Spreadbury v. Bitterroot Public Library et al

Filing 261

Statement of Undisputed Fact re: 259 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A - Aff of Backus - Newsworthy, # 2 Exhibit B - Petition to Ravalli County, # 3 Exhibit C - Pl to Messina (10-19/2007), # 4 Exhibit D - Pet Recall Sheriff Hoffman, # 5 Exhibit Pet Recall Ravalli Co Attorney Corn, # 6 Exhibit F - Ltr Pl to McCulloch (2/10/2009), # 7 Exhibit G - Ltr Commrs to Pl (2/17/2009), # 8 Exhibit H - Ltr PL to McCulloch w Recall Pet, # 9 Exhibit I - Ltr Kimmet to PL (3/13/2009), # 10 Exhibit J - Ltr Quintana to PL (3/23/2009), # 11 Exhibit K - Ravalli Republic Article (2/19/2009), # 12 Exhibit L - Blog Bitterroot Rising (2010), # 13 Exhibit M - Blogger User Profile, # 14 Exhibit N - Crystal Cox Blog (2011), # 15 Exhibit O - Blog - Ravalli Co Sheriff Dept (8/8/2009), # 16 Exhibit P - Crystal Cox Blog (2012), # 17 Exhibit Q - Library Thing, # 18 Exhibit R - Spreadbury Youtube MT, # 19 Exhibit S - Ravalli Republic Article (11/3/2009), # 20 Exhibit T - Find My Threat Story (11/17/2011), # 21 Exhibit U - Ravalli Republic Article (6/9/2010), # 22 Exhibit V - USDC Complaint (7/30/20100, # 23 Exhibit W - Aff Backus (Standard of Care), # 24 Exhibit X - Aff Devlin (4/2/2012), # 25 Exhibit Y - Bitterroot Rising Archives (2010)) (Smith, Jeffrey)

EXHIBIT V

ICt t l:J!2t

Case 9:10-cv-00081-DWM Document 2

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F,edo7/30/10

*ff*p

r'%ffi*

Michael E. Spreadbury
700 So. Fourth Steet

Hamillon" MT 59840

Telephoru:(4M)363-3877
msnreadfDlotnrail.conr

Profu Plaintif
IN T1IE UNITED STATES DISTRICT COURT

FORTM DISTRICTOF MONTANA
MISSOULA DTVISION

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MICIIAEL

t2

SPREADBURY
Plaintitr

carrse

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N'' 0,UJ0'8/ - m -DN/lt

)

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v.)

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US DEPARTMENT OF HEALTH A}.ID HI.JT,IAN )

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SERVICES, NATIONAL INSTTTUES

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HEALT}I. FRAJ.ICAIS COLLINS, MARSHALL )

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BLOOM,

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COMPLAINT

OF

)

Defendants

)
Ceurc of Aslion:

This currc of action is for violation of the National Envirorune,ntal Policy Act (}IEPA) as
described in 42 USCA $4332 er seq.; 40 CFR $1502 nrd $1503 et. $q. Deferdars failcd to
foltow well estsblishcd guidelinea for NEPA, and assess tt€Itb and safety risks at National
Institute of Health frcility in Hanrilton, Morrtana known as Roclry Moutain I"abs (RML).

24
25

PlaintifrMichael Spreadhry (bercafter'?laintiff) in his conplaint against US Departrrent of

26

Health and Human Services et. al. Defendants allege as'fqllows:

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rld-

Case 9:10-cv-00081-DWM Document

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28 l.

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Filed 07/30/10 Page 2 of 10

Parties:
Michael Sprcadbury, a resident and nannal person ofthe State of Monlana

29 2. The US Deparfinent of Health and Human Services, an executive branch departrrent of the
30 ,. United States which must abide by all ap'plicable laws.
31 3. National Institutes of Health (NIH), a branch of the US Departnent of Health and Hunan
32 Services nrust act in compliance with all applicable laws, bosed in Bethesda l\,{aryland.
33 4. Francis Collins, Director of the National Instihrtes of Healtlu the responsible official who
94 must act in compliance with all applicable laws, based in Bethesda, Maryland.
35 5. Marshall Bloom, Director of Rocky Mountain Iabs (RML) affiliated with NIH, is the local
35 responsible official for who must abide by all applicable laws, located in Hamiltotl Montana
J-Frisdlction an$ Vennc:
37
38 The MontanaUS Distict Cowt has jurisdiction via 5 USC s. 701 et. seq., 28 USCA 1331
39 Federal Question,23 USCA 1336,28 USCA 2201 et. seq. Declaratory Judgrnent Act. NEPA
ao 42 USCA g 4332 et. seq., 40 CFR $1502, $1503 et. seq. Plaintiffentitled to relicf.
41 Venue is proper due to Defendant property and activities in Ravalli County Montana which is
42 withinthe Missoula Divisionofthe US Disbict Cowtfor Montana.
Factual Backsruund
43
M
6. The Bitlerroot Valley, whcre the Rocky Mormtain Iaboralory is located contains blue
ribbon trout rivercorrse Bitterroot River containing protectod Speoies Bull Trout.
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46 7. Lewis & Cla* taversed valley upon dircction of US President to find a land route to ttrc
Pacffic Ocean.
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48 8. Soils in the Bitterroot Valley are some of the richest in the state; waler, timber resourccs
abound sunounding the NIH facility in Halnilton, MT.
49
so 9. The Selway-Bitterroot Wildemess is the second lagest in the US al l.6M acres, which
sits at the westem boundry of the RML site in Hamilton, MT.
51
52 10. Wildtife srosgings in,Bitterroot are essential to habitat nrch as Bear, Moose, Elk, Deer,
53
bird habitat of waterfowl, migrating birdsi owls, hawks, bald eagles.
54 I l. RML site in floodplain for flood insurance: any part of property below the 100 yea
floodplain rnakes entirc p,ropcrty floodplain, 1968 National Floodplain Insurance Act.
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Case 9:10-cv-00081-DWM Document

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Filed 07/30/10 Paqe 3 of 10

12. Neighbothood

sunoundilg RML south of Hsnitton, MT contains his-toric homes over 40
years which rquire historical review for any federal project by NIH.

13.

NIH-RML dnfted sr Ervirurmeotal. lnpact Slatenrerrt (EIS) ard Final EIS (FEIS) with
appmpriate commentpaiod"

14.

MH-RML drsfted

a 20

yea maste ptan with appropriate cotnmefi period.

for Intmpretive Center and North Pa*ing Lot projects in FEIS did not
include roquLed item as per ttn National Environrrer$al Policy Act (I{EPA).

15. Specific details

16.

NIH-RML FEIS did not inqhde alternatives to irrerprerive center project.

17. FEIS did not include a historiasl
prCIpos€d

Fview in report spocific to tlrc interpretive center,
property for NIH indusfial use.

prking lot projeot, nr.uohasing resid€Nuial

18. FEIS did not

allowpubtic cornmeot addrasing the interpretive qenter, or the pa*ing lot

project ryecifically as proposed.
19. Proposed Parking Lot project is near floodplain and drainage to Bitterroot River, and

would rcquire use of rssidential propeily purchased for a federal itdusuial pxpose.
20. Interpretive Center proposed demolition is within a historic residential area did not
hclude alternatives to the proposcd demolition of tlre e-tisting strrrchrrc E0l, E03 S. 4tb-

21. In planning the new B$L-4 facility, NIH did not include profesoionat fire, matsrial safety
pcrsonnel or fire shucturc assets at RML for safety, health of resideirts, employees.

22.'Illre20 year plar and FEIS does not include an cmergency rcspons€ strusturc st RML.
23. RML ageod to rcspect NEPA process, and uphold health and safety of commrmity and
RML elnployees in 20Ol to rtsolve CV44-154-M-DWM out of courl
24.

NIH BSL4 facilities inFredericlq MD; Betlresda MD; and Raleigh-Dtrhanq NC have
sufficienfi fire agscts duc to belng h larger commtmities which have training and
equipmcnt newssary to provide enrergency assistance to cornprable facilities to RML.

25. RML is located in an isolated valley with no professionnl fire deparfrt€Dts, asd no

material saftty teams within 45 miles, and 29 volunteer firemen in Hamilton, MT.
26. NIH kadqrrartex house 30 fedeml fircfighterq and can gct assistance fiom the well
equippd Bethesdn (l'D) Fire Depa*nrent, located withh 15 minuid &'on D.C, met'o.
27. RML has no federal or pnfeesional fue personnel inany pmximity to fasitity.

Case 9:10-cv-00081-DWM Document

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Filed 07/30/10 Page 4 of 10

28. RML 20 year plan had no onsite ern€rg€,lrcy respons€ facility although no adoquate
biological, matedals, or radiological safety team is within 45 miles.
29. First Presidentially declared firc emcrgency was in proximity to RJVIL, Ravalli
and Montana io year 2000. Firc hawd,is e:rhcmely high near RML.
30. RML is 45 miles from Missoula,

Co*ty,

MT with 60,000 residents and five firehouses.

Materials safety tean is currctitly dispatched from Missoula Fire Depanment.
31. Fallen timbsr block fire conidor route, accideirts, and in-climate weather 3000 ft. AIv{SL

4?'Latitude; fire/materials r€spons€ from Missoula not sssued within I hour of dispdch.
32. RML without pofessional material safety, biological, or radiological staging area

available on sitg or within 45 miles of the Hamiltoq MT facility.
33.

MH Office

Research Safety issued Plaintifffalse assnances of safety sincc 2007.

34. Plaintiffhas adequately participated in administrative process by explessing concents to
RML, NIH h fire safety, environmeirtal quality, NEPA direc"tor, Directqr of Research
Safety, NIH legal counsel, andNIH Directors office.
35. Plaintitrhas offered mediation to resolve this disptfe to NIH.
36. No

firther rernedy is available to Plaintiffto rrsolve NEPA and related safety issues.

NIH documents failed to adequately disclose, analyze, and assess
environmental riik from proposd interpretive center dernolitioq parking project
proposed by RML.

3?. FEIS and published

38. Rist$ frour RhdL proposed interpretive center, parkioglot projects have impacts to the
environment hurnan healttt, and impacts to local governments.
39. Defendants did not comply with the NEPA act at RML.
40. Defendants have duty protcct safety and health of cmplo)rees, public arormd RML.
41. Defendants failed to an$wer electronic correspondence fiom Plaintiffaddrpssed to
[e-mail] relating to fire safety.
42. Defendants do not pay taxes to local goverrrments, nor payment in lieu of taxes (PILT) to
defray w€ar on mads, fire response, and other costs.
43. Defendants are adding lab space al RML requiring more water r€sourses, and have not
addrcssed resource issrre in the master plan, FEIS, or other published NIH docume'lrts.

Case 9:10-cv-00081-DWM Document

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Filed 07/30/10 Page 5 of 10

114

44. Waterr discharge Som RML facility, or uronitoring is not published or public information.

115

45. S€curity of RML north bormdary is substandard as non-fortified chain-link fmcing.

116

46. Prrchase of residential Foperty for RML is not proper for federal indushial

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47.

118
119

hdustial

process as RIvtL requires roof cooling farrs, nfrich impact bird habitat and

ripariaru river arcato west and sunounding RMI,' and was not addressed in FEIS.
4E, Use

ofNIH police vehicles

except official usg outsid€ RML p,ropefly, irnproper.

120

LzL

projwts

Qter,ses:

Failurc to consider a neuonrble range of alternetivec-{ount

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49. Plaintiffrepeats and rcalleges paragraphs l-4E of this complaint as fully set herein.

123

50. NEPA requires

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MH to consider altenratives to recommended courses of action in any

proposal 42 USCA $4332(2XE).
51. NEPA requires NIH to prcpare a detailed evaluation of all rcasonable alternatives to the
pmposed action in every EIS. 42 USCA $4332(Cxiii); 40 CFR $1502.1a(a)

52. Defendants conside,ration of a single action alternative does not satisry the requirernent
that an agency pr,epare a detailed evaluation of all reasonable alternatives.

53. Failnrc to develop and consider reasonable altematives by NIH withrespect

tothe

demolition of a dwelling, and a parking lot project is a violation of thc NEPA Act.

131

Frilure to Ilisclolc Substrntive Information Regarding tre hoposed Action-{ount2

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54. Plaintiffrepeats and realleges paragraphs l-53 of this cornplaint as

133

55. Defendants did not disclose impacts to the public abort proposed pa*ing lot project

134

if fully

set he'rein.

interpletive center project within EIS for public cornment.

13s

56. No alternative was prscntcd to locsl fire services in 20 year plan, or current expasion.

136

57. knpacts to demolishing duplex residential dwelling at 801 and 803 So. Fourth St

Case 9:10-cv-00081-DWM Document

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Filed 07/30/10 Page 6 of 10

Hamiltoq MT for RML interpretive cent€r was notpublished in FEIS.

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58. No altemative was presented for interpretive center or parking lot proposed projects.

139

59. Water use in firrtlrer expansion of RML post BSL-4 has not been disclosed.

tro

60. As a result of Dcfeirdants not disclosing zubstantive

informati

violation exists.
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Failure to nespond to comments- Count 3

141

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61. Ptaintiffrcpeats and reallegesparagraphs l-60 of this complaint as

143

62. Defetdants have a responsibility within NEPA

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145

if fully set krein.

t,o adequately respond, and

take into

account correspondence from the public from EIS commenls as in 4O CFR $1503.4
63. Plaintitrmmrnent and Public comrnents as to material, biological, urd fire safe$ at RML

t&

were not adoquately and meaningfully responded to inNEPAprocessbyDefendants.

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64. False assuranc€s to mfety byNIH did not adequately address public conc€ms.

148

65. RML did not respond to questions

149

66. Defendant's failurc to adequarely respond to, or incorporate public cofirments into a FEIS

fion Ptaintiffand prblic regarding fire safety

process is a violation of NEPA.

150

Failurc to pnotect fedcral cmploycec and gencral publio4ount 4

151

152

67. Plaintiffrepeats and realleges paragraphs

153

68. Defmdants

154

69.

757

158
159

plannd ad built

l{6

of this complaint as if firlly set herein

level 4 BSL in t{amitton, MT at RML.

Increased dangers to ernployees and public were not met with sufficient r€sources to

protect federal onployees, federal pmperty, and US Citizerrs residing near RML.

155
156

at RML.

70.

NIH did not teat RML equally in rpspect to health and safety

as compared

to other BSL'

4 labs in other locatiora of tlre United Starcs with respect to firc and mderials safety71. Due to a failure

ofNIH to ptotect

ass€ts or structures were

employees and the general public at RML, no fire

built or plannod as published in 20 year master plan and FEIS.

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Filed 07/30/10 Page 7 of 10

Lrckof Ilirclocurc in EIS end llilrter Plan l),ocumenb4ount 5
72.

Plaintiffrpcats and reallcges paragraphs l-71 of this cornplairrt

?3. Firc capabilides for local voluntoer ae,partments are not prblished
74. Yohmtccr firc

if firlly

set hcrein.

h RML

documents.

as

dcparmnts do trot prot€ct other NIH facilities with BSL-4 labs

75. The lack of disclosurc by

NIH of fire capabilities for RML does not mect duty to assesst

health and safety risks to the public, as forrnd in NEPA laws.

of disclosur,e by Nlt{, RML is not srffioiently protected as well as other
BslF4labordorics inthounited Statcs.

76, Due the lack

Negfig€ncs4ount

6

77. Pleintitrrepeats, realtegw prqgraphs l-76 of this conrplaint as
7E.

Defanda6

plad

if firlly

3€t lrerein.

BSLF4 struotus five years prior to consfrttction at RML.

79. No fire fapil$ was planned within the carnpus at RML atthough no professional fire or
firlly equipped hazardous matoials safety team is available witbin 45 milss of RML'
80. By working with high level pathogens with no known cure or r€coine, without fire and
materials safety infrasfiucture oq or near RML campus, Defendants wene negligent in

their duty to pmtcct thc public and RML employeeo.
81. Defsndants krew or should havc known thst RML had les fire safety available to it than
otberNlH fssilities with BSL4 labs on their canpuses.
82. Deferdants

ae negligeut iu not planning or building slfficient firc assetu at RML.

Frilurc in Scientific Intcgrity-{ount
83. Plaintiffrepcds, realleges allegations in paragraphs l-82 as

7

if ftlly set h€refu.

84. The failure to disclose and assess health risks constitutes a failure to satisfy the $andard

of scientific integrity, a violation ofNEPA 42 USCA $4332 et ssq,40 CFR $1502 $1503.

Hmilton
of calle, rcquittd tainb& aver8ge

85. Defendsnts did not disclose specific fapts about fire capability, specifics about

tlp

Voluntoer Fire,
of engines, gpe and frequency
rrge & pfr,ysi,al conditioo, roquiremens for volunteers, c4acities and age of eguipment.
86.

NIH did not publi$h alternetive to

use of vohrnteer fire deparmerns to prctect

RML'

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Filed 07/30/10 Page 8 of 10

Defendants gave arbitrary and non+pecific information
on biological, fire, malerial, and radiologcal safety at RML.

87. Vaguerrss of FEIS, Master

88.

Pla,

NIH failod to give specifc informatim for scientific intcgrity wittr respoct to NEPA
roquired documents such as FEIS, nrojects, and frrc opemations for RMt.
llisrcgard forPmcoss{ount

E

89. Plaintiffr€p€ds, rcallcges paragrryhs l-88 of this compldnt as if fully set hsrpin'
90. Defenda*ts did notuse EIS process to waluate alterrtdiveg gain oorument from proass'
limit irupm to cnvirsrrenl oa federalty filnd€d projwts, but a meaos to gain the dosirad
outcome

ofprblicly ovmed r€soruc€s.

*shall s€rve the mcarrE of assessing the environmeatal
91. Federal regulations stah EIS
impaciof proposed agen6y agtions ratfter trd justi&itrg decisions akeady made.40 CFR
$1502.2 G).*
92. Fedcral ogcncies "shall not commit rcsourc€s prejudicing selection of altermtivcs befors

making afinal dmision. CFR40 $1502(f)."
93. D€fetrdant NIH did have a disregard to EIS process
Firc resources, and proposed parking lot at RML.

wie

respect to Intcrpr,etive Center,

Nondicdosure of Nahrrrl Rccourcs use-{ount 9
94.

Phintiff

95.

RMt

rEpeats, realleges

pragraphs l-93 itr this complaint

usos resources from ttre public like rryal€r

96. Tho poposed vxpansion of RML

as

if fully

withort dclineating

set

hsein.

use.

will demmd mole wafir t€sowces.

gT.W not tacking

and pubtishing thesc Sgures, NIH is not upholding its duty to thc public
to wisely use local tesources, or cxplain its use to public.

98. RML docs not publish water qrnlity figures after treafinetr, snd release into the Bittenoot

River in Hamilton" Montana
99.

ttr

postgrocess water qmlrty
assur€ tbs public that
allowable levels, and is wittrin tolerablc limiB of envirnrmental protection

RML has a duty to

is bclow

100. Resource use is an i1rpsct to a corsmurity, and NIH has an obligatiou to the public via
federal Regulations and NEPA laws to disclose speoifics on use, and gotoct $csoutoes
Zt4
firom ovcr-exttction, and assura[ces ofbost use praotices.
215

Case 9:10-cv-00081-DWM Document

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Filed 07/30/10 Page 9 of 10

Negligent disclwurc of Envimnncntol

Inpactr-Count l0

101. Pleintiffrcpeats, realleges paragraphs l-100 in this complaint as

if fully set herein

102. NIH, in FEIS did not disclose irnpacts all impacts to wildlife 8t RML.
103. FIEIS stat€d 100 species of birds srrrourding lab, yet published no impact to Ripaian
area due to no building inthose zones onMH property at RML
104. NIH knew or should have known that impacb to wildlife would occur due to
expansion and firrtlrer e:rpansion of ttB RML campus to add laboratory buildings.
105, NIH knew or should have known that an indtrsUial campus nea a wildemess river
areaand natural sanctuary for wildfowl on RML prcperty would cause inpacts.
106. NIH was negligent in disolosing environrnental sensitive areas on the RML canpts.
MisrcnnesentegbF of srfctv fac8. environmcntd i$oagtr et

Rll{outrt ll

107. Plaintitrrcpeats, realleges paragraphs l-106 in this complaint as if fully setherein
108. NIH did not disclose fire mfety statistics, faot thst no comprableNlH BSI-4 facility
is protectedby volunteer firernan inthc Unit€d Stat€s.
109. Nm did not disclose inpacts, alternatives to aertain projects planned at RML.
t

10. NIH did uot mention water use other than it was zufficient for fire flow.

It

l.

MH did not mention impocts for wildlife, or impacts to proposed

projects.

112. MH did not rcveal tand pgrchase expansion is mned residential for plaoned foderal
indusfrial use for RML.
113. Due to misreprcse,ntatioq or omissiotl NIH did not disclose facts as requircd in EIS.

Rclid Sought from Court
Plaintiffrespectfully requests ttrat Court will find declarative ruling that the Defendarts
have violated the National Environmental Policy Act (NEPA), or other violarions in all or
patt of this complaint herein.
Additionally Plaintiffrequesb US Magistrae to:

I.

Issue te,mporary injunctive relief to enjoin Defendants to imrnediately raise fire
assets of RML to the standard of other BSL4 laboralories in the UDited States.

Case 9:10-cv-00081-DWM Document

11

243

24

lV.

247

If affirmative in III, crjoinDcfendants to re-issue EIS process to furctudo
alternativ$, public col1trle11t, and other NEPA requirements orr proposed parting
projcct at uorth cental portion of RML srte, snd interpretive ceaterproject.

V.

If negotivc in III, cnjofu the Defendan$ to maintain th€ inteslity of the historicsl
ncigbborhood at RMlmainentrance and refrain frrom the propoaod interpretive
cc,ntcr pmjed, aud parking lot pmject at nortft cenUal RML propertt.

VI.

E4ioin Defbldants to Eccule flood insurance for alt structw€s on RML rcqufued
by Natioral Flood Imgrance Act of 196t psr US Congrw Legislation

y1L

Eqioin Defendants to rcgulady disclose to the pubtic wfitsr use, expected wats
the
use, heatment slandards, ard contrninant levels of effluert dischuged into
Bitterrmt Riveret Hanilton, MT.

VIII.

Issre pemranent injunction to enjoin Defendants to pffipa€ an BIS wldch follows
the NEPA law to the bcncfit ofthc public with respect to tbc Interpretive Center,
impacts to wildfowl, and all fifu€ and current federal projects at RML.

i

249

257
252
253
254

2s5
256

E7
258

259

zffi
26t
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Enjoin Defendane with cease order to sfop building; on other proj€ct$ at RML so
fire protecion csn be brought to a suitable level consistent with relief sougbt in I.
tv{ake dectamtive judgmsnt

?46

250

[x.
;1

\rficfitr Dcfendsrt Icderal agcncy can purchase
private wwArcridcntial pruperfy for usc as fderal industial prop€rty d RML.

Plaintiffasks court to grant any costs tlat uise fiom this aotioL

Plaintiffyiel& to court

any

firther relief court deems ptopcr in this action.

263
164

Dated tf,i,

deuy

of July, 2010

265

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Filed 07/30/10 Page 10 of 10

Iil.

24s

24g

2

Michael

Sprdbury,ho

Se

Plaintitr

10