Interior Department files response to lawsuit challenging land swap for King Cove road

A third federal court ruling is the next step in the ongoing fight over a proposed emergency access road through the Izembek National Wildlife Refuge.

Attorneys for the Department of the Interior on March 3 filed their arguments in U.S. Alaska District Court in response to a motion for summary judgment sought by a consortium of conservation groups that sued the department last August to block a land exchange to facilitate construction of the road.

Interior Secretary David Bernhardt signed a land swap deal with King Cove Corp. leaders last July after Dean Gould, president of the Native Village Corp., sent a draft agreement to him in May.

Led by Sen. Lisa Murkowski, advocates argue that the 11-mile segment to complete an approximately 30-mile road will provide a safe and reliable way for the roughly 800 year-round residents of King Cove — a village shrouded by mountains and notoriously bad weather — to reach Cold Bay’s airport and its 10,100-foot runway during medical emergencies.

The Cold Bay airport was originally built as a military airfield in World War II and has occasionally been used by commercial jetliners needing to make emergency landings.

The Izembek National Wildlife Refuge is breeding ground for nearly all of the world’s Pacific black brant geese and is home to other rare and threatened waterfowl populations.

The land deal Bernhardt signed is strikingly similar to what former Interior Secretary Ryan Zinke, Bernhardt’s predecessor, approved in early 2018 but it does not cap the federal government’s land conveyance to 500 acres or explicitly prohibit the proposed gravel road from being used for commercial purposes.

U.S. Alaska District Court Judge Sharon Gleason threw out Zinke’s land swap in March 2019 following a lawsuit from the same group now opposing Bernhardt on the basis that Zinke did not provide a rationale for reversing Interior’s policy on the exchange. The current case is being heard by Judge John Sedwick.

In December 2013, then-Interior Secretary Sally Jewell rejected a congressionally-approved exchange of 206 acres within the Izembek refuge on the Alaska Peninsula for about 56,000 acres of state and King Cove Corp. land, concluding the road would unacceptably damage critical waterfowl habitat in the refuge.

A federal judge in 2015 threw out a lawsuit against Jewell by the Agdaagux Tribe of King Cove over her 2013 decision, ruling that she did not violate the National Environmental Policy Act by rejecting the land exchange and subsequent road construction.

Several national groups, including The Wilderness Society and the Sierra Club joined with local groups such as Friends of Alaska National Wildlife Refuges and the Alaska Wilderness League to sue both Zinke and Bernhardt over the issue. The Anchorage-based conservation nonprofit firm Trustees for Alaska has argued both cases on their behalf.

In addition to the specific issues of Izembek, opponents to the exchange also stress that allowing a road to be built through congressionally-designated wilderness — one of the highest land preservation classes available — would set a dangerous precedent for public lands nationwide.

Trustees attorneys contend in their Jan. 23 motion for summary judgment that — as with Zinke’s deal — Bernhardt did not adequately justify his decision despite drafting a 20-page memo supporting the agreement in a direct attempt to address why the prior deal was rejected by the court.

They insist that, among other problems, Bernhardt violated the landmark 1980 Alaska National Interest Lands Conservation Act, or ANILCA, multiple times and did not conduct the requisite environmental analysis of the yet undetermined land exchange.

“The Secretary’s memo does not confront the prior findings, only offering conclusory statements instead of reasoned explanation,” Trustees’ motion states, noting that U.S. Fish and Wildlife officials repeatedly concluded the land exchange and road would irreparably harm the refuge. Jewell’s 2013 rejection was based on a Fish and Wildlife Service recommendation to do so.

According to Bernhardt’s agreement, the land swap would be an equal-value trade not subject to acreage limitations. However, King Cove Corp. would agree to relinquish its rights to 5,430 acres of land it had selected within Izembek under the Alaska Native Claims Settlement Act but has yet to be conveyed. The Native village corporation would still have rights to other yet-to-be-conveyed selections outside of the refuge.

Bernhardt wrote in his accompanying memo that Jewell committed to finding alternatives to the road, which spurred a 2015 U.S. Army Corps of Engineers study of a possible King Cove-Cold Bay ferry, King Cove airport upgrades and a helicopter shuttle, but to-date has not amounted to much more.

That study concluded that a ferry and two terminals would be more than 99 percent reliable but would cost between $30 and $42 million to build, according to Bernhardt.

The State of Alaska estimates the road would cost about $30 million to build.

He added that since the report, Aleutians East Borough officials, strong advocates for the road, have said they don’t intend to develop a landing craft. The borough previously operated a federally funded hovercraft as a means of emergency transportation during bad weather to Cold Bay but cited high operating costs and reliability concerns when that operation was scrapped.

Bernhardt also noted in the memo that the State of Alaska is instituting drastic cuts to funding for the Alaska Marine Highway System, although it’s unlikely the state would operate a King Cove-dedicated ferry. The Corps of Engineers determined expanding King Cove’s small airport or using a helicopter to be more expensive and less reliable options.

The conservation groups argue that the overarching purpose of ANILCA and the refuge are for conservation and protection of habitat important not only to wildlife, but also local subsistence harvesters. Congress gave the Interior leader the ability to make land deals in ANILCA for the purpose of acquiring private in-holdings inside a refuge or park boundary not to “undercut the protections it was enacting,” the summary judgment motion states.

Interior attorneys counter in their brief that it is Bernhardt’s duty to balance multiple interests under ANILCA, “relating not only to protection of the national interest in the scenic, natural, cultural and environmental values of the public lands in Alaska, but also to the provision of an adequate opportunity for satisfaction of the economic and social needs” of the state, which includes public health and safety.

They also argue that an environmental analysis of the land exchange is unnecessary because Section 910 of ANILCA states that the National Environmental Policy Act does not apply to a “conveyance” of Alaska federal land to an Alaska Native corporation.

Bernhardt is not additionally bound by another section of ANILCA prescribing a consultation process to build a transportation corridor through a refuge because it only applies to federal lands and the road would not be built until King Cove Corp. owns the road right-of-way, according to Interior’s March 3 court brief.

The department’s attorneys also note that the Interior-King Cove Corp. agreement only authorizes a land exchange — the details of which are still undecided — and not road construction, which means it’s premature for intra-agency Fish and Wildlife consultation over the potential impacts to wildlife listed under the Endangered Species Act that use the refuge.

Trustees attorneys insist that is an argument in semantics, and that there would be no land exchange if it wasn’t for the road proposal.

Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com.