Alaska Journal of Commerce: Court fight over King Cove road enters third round
Sen. Lisa Murkowski, R-Alaska, holds up a copy of a news paper with a note from President Donald Trump during an event in her office in Washington on Jan. 22, 2018. Murkowski was joined by other Alaskan officials regarding the Interior Department’s decision to the construction of a road through a national wildlife refuge in Alaska.The road would connect the communities of King Cove and Cold Bay, which has an all-weather airport needed for emergency medical flights. A lawsuit subsequently led to that decision being overturned, but the Interior Department is trying again with another land swap that is also being challenged in court. (Photo/Susan Walsh/AP)
The battle over a proposed emergency access road through the Izembek National Wildlife refuge is headed back to the federal court system for a third time.
A consortium of Alaska and national conservation groups again sued Interior Department leadership Aug. 7 over a land exchange agreement signed with King Cove Corp. that would allow the completion of a road through currently wilderness-designated Izembek lands.
The lawsuit comes less than five months after the same group won a nearly identical suit when U.S. District Court of Alaska Judge Sharon Gleason threw out a January 2018 land exchange signed by former Interior Secretary Ryan Zinke.
Gleason concluded Zinke didn’t sufficiently justify his rationale for approving the land swap, which went against numerous prior agency decisions on the longstanding issue.
Most notably, in 2013 then-Interior Secretary Sally Jewell nixed a land swap between the federal government, the State of Alaska and King Cove Corp. approved by Congress in 2009 that would have cleared the way for a road through Izembek to link King Cove with the nearby village of Cold Bay and it’s all-weather airport.
Jewell concluded — following a recommendation from U.S. Fish and Wildlife Service officials — that the road would have unacceptable impacts on the refuge and the world-renowned gatherings of migratory birds that use Izembek’s habitat each year.
The conservation groups also argued Zinke did not follow a process for disposing of Alaska conservation unit lands prescribed in the 1980 Alaska National Interest Lands Conservation Act when he made the deal.
Opponents of the road largely insist building it would set a terrible precedent of development on land previously designated by Congress as wilderness, one of the highest land preservation classes available.
“This deal violates the same laws as the first one and we’re prepared to continue to fight to protect this irreplaceable wilderness. This is another Trump administration public land giveaway that breaks multiple laws and dishonors the public processes that go into protecting the health of the lands, waters and wildlife of the National Refuge and Wilderness System,” said Trustees for Alaska attorney Bridget Psarianos, who signed the 42-page Aug. 7 complaint.
Led by Sen. Lisa Murkowski, advocates for the 11-mile segment that would complete an approximately 30-mile road, argue it would provide a safe and reliable way for residents of King Cove — a village shrouded by mountains with notoriously bad weather — to reach Cold Bay’s airport and its 10,100-foot runway.
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.
This time, Interior Secretary David Bernhardt quietly signed a land swap deal with King Cove Corp. July 3 after company President Dean Gould sent a letter and draft agreement to him May 21.
The land deal Bernhardt signed is strikingly similar to what Zinke approved less than a year-and-a-half prior 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.
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 also attached a 20-page memo to the latest agreement that details his rationale for the decision.
In it, he asserts that there have been more than 70 medevacs out of King Cove to hospitals often in Anchorage or Seattle since Jewell made her decision in 2013 and 21 of those were conducted by the Coast Guard at a cost of roughly $50,000 per mission.
Bernhardt also wrote that Jewell in 2014 committed that Interior would work to find alternative emergency transportation options, 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.
Additionally, he wrote that the land exchange agreement is just that; any decision to build a road would be up to King Cove Corp., while state officials have expressed a willingness to fund the construction.
“Secretary Jewell placed greater weight on protecting ‘the unique resources the Department administers for the entire Nation,’” Bernhardt’s memo concludes. “I choose to place greater weight on the welfare and well-being of the Alaska Native people who call King Cove home. I value the well-being of an entire community over the impacts derived from the change in ownership of these various parcels of property which are an incredibly small percentage of Alaska’s Wilderness. Although it is not a decision I take lightly, it is one that I believe best serves the public interest, my responsibilities and humanity.”
The Agdaagux Tribe of King Cove sued Jewell in 2014 to get her decision to deny a land swap overturned. However, U.S. Alaska District Court Judge H. Russel Holland dismissed the lawsuit the following year, ostensibly ruling that although the tribe disagreed with Jewell, she made the decision within the bounds of applicable federal laws and regulations.
By: Elwood Brehmer
Source: Alaska Journal of Commerce