenal National Wildlife Refuge, U.S. Fish & Wildlife Service, Jan. 1, 2007. The press release detailsdepth ofhow 5 feet the in FWSsome isareas transferring and 10 feet bison in others. among Press and Release,between Colo.refuges Dep’ts to guardof L. & against Pub. Health loss of & genetic Env't, material.The Natural Resource Damage Assessment, (Oct. 29, 342007) See at News 3-22 Release,(citing specifically Colorado toDep’ts. South of Plants Law Centraland Publi Processingc Health Areaand Environmentand Former Basin (Oct. 29,F). 2007).The reduction in amount of NRD ultimately reached by the 35settlement Press Release, indicate s Colo.that theAtt'y plume Gen., may Colorado be shrinking Settles at aRocky faster Mountainrate than anticipated.Arsenal Suit (May 29, 2008), available at http://www.ago.state.co.us/press_detail.cfmpressID=911.html.8 Study Space III: Private and Public Lands in the Post -ColonialJohn Ingold,North ArsenalAmerican Deal West Openstook place Tap in for December Cleanup: 2008. Groundwater Study Space Pollution III was aSpurs project the of LargestLatCrit andEnvironmental the Georgia Settlement State Unive in rsityState CollegeHistory, of Denver Law Center Post, Mayfor the30, 2009.Comparative Study of Metropolitan Growth. Study Space provided a unique opportunity36 These for types participants of arrangements to engage where in deep restoration reflection awards on place are usedand historyoff-site withinhave come a diverse under group scrutiny. of scholars. See Diane S. Calendine, Comment, Investigating the Exxon Valdez Restoration Effort: Is Resource Acquisition Really Restoration?9 The RVO 9 refersDick. J.to Envtl.the partners L. & Pol’yhip between341 (2000) Shell, (expressing the US Armypreference and Fish for aand hierarchy Wildlife whereto transform on-site therestoration site into isa wildlifefirst required refuge. and replacement habitat purchased10 Milestones, elsewhere The o nlyEvolution when restoration of the Rocky is infeasible). Mountain Arsenal, brochure 141014081168 47 JO HN MARS HALL L. REV. 141014081168 Vol. 47:4 frameworkdifferent from for its the predecessors, RMA Refuge particularly restoration, since several it had lawsthe benefit were implicatedof two years at of the planning. RMA site prior to its adoption. In addition to the hazardousLike thewaste shift and in toxicconference materials scheduling, laws such other as changesthe Resource have takenConservation place withinand Recoverythe LatCrit Act, entity Comprehensive, including concertedEnvironmental efforts toResponse, continue Compensation, a process of institutionalization. and Liability Act In(CERCLA), recent years, Colorado’s there hashealth been and a safetygrowing laws, focus the on Endangered how to capitalize Species on Act, its thecritical Migratory niche, continueBird Treaty cultivating Act, and thethe nextBald generationand Golden ofEagle critical Protection scholars, Act and all ensurerequired that action the. 37 bato n of outsider jurisprudence is passed along. Internally,Few wouldthe organizationhave predicted has that shifted, the RMAincluding could aultimately gradual changingreturn to aof communitythe guard assetin leadership, during the so most to speak,tumultuous as well years as ofa downsizinglitigation. 38 Thisin administration. is particularly soFor because example, the governmentfrom 2008 entitiesto the present,involved thehave Board been of Direlockedctors inwas power intentionally struggle, downsized, engaged with in adeceptio growingns, andnumber had oflost Board sight seatsof the being public occupied interest byin anjunior orderly, law professors.transparent6 cleanup of the site. 39 The power struggle has largely been Anotherbetween majorthe military development and State is ofLatCrit’s Colorado. acquisition Early litigation of a physicalfocused onspace whether for the the organization. state of Colorado The property,could assert Campo authority Sano (Spanishover the cleanupfor “Camp of theHeal site.thy,” or more literally, “Camp Sanity”), is a tenIn-acre United parcel States of land of Americalocated in v. Central State ofFlorida. Colorado7 Purchased, the United by StatesLatCrit broughtin 2011, athe declaratoryspace is home judgment to The Livingaction Justicearguing Center that CERCLAand the LatCrit provisions Community precluded Campus. the8 TheState physical of Colorado facility servesfrom enforcingas a means its “tohazardous level the wasteplaying laws. field40 andThe give State LatCrit of Colorado activists had a identifiedfighting chance off-site to bewater heard.” contamination,9 The space is andintended required that the Army submit a closure plan for Basin F, an area used as a repositoryto serve for hazardousas the hubwaste of bytheir the Armyeducational, and Shell. research, The State was authorizedadvocacy andby theactivism EPA under to remedy the Resource the imbalance Conservation and and Recoverydeficiencies Act (RCRA) of theto carrycurrent out legalits ownsystem. equivalent Having hazardous an waste independentlaws “in lieu physical of” RCRA. base The has federal become government, critical likeas any universities and law schools increasingly are even less 37 The Record of Decision also discusses how the remedial actions were constrained not only by these acts, but by Army UXO and agent management andNaming disposal and requirementsLaunching a as New well Discourseas the Chemical of Critical Weapons Legal Convention. Scholarship See, 2 EPHARVA .Superfund LATINO L. RRecordEV. 1 (1997). of Decision, Rocky Mountain Arsenal (US Army), EPA/ROD/R08See also -LatCrit96/129, Biennial ConferencesJune, LAT CRIT: LATINA & LATINO1996, http://www.epa.gov/superfund/sites/rods/fulltext/r0896129.pdf,CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit at § 10.1.2.4- (“Otherbiennial -Requirements”)conferences/ (last [hereinafter visited July ROD]. 5, 2013) (providing a list of the previous conferences,38 Litigation and included providing disputes direct overlinks cltoeanup view responsibility, symposia articles apportionment for some ofyears costs (found for cleanup, by following damage theto cropsrespective and other year’s property link toprior its tocorresponding remediation, andwebpage). personal injury claims. As one court, focusing on toxic tort claims brought by PlaintiffsAdditionally, who LatCrit alleged has personal developed injury a substantialand property body damages of scholarship arising from cleanupseveral otheractivities stand noted,-alone “Thesymposia: parties inter involved alia the in Souththe Arsenal-North Exchange,cleanup have the litigatedStudy Space extensively Series, inthe an Internationaleffort to assign and responsibility Comparative under Colloquia. CERCLA LatCrit and variousSymposia state, LAT statutesCRIT: L ATforC RITthe: Lcleanup.”ATINA & DaigleLATINO v. C ShellRITICAL Oil L EGALCompany THEORY and, UnitedINC., Stateshttp://latcrit.org/content/publications/latcrit, 972 F.2d 1527, 1532 (10th Cir. 1992).-symposium/ (last visited July39 5, The2014). public outreach by the RVO was extensive, including public meetings,6 These videos, include brochures, Professors and Marc interviews.-Tizoc González, Despite such Andrea a significant Freeman, public and outreachCésar Cuahtémoc campaign, García many Hernández. citizens still See express About distrustLatCrit , ofsupra the noteRVO. 3 Among(listing the incidentsprofessors highlighted on the LatCrit in this Boardarticle ofthat Directors help to explainand their this respectivesentiment laware thoseschools). that led to a grand jury report in 2002, dispute over soil testing for dioxin,7 Campo the Army Sano and, L ATShell’sCRIT: petitionLATINA toAND release LATINO more CRITICAL DIMP toLEGAL groundwater, THEORY, andINC, thehttp://www.latcrit.org/content/campo much more subtle struggle over the-sano/ name (last of thevisited refuge July. 5, 2014). 408 Id. United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993), cert. denied, 510 9U.S. Id. 1092 (1994). Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 141114011409 privateThe party, organizers must ofalso Study comply Sp acewith III RCRA were oraware an EPA of how-authorized unique andstate important program. 41the TheRMA district Refuge court’sis to the decision history tookand developmentnote of the ofconflict the Denver of interest region. inherent8 During as our the stay federal in Denver, government the participants was both thein Study polluter Space (Army) were and given responsible a tour of forthe cleanup RMA Refuge oversight that (EPA).included It ruledtwo parts: that havingthe ongoing the state cleanup involved activities in oversight with immense of the areascleanup of woulddredged likely soil andresult landfills, in a andmore the thorough sections cleanup.open to theHowever, public withthe court’sprairie dogdecision habitat, also clearrelied lakes, heavily dusty on the fine fact grass that prairie, Basin andF was bison. not onThe CERCLA’s RMA Refuge’s National future Priorities is markedly List at(NPL). odds Later,with its once past basin legacy F wasof environment listed on theal degradation.NPL, the districtThis dramatic court decided contrast that provides the state a couldunique notwindow enforce intoits hazardousthe increasingly waste laws,dominant since impulseCERCL—A precludedfrequently prein -enforcementthe context challengesof mitigating of correctivethe impacts actions of urbantaken atdevelopment Superfund— (NPLto focus listed) on restorationsites. On appeal,and creation the 10 ofth Circuit“faux nature” Court ofas Appealsa substitute held that for Coloradoenvironmental was seeking conservation. to enforce Thisits parallelpaper authorityexamines theunder RMA its Refuge hazardous restoration waste in laws, terms not of key"challenge benchmarks" the correctiveof successful action. restorations:42 1) biological integrity; 2) historical fidelity;The 3)decision identifying did rootnot causesensure ofcooperation and addressing among practices parties engagedleading toin environmentalremediation. Tensionsdegradation; among and thefinally, state, 4) federal,public responsibleengagement, private connecting parties withand communitythe public actorsand interestedencouraging in remediationenvironmentalism. continued Restoration in and outis a ofchoice the courts.among Onea variety of the of mostland egregioususe options, of deceptionsand I emphasize that have the hamperedneed for communitysuccessful progressacceptance on restorationand involvement is detailed because inthe a elementgrand ofjury choice report is often(Spring subsumed 2002) regardingby conflicts an over investigation historic conditions done by andthe Coloradowhat is natural. Attorney My General thesis intois that the themishandling restoration of will hazardous become wastea community at the site. asset43 Oneonly ofif the lessonsgrand juryof thefindings past relatesare taught to the side poor by relationshipside with the between ecological the successArmy and of restorationthe State of at Colorado.the site. In October of 2000, sarin nerve agentWhile was discoveredI conclude in thata bomb in atseveral the RMA areas in thean arearestoration known asis achievingthe “boneyard.” identified The objectives,Army informed the areas the Coloradowhere the Department RMA Refuge of restorationPublic Health falls andshort Environment of those benchmarks (CDPHE) providethat it opportunitiesintended to fordetonate refining the bombexpectations in an openregarding area ofrestorations the RMA. CDPHEin general. issued Th ane RMAemergency Refuge compliance is a work order-in-progress, (ECO) to yet prevent it has such already action produced or any lessonsincineration, for managing destruction public or disposalresponse of tothe restoration sarin bomblet projects witho andut howCDPHE image authority. control canFurther thwart the publicECO requiredsupport. thatAs succinctlythe Army statedwould bynotify the the Remediation CDPHE in writingVenture seventy Office-two (RVO) hours9: in“[r]eturning advance of anythe Arexcavationsenal to aor communityother investigatory asset requires or remedial a comprehensive activities effort.”in the10 boneyard. The Army, its cleanup contractor, the CDPHE and the depth of 5 feet in some areas and 10 feet in others. Press Release, Colo. Dep’ts of L. & Pub. Health & Env't, The Natural Resource Damage Assessment, (Oct. 29, 412007) 42 U.S.C. at 3- 22§ 6961 (citing (2011). specifically to South Plants Central Processing Area and 42Former Colorado, Basin F).990 TheF.2d reduction 1565, in1579. amount The of NRDfederal ultimately government reached also by theunsuccessfully settlement arguedindicate thats that CERCLA's the plume ARAR may beprocess shrinking was meantat a faster to be rate the thanonly anticipated.vehicle for state involvement in setting cleanup objectives. Id. at 1580-1581. For 8criticism Study Spaceof the III: decision Private see and Ensign Public Jason Lands H. Eatin theon, PostCreating-Colonial Confusion: North TheAmerican Tenth West Circuit’s took placeRocky in Mountain December Arsenal 2008. StudyDecision Space, 144 III M wasIL. L.a projectREV. 126 of (1995)LatCrit (examining and the Georgiathe state’s State victory); Unive forrsity support College of theof Lawdecision, Center see Vickyfor the L. ComparativePeters et al., Study Can ofStates Metropolitan Enforce Growth.RCRA at Study Superfund Space providedSites? The a uniqueRocky opportunityMountain Arsenal for participants Decision ,to 23 engage Envtl. inL. deep Rep. reflection 10419 (1993) on place (concluding and history the withindecision a pavesdiverse a grouppath towardof scholars. increased cooperation between state and federal agencies in setting cleanup objectives). 439 TheState RVO Grand refers Jury to theReport partners 2008hip-2009, between District Shell, Court, the City US Armyand County and Fish of andDenver, Wildlife toColorado, transform the siteCase into a wildlifeNo.: refuge.01CR001, 2000-2001, www.cpeo.org/lists/military/2002/msg00481.html.10 Milestones, The Evolution of the Rocky Mountain Arsenal, brochure 141214101168 47 JO HN MARS HALL L. REV. 141214101168 Vol. 47:4

EdifferentPA met from following its predecessors, this incident particularly and a First since Amendment it had the benefitto the ECOof two was years issued of planning. by the CDPHE. It reiterated the seventy-two-hour advanceLike noticethe shift requirement in conference and requiredscheduling, the otherArmy changes to develop have a takenchemical place site within safety the planLatCrit detailing entity, includinghow the concertedArmy and efforts its tocontractor continue wo a uldprocess manage of institutionalization. investigation of the In boneyard. recent years, The Armythere hassubmitted been a the growing plan infocus February on how 2001. to capitalize Thereafter, on itson Aprilcritical 9, niche,2001, continuethe Army cultivating and its thecontractor next generation entered ofinto critical the scholars,boneyard andfor ensure“housecleaning” that the purposesbaton of— outsideraccording jurisprudence to the contractor is passed the along. goal Internally,was to go throughthe organization a debris pile has and shifted,determine including what ordnance a gradual were changingpresent. Thereof the anguard unexploded in leadership, M-74 munitionso to speak, was as found. well asThe a downsizingArmy and itsin contractoradministration. decided Forto put example, the munition from back2008 whereto the it present,was found the and Board to deceive of Dire thectors CDPHE was intentionally regarding its downsized, discovery. withThe aCDPHE growing was number not provide of Boardd seventy seats-two being-hour occupied notice thatby juniorthe Army law professors.and its contractor6 intended to take any actions in the boneyard. On MayAnother 8, 2001,major following development the CDPHE’s is LatCrit’s approval acquisition of the Army’s of a physicalChemical spaceSite Safetyfor the Submission organization. a “rediscovery”The property, was Campo staged Sano and (Spanishdocumented for in“Camp the weeklyHealthy,” Health or more and Safetyliterally, log. “Camp It is onlySanity”), due tois aan ten anonymous-acre parcel phone of land call located to a CDPHEin Central project Florida. manager7 Purchased that theby LatCrittruth was in in2011, fact discovered.the space is home to The Living Justice Center and the It LatCritis clear Community that power Campus. struggle8 The physicaland deceptions facility serveshave asovershadowed a means “to the level public the playing interest field in and an give orderly LatCrit cleanup. activists As a fightingrecently chanceas 2007, to bea lifeheard.”-threatening9 The space discovery is intended at the cleanup site appeared in the headlines and caused officials to close the refuge to theto public serve as asa precaution.the hub 44of Lewisite, their educational, also known asresearch, the “dew of death”advocacy was andfound. activism Againto remedy this the imbalancecontradicted and the cultivated/constructedeficiencies of d theimage current of the legal RMA system. Refuge Havingas safe. an The imageindependent control ongoing physical at the basesite musthas alwaysbecome recede critical when as public healthuniversities or safety issuesand lawarise. schools The Armyincreasingly and Shell, are evenwho areless both responsible for the contamination, are struggling to create a purely positive image of the cleanup as the creation of an important community benefit and thus have, at times, breached the public Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HtrustARV. LATINOby their L. REV .lack 1 (1997). of transparency when presented with challengesSee also toLatCrit the very Biennial narrow Conferences story they, LwantATCRIT internalized.: LATINA & CriticsLATINO CofRITICAL “marquee” LEGAL or THEORY“headline”, INC .,grabbing http://latcrit.org/content/conferences/latcrit cleanups are suspect of the- truebiennial objectives-conferences/ of (lastthese visited restoration July 5, 2013) efforts (providing to a trulylist of themend previous the conferences, and45 providing direct links to view symposia articles for some environment.years (found by followingIt is thequestionable respective year’swhether link theto its projectscorresponding are undertakenwebpage). primarily with the goal of mending the public image of the Additionally,entities that LatCrit are hasresponsible developed fora substantial the project body (and of scholarship often for fromthe damageseveral other being stand -mended).alone symposia:46 The inter historyalia the Southof the-North RMA Exchange, Refuge the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.44, Seehttp://latcrit.org/content/publications/latcrit John C. Ensslin, Lewisite Tests to Begin-symposium/ Today, DENVER(last RvisitedOCKY MJulyOUNTAIN 5, 2014). NEWS , Nov. 14, 2007. 456 TheseThe related include concern Profe ssorsis that Marc restoration-Tizoc González,will really Andrearesult in Freeman, manipulation. and CésarFor a Cuahtémocdiscussion ofGarcía this dangerHernández. in terms See ofAbout forest LatCrit stewardship, supra notesee S3HAUL (listing E. theCOHEN professors, PLANTING on the NLatCritATURE: BoardTREES of DirectorsAND THE and theirMANIPULATION respective lawOF schools).ENVIRONMENTAL STEWARDSHIP IN AMERICA (2004). 467 CampoAttention Sano to , industryLATCRIT :attempts LATINA atAND “greenwashing” LATINO CRITICAL have L ledEGAL scho THEORYlars to, lookINC, http://www.latcrit.org/content/campoat whether the activities of a particular-sano/ (last company visited Julythat 5,damage 2014). the environment8 Id. can and are remediated, among other activities. See Lisa Johnson,9 Id. Do the Good Guys Always Wear Green? An Analytical Framework to Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 141314011411 restorationThe organizers animates of this Study suspicion. Space III were aware of how unique and important the RMA Refuge is to the history and development of the DenverIII. region.FAUX8 NDuringATURE ANDour stayTHE RMAin Denver, REFUGE the participants in Study Space were given a tour of the RMA Refuge that included two parts:Humans the have ongoing been cleanupshaping activities their environment with immense since areas they of havedredged been soil aand species. landfills, The and American the sections West open did to notthe escapepublic withthis process.prairie dog47 Nonetheless,habitat, clear itlakes, is importantdusty fine grassto recognize prairie, andthat bison. the changesThe RMA Refuge’speople futureintroduced is markedly to ourat odds landscapes with its pastthrough legacy industrializationof environmental anddegradation. other formsThis dramaticof development contrast providesare of a dramaticallyunique window different into scale the in increasinglycontrast to thedominant changes thatimpulse came— before.frequently As thein cumulativethe context ill ofeffects mitigating of natural the resourceimpacts destruction of urban anddevelopment deterioration—to focus of environmental on restoration systemsand creation that ofprovide “faux supportnature” toas alla lifesubstitute on earth forbecame environmental evident, environmental conservation. laws This sought paper to curbexamines harmful the RMA impacts Refuge to restorationthe environment. in terms ofUrbanization key benchmarks and developmentof successful haverestorations: caused the1) disappearancebiological integrity; of wildlife 2) historicalhabitat, whichfidelity; is 3)critical identifying for preventing root causes the ofextinction and addressing of wildlife practices species. Toleading remedy to thatenvironmental situation, manydegradation; environmental and finally,laws now 4) requirepublic theengagement, re-creation connectingor restoration with of naturalthe public habitat and when encouraging proposed developmentenvironmentalism. will cause Restoration natural is habitata choice destruction, among a variety such ofas landthe mitigationuse options, that and occursI emphasize under thethe need Clean for Watercommunity Act 48 acceptance and the Nationaland involvement Environmental because thePolicy element Act. of49 choiceOther is lawsoften50 subsumed provide incentivesby conflicts for over restoration historic conditionsfor areas anddegraded what isless natural. directly My or thesis less inteis thatntionally the restoration by human will activities.become a communityAnother category asset only of iflaws the addresslessons ofpollution the past incidents, are taught51 which side canby depriveside with the the landscape ecological of allsuccess uses offor restoration either humans at the orsi te.other species, and in some instances pose Whilea danger I concludeto all life thatunless in some several actions areas to undothe therestoration damage is taken.achieving identified objectives, the areas where the RMA Refuge restorationAny offalls these short mitigationof those benchmarks activities —providesuch asopportunities creating replacementfor refining wetlandsexpectations—can regarding be brought restorations under inthe general. term “fauxThe RMA Refuge is a work-in-progress, yet it has already produced lessons for managing public response to restoration projects and Evaluatehow image Businesses’ control Relationship can thwart to publicthe Natural support. Environment As succinctly, 10 J. L &stated SOC. CbyHALLENGES the Remediation 55 (2008). Venture Office (RVO)9: “[r]eturning the Arsenal47 PATRICIA to a communityLIMERICK NassetELSON requires, THE LaEGACY comprehensive OF CONQUEST effort.”: THE10 UNBROKEN PAST OF THE AMERICAN WEST (1987). 48 33 U.S.C. §§ 1251-1387. depth49 of42 5 U.S.C.feet in some§§ 4321 areas-4370e. and 10Although feet in others.NEPA Pressrequires Release, that Colo.the actioDep’tsn agencyof L. & Pub.consider Health mitigation & Env't, Themeasures Natural within Resource the Damagealternatives Assessment analysis,, (Oct. an 29,agency 2007) need at 3not-22 adopt (citing mitigation specifically measures to South to Plants comply Central with NEPA. Processing Robertson Area andv. Methow Former ValleyBasin CitizensF). The reductionCouncil, 490in amount U.S. 332 of NRD(1989). ultimately Nonetheless, reached many by theprojects settlement that trigger indicate NEPAs that result the plume in mitigation may be shrinkingprojects, or at project a faster proponents rate than anticipated.undertake voluntary mitigation projects to drop the level of impact below a threshold8 Study of Space significance III: Private to avoidand Public full NEPALands analysis.in the Post See,-Colonial e.g. Cabinet North MountainsAmerican West Wilderness took place v. Peterson, in December 685 F.2d2008. 678 Study (D.C.Cir. Space 1982 III was). a project of LatCrit50 Forand example,the Georgia pursuant State toUnive thersity Endangered College of SpeciesLaw Center Act, forhabitat the conservationComparative Studyplans (HCPs)of Metropolitan under section Growth. 10 Studymay allowSpace aprovided private aparty unique to pursueopportunity development for participants that unintentionally to engage in deepmay reflectionharm listed on species. place and HCPs history can includewithin acommitments diverse group to of restore scholars. degraded habitat. 16 U.S.C. § 1539(a)(2)(A). 51 Both CERCLA and the Oil Pollution Act follow this approach, and both have9 Theprovisions RVO refers that allowto the specified partners governmenthip between trusteesShell, the to US seek Army damages and Fish to naturaland Wildlife resources to transform that may the gosite beyond into a wildlifethe immediate refuge. response to pollution incidents.10 Milestones, CERCLA The 101(6); Evolution 107(a)(4)(C); of the OPARocky 1001(5); Mountain 1002(b)(2). Arsenal, brochure 141414121168 47 JO HN MARS HALL L. REV. 141414121168 Vol. 47:4 nature”different— froma landscape its predecessors, created or particularly restored by since humans it had to the mimic benefit as nearlyof two yearsas possible of planning. the natural environment that may have existed thereLike or stheomewhere shift inelse conference at a prior scheduling, time. Among other its changes many otherhave takenfunctions, place faux within nature the LatCritis a wayentity for, including people concertedto address efforts the tocumulative continue illa processeffects onof institutionalization.the environment of Invarious recent facetsyears, ofthere our haslifestyles been ain growinga directed focus effort on howat ato particularcapitalize onsite. its Butcritical it isniche, also continueheralded cultivatingas something the nextmuch generation more— ofa criticalway toscholars, encourage and environmentalismensure that the bato andn ofreverence outsider jurisprudencefor the natural is passedworld along.more broadlyInternally, at thea time organization when it ishas badly shifted, needed. including One of a thegradual most promisingchanging offeatures the guard of restoration in leadership, as a sopractice to speak, is its as potential well as toa connectdownsizing people in administration.with landscapes For and example, encourage from an 2008 ethic to thatthe elevatespresent, theprotection Board ofof Direa healthyctors was-functioning intentionally environment. downsized,52 withThe aargument growing madenumber by restorationof Board seatsproponents being isoccupied that individual by junior actors law professors.engaged 6in restoration will internalize and spread an environmentalAnother majorethic. 53development is LatCrit’s acquisition of a physicalThe spacedifficulty for inthe applying organization. this theory The property,to the RMA Campo Refuge Sano is that(Spanish the foractors “Camp (both Heal individualthy,” or andmore institutional) literally, “Camp engaged Sanity”), in the is restorationa ten-acre parcelhave oflittle land connection located in Centralto building Florida. an 7environmental Purchased by ethic.LatCrit What in 2011, is more,the space the iscommunity home to Thehas Livinglittle opportunityJustice Center to contributeand the LatCrit or engage Community in restorative Campus. acts8 The because physical of thefacility dangers serves of theas apollution means “toat thelevel site the and playing lack fieldof trust and ingive the LatCrit safety ofactivists entrants a tofighting the land. chance54 Atto betimes heard.” the 9 communityThe space ishas intended been enraged by the lack of transparency and outright deception perpetrated by those responsibleto serve for asrestoration, the hub andof theirfrustrated educational, by marketing research, of the refugeadvocacy which downplayedand activism the torisks remedy and thetrade imbalance-offs made and in the remedydeficiencies selected forof the the site. current legal system. Having an Itindependent cannot be physicaloverlooked base that hasthe becomebusiness criticalof restoration as involvesuniversities as much andfailure law asschools success increasingly – with a significantare even less loss in ecosystem function resulting from inadequate or non-existent baselines and the inability to re-create natural features. 55 Although rare, the environment also loses when developers Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HcommitARV. LATINO to L.restore REV. 1 (1997).or provide replacement habitat and do not See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences,52 WILLIAM and R.providing JORDAN direct III, linksTHE toS UNFLOWERview sympos FORESTia articles: ECOLOGICAL for some RyearsESTORATION (found ANDby followingTHE NEW CtheOMMUNION respective WITH year’s NATURE link (2003).to its corresponding webpage).53 Id. 54Additionally, See, e.g. Richard LatCrit Fleming, has developed Oversight a substantial Overkill (October body of 19,scholarship 1994) (not froming severalreluctance other of somestand community-alone symposia: members inter to alia go ontothe South the arsenal-North perhapsExchange, due the to concernsStudy Space about Series, the contamination). the International and Comparative Colloquia. LatCrit Symposia55 Studies, L ATonC RITthe: lossLAT ofC RITecosystem: LATINA function & LATINO include CRITICAL California LEGAL State T WaterHEORY , IResourcesNC., http://latcrit.org/content/publications/latcrit Control Board (CSWRCB) Permit Review-symposium/ (Aug. 2007); (lastOFF. OFvisited IJulyNSPECTOR 5, 2014). GEN ., W. REGION, U.S. DEPT. OF AGRIC., REP. NO. 10099-4-SF, NATURAL6 These RESOURCES include Profe CONSERVATIONssors Marc -STizocERVICE González,, WETLANDS Andrea RESERVE Freeman, and CésarPROGRAM Cuahtémoc: WETLANDS García RESTORATION Hernández. AND See C AboutOMPLIANCE LatCrit (Aug., supra 2008), note 3 (listing thehttp://www.usda.gov/oig/webdocs/10099 professors on the LatCrit Board-4- ofSF.pdf.; Directors Rebecca and their L. Kihslinger respective, law schools).Success of Wetland Mitigation Projects, NAT’L WETLANDS NEWSL., MAR.-APR. 2008,7 ATCampo 14, available Sano, L atAT CRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, http://www.wetlandsnewsletter.org/pdf/30.02/kihslinger.pdf.INC, http://www.latcrit.org/content/campo-sano/ (last visited July See 5,also 2014). Royal C. Gardner,8 Id. Banking on Entrepreneurs: Wetlands Mitigation Banking, and Takings,9 Id. 81 IOWA L. REV. 527 (1996). Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 141514011413 undertakeThe organizers any efforts of toStudy do so.Sp56ace Thus, III were oversight aware isof howrequired unique to ensureand important that restoration the RMA projects Refuge areis to actually the history completed and development and do not justof the exist Denver on paper. region. 8 During our stay in Denver, the participants in StudyMore Space critical were of restorationgiven a tour itself of theas RMAa means Refuge of environmental that included protection,two parts: somethe ongoingenvironmental cleanup ethicists activities have with questioned immense whetherareas of thedredged construction soil and landfills,of natural and habitatthe sections is simplyopen to “fakingthe public nature” with insteadprairie dogof takinghabitat, more clear aggressive lakes, dusty efforts fine atgrass conservation. prairie, and Though bison. restorationThe RMA Refuge’secology future has is markedlybecome ata oddsheavily with itsscience past -legacybased discipline,of environment57 its alproducts degradation. remain This artificial dramatic landscapes contrast (oprovidesr human a- createdunique naturalwindow habitats)into the andincreasingly the concerns dominant that itimpulse further— emphasizesfrequently intechnological the context optimism of mitigating over conservation the impacts have of urbanyet to bedevelopment resolved.—58to Thus,focus onthe restoration precaution and that creation might of “fauxotherwise nature” be exercisedas a substitute to preserve for existingenvironmental natural conservation.habitat, increase This density, paper andexamines reduce the sprawlRMA Refuge is abandoned restoration for in theterms promise of key benchmarksof human- constructedof successful natural restorations: habitat “elsewhere”.1) biological integrity; 2) historical fidelity;Specific 3) identifyingto the RMA root Refuge, causes provisions of and addressingof CERCLA practices provide mechanismsleading to environmentalfor achieving remediationdegradation; of andsites finally, contaminated 4) public by hazardousengagement, waste. connecting Further, with CERCLA the publicprovi desand that encouraging specified governmentenvironmentalism. trustees Restoration can obtain is a naturalchoice among resource a variety damages of land to compensateuse options, forand injuries I emphasize to wildlife, the needwater for and community a wide range acceptance of other elementsand involvement of the natural because environment. the element The of choicesite was is onceoften asubsumed home for speciesby conflicts such over as historicbison and conditions bald eagles, and what and isit natural.is now Mybeing thesis re- createdis that bythe humanrestoration engineering will become to sustain a community these species asset onceonly again.if the Nationallessons of Wildlife the past Refuges are taughtare the side primary by side designation with the within ecological the federalsuccess ofpublic restoration lands atsystem the site. focused on providing habitat for wildlifeWhile as itsI concludeprimary managementthat in several directive. areas Tothe the restoration extent that is humanachieving activities, identified such objectives, as recreation, the areas are wherecompatible the RMAwith wildlifeRefuge thoserestoration activities falls areshort allowed. of those Otherwise benchmarks – wildlife provide rules. opportunities59 Refuges for refining expectations regarding restorations in general. The RMA Refuge is a work-in-progress, yet it has already produced 56 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO 05-898, WETLANDS lessons for managing public response to restoration projects and PROTECTION: CORPS OF ENGINEERS DOES NOT HAVE AN EFFECTIVE OhowVERSIGHT image AcontrolPPROACH can TO thwartENSURE public THAT support.COMPENSATORY As succinctly MITIGATION stated IS ObyCCURRING the Remediation(2005). Venture Office (RVO)9: “[r]eturning the Arsenal57 Some to arestorationists community warnasset ofrequires the professionalization a comprehensive of restorationeffort.” 10 thwarting engagement toward an environmental ethic, see, e.g. ERIC HIGGS, NATURE BY DESIGN: PEOPLE, NATURAL PROCESS, AND ECOLOGICAL RdepthESTORATION of 5 feet 186 in some(2003) areas (discussing and 10 feethow inwe others. could Presscreate Release, an ethos Colo. of 'ifDe youp’ts destroyof L. & Pub.it, weHealth can & Env'tfix it');, The Andrew Natural Light,Resource Restoration, Damage Assessment The Value, (Oct. of 29,Participation, 2007) at 3 -and22 (citing the Risks specifically of Professionalization, to South Plants Centralin RESTORING Processing NATURE Area: andPERSPECTIVES Former Basin FOR F). THE The S OCIALreduction SCIENCES in amount AND of HNRDUMANITIES ultimately 163 reached (Paul H.by theGobster settlement & R. Bruce indicate Hulls that eds., the 2000 plume). Failures may be areshrinking still pretty at a widespread.faster rate than See, anticipated.e.g. Rebecca L. Kihslinger, Success of Wetland Mitigation Projects, NAT’L WETLANDS8 Study NSpaceEWSLETTER III: Private (Aug. and2008) Public (concluding Lands thatin the despite Post -noColonial net loss North goal Americanthe National West wetlandstook place policy in December was resulting 2008. Studyin both Space loss III ofwas acreage a project and of functions);LatCrit and see the also Georgia Ohio Valley State Environmental University College Coalition of Lawv. United Center States for Corp the Comparativeof Engineers , Study479 F.Supp. of Metropolitan 2d 607 (S.D. Growth. W. Va. Study2007) (expertSpace providedtestified thata unique they opportunityknew of thousands for participants of restoration to engage projects in deep which reflection failed to on re -placecreate and or restorehistory withinadequate a diversestream groupconditions). of scholars. 58 ROBERT ELLIOT, FAKING NATURE: THE ETHICS OF ENVIRONMENTAL RESTORATION9 The RVO (1997). refers to the partnership between Shell, the US Army and Fish and59 Wildlife Robert to L.transform Fischman, the Thesite intoNational a wildlife Wildlife refuge. Refuge System and the Hallmarks10 Milestones, of Modern The EvolutionOrganic Legislationof the Rocky, 29 MountainECOLOGY Arsenal,L. Q. 457 brochure (2002) 141614141168 47 JO HN MARS HALL L. REV. 141614141168 Vol. 47:4 are,different in many from ways,its predecessors, similar to Nationalparticularly Parks, since those it had federal the benefit lands mostof two Americans years of planning. are familiar with as “showcases of nature.” 60 And yet, Likefor politicalthe shift feasibility,in conference visitation scheduling, is essential other changes to counter have takencriticism place that within such theland LatCrit is underutilized. entity, including61 The RMAconcerted Refuge efforts free toweekend continue bus a tourprocess provides of institutionalization. one expression of thisIn recent truism. years, A second there hasis the been planned a growing visitor focus center. on howBoth to illustrate capitalize that on itsthe critical RMA Refugeniche, continueis a place cultivatingfor wildlife theand nextpeople. generation The introduction of critical of scholars,bison in 2007and ensuregreatly increasedthat the bato visitation.n of outsider jurisprudence is passed along. Internally,The RMA the Refugeorganization restoration has isshifted, a sign -ofincluding-the-times. a62 gradualWithin changingthe context of ofthe environmentalguard in leadership, protection, so towe speak, are in as a wellphase as ofa downsizingphysically rein- constructingadministration. natural For example,habitats fromas a2008 significant to the present,component the ofBoard meeting of Dire legallyctors wasimposed intentionally restrictions downsized, to mitigate with aadverse growing environmental number of Boardimpacts, seats and being to respond occupied to pastby junior violations law professors.of law and6 pollution events. This approach has raised new questiAnotherons of majortechno development-optimism, is overLatCrit’s-reliance acquisition on human of a physicalengineering, space and for thethe ageorganization.-old question The of property,humans’ Campoplace in Sano the (Spanishnatural world.for “Camp While Heal restorationthy,” or morepolicy literally, is still “Campin development, Sanity”), 63is 7 a ten-acre parcel of land located in Central Florida. Purchased by LatCrit in 2011, the space is home to The Living Justice Center and(discussing the LatCrit how the Community compatibility Campus.standard operates8 The physical and how facilityconservation serves of species is further bolstered by the Act’s focus on biological integrity, diversity andas aenvironmental means “to lhealthevel the mandates). playing field and give LatCrit activists a 9 fighting60 PATRICIA chance LtoIMERICK be heard.” NELSON The, spaceTHE L isEGACY intended OF CONQUEST: THE UNBROKEN PAST OF THE AMERICAN WEST 309 (1987). 61 Idto. atserve 308. as the hub of their educational, research, 62 Theseadvocacy projects and are activism being undertaken to remedy all overthe theimbalance world, in andcountries ranging from Australia, China, Japan, Mexico and New Zealand. In the U.S., it has deficienciesbeen recognized of asthe an importantcurrent partlegal of system.improving Havingthe quality an of the naturalindependent environment andphysical preserving base biodiversity. has become See, e.g . criticalJamison Colburn,as Habitatuniversities and Humanity, and Public law Lands schools Law increasinglyin the Age of Ecologyare even, 39 AlessRIZ. S. L. REV. 145 (2007). Private lands contain much of the “wild” lands that could be used to promote species protection. Jamison Colburn, Bioregional Conservation May Mean Taking Habitat, 37 ENVTL. L. 249 (2007). In addition Namingto restoration and Launchingoccurring ona Newprivate Discourse lands, federalof Critical policy Legal has Scholarshipshifted toward, 2 HconservationARV. LATINO and L. Rpreservation,EV. 1 (1997). further supporting a restoration agenda. See, e.g. See Jan alsoG. Laitos LatCrit and BiennialThomas A.Conferences Carr, The, TransformationLATCRIT: LATINA on &the LPublicATINO LandsCRITICAL, 26 LEEGALCOLOGY T HEORYL. Q. , 140,INC .160, http://latcrit.org/content/conferences/latcrit-172 (1999) (discussing rise of recreation- biennialand preservation-conferences/ due (lastto statutory visited July mandates 5, 2013) and (providing market aforces). list of theThe previousauthors conferences,discuss how andareas providing such as directNational links Wildl to ifeview Refuges sympos expressia articles “a consciousfor some decision”years (found to use by public following lands thefor generatingrespective ecosystemyear’s link services to its correspondingand providing lowwebpage).-impact recreation. Id. at 192. Furthermore, two journals are now dedicatedAdditionally, to ecological LatCrit restoration. has developed Ecological a substantial Management body of and scholarship Restoration from is publishedseveral other by Wileystand--Blackwellalone symposia: on behalf inter of alia The the Ecological South-North Society Exchange, of Australia the Incorporated,Study Space andSeries, seeks the to International bridge ecologist’s and Comparativeperspective and Colloquia. land manager’s LatCrit Symposiapractice in, Lrestoration.ATCRIT: LAT RestorationCRIT: LATINA Ecology & LATINO is published CRITICAL on L EGALbehalf TofHEORY The, ISocietyNC., http://latcrit.org/content/publications/latcritfor Ecological Restoration International,- symposium/by Wiley InterScience, (last visited and theJuly journal5, 2014). promotes itself as at the “forefront of a vital new direction in science6 These and ecology.”include ProfeWithssors all this Marc said,-Tizoc we haveGonzález, not launched Andrea restorationFreeman, asand a Césarfull-fledged Cuahtémoc national García agenda. Hernández. See Jamison See AboutColburn, LatCrit The ,Fire supra Next note Time: 3 (listing Land theUse professorsPlanning inon thethe Urban/Wildlife LatCrit Board Interfaceof Directors, 28 J.and L ANDtheir R ESOURCESrespective ANDlaw schools).ENVTL. L. 223, 234-35 (2008). 637 CampoPeter Lavigne,Sano, L ATHumptyCRIT: L ATINADumpty AND andLATINO Restoration CRITICAL PolicyLEGAL, 45THEORY NAT., RINCESOURCES, http://www.latcrit.org/content/campo J. 495, 497 (2005)(lamenting- sano/lack of (last cohesion visited on July restoration 5, 2014). policy but 8contrasting Id. it with constant stream of “tragic remedies”); A. Dan Tarlock, Slouching9 Id. Toward Eden: The Eco-pragmatic Challenges of Ecosystem Revival, Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 141714011415 severalThe benchmarksorganizers of forStudy successful Space III restorationswere aware ofhave how becomeunique andcommonplace. important the RMA Refuge is to the history and development of theFirst, Denver biological region. 8 Duringintegrity our issues stay inare Denver, the thefoundation participants for questionsin Study Spaceabout werewhether given the a tourtechnical of the RMAaspect Refuge of the that restoration included worktwo parts: achieves the ecosystem ongoing cleanupfunctions. activities64 For example, with immense assessment areas of ofa dredgedre-created soil or and engineered landfills, wetlandand the wouldsections ask open whether to the itpublic produces with prairiethe same dog ecoshabitat,ystem clear services lakes, of dustywater fine filtration, grass prairie, nutrient and cycling, bison. Theand RMAflood Refuge’sprotection. future65 The is markedlysecond element,at odds withhistorical its past fidelity, legacy tethersof environment the engineeringal degradation. of the Thisenvironment dramatic tocontrast biological provides features a thatunique existed window prior tointo various the humanincreasingly manipulations dominant at theimpulse specific— site.frequently The goal in couldthe contextbe set toof mimic mitigating biologic the conditions impacts at ofa definedurban pointdevelopment in the— topast. focus However, on restoration if the restorationand creation included of “faux plantingnature” redwoodas a substitute trees, historical for environmental fidelity is only conservation.met if redwood This trees paper had beenexamines present the RMAat some Refuge point restoration in the inpast. terms Third, of key legal benchmarks scholars encourageof successful us torestorations: benchmark 1)the biological success integrity;of a restoration 2) historical by its capacityfidelity; to3) cutidentifying off sources root of causesenvironmental of and degradation.addressing 66practices Thus, ifleading the Armyto environmentaland Shell were deg allowedradation; to anddump finally, newly 4)generated public hazardousengagement, waste connecting at the site, with the restorationthe public would and failencouraging to achieve thisenvironmentalism. benchmark. AsRestoration the formalization is a choice amongof restoration a variety practiceof land occurs,use options, this andlast Iand emphasize often-overlooked the need piecefor community could be theacceptance key to andensuring involvement restoration because does the not element become of choicesimply is oftena conservation subsumed bysubstitute. conflicts Finally,over historic public conditions engagement and inwhat restoration is natural. projects My thesis can issha thatpe theindividual restoration and will becomecommunity a community dedication asset toonly futureif the lessonsenvironmental of the protection.past are 67taught This movesside by the side restoration with the project ecological out ofsuccess its site of-specific restoration context. at the site. Ultimately,While I conclude it must that inbe severalwell recognizedareas the restorationthat nature is constructionachieving identified involves objectives, a significant the degreeareas whereof decision the -RMAmaking Refuge and intentionalityrestoration falls—a shorthuman of thoseintervention benchmarks geared provide toward opportunities human desiredfor refining goals. expectationsThis tension regardingruns through restorations many of inour general. federal lawsThe RMA Refuge is a work-in-progress, yet it has already produced lessons for managing public response to restoration projects and 97how M INNimage. L. controlREV. 1173 can (2003) thwart (expressing public support. concern Asthat succinctly much restoration stated occby ursthe without Remediation legal guidance). Venture Office (RVO)9: “[r]eturning the Arsenal64 As previouslyto a community mentioned, asset often requires the engineering a comprehensive required is beyond effort.” our10 knowledge or understanding, and the integrity of these projects is rarely challenged in court, although challenges could be on the rise as restoration depthpractice of formalizes.5 feet in some For areassome and examples 10 feet seein others. Env’tl PressDef.v.U.S. Release, Army Colo. Corps Dep’ts of ofEng’rs L. &, Pub.515 HealthF. Supp. & Env't2d ,69 The (D.D.C. Natural 2007) Resource (deciding Damage that Assessment Corps did, (Oct.not 29,adequately 2007) at ensure3-22 (citing scientific specifically integrity to Southof decision Plants -Centralmaking Processingwhen crafting Area andmitigation Former project Basin forF). theThe lossreduction of fish in and amount wildlife of NRDhabitat); ultimately Cal. Native reached Plant by theSoc'y settlement v. County indicate of El sDorado that the, 88 plume Cal. Rptr.may be3d shrinking530 (2008) at (scientistsa faster rate testified than anticipated.that measures for transplanting and propagating rare plants were speculative, and8 courtStudy found Space too III: much Private reliance and onPublic “unproven Lands techniques” in the Post t-oColonial remedy lossNorth by Americanapproved development).West took place in December 2008. Study Space III was a project of LatCrit65 For and a full the discussion Georgia ofState ecosystem Unive rsityservices, College see J.B.of LawRUHL ,Center STEVEN for K RAFTthe &Comparative CHRISTOPHER Study LANT of, TMetropolitanHE LAW AND Growth. POLICY OFStudy ECOSYSTEM Space provided SERVICES a unique(2007); seeopportunity also Thomas for participants C. Brown et. to al.,engage Defining, in deep Valuing, reflection and onProviding place and Eco historysystem Goodswithin anda diverse Services group, 47 ofN ATscholars.. RESOURCES J. 329 (2007). 66 Alyson C. Flournoy, Restoration Rx: An Evaluation and Prescription, 42 ARIZ9. TheL. R EVRVO. 187 refers (2000). to the partnership between Shell, the US Army and Fish and67 Wildlife ERIC toH IGGStransform, Nature the siteby intoDesign: a wildlife PEOPLE refuge., NATURAL PROCESS, AND ECOLOGICAL10 Milestones, RESTORATION The Evolution (2003). of the Rocky Mountain Arsenal, brochure 141814161168 47 JO HN MARS HALL L. REV. 141814161168 Vol. 47:4 thatdifferent manage from public its predecessors, lands, and particularlythus is not entirelysince it ahad new the struggle benefit toof twobe dealtyears with,of planning. but one that continues within natural resource managementLike the policymakingshift in conference more generally.scheduling,68 Inother a related changes context have takenProfessor place Limerick within Nelsonthe LatCrit remarks entity on, includingthe business concerted of wilderness efforts tomanagement continue a inprocess the West of institutionalization. and its challenges. In recent years, there has been…[T]he a growing idea offocus nature on how restored to capitalize still cameon its criticalwith strings niche, continueattached. cultivatingNature running the next itself generation should be of attractive,critical scholars, interesting, and ensureand instructive; that the itbato should,n of outsiderin other jurisprudencewords, meet certainis passed standards along. Internally,of which humans the organization were fond. Thehas very shifted, idea ofincluding natural “balance”a gradual or changing“harmony” of indicatedthe guard a inmodel leadership, in the somind, to speak, by which as well natural as a downsizingprocesses would in administration. be measured and For judged. example,69 from 2008 to the present, the Board of Directors was intentionally downsized, with a growingFocusing number on the of intentionalityBoard seats beingand endpointoccupied objections,by junior lawthe professors.RMA Refuge6 poses the question whether this particular faux natureAnother project majoris a community development asset is or LatCrit’sa sleight ofacquisition hand. The RMAof a Refugephysical restoration space for illustratesthe organization. how such The projects property, can Campofail to fosterSano environmentalism(Spanish for “Camp and Heal insteadthy,” orprovoke more literally,disdain. “Camp Sanity”), is a tenAlthough-acre parcel faux of natureland located can (but in Centraldoes not Florida. always)7 Purchasedachieve legal by requirementsLatCrit in 2011, set the by space environmental is home to Thelaws Living by achievingJustice Center the benchmarkand the LatCrit of biological Community integrity, Campus. ensuring8 The suchphysical projects facility result serves in aas communitya means “to asset level requires the playing a focus field onand community give LatCrit buy activists-in better a fightingexpressed chance in the to belast heard.” three9 The benchmarks space is intended – historical fidelity, recognizing the roots of the problem that led to environmental damage,to andserve engaging as the thehub public. of their Achieving educational, these benchmarksresearch, is vitallyadvocacy important and to activism avoiding to theremedy pitfall the of imbalancefaux nature and as a conservationdeficiencies substitute of the and current resulting legal in a system.community Having asset. an independent physical base has become critical as universities IV.and Alaw Restoration schools increasingly in Progress are even less

A. Biological Integrity: CERCLA and Risk-Based Corrective Naming and Launching a New DiscourseAction. of Critical Legal Scholarship, 2 HARV. LATINO L. REV. 1 (1997). See Ecologicalalso LatCrit restoration Biennial Conferencesin different, LAT CshapesRIT: L ATINAand &forms LATINO is taCRITICALking placeLEGAL acrossTHEORY the, I NCnation.., http://latcrit.org/content/conferences/latcrit Some of the most prominent- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous projectsconferences, are and undertaken providing directin locations links to whereview sympos extensiveia articles development for some andyears (foundindustrial by followingand urbanthe respective activities year’s have link todepleted its corresponding natural resourceswebpage). vital to survival. The Florida Everglades, Chesapeake Additionally, LatCrit has developed a substantial body of scholarship from several other stand-alone symposia: inter alia the South-North Exchange, the Study68 PSpaceAUL W.Series, HIRT , theA CInternationalONSPIRACY OFand O PTIMISMComparative: MANAGEMENT Colloquia. OFLatCrit THE NSymposiaATIONAL, FLORESTSATCRIT : SINCELATC RITW:ORLD LATINA WAR & T WOLATINO (1994) C RITICAL(discusses LEGAL the intensiveTHEORY, managementINC., http://latcrit.org/content/publications/latcrit of the National Forests under the- symposium/belief that both(last timber visited and wildlifeJuly 5, 2014).interests could be satisfied if only the Service undertook more intervention6 These includeto alter Profe naturalssors Marcprocesses.-Tizoc González,Fire suppression Andrea Freeman, and other and Césarmanipulations Cuahtémoc of naturalGarcía Hernández.systems are See increasingly About LatCrit challenged, supra asnote bad 3 (listingpolicy. theOn professorsthe other onhand, the theLatCrit National Board Parksof Directors are managed and their to respective disguise lawthe schools).interventions when possible, and natural processes are more often left to take their7 course.Campo IntroductionSano, LATCRIT of: predatorLATINA ANDspecies LATINO to improve CRITICAL ecosystem LEGAL functionTHEORY, wasINC, ahttp://www.latcrit.org/content/campo controversial restoration of National-sano/ Park (lastecosystems.). visited July 5, 2014). 698 Id. P ATRICIA LIMERICK NELSON, THE LEGACY OF CONQUEST: THE UNBROKEN9 Id. PAST OF THE AMERICAN WEST 309-10 (1987). Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 141914011417

Bay, Theand organizers the Colorado of Study River Sp aceare IIIsome were ofaware the ofmost how notableunique andexamples. important But smallerthe RMA projects, Refuge bothis to onthe publichistory and and private development lands, ofare the also Denver occurring, region. sometimes8 During ourundertaken stay in Denver, by local the citizens, participants state orin Studyfederal Space agencies, were or given non -aprofit tour organizations.of the RMA Refuge This thatis so included despite continuedtwo parts: controversy the ongoing overcleanup a restorationactivities withagenda immense or even areas the of definitiondredged soil or andmeaning landfills, behind and thethe sectionsterm "ecological open to therestoration." public with70 Theprairie debate dog habitat, over clearthe lakes,definition dusty of fine ecological grass prairie, restoration and bison. is illustratedThe RMA Refuge’s by a focus future on two is ofmarkedly the most at oft odds-cited with definitions. its past legacy of environmentThe U.S.al degradation.National Research This dramatic Council contrast (NRC) provides defines a uniquerestoration window as follows: into the increasingly dominant impulse— frequently in the context of mitigating the impacts of urban developmentRestoration—to focus is defined on restoration as the return and of creation an ecosystem of “faux to nature”a close as aapproximation substitute for of itsenvironmental condition prior conservation.to disturbance. This In paper examinesrestoration, the RMA ecological Refuge damagerestoration to thein termsresource of keyis repaired. benchmarks of successfulBoth the structurerestorations: and the1) functionsbiological ofintegrity; the ecosystem 2) historical are fidelity;recreated. 3) identifying Merely recreating root causes the formof and without addressing the functions, practices leadingor theto functionsenvironmental in an artificial degradation; configuration and finally, bearing 4) little public engagement,resemblance connecting to a natural with resource, the doespublic not constituteand encouraging environmentalism.restoration. The Restoration goal is to emulateis a choice a natural, among afunctioning, variety of land use options,self-regulating and I emphasize system that the is integratedneed for community with the ecological acceptance and involvementlandscape in becausewhich it theoccurs. element Often, of naturalchoice isresource often subsumed by conflictsrestoration over requireshistoric oneconditions of the followingand what processes: is natural. My thesis is thatreconstruction the restoration of ante willcedent become physical a community hydrologic asset and only if the lessonsmorphologic of the past conditions; are taught chemical side cleanupby side orwith adjustment the ecological of successthe ofenvironment; restoration atand the biological site. manipulation, including Whilerevegetation I conclude and the that reintroduction in several ofareas absent the or restorationcurrently is achievingnonviable identified native objectives, species. 71 the areas where the RMA Refuge restoration falls short of those benchmarks provide opportunities for refiningThe Society expectations for Ecological regarding Restoration restorations states: in general. “Ecological The restorationRMA Refuge is theis aprocess work- inof- progress,assisting yetthe recoveryit has already of an ecosystemproduced thatlessons has for been managing degraded, public damaged, response or destroyed. to restoration”72 projects and how Althoughimage control the termcan thwartis contested, public support.the comparison As succinctly of these stated two definitionsby the Remediation illustrates Venturethat damage Office to (RVO)function9: “[r]eturning and repair theof ecosystemsArsenal to acuts community across differentasset requires views aof comprehensive restoration. Thus,effort.” in10 identifying biological integrity as one of the key benchmarks of successdepth of 5in feet a inrestoration, some areas andI seek10 feet to in capture others. Press the Release,shared Colo.idea Dethatp’ts repairof L. & ofPub. a damagedHealth & Env't environment, The Natural is Resourcea key goal Damage for all Assessment restorations., (Oct. 29, 2007) at 3-22 (citing specifically to South Plants Central Processing Area and Former Basin F). The reduction in amount of NRD ultimately reached by the 70settlement As one scholarindicate shas that put the it, plume “restoration may be shrinkingof damaged at aecosystems faster rate is than an anticipated.agenda with no beginning, no end, few champions, and mixed moral implications.8 Study Space When III: we Private speak ofand environmental Public Lands restoration, in the Post we-Colonial do so without North anyAmerican meaningful West tookconsensus place inon December its purpose 2008. or point.” Study Jamison Space III Colburn, was a project The Fire of NextLatCrit Time: and Landthe GeorgiaUse Planning State inUnive the rsityUrban/Wildlife College of LawInterface Center, 28 J.for L ANDthe RComparativeESOURCES & Study ENVTL of. L. Metropolitan 223, 234-35 (2008).Growth. Study Space provided a unique opportunity71 NAT’L for R ESEARCHparticipants COUNCIL to engage, RESTORATION in deep reflection OF AQUATIC on place E COSYSTEMSand history: SwithinCIENCE a , diverseTECHNOLOGY group, ofAND scholars. PUBLIC POLICY (1992). 72 Soc'y for Ecologial Restoration, Section 2: Definition of Ecological Restoration9 The RVO, INTERNATIONAL refers to the partnersPRIMERhip ON between ECOLOGICAL Shell, RtheESTORATION US Army (Versionand Fish 2,and WildlifeOct. to2004), transform http://www.ser.org/resources/resources the site into a wildlife refuge. -detail-view/ser- international10 Milestones,-primer The-on -Evolutionecological -restoration#3.of the Rocky Mountain Arsenal, brochure 142014181168 47 JO HN MARS HALL L. REV. 142014181168 Vol. 47:4 different The from RMA its Refugepredecessors, restoration particularly is driven since by theit had need the to benefit abate aof twopublic years nuisance. of planning. The cleanup would occur regardless of the additionalLike thework shift to transformin conference the scheduling,site to pre- developedother changes conditions. have takenUnlike placeother within restoration the LatCrit projects entity ,t hatincluding are concertednot driven efforts by toestablished continue statutorya process mandates,of institutionalization. the RMA RefugeIn recent restoration years, there fits haswithin been a ahazardous growing focuswaste oncleanup how to model. capitalize The onrestoration its critical will niche, not continuecompletely cultivating repair the the natural next systemsgeneration impacted, of critical for scholars,the practical and ensurereasons thatand policythe bato choicesn of discussedoutsider jurisprudencebelow. is passed along. Internally,Cleanups the are organization inherently keyedhas shifted,to health including standards. a CERLCAgradual changingrequires thatof the remediation guard in leadership,achieve applicable so to speak, or relevantas well asand a downsizingappropriate inrequirements administration. (“ARAR’s”). For example,73 ARARs from are2008 cleanupto the present,standards the derived Board fromof Dire otherctors laws was andintentionally regulations, downsized, as CERCLA with adoes growing not i tselfnumber establish of Board specific seats cleanup being standardsoccupied byfor juniorreleases law of professors.chemicals. 6 ARARs are typically established during the remedial investigation/feasibilityAnother major development study phase, is are LatCrit’s subject toacquisition comment, ofand a physicalthen are spaceadopted for theas benchmarksorganization. forThe cleanups. property, ThroughCampo Sanothis (Spanishprocess sforite -“Campspecific Healcleanupthy,” orgoals more literally,are developed. “Camp Sanity”),Thus, an is aenduring ten-acre questionparcel of andland often located a pointin Central of dispute Florida. in 7each Purchased CERCLA by LatCritremediation in 2011, is “how the cleanspace isis clean”home toat Theany Livingparticular Justice site. Center74 An oftenand the-competing LatCrit Communityrequirement Campus.is that8 theThe remedialphysical facilityapproach serves be "costas a meanseffective." “to 75l evelThe the approach playing fieldof “risk and-based” give LatCrit corrective activists action a (RBCAfighting orchance “Rebecca”) to be heard.”was popularized9 The space because is intended of the potential to obtain cleanups which were more economical, but put the land into productiveto serve uses as morethe hubquickly of their than educational, might otherwiseresearch, be accomplishedadvocacy if andcleanup activism standards to remedy were automaticallythe imbalance set and at pre- pollutiondeficiencies background of theor “pristine”current legallevels. system. Instead Havingof approaching an the cleanindependent-up objectives physical from thebase perspective has become of any criticalpotential as future use atuniversities the site, RBCAand law facilitates schools moreincreasingly modest areremediation even less goals based on a lower risk of exposure for certain uses of land. For example, a residential backyard would receive much more aggressive clean-up actions than a site developed for use as a Naming and Launching a New Discourse of Critical Legal Scholarship, 2 parkingHARV. LATINO lot. TheL. REV RMA. 1 (1997). Refuge is an example of RBCA. SeeFederal also LatCritfacilities, Biennial such Conferences as the , formerLATCRIT : RockyLATINA Mountain& LATINO CArsenal,RITICAL LareEGAL some THEORY of , theINC .,most http://latcrit.org/content/conferences/latcrit extremely polluted sites in the- biennialcountry.-conferences/76 Particularly (last visited in the July context 5, 2013) of (providing federal facilitiesa list of the cleanups, previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage). 73Additionally, 42 U.S.C. LatCrit§ 9621(d) has (2011)(addressingdeveloped a substantial the degree body ofof scholarshipcleanup). Statefrom involvementseveral other in stand remedial-alone actions symposia: includes inter commentalia the South on the-North plan Exchange,for cleanup the of sitesStudy within Space the Series, state. 42the U.S.C. International § 9621(f)(1)(E)(2011). and Comparative Colloquia. LatCrit Symposia74 See, generallyLATCRIT: GeraldLATCRIT W.: LPhillips,ATINA & Rethinking LATINO C RITICALRestoration: LEGAL Risk T HEORYBased, CorrectiveINC., http://latcrit.org/content/publications/latcrit Action and the Future of Economic Regulation-symposium/, 16 N. I(lastLL. U. L.visited REV. July659, 5,664 2014). (1996).(positing that “the philosophy” of how clean is clean “is evolving”).6 These Id. include Professors Marc-Tizoc González, Andrea Freeman, and César75 42Cuahtémoc U.S.C. § 9621(b)(1), García Hernández. stating thatSee About"The LatCritPresident, supra shall note select3 (listing a theremedial professors action onthat the is protectiveLatCrit Board of human of Directors health andand the their environment, respective thatlaw schools).is cost effective, and that utilizes permanent solutions and alternative treatment7 Campo technologies Sano, LAT CorRIT resource: LATINA recoveryAND LATINO technologies CRITICAL to L EGALthe maximum THEORY, IextentNC, http://www.latcrit.org/content/campo practicable." Id. -sano/ (last visited July 5, 2014). 768 Id. A review of the National Priorities List illustrates this, with many current9 Id. or former air force bases and other military installations listed. EPA, Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 142114011419 the “futureThe organizers uses” approach of Study hasSp acemade III werea significant aware of difference how unique in andsetting important cleanup the targets RMA Refugeat more is tomodest the history levels. andIdentifying development the offuture the Denveruse of aregion. contaminated8 During siteour staywill resultin Denver, in a theparticular participants risk profilein Study specific Space wereto that given use. a tour Remediation of the RMA objectivesRefuge that are included then adjustedtwo parts: to thatthe ongoingrisk profile. cleanup The activitiesfollowing withexcerpt immense from an areas article of bydredged John soilS. Applegateand landfills, and Stephenand the Dycussections is openinstructive to the onpublic the withlogic ofprairie a scaled dog cleanuphabitat, approach:clear lakes, dusty fine grass prairie, and bison. The IfRMA the Refuge’sfuture use future of [a is lake markedly with contaminated at odds with sediments]its past legacy is a wildlifeof environment refuge, alremedial degradation. action This may dramatic not need contrast to be taken provides if the a contaminationunique window is containedinto the in increasinglystable sediments. dominant At the impulseother end— offrequently the land in usethe spectrum,context ofagricultural mitigating usethe ofimpacts a site ofinvolves urban exposuredevelopment to —theto farmerfocus onthough restoration direct anddermal creation contact of “fauxwith soilnature” and groundwater,as a substitute extended for opportunitiesenvironmental to conservation.inhale contaminated This paperdust, andexamines occasional the RMA ingestion. Refuge Residentialrestoration usein termshas aof similarkey benchmarks exposure proof file,successful because restorations:children play 1)in biologicaltheir yards integrity; and adults 2) dig historical in their gardens.fidelity; 3)Industrial identifying and root commercialcauses of anduses, addressing however, practicesinvolve considerablyleading to environmentalless potential contact….degradation; Recreational and finally, uses 4) of publicgreen spaceengagement, involve evenconnecting less exposure, with thebecause public most andpeople encouraging spend far lenvironmentalism.ess time at recreational Restoration sites isthan a choice at work among or ahome, variety and of theirland activitiesuse options, (apart and fromI emphasize sports) typicallythe need involve for community only limited acceptance contact withand involvementthe soil. 77 because the element of choice is often subsumed by conflictsA Federal over Facilitieshistoric conditions Agreement and (FFA) what issigned natural. by Mythe thesisU.S. Army,is that thethe EPA,restoration U.S. willAgency become for Toxica community Substances asset and only Disease if the Registry,lessons of U.S.the pastFish areand taught Wildlife side Service, by side U.S. with Department the ecological of Justice,success ofand restoration Shell in at1989 the imposedsite. future land use restrictions. 78 Thereafter,While Ithe conclude RMANWR that Actin alsoseveral imposed areas similarthe restoration future use is restrictions.achieving identified These objectives,include the the federalareas wheregovernment the RMA retainin Refugeg ownership,restoration fallsprohibiting short of thoseagriculture benchmarks production provide opportunitiesand the consumptionfor refining ofexpectations fish or game regarding taken on restorations the site. On in June general. 11, 1996,The theRMA U.S. Refuge Army, is aU.S. work EPA-in-progress, and the yetState it hasof Coloradoalready signedproduced a Recordlessons offor Decisionmanaging (ROD) public governing response remediationto restoration of projectsthe RMA. and79 Thehow obligationsimage control of thecan pollutingthwart public parties support. (the U.S. As Armysuccinctly and statedShell) areby theoutlined Remediation in the ROD,Venture and OfficeShell (RVO)and FWS9: “[r]eturning signed letters the endorsingArsenal to thea community ROD, the asset FWS requires undertaking a comprehensive responsiblity effort.” for10 wildlife management at the site. The Remediation Venture Office depth(RVO) of is5 feeta uniquein some areastri-part and collaboration10 feet in others. between Press Release, the U.S. Colo. Army, Dep’ts of L. & Pub. Health & Env't, The Natural Resource Damage Assessment, (Oct. 29, 2007) at 3-22 (citing specifically to South Plants Central Processing Area andNATIONAL Former P RIORITIESBasin F). TheLIST reduction, http://www.epa.gov/superfund/sites/npl/index.htm in amount of NRD ultimately reached by the(last settlement updated Mar.indicate 2, s2012). that theSee plume also Johnmay beS. shrinkingApplegate at & a Stephenfaster rate Dycus, than Institutionalanticipated. Controls or Emperor’s Clothes? Long Term Stewardship of the Nuclear8 Study Weapons Space CompIII: Private lex, 28 andENVTL Public. L. R LandsEP. 10631 in the(1998); Post Ensign-Colonial Jason North H. AmericanEaton, Creating West took Confusion: place in DecemberThe Tenth 2008. Circuit’s Study RockySpace IIIMountain was a project Arsenal of DecisionLatCrit ,and 144 the M ILGeorgia. L. REV State. 126, Unive 127 rsity(1995) College (discussing of Law the CenterDepartment for the of DefenseComparative program Study to cleanof Metropolitan up polluted Growth. military bases).Study Space provided a unique opportunity77 See Applegate for participants & Dycus, to supraengage note in 76.deep reflection on place and history within78 Federal a diverse Facility group Agreementof scholars. for the Rocky Mountain Arsenal, EPA Docket No. CERCLA VIII-89-13 (1989), http://www.doi.gov/restoration/library/casedocs/upload/CO_Rocky_Mt_Arsenal9 The RVO refers to the partnership between Shell, the US Army and Fish and_FFA_89.pdf. Wildlife to transform the site into a wildlife refuge. 7910 ROD,Milestones, supra noteThe 37.Evolution of the Rocky Mountain Arsenal, brochure 142214201168 47 JO HN MARS HALL L. REV. 142214201168 Vol. 47:4

Shelldifferent Oil from Company its predecessors, and the particularlyFWS that since is undertakingit had the benefit the transformationof two years of planning.of the site from contaminated military base to nationalLike wildlifethe shift refuge. in conference scheduling, other changes have taken Theplace keywithin choice the forLatCrit the remedyentity, includingat the site concerted was to effortsallow tocontaminated continue a processsoils and of buildingsinstitutionalization. to be landfilled In recent there. years, This there was hasessentially been a agrowing decision focus to create on how a hazardousto capitalize waste on its repository. critical niche, It is continuea sad butcultivating necessary the assumptionnext generation that of allcritical hazardous scholars, waste and ensurerepositories that thewill bato neventually of outsider jurisprudenceleak, and iseven passed leadingalong. Internally,environmentalists the organization have expressed has shifted,this concern, including while a gradualothers changingpragmatically of the acceptguard inthe leadership, inevitable so tolimitations speak, as wellof ascost a- downsizingeffectiveness. in80 Withadministration. this in mind, For oneexample, can understand from 2008 why to thisthe present,decision thewas Board most of centralDirectors to was driving intentionally other optionsdownsized, for withthe asurrounding growing number area. Contaminatedof Board seats soilsbeing were occupied only byexcavated junior lawto professors.either five 6 or ten feet, depending on the location. This leaves a significantAnother amount major ofdevelopment contaminated is soilLatCrit’s beneath, acquisition which will of bea leakingphysical mostlyspace pesticidefor the organization.residues into theThe groundwater property, Campo for years Sano to come.(Spanish Thus, for “Camppart of Heal thethy,” remedy or more was literally,also provid “Camping replacement Sanity”), is watera ten- acresupplies parcel and of landcontinuing located toin treatCentral groundwater Florida. 7 Purchased at the site. by GivenLatCrit these in 2011, cleanup the objectives,space is home the RODto The also Living requires Justice a five Center-year andreview the to LatCrit ensure Communityhuman and Campus.environmental8 The physicalhealth is facilitynot impacted serves byas thea means contamination. “to level the playing field and give LatCrit activists a fightingThe chanceRMA Refugeto be heard.” Act, ad9 Theopted space by Congress is intended prior to the ROD in 1992, takes care to note that the designation of the RMA site as a futureto servewildlife as refuge the didhub not of altertheir cleanupeducational, obligations. research, The Act confirmsadvocacy that theand “establishment activism to ofremedy the refuge the imbalanceshall not restrict and or lessendeficiencies in any wa ofy anythe currentresponse legalaction system. or degree Having of cleanup”an pursuantindependent to CERCLA physical or other base laws. has81 However, become thiscritical confirmation as is deceptive.universities It is and the lawgoal schools of CERCLA increasingly to ensure are evenprotection less of human health and the environment in setting cleanup standards. Certainly, if the RMA was proposed to be used as single-family housing or an elementary school where children would frequently Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HcomeARV. LintoATINO contact L. REV .with 1 (1997). soil, the degree of care and level of residual contaminationSee also LatCrit would Biennial indeed Conferences differ greatly, LATC RITfrom: L ATINAthe degree& LATINO of CcleanupRITICAL whichLEGAL isT HEORYaccep,table INC .,in http://latcrit.org/content/conferences/latcrit the instant situation where wildlife- biennialinhabits-conferences/ the land. (lastIf different visited July future 5, 2013) uses (providing for the aRMA list of were the previouschosen conferences, and providing direct links to view symposia articles for some yearsit would (found not by havefollowing been the possible respective to year’sinclude link onsiteto its correspondinglandfills to webpage).contain hazardous waste product. For example, prior to the suggestionAdditionally, that LatCrit the has RMA developed be amade substantial into body a ofwildlife scholarship refuge, from severalsuggestions other standincluded-alone symposia:its use interas aliaan theindustrial South-North park, Exchange, possible the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July80 5, Jeffrey 2014). P. Cohn, A Makeover for Rocky Mountain Arsenal: Transforming a Superfund6 These include Site into Profe a Nationalssors Marc Wildlife-Tizoc González,Refuge, 49 Andrea BIOSCIENCE Freeman,, 273, and277 César(1999) Cuahtémoc(citing Sierra García Club Hernández.Rocky Mountain See About chapter LatCrit president, supra Sandy note Horrocks’ 3 (listing theexpectation professors that on materials the LatCrit will Boardeven tuallyof Directors leak out, and and their National respective Wildlife law schools).Federation senior advisor Tom Dougherty’s point that a more extensive cleanup7 Campo would Sano cost ,“billions LATCRIT more”).: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,81 http://www.latcrit.org/content/campo Rocky Mountain Arsenal National- sano/Wildlife (last Refuge visited Act July of 5, 1992, 2014). § 3(c), Pub.8 Id.L. No. 102-402 (1992). 9 Id. Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 142314011421 expansionThe organizersof the Stapleton of Study Airport, Space IIIor werecleanup aware to levelsof how allowing unique andlocal importantresidential the development. RMA Refuge 82 is Into thefact, history the RMA and developmentRefuge Act ofallowed the Denver the sale region. of a portion8 During of ourthe landstay into raiseDenver, money the participantsfor a visitor incenter. Study In Space 2004 werea parcel given that a tourwas decontaminatedof the RMA Refuge and that then included deleted twofrom parts: the NPL the was ongoing sold tocleanup Commerce activities City. 83with The immense land has areas become of dredgedthe Prairie soil andGateway, landfills, including and the commercial,sections open retail to the development public with prairieand a largedog habitat,soccer stadium, clear lakes, with dusty future fine plans grass for prairie,a high schooland bison. and Theadditional RMA Refuge’sretail space. future84 is markedly at odds with its past legacy of environmentThe cleanupal degradation.plan for the This RMA, dramatic embodied contrast in the providesRecord ofa Decisionunique windowand including into the levelsincreasingly of remediation dominant and impulserestricted— futurefrequently uses, in was the the context culmination of mitigating of the processthe impacts described of above,urban includevelopmentding a —significantto focus on amount restoration of publicand creation input. 85of “fauxYet, citizensnature” perceivedas a substitute the choice for toenvironmental remediate the conservation. site to provide This wildlifepaper habitatexamines as the a means RMA Refugeto shortcut restoration more extensivein terms cleanupof key benchmarks at the site. Itof issuccessful of course restorations:more economical 1) biologicalto identify integrity;a future use2) historicalthat will lfidelity;imit exposure 3) identifying and thus root reduce causes risk ofto andthose addressing coming inpractices contact withleading soil toand environmental water at the degsite.radation; Nonetheless, and thosefinally, living 4) inpublic the vicinityengagement, of theconnecting cleanup sitewith may the hold public scorn andfor aencouraging less than aggressiveenvironmentalism. remediation Restoration to remedy is a choicepast pollutionamong a varietyand eliminate of land riskuse options,to human and health.I emphasize They the may need fail for to community embrace theacceptance scaled approachand involvement in this becauseparticular the case,element questioning of choice itsis oftenfairness. subsumed Some mayby conflicts ask/have over asked historic why conditions the site shouldand what not is be natural. cleaned My up thesis to a futureis that usethe morerestoration directly will related become to futurea community uses predicted asset only as aif need the inlessons the coofmmunity. the past Scholarsare taught such side as Victorby side Flatt with have the evaluatedecological thesuccess weaknesses of restoration of risk at -thebased site. corrective actions and exposed the potentialWhile failure I conclude to reach that fair in resultsseveral thatareas would the restorationotherwise beis achievingexpected underidentified common objectives, law doctrine. the areas86 Under where this the view, RMA RBCA Refuge is norestoration more than falls a shortperversion of those of thebenchmarks polluter pays provide concept, opportunities the idea thatfor refiningthe actor expectations who has causedregarding pollution restorations should inbear general. the cost Th ofe remedyingRMA Refuge associated is a work harm-in- progress,from such yet pollution. it has 87already Further, produced RBCA lessonsdoes not for adequately managing redresspublic responseharm to tothe restoration victim in projectsa way thatand how image control can thwart public support. As succinctly stated by the Remediation Venture Office (RVO)9: “[r]eturning the Arsenal82 Id. atto 2 75.a community asset requires a comprehensive effort.” 10 83 Community Involvement Plan for Rocky Mountain Arsenal Contamination Cleanup, Public Relations Office 5-7 (Revised Plan published depthJanuary of 52008). feet in some areas and 10 feet in others. Press Release, Colo. Dep’ts of L.84 &Id .Pub. Health & Env't, The Natural Resource Damage Assessment, (Oct. 29, 852007) Public at input3-22 (citingis required specifically both underto South CERCLA, Plants Central42 U.S.C. Processing § 9617 (2006) Area and theFormer National Basin Environm F). The entalreduction Policy in Act.amount of NRD ultimately reached by the 86settlement Victor B. indicate Flatt, s“[H]e that Shouldthe plume At mayHis bePeril shrinking Keep It at There…”: a faster rateHow than the anticipated.Common Law Tells Us That Risk Based Corrective Action Is Wrong, 76 NOTRE DAME8 Study L. REV Space. 341 (2001).III: Private and Public Lands in the Post-Colonial North American87 Although West tookthe polluterplace in- paysDecember principle 2008. is crafted Study asSpace a rule III ofwas preve a projectntion ofin LatCritits formulation and the Georgiaby the StateOrganization University for College Economic of Law Cooperation Center for andthe ComparativeDevelopment, Studyit has of evolvedMetropolitan as aGrowth. principle Study for Spaceliability provided and restoration. a unique opportunityOrganization for for participants Economic toCooperation engage in deepand Developmentreflection on (OECD),place and Guiding history withinPrinciples a diverse Concerning group ofInternational scholars. Economic Aspects of Environmental Policies, Recommendation C(72) 128, para. 4, adopted May 26, 1972, reprinted in 119 The ILM RVO 1172 refers (1972). to the See partners Sanfordhip E. between Gains, TheShell, Polluter the US- PaysArmy Principle: and Fish Fromand Wildlife Economic to transform Equity to the Environmental site into a wildlife Ethos refuge., 26 TEX . INTL. L. J. 463, 471- 487 10(1991). Milestones, The Evolution of the Rocky Mountain Arsenal, brochure 142414221168 47 JO HN MARS HALL L. REV. 142414221168 Vol. 47:4 comportsdifferent fromwith its“o nepredecessors, of our most particularly bedrock common since it lawshad —thethat benefit the harmingof two years party of planning. should compensate the victim when that is possible.”Like 88the Others shift havein conference supported scheduling, these measures other changesas practical, have takenand partplace of within a realistic the LatCrit approach entity to, includingachieving concerted environmental efforts toprotection. continue89 aThe process sentiment of institutionalization. of many within theIn recentDenver years, community there hasis a beenmixed a growingbag of resentmentfocus on how for to the capitalize long over on- dueits criticalcleanup, niche, but continuerealism thatcultivating the refuge the wasnext a generationcheaper alternative of critical than scholars, a cleanup and ensurewhich thatwould the have bato nresulted of outsider in landjurisprudence usable foris passedthe growing along. Internally,metropolitan the area. organization90 has shifted, including a gradual changing of the guard in leadership, so to speak, as well as a downsizing B.in Historicaladministration. Fidelity: For Back example, to What from Past? 2008 to the present, the Board of Directors was intentionally downsized, with a growingKey in numberthe debate of overBoard faux seats nature being is occupiedthe choice by of juniorrestoration law professors.endpoint. Completely6 separate from the question of human health and Anotherenvironmental major cleanupdevelopment standards is LatCrit’sis the vision acquisition for a certain of a idealizedphysical spacestate offor nature, the organization. which is sought The inproperty, restoration Campo projects. Sano91 (SpanishFor many, for the “Camp commitment Healthy,” to or historical more literally, fidelity “Campin a restoration Sanity”), is a tenmeasure-acre parcelof a successfulof land located restoration in Central project. Florida. Restorationists7 Purchased urge by LatCritthat this in element2011, the not space be takenis home for togranted, The Living in favor Justice of Centersimply andpreferring the LatCrit an environm Communityent Campus.that is 8biologically The physical functioning, facility serves and deliveringas a means the “to most level highlythe playing valued field ecosystem and give services LatCrit (e.g., activists water a filtration,fighting chance flood to prevention)be heard.”9 Thethat space a particular is intended place can be engineered to produce. Complicating the achievement of an identifiedto servehistorical as thepast hub is ofthe their shifting educational, baseline research,and lack of recordsadvocacy documenting and activismthe past. to remedy the imbalance and Clearly,deficiencies in theof casethe ofcurrent the RMA, legal severalsystem. “pasts” Having could an have been chosenindependent for the physical restoration base— in hasan erabecome prior criticalto the militaryas activitiesuniversities farming andwas lawa prevalent schools increasinglyuse of the land. are evenIn Nature less By Design, Eric Higgs emphasizes why historical fidelity is as important in successful restoration as biological integrity by

Namingfocusing and on Launchingthe importance a New Discourse of place of andCritical its Legal connection Scholarship with, 2 HnarrativeARV. LATINO continuity. L. REV. 1 (1997).While restorations do create a landscape that is Seehuman also LatCritengineered, Biennial Higgs Conferences gives , voiceLATC RITto: LtheATINA concern & LATINO or CimperativeRITICAL LEGAL that TrestorationHEORY, INC .,connect http://latcrit.org/content/conferences/latcrit us with the land rather than- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous elevateconferences, technological and providing optimism direct linksabove to environmentalview symposia articles ethic. for “ Ifsome we canyears maintain(found by thefollowing link betweenthe respective science year’s and humanitylink to its correspondingthrough the studywebpage). of history, restoration will allow us to act distinctively on ourAdditionally, longings forLatCrit integrity has developed of the past,a substantial ensuring body the of stewardshipscholarship from of several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.88, Idhttp://latcrit.org/content/publications/latcrit. at 373. In criticizing the EPA for adopting-symposium/ RBCA in administrative(last visited decisions,July 5, 2014). Flatt posits that it is a result driven due to agency capture by industry6 These interests. include Id. Profe at 372.ssors Marc-Tizoc González, Andrea Freeman, and César89 GeraldCuahtémoc W. Phillips, García Rethinking Hernández. Restoration: See About LatCritRisk Based, supra Corrective note 3 (listingAction theand professorsthe Future ofon Economic the LatCrit Regulation Board , of16 DirectorsN. ILL. U. L.and R EVtheir. 659 respective (1996). law schools).90 Groundwater contamination also represents a limitation on potential growth7 Campo offsite. Sano , LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,91 http://www.latcrit.org/content/campo A. Dan Tarlock, Slouching Toward- sano/Eden: (lastThe Ecovisited-pragmatic July 5, 2014).Challenges of Ecosystem8 Id. Revival, 87 MINN. L. REV. 1173 (2003) (focusing on the trouble of identifying9 Id. an endpoint of restoration as getting back to what past). Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 142514011423 historicalThe organizersas well as ofcontemporary Study Space dimensions III were aware of the of world how aroundunique andus.” 92important the RMA Refuge is to the history and development of theArguably Denver region.the RMA8 During Refuge our isstay on in aDenver, path theto participantssuccessfully meetingin Study theSpace historical were given fidelity a tour criteria. of the FWS RMA wildlifeRefuge biologiststhat included are attemptingtwo parts: tothe re -ongoingcreate the cleanup prairies activities that existed with priorimmense to the areas use of thedredged area soilfor andfarming. landfills, Toward and thethat sections end, plants open andto the vegetation public with are broughtprairie dog in habitat,and planted clear at lakes, the site,dusty including fine grass blue prairie, flax, andblues bison.tem, blueThe RMAgamma, Refuge’s buffalo, future iswestern markedly wheat at odds grasses, with its pastand legacysand sagebrush.of environment93 Speciesal degradation. such as Thisdeer, dramaticbadgers, contrastprairie providesdogs, bald a eagles,unique hawkswindow and intobison thehave increasinglybeen reintroduced dominant to the siteimpulse or, —in thefrequently case of somein the birds, context migrated of mitigatingthere. the impacts of urban developmentOn the— toother focus hand, on restoration historical andfidelity creation conflicts of “faux with nature” the interestas a substitute in leaving forin placeenvironmental certain exotic conservation. species of plants This that paper will serveexamines to thedeter RMA prairie Refuge dogs restoration from moving in terms into of areaskey benchmarks yet to be decontaminated.of successful restorations:94 Furthermore, 1) biologicalthe prairie integrity; will not 2) be historicalrestored everywherefidelity; 3) inidentifying order to continueroot causes to support of and a addressingmore diverse practices variety ofleading species to that environmental has developed deg overradation; time dueand to finally,human intrusions4) public ontoengagement, the landscape. connecting95 with the public and encouraging environmentalism.By focusing on Restoration narrative iscontinuity a choice amongand the a varietyimportance of land of place,use options, we can and better I emphasize understand the why need the for public community is concerned acceptance with obscuringand involvement the true because history theof theelement RMA. ofIt choiceis important is often to subsumedrecognize theby conflictspast and over our historicconnections conditions with it.and We what can isexperience natural. Mythe thesisplace ofis thatthe RMAthe restoration Refuge as will a uniquebecome decisiona community to return asset the only land if theto wildlifelessons supportingof the past habitat. are taught side by side with the ecological success of restoration at the site. WhileC. Identifying I conclude Root that Causes in several and Addressing areas the Sou restorationrces of is achieving identified objectives,Degradation. the areas where the RMA Refuge restoration falls short of those benchmarks provide opportunities for refiningRestoration expectations of damaged regarding environments restorations often in general.results Thine improvedRMA Refuge ecosystems is a work and-in-progress, beneficial yet wildlifeit has alreadyhabitat. produced Many restorationslessons for managinginvolve human public interventionresponse to torestoration undo harm. projects But andthe expectationhow image controlthat canrestoration thwart public will support. encourage As succinctly a deeperstated environmeby the Remediationntal ethic requiresVenture analyzing Office (RVO)whether9: “[r]eturningthe harm thatthe neededArsenal toto bea community“undone” by asset the restorationrequires a iscomprehensive likely to re- occur.effort.” In10 other words, will further restoration be required at the site in the depthfuture of 5because feet in somepeople areas will and 10continue feet in others.to take Press actions Release, leadingColo. De p’tsto ofenvir L. &onmental Pub. Health degradation? & Env't, The96 Natural In a critiqueResource Damageof restoration Assessment practice,, (Oct. 29, 2007) at 3-22 (citing specifically to South Plants Central Processing Area and Former Basin F). The reduction in amount of NRD ultimately reached by the 92settlement ERIC H IGGSindicate, NsATURE that the BY plumeDESIGN may: P beEOPLE shrinking, NATURAL at a fasterPROCESS rate, thanAND anticipated.ECOLOGICAL R ESTORATION 158 (2003). 938 StudyCohn, supraSpace noteIII: Private80 at 277. and Public Lands in the Post-Colonial North American94 Id. WestCrested took wheatgrass place in December would 2008.be maintained Study Space in areasIII was surrounding a project of formerLatCrit contaminatedand the Georgia sites priorState toUnive remediation.rsity College Because of Law this grassCenter grows for the2-3 feetComparative in height, Study prairie of dogsMetropolitan cannot see Growth. over it Studyand are Space reluctant provided to move a unique into thatopportunity area. Id. for participants to engage in deep reflection on place and history within95 Id a. diverse group of scholars. 96 For an in depth look at ecosystem restoration through five complex case studies,9 The including RVO refers examination to the partners of successeship between and set Shell,-backs the over US time,Army seeand M FishARY DandOYLE Wildlife AND CtoYNTHIA transform A. D theREW site, LARGE into -Sa CALEwildlife ECOSYSTEM refuge. RESTORATION (2008) (parenthetical10 Milestones, needed). The EvolutionRelated to ofthis the challenge Rocky Mountainis where restorationsArsenal, brochure fail to 142614241168 47 JO HN MARS HALL L. REV. 142614241168 Vol. 47:4

Professordifferent fromAlyson its Flournoypredecessors, has arguedparticularly that sinceidentifying it had the the reasonsbenefit forof two environmental years of planning. degradation is a foundational, yet often overlookedLike the step shift in a insuccessful conference restoration. scheduling,97 other changes have takenWhether place within the RMA the LatCritRefuge restorationentity, including meets concertedthis benchmark efforts torequires continue looking a process at it fromof institutionalization. both a broad and Innarrow recent view. years, Broadly there hasspeaking, been a thegrowing key focuslegal onprovision how to capitalizedriving onthis its restorationcritical niche, is continueCERCLA. cultivatingThe adoption the nextof generationCERCLA ofitself, critical with scholars, provisions and ensureallowing that restoration the bato n orof outsideracquiring jurisprudence the equivalent is passed of natural along. Internally,resources that the haveorganization been damaged has certainlyshifted, includingspeaks of recognitiona gradual changingthat past ofhazardous the guard waste in leadership,practices were so toinsufficiently speak, as wellprotective as a downsizingof the environment. in administration. CERCLA isFor now example, driving fromcleanups 2008 at tomany the present,sites that the were Board former of Dire militaryctors wasinstallatio intentionallyns. Congress downsized, could havewith adesigned growing the number law to ofexclude Board these seats sites. being Instead, occupied Congress by junior adopted law professors.specific provisions6 to address federal facilities and CERCLA’s broadAnother remedial major goals developmentare implemented is LatCrit’sat military acquisition sites as well of asa privatephysical property. space for the organization. The property, Campo Sano (SpanishOn thefor “Campother handHeal,thy,” if one or morelooks literally,narrowly “Camp at the Sanity”), situation, is becausea ten-acre the parcel RMA of Refugeland located is a formerin Central military Florida. site,7 Purchased all the root by causesLatCrit thatin 2011, can bethe addressed space is homeare not to beingThe Livingimpacted. Justice If one Center key pieceand the of aLatCrit successful Community restoration Campus. is its 8capacity The physical to identify facility and serves exert pressureas a means to prevent“to level future the playing environmental field and impacts, give LatCrit the RMA activists is not a likelyfighting to chancefare well to bein heard.”a narrow9 The view. space This is intendednarrower view requires that we look at the intersection of military policy and environmentalto serve laws,as the which hub ofdo theirnot haveeducational, such aresearch, harmonious interplay.advocacy and activism to remedy the imbalance and First,deficiencies as a federof theal facilitycurrent cleanup, legal system.the cleanup Having project an has been significantlyindependent hamperedphysical bybase the U.S.has Army’sbecome insistencecritical thatas its objectivesuniversities and prerogatives and law areschools of more increasingly weight than are evenany others.less It is this concern about adequate oversight by the EPA of the U.S. Army that led the 10th Circuit to rule in favor of State involvement in enforcement of hazardous waste laws in U.S. v. Naming and Launching a New Discourse of Critical Legal Scholarship, 2 98 HStateARV. LofATINO Colorado L. REV. .1 (1997). Moreover, given the history of less than aggressiveSee also cleanupLatCrit objectives,Biennial Conferences the 10th , Circuit’sLATCRIT: reasoningLATINA & inL ATINOthat caseCRITICAL has LbeenEGAL vindicatedTHEORY, INCin. , thehttp://latcrit.org/content/conferences/latcrit RMA Refuge story. By this view,- militarybiennial-conferences/ policy looks (last morevisited Julybroadly 5, 2013) at (providingsecuring a thelist ofpeople the previous from conferences, and providing direct links to view symposia articles for some outsideyears (found aggressors, by following although the respectivethose efforts year’s may link at to times its corresponding be at odds withwebpage). sustainable environmental actions. Additionally,The 2008 LatCrit Supreme has developed Court adecision substantial in bodyWinter of scholarship v. Natural from Resourcesseveral other Defensestand-alone Council symposia: points inter aliato thea Southlack -Northof precautionary Exchange, the approachStudy Space to Series,military the operations International that and may Comparative significantly Colloquia. impact LatCrit the Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). take6 intoThese consideration include Profe all ssorsinputs. Marc For -example,Tizoc González, shallow Andrealake restorations Freeman, have and Césarbeen particularlyCuahtémoc problematic.García Hernández. For a Seediscussion About LatCritof the , restorationsupra note 3of (listing Lake theApopka professors and need on forthe adaptive LatCrit managementBoard of Directors in restoratio and theirn projects, respective see Mary law schools).Jane Angelo, Stumbling Toward Success: A Story of Adaptive Law and Ecosystem7 Campo Resilience Sano, ,L 87AT CNRITEB.: L.L ATINAREV. 950AND (2009). LATINO CRITICAL LEGAL THEORY, INC,97 http://www.latcrit.org/content/campo Flournoy, supra note 66, at 192. -sano/ (last visited July 5, 2014). 988 Id. United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993), cert. denied, 510 9U.S. Id. 1092 (1994). Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 142714011425 environment.The organizers99 In Winter of Study, petitioners Space III challenged were aware as inadequateof how unique the andEnvironmental important theAssessment RMA Refuge (EA) preparedis to the byhistory the Navyand development in 2007 for oftraining the Denver to be region.conducted8 During off the our coast stay ofin CaliforniaDenver, the in participantsthe Pacific inOcean. Study The Space lower were court given issued a tour an ofinjunction the RMA Refugeagainst thatthe includedtraining twooperations, parts: pendingthe ongoing evaluation cleanup ofactivities the substantive with immense claims. areas The of dredgedSupreme soil Court and ruled landfills, that andthe lowerthe sections court didopen not to p theroperly public defer with to prairiethe military’s dog habitat, interest clear in lakes,training dusty operations fine grass involving prairie, andsonar bison. for Thenational RMA security.Refuge’s100 future While is markedlythe substantive at odds withissues its stillpast lackedlegacy resolution,of environment an injunctional degradation. would This have dramatic prevented contrast harms providesthat have a beenunique proven window to occur into to thewhales increasingly due to sonar dominant submarine impulse training— events.frequently The in court’s the contextbalancing of approachmitigating in theweighing impacts military of urban and environmentaldevelopment— toneeds focus lackson restoration foresight. andIt failscreation to prevent of “faux the nature” need foras futurea substitute actions tofor undo environmental environmental conservation. harm. This paper examinesSome thehave RMA sought Refuge to restorationcast the storyin terms of Winterof key benchmarksin a more positiveof successful light, restorations:arguing that 1) thebiological Navy hadintegrity; conceded 2) historicalthat its activitiesfidelity; 3)would identifying cause harm root andcauses that ofit wouldand addressing make certain practices efforts toleading reduce to thoseenvironmental harms. But deg ultimately,radation; andthe finally,military’s 4) goalpublic is nationalengagement, security. connecting The tradeoffs with arethe balanced public in anda way encouraging that other importantenvironmentalism. goals, such Restoration as environmental is a choice protection,among a variety may haveof land to giveuse options,way to thatand ultimateI emphasize objective. the need To parallelfor community the RMA acceptance Refuge, it wouldand involvement be difficult because to predict the howelement or toof whatchoice extent is often the subsumed cache of weaponsby conflicts produced over historic by the conditionsarsenal supported and what our is natural.national My security. thesis Itis ithats sufficient the restoration to say that, will onbecome the whole, a community national securityasset only tends if the to getlessons the ofupper the handpast arewhen taught conflict side with by sideenvironmental with the ecologicalpolicy is inevitable.success of 101restoration at the site. Unfortunately,While I conclude we thathave ina severalpropensity areas to thedeceive restoration ourselves is aboutachieving the identifiedeffectiveness objectives, of restoration the areas or technological where the RMAfixes, andRefuge in turnrestoration this fallsdeception short offacilitates those benchmarks continued providedestruction opportunities of the environment.for refining 102expectations The deception regarding runs restorations beyond overestimating in general. Thoure capacityRMA Refuge to re -createis a work natural-in-progress, processes, yet but it alsohas inalready the capacity produced for lessonsrestoration for managingto foster publicenvironmentalism. response to 103restoration This benchma projectsrk and of how image control can thwart public support. As succinctly stated by the Remediation Venture Office (RVO)9: “[r]eturning the Arsenal99 555 toU.S. a 7community (2008); see alsoasset Alicia requires Schaffner, a comprehensive National Security effort.” vs. The10 Whales: The Navy and The Natural Resource Defense Council Battle Their Way to the Supreme Court, 1 SEA GRANT L. & POL’Y J. 82 (2008) (parenthetical needed).depth of 5 feet in some areas and 10 feet in others. Press Release, Colo. Dep’ts of L.100 & WinterPub. Health, 555 &U.S. Env't at, The26-27 Natural (2008) Resource (finding Damagethat the Assessment “balance of, (Oct. the 29,equities 2007) andat 3consideration-22 (citing specifically of the overallto South public Plants interest Central inProcessing this case Area tip andstrongly Former in favor Basin of F).the TheNavy”). reduction in amount of NRD ultimately reached by the 101settlement The Supreme indicate Courts that noted the plumein Winter may that be shrinking “[o]f course, at amilitary faster rateinterests than anticipated.do not always trump other considerations, and we have not held that they do. In this8 Study case, Space however, III: Privatethe proper and determination Public Lands of in where the Post the-Colonial public interest North Americanlies does not West strike took us place as a inclose December question.” 2008. Winter, Study 555 Space U.S. IIIat was26 (2008). a project of LatCrit102 Forand a thefull Georgiadiscussion State of this Unive tendencyrsity Collegesee William of Law H. Rodgers, Center Jr.,for Thethe ComparativeMyth of the Win Study-Win, of MisdiagnosisMetropolitan inGrowth. the Business Study of Space Reassembling provided Nature a unique, 42 opportunityARIZ. L. REV for. 297 participants (2000). In tothis engage essay inProfessor deep reflection Rogers onargues place that and we history have causedwithin aa diversegreat deal group of harmof scholars. to nature under the mistaken belief of a “win-win” solution. Id. at 306 1039 The Richard RVO refersCowell, to Stretchingthe partners thehip Limits: between Environmental Shell, the US Compensation,Army and Fish Habitatand Wildlife Creation to transform and Sustainable the site into Development a wildlife refuge., in 22 TRANSACTIONS OF THE INSTITUTE10 Milestones, OF B RITISHThe EvolutionGEOGRAPHERS of the 292Rocky (1997). Mountain When Arsenal, challenging brochure the 142814261168 47 JO HN MARS HALL L. REV. 142814261168 Vol. 47:4 restorationdifferent from is designedits predecessors, to question particularly whether sincewe have it had put the the benefit cart beforeof two yearsthe ofhorse planning.—is the restoration being driven by our environmentalLike the shiftharms in orconference by an interest scheduling, in correcting other whatchanges we have takenaccepted place are withinpast mistakes. the LatCrit entity, including concerted efforts to continue a process of institutionalization. In recent years, there has beenD. Publica growing Engagement: focus on howConnecting to capitalize with theon itsPublic critical and niche, continue cultivatingEncouraging the next generation Environmentalism. of critical scholars, and ensure that the baton of outsider jurisprudence is passed along. Internally, Some the restorationsorganization willhas shifted,spring includingfrom agrassroots gradual changingorganizations, of the interested guard inin leadership,improving theirso to naturalspeak, assurroundings well as a downsizingand thus have in anadministration. automatic constituency. For example, Other from restorations, 2008 to suchthe present,as the theRMA Board Refuge of Dire restoratioctors wasn, intentionally are mandated downsized, by legalwith arequirements growing number in response of Board to seatsdevelopment being occupied or pollution by junior events. law professors.Engaging 6the public with restoration work such as this would includeAnother an important major developmentgroup of stakeholders. is LatCrit’s In acquisitionfact, those legalof a requirementsphysical space havefor the designed organization. public The input property, pathways, Campo oftenSano enhancing(Spanish for transparency “Camp Heal thy,”and orthus more legitimacy literally, “Campin a Sanity”),democratic is society,a ten-acre serving parcel asof landa supplement located in Centralto the Florida.values 7and Purchased objectives by advancedLatCrit in by2011, government the space andis homethe privateto The Livinginterests Justice represented, Center and theboosting LatCrit enforcement Community effectiveness. Campus. 8 104The Moreover, physical facilityif restora servestion isas toa meansachieve “to the level goals the playingof educating field and and give building LatCrit community, activists a ultimatelyfighting chance to the to extentbe heard.” of the9 The larger space goal is intendedscholar William Jordan III, author of The Sunflower Forest identifies as “learning to live graciouslyto serve on thisas theplanet” hub, 105of thentheir publiceducational, engagement research, is an importantadvocacy feature and of restorationactivism to work. remedy the imbalance and Thedeficiencies story ofof publicthe current engagement legal system.in the Having RMA anRefuge restorationindependent is still physicalbeing written. base Leadinghas become up to criticaladoption asof the ROD, universitiesthe public andwas lawvery schools engaged increasingly in providing are evencomments less to reports and proposals the Army presented. The Army held public meetings, produced videos and other literature to inform the 106 publicNaming aboutand Launching the development a New Discourse of cleanup of Critical objectives. Legal Scholarship A RMA, 2 AdvisoryHARV. LATINO Board L. R EV(RAB). 1 (1997). and a Site Specific Advisory Board (SSAB) wereSee formedalso LatCrit to help Biennial disseminate Conferences information, LATCRIT to: LtheATINA public & LaboutATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some processyears (found of restorationby following as theinsufficiently respective year’sabiding link tenets to its ofcorresponding sustainable development,webpage). Richard Cowell identifies over-reliance on our ability to re-create naturalAdditionally, capital asLatCrit insufficiently has developed precautionary. a substantial If restoration body of scholarshipactually instilled from severalvalues suchother as stand restraint,-alone favoringsymposia: resilience, inter alia etc. the that South ultimately-North Exchange, benefited the environmentStudy Space Series,then thesethe International can be carriedand Comparative forward towardColloquia. increased LatCrit Symposiaenvironmental, LAT CprotectionRIT: LAT CinRIT policy: LATINA and individual& LATINO actions. CRITICAL Id. atL EGAL294-95. T HEORY, INC.104, http://latcrit.org/content/publications/latcritSee Eileen Gauna, The Environmental-symposium/ Justice Misfit:(last Publicvisited ParticipationJuly 5, 2014). and the Paradigm Paradox, 17 STANFORD ENVTL. L. J. 3, 17-31 (1998)6 These (analyzing include different Professors forms Marc of- Tizoccitizen González, engagement Andrea in enviFreeman,ronmental and decisionCésar Cuahtémoc-making and García each Hernández.model’s underlying See About rationales). LatCrit , supra note 3 (listing the 105professors WILLIAM on theJORDAN LatCrit III, Board THE of SDirectorsUNFLOWER and F ORESTtheir :respective ECOLOGICAL law schools).RESTORATION AND THE NEW COMMUNION WITH NATURE 6 (2003). 1067 Campo The ROD Sano at, SectionLATCRIT 12: LdetailsATINA theAND various LATINO methods CRITICAL of publicLEGAL outreach,THEORY, IincludNC, http://www.latcrit.org/content/campoing a history of the “community-sano/ relations (last visitedactivities” July 5,at 2014).12.2, and extensive8 Id. record of the response to public comments in section 12.3. ROD, supra9 Id. note 37, at §§ 12.2, 12.3. Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 142914011427 the cleanupThe organizers and receive of Study public Sp commentace III were and inputaware onof thehow cleanupunique andprocess important that would the RMAfollow Refuge adoption is to ofthe the history ROD. and Because development of the ofnature the Denverof this region. restoration,8 During ourthe staypublic in Denver,could bethe significantlyparticipants involvedin Study bySpace providing were given comments, a tour ofbut the could RMA not Refuge take that part included in the worktwo parts: to transform the ongoing the refuge cleanup from activities hazardous with waste immense site to areasnatural of habitat.dredged soilSome and in landfills,the community and the expressed sections opentheir tounhappiness the public withthat theprairie soil dogremediation habitat, clearwas notlakes, more dusty robust. fine 107grassOthers prairie, cited andthe bison.limits toThe growthRMA Refuge’s that futurewould is bemarkedly required at oddsbecause with itscontaminate past legacyd groundwaterof environment couldal degradation. not serve This as dramatica potential contrast water provides supply. a Nonetheless,unique window there into are themany increasingly people in thedominant community impulse that— embracefrequently the in refuge the ascontext a community of mitigating asset capablethe impacts of informing of urban and educatingdevelopment others—to focusabout on the restoration natural environment and creation andof “faux the neednature” for conservatioas a substituten. Such fora result environmental illustrates thatconservation. it is not onlyThis hands paper-on examineswork that the engages RMA Refuge the communityrestoration into termsappreciate of key thebenchmarks restored oflandscape, successful but restorations:also outreach, 1) sharing biological ideas, integrity; and planning 2) historical for the fidelity;future. Response3) identifying to publicroot causessurveys of andregarding addressing Army practices efforts leadingindicated tomore environmental attention and deg explanationradation; ofand how finally, public comments4) public engagement,were incorporated connecting into the withdecision the-making public processand wasencouraging needed. environmentalism.Another important Restorationtheme that is emerged a choice wasamong the aneed variety to educateof land usepeople options, about andthe historyI emphasize of the the arsenal need forand community the immensity acceptance of the andtransformation. involvement because the element of choice is often subsumed by conflictsOn a very over basichistoric level conditions there is anda tension what isbetween natural. burying My thesis the ispast that and the shining restoration a light will on becomepast failures. a community The hazardous asset only materials if the lessonsthreatening of the human past andare wildlifetaught areside literallyby side buried with theon site.ecological Some successmembers of ofrestoration the public at thethat si havete. stayed involved in the cleanup processWhile have I concludeon numerous that inoccasions several areascharged the the restoration RVO with is achievingbreaching identifiedthe public objectives, trust by the hiding areas the where truth the or RMA seeking Refuge to restorationobscure the fallshistory short of theof thosearsenal. benchmarks In the July provide 2007 Citizen opportunities Report, forthe refiningSite Specific expectations Advisory regardingBoard (SSAB) restorations used several in general.items as Ththee RMAbasis forRefuge its argumentis a work that-in-progress, the Army yet and it Shellhas alreadyhad contempt produced for lessonsthe public. for Illustrativemanaging publicof the conflictresponse over to characterizingrestoration projects the site and is howan incident image controlinvolving can signage thwart andpublic marketing support. Asof thesuccinctly RMA Refuge. stated byIn 1998the theRemediation SSAB raised Venture several Office issues (RVO) with9 :the “[r]eturning National EthePA ArOmbudsman.senal to a communityOne complaint asset requireswas that a therecomprehensive were inadequate effort.” 10 warnings that the site was the location of an ongoing CERCLA depthcleanup of 5 andfeet inprevious some areas military and 10 feetarsenal. in others. The Press term Release, “Arsenal” Colo. De hadp’ts ofbeen L. & droppedPub. Health from & Env't signage,, The Natural identifying Resource the Damage wildlife Assessment refuge, (Oct. as 29,simply 2007) the at 3R-22ocky (citing Mountain specifically National to South WildlifePlants Central Refuge. Processing The SSAB Area andwas Formerconcerned Basin that F). The this reduction obscured in amountthe true of NRDnature ultimately of the reachedsite as bya thehazardous settlement waste indicate sites that and the plumewas maypurposefully be shrinking done at a fasterto minimize rate than anticipated. public8 Study awareness Space III: ofPrivate the contaminationand Public Lands and in thehistory Post-Colonial of the Northsite. AmericanAlthough West the took SSAB place indemanded December 2008.that Studythe ArmySpace IIIand was Shella project use of LatCritdifferent and signage, the Georgia their Staterequest Unive wasrsity notCollege honored. of Law Ultimately, Center for thethe ComparativeSSAB appealed Study to of the Metropolitan Deputy AssistantGrowth. Study Secretary Space providedof the Armya unique at opportunity for participants to engage in deep reflection on place and history within a diverse group of scholars. 107 ROD, supra note 37, at § 10.2.2, (noting that while comments received from9 Thethe RVOpublic refers indicated to the the partners remedyhip as between an acceptable Shell, the approach US Army to and“reduce Fish risksand Wildlife at a reasonable to transform cost” the there site were into asome wildlife comments refuge. that expressed that the remedy10 Milestones, should include The additionalEvolution soilof treatment).the Rocky Mountain Arsenal, brochure 143014281168 47 JO HN MARS HALL L. REV. 143014281168 Vol. 47:4 thedifferent Pentagon from itswho predecessors, required that particularly warning signssince itbe had placed the benefitat the entranceof two years and of planning.the term “Arsenal” be included in the title. In responseLike tothe the shift discovery in conference of the sarinscheduling, gas bomblet other changesin October have of taken2000, asplace previously within thediscussed, LatCrit theentity SSAB, including characterized concerted the effortsRMA toRefuge continue quite a differently: process of institutionalization. In recent years, there has beenThe aRocky growing Mountain focus on Arsenal how to capitalize(Hazardous on itsWaste) critical National niche, continueWildlife Refugecultivating was thenow nextaffectionately generation referred of critical to asscholars, the Sarin and- ghettiensure , thatwhich the stayed bato nclose of outsiderto the public, jurisprudence along with is passedthe RMA, along. for almostInternally, two yearsthe .organization108 has shifted, including a gradual changingIndeed, of thethe SSABguard identifiesin leadership, a silver so liningto speak, to the as discovery well as ofa downsizingdeadly sarin ingas administration. and the dispute For between example, the Armyfrom and2008 the to State the present,of Colorado the Boardover how of Direto ctorssafely was dispose intentionally of it. In downsized, the 2000 -2005with areview, growing the number SSAB ofsuggests Board seatsthat beingthe episodeoccupied destroyedby junior “thelaw professors.propagandized6 illusion that the ‘clean-up’ at RMA was complete and Anotherthat the major public development was safe whenis LatCrit’s they visited acquisition the Rockyof a physicalMountain space Arsenal for the (Hazardousorganization. Waste)The property, National Campo Wildlife Sano (SpanishRefuge.” 109 for “Camp Healthy,” or more literally, “Camp Sanity”), is a ten -acreThe parcelrefusal of of land the locatedArmy andin Central Shell to Florida. conduct7 Purchasedsampling forby LatCritdioxin was in 2011,another the unfortunate space is home public to relationsThe Living challenge. Justice 110Center The SSABand the requested LatCrit thatCommunity the soil Campus.be tested8 forThe dioxin physical as earlyfacility as serves1992. Basy athe means time “tothe lRODevel thewas playing final, thefield state and wasgive conductingLatCrit activists samples a forfighting dioxin. chance The EPAto be eventuallyheard.”9 The conducted space is theintended testing, and released a report in 2000 detailing the areas contaminated by dioxin. The SSAB topraised serve theas EPA’sthe hubwork, of buttheir condemned educational, the inactionresearch, of the Army advocacyand Shell, and pointing activism to totheir remedy steadfast the imbalancerefusal to andinitiate additionaldeficiencies site characterization.of the current legalAnother system. point Having of contention an involvesindependent the Army physicaland Shell's base petition has tobecome increase critical the amount as of Diisopropyluniversities Methylphosphonate and law schools (DIMP) increasingly that can are beeven released less to groundwater. 111 DIMP is a chemical by-product of sarin, created during manufacture or detoxification. 112 The EPA's allowable standard for DIMP is 600 ppb, while that of the State of Colorado Naming and Launching a New Discourse of Critical Legal Scholarship, 2 isHARV 8ppb.. LATINO Although L. REV . the1 (1997). Army and Shell contend that there are no furtherSee alsohealth LatCrit impacts Biennial associated Conferences with, LAT CtheRIT : higherLATINA &allowable LATINO dischargeCRITICAL L levelEGAL becauseTHEORY, theINC .,residents http://latcrit.org/content/conferences/latcrit in the vicinity of the plume- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage).108 RMA Site-Specific Advisory Board, Citizen Report Re: Rocky Mountain ArsenalAdditionally, “Clean-up” LatCrit 2000 -has2005 developed Five Year a Review,substantial July body 16, 2007 of scholarship at 8. from several109 Id. other The standSSAB-alone do not symposia: consider interthe actions alia the at Souththe RMA-North Refuge Exchange, a cleanup the becauseStudy Space there Series,will continue the International to be contamination and Comparative of the Colloquia.site following LatCrit the Symposiaselected remedy., LATC RITTherefore,: LATCRIT the: LSSABATINA consistently& LATINO identifiesCRITICAL theLEGAL term TcleanupHEORY, IinNC quotations.., http://latcrit.org/content/publications/latcrit Id. at 1. -symposium/ (last visited July110 5, Id 2014).. at 5. 1116 These Department include ofProfe the ssorsArmy, Marc Rocky-Tizoc Mountain González, Arsenal, Andrea “Final Freeman, 2005 Five and- YearCésar ReviewCuahtémoc Report García for Hernández.Rocky Mountain See About Arsenal, LatCrit Commerce, supra note City, 3 Adams(listing County,the professors Colorado,” on theReview LatCrit Period: Board April of 1, Directors 2000-March and 31, their 2005, respective Volume lawI of III,schools). (November 2007). 1127 Campo AGENCY Sano FOR ,T LOXICATC SRITUBSTANCES: LATINA AND DLISEASEATINO CRRITICALEGISTRY ,L U.S.EGAL D EPTHEORY'T OF , HINCEALTH, http://www.latcrit.org/content/campo AND HUM. SERVICES, CAS NO. 1444-sano/-75 -6, (last PUBLIC visited H EALTHJuly 5, 2014). STATEMENT8 Id. : DIISOPROPYL METHYLPHOSPHONATE (1998), http://www.atsdr.cdc.gov/Tox9 Id. Profiles/tp119-c1-b.pdf. Vol. 47:4 The Rocky Mountain Arsenal National Wildlife Refuge 143114011429 have Thebeen organizers connected ofto Study an alternative Space III supplywere awareof water, of how it presents unique anda perception important thatthe RMAthe ArmyRefuge isis interestedto the history in doingand development less than ofnecessary the Denver to protectregion. 8 theDuring public. our stayThough in Denver,these incidentsthe participants detail bumpsin Study in Space a long were road, given erosion a tour ofof thetrust RMA and Refuge the persistence that included of suspiciontwo parts: is easierthe ongoing to understand cleanup withactivities them within mind. immense areas of dredgedWhile soil it and may landfills, not be andpossible the sectionsto bring open the topublic the public in on with the restorationprairie dog habitat,work occurring clear lakes, physically dusty fineon thegrass site, prairie, it is andclear bison. that merelyThe RMA having Refuge’s an futureexchange is markedly with the at publicodds with is insufficientits past legacy to ensureof environment the successal degradation. of the restoration.This dramatic113 Emphasis contrast provideson image a controlunique canwindow thwart into grassroots the increasingly support fordominant the project. impulse While— groundworkfrequently inencouraging the context engagement of mitigating and thepublic impacts support of forurban the projectdevelopment ideally— toshould focus haveon restoration been conducted and creation prior to ofthe “faux restoration, nature” itas is anever substitute too late for to engageenvironmental the community conservation. in the workThis atpaper the refuge.examines This the includes RMA Refuge all the restoration glamorous in parts terms as of well key as benchmarks the “dirty” ones.of successful restorations: 1) biological integrity; 2) historical fidelity;Although 3) identifying the community root causes may ofnot and have addressing chosen apractices wildlife refugeleading if toit environmentalwas put to a referendum,degradation; theand refugefinally, still 4) haspublic the potentialengagement, to serveconnecting as a belovedwith thecommunity public asset.and encouragingCommunity advisorsenvironmentalism. demand transparencyRestoration isand a choicea commitment among a varietyto a different of land modeuse options, of operation. and I Itemphasize is not such the a needtall order for communityfor the RVO; acceptance it can do moreand involvement than talk thebecause talk— theit canelement walk ofthe choice walk. is For often example, subsumed the recyclingby conflicts efforts over historicat the conditionsrefuge are anddesigned what isto natural. contribute My thesisto “a cultureis that theof conservation” restoration will and become earned athe community arsenal anasset award only for if the Businesslessons of Recyclerthe past of arethe taughtYear. 114side A U.S.by side Army with official the ecologicalrecently notedsuccess that of restoration the arsenal at the “will site. be an educational resource that illustratesWhile whatI conclude we can thataccomplish in several when areas we committhe restoration to restoring is andachieving conserving identified our environment.”objectives, the115 areas Ultimately, where thatthe RMAis what Refuge each restoration isfalls hoping short to ofaccomplish. those benchmarks provide opportunities for refining expectations regarding restorations in general. The RMA Refuge is a workV.-in-progress,CONCLUSION yet it has already produced lessons for managing public response to restoration projects and how imageThe controlRMA Refugecan thwart will publiccertainly support. achieve As succinctlythe objective stated of becomingby the Remediationa most unique Venture wildlife Office refuge. (RVO) And9 : if “[r]eturningthe vision ofthe a broaderArsenal toregional a community habitat assetcorridor requires comes a comprehensiveto pass, it will effort.” be an10 important success story for wildlife in the area threatened with everdepth ofdiminishing 5 feet in some habitat. areas and Achieving 10 feet in others.more Pressin thisRelease, faux Colo. nature Dep’ts projectof L. & —Pub.such Health as & increasedEnv't, The Naturalenvironmentalism, Resource Damage infusion Assessment of, (Oct.an 29,environmental 2007) at 3-22 ethic(citing— specificallyrequires communicatingto South Plants Central both Processingthe successes Area and Formerlimitations Basin ofF). theThe arsenalreduction restorationin amount of toNRD the ultimately community reached it byis themeant settlement to serve. indicate s that the plume may be shrinking at a faster rate than anticipated. 8 Study Space III: Private and Public Lands in the Post-Colonial North American West took place in December 2008. Study Space III was a project of LatCrit113 That and thethe typical Georgia public State processes Unive rsityused inCollege the regulatory of Law Centerarena often for thefail toComparative achieve environmental Study of Metropolitan justice has Growth. been well Study documented, Space provided see, e.g. a Gauna,unique supraopportunity note 104. for participants to engage in deep reflection on place and history within114 Pressa diverse Release, group Jennifer of scholars. Watson, Rocky Mountain Arsenal Public Affairs Office, Rocky Mountain Restoration (Feb. 19, 2009), http://waste360.com/Recycling_And_Processing/recycling9 The RVO refers to the partnership between Shell, -thetrends US- rockyArmy- and Fish mountainand Wildlife-arsenal to transform-restoration the- site200902. into a wildlife refuge. 11510 Milestones,Id. The Evolution of the Rocky Mountain Arsenal, brochure 143214301168 47 JO HN MARS HALL L. REV. 143214301168 Vol. 47:4 differentFor fromone, its predecessors,the connection particularly between since restorationit had the benefitand environmentalismof two years of planning. is not automatic. Grassroots support and individualLike theengagement shift in conferenceis central. scheduling, The distrust other ofchanges “marquee” have takenrestoration place projectswithin theidentified LatCrit by entity environmental, including ethicistsconcerted is efforts well- toplaced, continue becau ase process of the oftendency institutionalization. to emphasize In therecent positive years, without there hasregard been to a eithergrowing the focus limitations on how toof capitalizelaw and onpolicy its criticalthat lead niche, to continuedegradation cultivating or the thelimits next ofgeneration feasibility of whencritical re scholars,-constructing and ensurenature. thatFor thesethe bato reasonsn of outsiderwe should jurisprudence scale back isour passed expectations along. Internally,for restorati on.the Weorganization must approach has theshifted, ethical including questions a presentedgradual changingby the tension of the between guard inbiological leadership, integrity so to and speak, historical as well fidelity. as a downsizingThe restoration in administration. process involves For myriadexample, decisions from 2008 ultimately to the present,designed theto Boardachieve of humanDirectors objectives. was intentionally Restorations downsized, are aboutwith achoice. growing Thu s,number the people of Boardwho will seats live being with theoccupied refuge by as juniora neighbor law professors.must be convinced6 of its value to both wildlife and people. Without this, Anotherthe opportunity major development to weave istogether LatCrit’s humans acquisition and theirof a physicalenvironment space is forsquandered; the organization. the optimism The property,of restoration Campo assisting Sano (Spanishin a more for enthusiastic “Camp Heal landthy,” ethic or more dispersed literally, throughout “Camp Sanity”),society will is abegin ten -acreto fade. parcel of land located in Central Florida. 7 Purchased by LatCrit Notin 2011,every the spacerestoration is home will to Theresult Living in Justice invigorated Center environmentalism.and the LatCrit Community Restorations Campus. can 8educate. The physical Restorations facility serves can inspire.as a means They “to can level communicate the playing the field limits and ofgive our LatCrit ingenuity, activists and ina tfightingurn give chance support to be heard.”to precautionary9 The space is measuresintended for limiting environmental harm. To do so the past cannot be buried. Failures cannotto be serve hidden. as Successthe hub and of failurestheir educational,side by side research,must be used to encourageadvocacy future and activismgenerations to toremedy learn fromthe imbalanceour mistakes. and The RMA deficienciesRefuge can doof this,the currentwith native legal vegetation, system. Havingbald eagles an and bison independenton the one physicalhand, andbase the has continued become contaminationcritical as of groundwateruniversities for hundreds and law ofschools years onincreasingly the other. areThe even choice less of the former rather than the latter is the heart and hope of restoration practi ce; the cost-benefit balance that demands the latter is the lesson for precaution as we continue the transformation of our Naming and Launching a New Discourse of Critical Legal Scholarship, 2 landscapes.HARV. LATINO L. REV. 1 (1997). See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial -conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage). Additionally, LatCrit has developed a substantial body of scholarship from several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 6 These include Professors Marc-Tizoc González, Andrea Freeman, and César Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the professors on the LatCrit Board of Directors and their respective law schools). 7 Campo Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC, http://www.latcrit.org/content/campo-sano/ (last visited July 5, 2014). 8 Id. 9 Id.