Pacific black brant fly above Izembek Lagoon at Izembek National Wildlife Refuge on Dec. 27, 2013. The refuge is used as a migratory stop for nearly the entire global population of Pacific black brant. Road supporters say the access route is needed for emergency evacuations, while road opponents say brant and other important birds and wildlife would be harmed by the project. (Photo by Kristine Sowl/U.S. Fish and Wildlfie Service)
A federal judge has overturned the land exchange intended to enable the state to build a controversial road through the Izembek National Wildlife Refuge, possibly halting plans for construction to start in the coming weeks.
U.S. District Court Judge Sharon Gleason ruled Tuesday that the Department of the Interior violated three laws when it approved a trade of Native-owned land for acreage within the Izembek National Wildlife Refuge. The state plans to appeal the decision.
In approving the land trade between the U.S. Fish and Wildlife Service and the King Cove Corporation, the local for-profit Native village corporation, the Trump administration’s Interior Department violated three laws, Gleason ruled: the Endangered Species Act, the Refuge Act and the Alaska National Interest Lands Conservation Act.
The road has been promoted for decades as an emergency route connecting the village of King Cove, with about 750 residents, to an all-weather airport at the much-smaller village of Cold Bay. The Cold Bay airport is a military legacy dating back to World War II; it has a runway extending over 10,000 feet, allowing it to accommodate large jets.
The 18.9-mile road, as planned, would cross a narrow isthmus that separates the refuge’s Izembek Lagoon on the north from Kinzarof Lagoon on the south. Both lagoons are important to migratory birds and other wildlife.
The Alaska Department of Transportation and Public Facilities, which has mobilized equipment and materials to start building a section of the road, intends to begin construction despite Gleason’s ruling.
This year’s construction “is still on track,” Sonny Mauricio, a public information officer with the department, said by email.
“That work is on King Cove Corporation’s own land, which is separate from and outside the land addressed in Judge Gleason’s ruling, so the decision doesn’t affect this year’s construction plans,” Mauricio wrote.
Justin Shelby, operations manager for the department’s central region, said construction is intended to start sometime after Sept. 1.
And Alaska’s acting attorney general reiterated the state’s desire to build the road quickly.
“Although we are sorely disappointed that the court ruled more process was necessary after years and years of endless review, the construction of this life-saving road remains a priority. We will appeal this decision and move forward with helping the community build the portions of the road that we can while we work on our appeal to overturn this ruling,” Acting Attorney General Cori Mills said in a statement.
But attorneys for the environmental and tribal plaintiffs who oppose the road and sued to overturn the land trade said construction of any part of the project would be illegal.
The U.S. Army Corps of Engineers permit issued to the state on July 9 covers the entire 18.9-mile road planned to link King Cove to an all-weather airport at the tiny village of Cold Bay, not just a piece of it, the plaintiff attorneys said. And that permit is predicated on the land exchange, they said.
“Our position is that there is no way that the road construction can legally proceed,” said Michelle Sinnott, an attorney with Trustees for Alaska, an environmental law firm representing the conservation groups that sued to overturn the land exchange.
The plaintiff attorneys said one part of Gleason’s ruling is particularly relevant to the state’s road construction plans.
The ANILCA violation the judge cited concerns a required analysis for any contemplated road in an Alaska conservation unit, which the department failed to carry out before it approved the land trade.
Gleason shot down the argument from the Trump administration and the state that the land trade negated the need to do the analysis, called the Title XI provision, which is named for a section in the sweeping conservation law that relates to road construction and utility corridors.
The Interior Department “cannot rely on the Exchange’s removal of the corridor from the Refuge — the very action alleged to require Title XI compliance — as the reason why Title XI does not apply,” Gleason wrote.
Rebecca Noblin, an attorney for the Center for Biological Diversity, a co-plaintiff with three Yup’ik tribal governments, said it would be unlawful for the state to designate part of the planned road as not falling under those Title XI requirements.
“If any part of a road goes through a refuge, it all has to go through Title XI,” she said.
If the state were to proceed with construction, “that would be a pretty bold violation of a court order that just voided the land exchange under Title XI,” Sinnott said.
Three lawsuits, now consolidated, challenged the trade, while two additional lawsuits, also now consolidated, are challenging the Corps of Engineers wetland-fill permit that was granted to the state last month to enable road construction.
In addition to suing to overturn the land trade, road opponents have sued to overturn the Corp’s permit.
Debate over the road has divided Alaska Native groups.
The residents of King Cove and the Aleut Corp., the regional corporation that includes the village, are strong advocates for the road and the land trade that would enable it. But many Western Alaska Yup’ik residents, including those who are members of the three tribal governments that have sued to block construction, oppose the project because of threats to migratory birds that depend on Izembek’s wetlands and are also important sources of subsistence food.
The refuge, especially the lagoon area that has been protected as designated wilderness, is the gathering site for hundreds of thousands of birds, including most of the world’s population of Pacific black brant, a type of goose. The refuge also holds one of the world’s largest beds of eelgrass, a plant that supports birds and marine life.
A representative of one of the tribal governments that sued to overturn the land trade cited Izembek’s importance to migratory birds.
“Our community depends on the brant and emperor geese and subsistence use to eat, so I’m relieved the court decided to protect Izembek from a road that could hurt our harvests,” Chief Edgar Tall Sr. of the Native Village of Hooper Bay, said in a statement. “I started learning how to find and save food like the birds, salmon and moose at a very young age from my elders, and that’s still how a lot of us get enough food. It’s getting harder to make our voice heard and protect our right to live off the land and the sea, but if Izembek is safe, that will help.”
Even before Gleason issued her ruling voiding the land trade, the plaintiffs were seeking an injunction barring the start of road construction. That request was filed on July 24 as part of the lawsuit seeking to overturn the Corps permit.
Sinnott said the 2.8-mile road section, though it is planned for King Cove Corporation-owned land and not land within refuge boundaries, would cause environmental harm. The plan calls for a dozen culverts, a bridge and other disturbances, she said.
But the Alaska Department of Law, in a brief filed in opposition to the motion for an injunction halting road construction, has argued that Corps permit is not relevant to the construction work planned on the initial 2.8-mile section of road.
Rather than cause harm, the state and King Cove parties “assert that this initial construction phase will not only render significant benefits to the community of King Cove but is also environmentally beneficial,” the Department of Law argued in its Aug. 6 response to the injunction request.
“Construction of the initial 2.8 miles of road seeks to reestablish the historical means of access for King Cove residents to subsistence use lands on the Kinzarof Lagoon bookends and consolidate off-road vehicle (ORV) access onto a consolidated route to prevent compounding impacts caused by dispersed use,” the department’s response said.
The opposing parties were scheduled to file reports in court Thursday detailing the status of road construction and how the latest legal decision is expected to affect it.
