Justice Department Appeals Court Ruling Rejecting Road Through Alaskan Wildlife Refuge

Published July 5, 2019

The U.S. Department of Justice filed notice it is appealing a decision by the Federal District Court of Alaska blocking the federal government from exchanging land with the state and an Alaskan Native Corporation to enable them to build a road through the Izembek Wildlife Refuge to connect the residents of King Cove to Cold Bay and its airport.

King Cove is located near the tip of the Alaskan Peninsula. Currently, its residents can travel to and from King Cove only via boat or airplane. In emergencies, evacuation is typically done by the U.S. Coast Guard. In addition, air travel from King Cove is unreliable. Its small, gravel airstrip is closed because of bad weather more than 100 days per year, and almost 40 percent of the flights that are not cancelled are affected by weather. Unlike King Cove, Cold Bay’s all-weather airport is closed an average of ten days per year and has the fifth-longest runway in Alaska.

Village officials report 19 people have died over the years in medevacs or while awaiting evacuation because of bad weather.

The Trump administration approved the land swap in January 2018, which Alaska’s congressional delegation and state and local officials have long advocated. The deal, signed by then-Secretary of State Ryan Zinke, would provide a right-of-way through the refuge sufficient to construct a single-lane gravel road with barricades on each side.

Concerned About Birds, Grass

Environmental activists have fought efforts to build a road through Izembek for more than a decade, saying it would harm migratory birds that annually visit the refuge and the eel grass they feed on. After Alaskan officials pointed out the refuge already has more than 40 miles of roads through areas of eel grass which people have used regularly since World War II with no measureable effect on the birds, in 2009 Congress approved a land exchange for the road, subject to an environmental impact statement.

Sally Jewell, Interior Secretary under President Barack Obama, rejected the road proposal in 2013, saying the department’s analysis indicated “Construction of a road through Izembek National Wildlife Refuge would lead to significant degradation of irreplaceable ecological resources that would not be offset by the protection of other lands to be received in the exchange.”

The Trump administration examined the decision and came to a different conclusion, approving the land swap. Environmental activists sued, and in mid-May 2018 U.S. District Judge Sharon Gleason, an Obama appointee, blocked the exchange, ruling the Trump administration’s decision was “arbitrary and capricious” under the federal Administrative Procedure Act, saying Zinke had provided no rationale for reversing Interior’s previous decision.

“An agency may not simply discard prior factual findings without a reasoned explanation,” Gleason wrote in her decision.

The Justice Department served notice on May 24, 2019 it would appeal the district court’s decision on behalf of the Interior Department to the United States Court of Appeals for the Ninth District.

Safety and Fairness

Alaska Sen. Lisa Murkowski (R), who has long been a proponent of building a road connecting King Cove to Cold Bay, says the land swap is about being fair to the residents of King Cove and addressing their safety concerns.

“This is about how we provide a level of fairness and equity to those seeking a simple resolution to gain safety when the elements do not allow folks to travel safely by air or by boat,” Murkowski said in a January 2018 statement issued after the Trump administration approved the road deal. 

Life and Opportunities

The proposed road is critical to the life and safety of Alaskans in King Cove, says Bethany Marcum, executive director of the Alaska Policy Forum.

“Unlike most communities in the contiguous United States, there is no other feasible access to connect the two communities,” said Marcum. “If the road is built, residents of King Cove will finally have reliable access to emergency medical transportation.”

The road is also vital to improve the lives of rural Alaskans, says Marcum.

Communities are better off socially and economically when they can access each other to combine talents, resources, family traditions, and resource development,” Marcum said. “Congress recognized this fact when it passed the Alaska National Interest Land Conservation Act (ANILCA).

“In fear that the size of areas being set up as refuges and parks would prevent the state, municipalities, and [native] corporations from being able to develop socially and economically, Congress included numerous unique provisions to provide for continued access as well as develop ‘transportation and utility corridors’ between communities,” Marcum said. “ANILCA’s Title XI process has not been used to develop a right of way application between Cold Bay and King Cove, but this is exactly what that section of ANILCA was intended to address.”

Legal Battle Continues

Alaskan senators Murkowski and Dan Sullivan (R) told the state’s media outlets they would continue fighting to get the road built.

“The risk to life and limb of human beings is at stake here,” said Sullivan.

“[The case will proceed] to make sure that legally and lawfully we will be able to move forward with the conveyance that will allow for this road,” Murkowski said.

Kelsey E. Hackem ([email protected]) writes from Washington.

Official Connections

Sen. Lisa Murkowski (R-AK): https://www.murkowski.senate.gov/; https://www.murkowski.senate.gov/contact/email

Sen. Dan Sullivan (R-AK): https://www.sullivan.senate.gov/; https://www.sullivan.senate.gov/contact/email