A federal judge in Alaska is expected any day now to issue a ruling that could finally decide whether the people of the remote city of King Cove, Alaska, get to build a highly contentious single-lane road through the Izembek National Wildlife Refuge.

A year ago, then-Interior Secretary Ryan Zinke signed off on a land-swap deal clearing the way for the road, hoping to end a fight that has been underway for decades.

Environmentalists say the road would cause irreversible damage to important waterfowl and other animals in the refuge. The Native people of King Cove say the road is desperately needed as a medical evacuation route, allowing them to fly out of nearby Cold Bay.

Now it is up to U.S. District Judge Sharon Gleason.

A review of hundreds of pages of court records reveals that her decision will largely come down to whether she agrees with Zinke's interpretation of a landmark Alaska-specific federal lands law, the Alaska National Interest Lands Conservation Act (ANILCA). The Trump administration said ANILCA authorizes the agreement to convey up to 500 acres within the refuge to a Native tribal corporation in exchange for as-yet-unknown land in the area, court records show.

ANILCA, signed into law in 1980 by President Carter, was designed in large part to preserve and protect "nationally significant natural, scenic, historic, archaeological, geological, scientific, wilderness, cultural, recreational and wildlife values." It established 104 million acres of "conservation system units" in the state, such as wilderness areas and wildlife refuges, including Izembek.

After Zinke signed the land swap in January 2018, a coalition of environmental groups challenged the agreement in court (E&E News PM, Jan. 31, 2018). They said Zinke didn't follow the procedures in Title XI of ANILCA for approving a transportation system through a conservation system unit such as Izembek. That includes conducting a full environmental impact statement, public hearings and a detailed review of alternative routes.

Zinke "did not attempt to follow the procedures set out in ANILCA Title XI for authorizing transportation systems in conservation system units," attorneys with Anchorage-based Trustees for Alaska wrote in a July motion asking Gleason, an Obama appointee, to toss the agreement.

But Justice Department attorneys argued that another section of ANILCA allowed Zinke to make the land exchange because the deal balances conservation goals with the economic welfare of rural Alaskans.

The Trump administration said that when enacting ANILCA, Congress intended to protect the "subsistence way of life for rural residents" in Alaska along with "conservation and protection of ecologically important habitats and wildlife and wilderness areas."

Proponents of the road, including Alaska Sen. Lisa Murkowski (R), have argued passionately that it is needed to provide the residents of King Cove with reliable access to medical care. Residents there currently must either fly or take a boat across a choppy bay to reach an all-weather airport in nearby Cold Bay that can transport them to hospitals in Anchorage. Because of the geography and weather surrounding King Cove, getting out of the remote town is often impossible, and they rely on emergency assistance from the Coast Guard.

The proposed one-lane, 12-mile gravel road connecting to existing roads within the refuge is in many ways an easy flag to wave for the Trump administration: an infrastructure project that proponents argue could save lives, marred for decades by red tape and environmental activism. Trump even mentioned the road in a White House meeting in June, alerted to the issue by Murkowski (E&E Daily, June 27, 2018).

But conservation groups argue that this particular path through the refuge would threaten 98 percent of Pacific black brants and nearly all the world's emperor geese, which depend on Izembek's eelgrass beds to nest, rest and feed. And some worry about the potential legal precedent set by agreeing to build a new public road through a key wildlife refuge.

In 2013, then-Interior Secretary Sally Jewell rejected an earlier land exchange approved by Congress, conditioned on her approval.

The new agreement states that Interior will exchange up to 500 acres along a narrow isthmus on the Izembek refuge for an undisclosed number of acres of equal value from Native King Cove Corp., which also agreed to relinquish rights to an additional 5,430 acres within the refuge that the Fish and Wildlife Service "had previously identified as being highly desirable for preservation as habitat and inclusion in the refuge," DOJ says in its motion.

Is a land exchange a road?

Cold Bay runway. Photo credit: Fish and Wildlife Service/Wikimedia Commons

At the core of the dispute is whether approving the land exchange, legally speaking, is essentially the same as approving the road.

Environmental groups view the land exchange and the proposed road as one and the same; the Trump administration does not.

DOJ noted in court filings that the land exchange agreement does not authorize construction of a road but "merely allows the community to take further steps in its pursuit of a possible gravel road."

The Trustees for Alaska attorneys dismissed this argument in a Sept. 4, 2018, motion: "Future road construction is not 'speculative' as the State argues. Both King Cove and the State have clearly expressed their intent to obtain all necessary permits and construct the road, removing speculation about future road construction."

In 2017, Interior directed FWS to explore a land exchange and granted the Alaska Department of Transportation a special-use permit to conduct surveys for road routes in the refuge. Interior also sent survey crews to the refuge in July 2018. The helicopter survey involved dropping two crews into the wilderness area to mark the boundaries of the proposed road corridor (Greenwire, July 20, 2018). Trustees for Alaska has filed an administrative complaint on behalf of the environmental groups over those surveys.


The groups argued that if the land exchange and the road are essentially the same, Zinke was required to follow steps in Title XI of ANILCA before approving the agreement.

"The Secretary did not require the King Cove Corporation and/or the State of Alaska to submit the required applications" for a land exchange, the motion said. "The Exchange Agreement involved no joint decision-making by federal agencies. The Secretary prepared no EIS. The Secretary held no public hearings and provided no public process. The Secretary made no detailed findings on alternative routes or the likely environmental impacts of road construction."

The greens also argued that the land exchange violates the National Environmental Policy Act because it represents a major action requiring Interior to conduct an environmental impact statement. And they said the agreement violates the Endangered Species Act because Interior never consulted with the Fish and Wildlife Service over the impacts to federally listed species such as Steller's eiders and northern sea otters.

But the administration said the exchange isn't even complete. There are "several additional steps still to go before an exchange can happen, including land appraisals, a cultural resource survey of refuge lands, and contaminants surveys of both refuge and village corporation lands," FWS said in an email to E&E News.

And even after all of that has been completed and the land exchange agreement withstands the legal challenge, "further negotiations may be needed depending on the respective values of the land parcels involved in the proposed exchange," the email said.

E&E News contacted more than a dozen government officials in Alaska and elsewhere who were involved in the Izembek land swap, and almost all declined to comment publicly due to the lawsuit.

"We're just waiting for a decision at this point," said Katie Strong, a Trustees for Alaska attorney representing environmental groups opposing the land swap.