King Cove land swap rejected once again

  • President Donald Trump listens as Secretary of the Interior David Bernhardt speaks during an event on the environment in the East Room of the White House in Washington. An agreement between Interior and the Native corporation for King Cove to facilitate a land swap and road construction to Cold Bay has once again been rejected by a federal judge. (Photo/Evan Vucci/AP)

President Donald Trump’s Interior Department is now 0-2 attempting to get a land swap to facilitate a road out of the village of King Cove through the courts.

U.S. District Court of Alaska Judge John W. Sedwick threw out a July 2019 land exchange agreement between Interior Secretary David Bernhardt and King Cove Corp. leaders on June 1, marking the second time in just 14 months that the courts have rejected such a deal that is a precursor to building a long-sought but contentious emergency access road through what is now wilderness-designated territory in the Izembek National Wildlife Refuge on the Alaska Peninsula.

Sedwick ruled that Bernhardt rushed the process to complete the land deal with the Alaska Native village corporation and in doing so violated both the federal Administrative Procedures Act and the 1980 Alaska National Interest Lands Conservation Act, or ANILCA, that largely guides federal land-use policy in the state.

The ruling is similar to one issued in late March 2019 by Federal District Court of Alaska Judge Sharon L. Gleason for a nearly identical agreement approved by Bernhardt’s predecessor, then-Interior Secretary Ryan Zinke in 2018.

Both judges ruled that the Republican Interior leaders did not adequately justify their rationale for reversing the department’s policy from a 2013 decision by Obama-era Interior Secretary Sally Jewell to deny a land exchange for the road in the interest of preserving the wilderness area of the Izembek Refuge.

In both instances Trump’s Interior secretaries were sued by a coalition of conservation groups led by the Anchorage-based nonprofit environmental law firm Trustees for Alaska.

Trustees attorney Bridget Psarianos in a prepared statement called land swap deals “failed attempts to dodge the laws mandating protections of our national wildlife refuges.”

“We are thrilled the court rejected this corrupt and illegal land exchange, finding that it is contrary to the purposes of Izembek and ANILCA, and that such an exchange could not be done without congressional approval,” Psarianos said. “We hope this is the last time we need to ask a court to reject such an exchange.”

An Interior Department spokesman wrote in an emailed statement that, “The Secretary firmly believes that the welfare and well-being of the Alaska Native people who call King Cove home is paramount, and the Department stands behind its decision.”

A spokeswoman for King Cove Corp. was not immediately available for comment.

King Cove leaders and Alaska lawmakers have long petitioned federal officials to approve the 11-mile gravel road extension through the Izembek wilderness; they see it as an essential link for emergency services when bad weather prevents flights out of King Cove or boat travel across Cold Bay.

Opponents to the road argue allowing a road of any kind through what is now congressionally-designated wilderness would set a terrible precedent for future development of public lands and King Cove leaders and administration officials have arbitrarily rejected all other transportation options.

In late 2013, then-Interior Secretary Sally Jewell rejected a land swap deal passed by Congress in 2009 after a U.S. Fish and Wildlife Service environmental review determined the road would irreparably damage critical waterfowl habitat in the 315,000-acre Izembek Refuge.

In summer, the refuge is home to 98 percent of the world’s population of Pacific black brant, a goose that breeds there, according to the Interior Department, as well as other sensitive wildlife and waterfowl.

With a paved runway longer than 10,000 feet, Cold Bay’s airport has one of the longest civilian runways in the state and is the area’s main link to Anchorage 600 miles away. The old military post was built during World War II.

King Cove’s airport has a 3,500-foot gravel runway for the community with roughly 950 year-round residents. Over the years 18 people have died in plane crashes or waiting to get medevac service out of King Cove, according to the Interior Department. However, no one has died trying to leave since 1994.

Sen. Lisa Murkowski, who was enfuriated by Jewell's decision in 2013 and has largely led the effort in Washington to get the road built, called the ruling "another bitter disappointment" for the people of King Cove in a statement to the Journal.

"I continue to believe the Department of the Interior has full authority under existing law to complete this land exchange, that the federal goverment has an obligation to protect local residents' health and safety, and that a gravel, one-lane, life-saving road is the best way to meaningfully accomplish that," Murkowski said. "I refuse to give up on helping the people of King Cove."

The initial agreement signed by Zinke contained no rationale for the policy change — which led to the court’s conclusion that it violated the Administrative Procedures Act — but Bernhardt attempted to remedy the situation by attaching a 20-page memorandum outlining the reasons for the policy reversal to the agreement.

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.

Sedwick ruled that despite the memo, in which Bernhardt argued other options are unreliable and human safety should be prioritized over wildlife habitat, the secretary failed to support the policy change with new information and did not offer to restrict use of the road.

Prior agreements stated the road would be open only to emergency-use by residents to counter opponents’ claims that it would benefit fish processors in the region wanting to ship their products out of the Cold Bay airport.

“The Secretary offers no new information or data to justify his contrary finding that the value of the added acreage to the refuge system (from King Cove Corp. lands) counters the negative effects of a road through Izembek,” Sedwick wrote of the APA arguments.

Attorneys for King Cove Corp. also argued in supporting briefs that the land exchange is a new policy instead of a change in old policy because it does not specifically authorize construction of the road.

However, Sedwick concluded that the argument does not hold water because Interior officials have explicitly stated that the reason for the agreement is to build the road.

Regarding ANILCA, he also concluded that Bernhardt did not provide enough justification for reversing Jewell’s 2013 decision.

Interior attorneys stressed in written arguments that the latest land swap would advance the economic and social interests of King Cove residents who regularly engage in subsistence activities in the refuge, but Bernhardt’s memo does not address the issue, according to Sedwick.

“The 2013 (record of decision) indicated that the effects on subsistence use stemming from a land exchange would be neutral,” the judge wrote. “The Secretary does not point to evidence that counters this finding, nor does he provide analysis to explain why a road’s benefits would outweigh its detriments in terms of effect on subsistence users and uses.”

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Elwood Brehmer can be reached at [email protected].

Updated: 
06/03/2020 - 10:41am