King Cove road opponents file motions for summary judgment
The groups suing Interior Secretary Ryan Zinke laid out their final arguments in court documents filed July 11 against a federal land exchange that sets the stage for construction of an emergency access road through the Izembek National Wildlife Refuge.
Friends of Alaska Wildlife Refuges, the Alaska Wilderness League, The Wilderness Society, the Sierra Club and five other national conservation organizations filed a motion for summary judgment with U.S. District Court of Alaska Judge Timothy M. Burgess, urging him to void the land swap signed Jan. 22 with King Cove Corp. on the grounds that Zinke violated several major federal laws in a hasty attempt to get the road built.
The groups are represented by the Anchorage environmental nonprofit law firm Trustees for Alaska.
A 55-page supporting memo accompanying the 4-page motion signed by Trustees attorney Brook Brisson alleges that Zinke, in order to expedite the transfer, ignored provisions in the 1980 Alaska National Interest Lands Conservation Act, which created the Izembek refuge; the National Environmental Policy Act, or NEPA, as the nation’s overarching environmental review law; and the Endangered Species Act.
Federal attorneys contended in a May 3 response to the original complaint that the plaintiffs do not have standing to object to the land swap because they have not been harmed by it and their complaints are not ripe for a ruling because the final lands to be traded have not been selected. They further assert that the federal District Court does not have subject matter jurisdiction over the lawsuit.
Section 1302 of the milestone 1980 public lands bill commonly known as ANILCA grants the Interior secretary the authority to carry out such a land exchange, but also states that such an action must be done to “carry out the purposes of this act.”
Signed by President Jimmy Carter, ANILCA established or expanded many of the national parks, wildlife refuges and other federal conservation areas in the state.
“The secretary made no findings that the land exchange would further ANILCA’s general or Izembek’s specific purposes and failed to acknowledge or explain the decades of findings and conclusions by the (U.S. Fish and Wildlife) Service that a land exchange and road were contrary to those purposes,” Brisson wrote.
The suit was filed just nine days after the land exchange was announced. The agreement between King Cove Corp. and Interior has the Alaska Native village corporation trading up to 500 acres of its land for an equal-value chunk of a wilderness-designated section of the Izembek Wildlife Refuge, or enough refuge land to build an 11-mile, single-lane gravel road that would complete the connection to Cold Bay.
The suit is moving relatively quickly to a judgment because there are few facts to dispute; it is simply a matter of Burgess interpreting the applicable laws and authorities.
ANILCA also requires consultation with other federal agency leaders, including the Transportation secretary, on any application to construct a transportation corridor through conservation areas. It also states that Congress must approve any corridor through wilderness-designated areas.
Opponents to the King Cove road stress the importance of the unique habitat in and around Izembek lagoon in debating the issue. In their view, it would set an extremely dangerous precedent approving a road through an area once designated as wilderness would set.
At various times of the year the 315,000-acre Izembek Refuge is home to nearly the world’s entire population of Pacific black brant geese and other migratory birds that use it as breeding grounds and a resting place on their annual travels, according to the U.S. Fish and Wildlife Service.
Alaska’s congressional delegation and state lawmakers insist the road is the only way to provide truly safe access to medical care for the roughly 950 residents of King Cove. Those in need of urgent medical care in King Cove currently must be flown via small plane or boated across the waters of Cold Bay to reach Cold Bay’s airport with its 10,000-foot runway that provides more reliable jet service during bad weather.
The plaintiffs further insist that the land exchange deal — announced when it was agreed to with no public notice — is a “major federal action” and therefore requires an environmental assessment or impact statement be conducted before it is approved.
Brisson wrote that an exception in ANILCA to that requirement does not apply because it relates to land conveyances to Alaska Native corporations under the Alaska Native Claims Settlement Act, which the January deal is not.
“As the courts have stated, the fundamental policies in NEPA should not be discarded absent some clear indication that Congress so intended,” the plaintiffs’ memo states. “Instead, deciding whether to exchange federal lands for a road is the quintessential government decision that NEPA was passed to apply to: to ensure informed decision-making about environmental impacts and to allow public participation in a decision regarding national public lands.”
Lastly, they argue Zinke violated the Endangered Species Act by not consulting with the Fish and Wildlife Service on the potential impacts of the land deal before agreeing to it.
The ESA requires such coordination for federal actions that could harm species listed as “endangered” or “threatened.” In this case, that applies to the Northern Sea Otter and the Stellar’s eider duck, which breeds on the North Slope and overwinters in Izembek. The Alaska breeding population of the small ducks are listed as threatened, according to Fish and Wildlife.
In late 2013, then-Interior Secretary Sally Jewell rejected land swap deal passed by Congress in 2009 after a U.S. Fish and Wildlife Service environmental impact statement urged against it; the EIS deemed the road would irreparably damage critical waterfowl habitat in the refuge.
King Cove Native organizations and the State of Alaska subsequently sued Jewell over her decision to block the road, but the suit was dismissed in federal District Court and an appeal to the 9th Circuit Court of Appeals was later dropped.
That swap would have traded 206 acres of Izembek land and 1,600 federal acres outside the refuge for about 56,000 acres of state and King Cove Corp. land.
Members of Alaska’s congressional delegation have said the ANILCA provisions hadn’t been used during other Republican administrations that would seemingly be more open to the plan because key officials in President George W. Bush’s administration, for example, opposed the road through Izembek.
The road has also become a priority for President Donald Trump, who was captivated by the situation when briefed on it in March 2017 by Alaska’s delegation shortly after he took office.
Attorneys for the Interior Department have 30 days to respond.
Elwood Brehmer can be reached at [email protected]skajournal.com.