Judge dismisses most claims in King Cove road lawsuit

A federal judge dismissed a majority of a lawsuit brought against Interior Secretary Sally Jewell in an attempt to get a King Cove emergency access road built.

U.S. Alaska District Court Judge H. Russel Holland dismissed four of the five claims Dec. 19 brought by seven plaintiffs that include the Aleutians East Borough, the City of King Cove and area Native groups.

Parallel claims by the State of Alaska as an intervenor in the case were also dismissed.

Jewell announced her decision to deny a swap of 206 acres of federal land in the Izembek Wildlife Refuge for about 56,000 acres of state and Native village King Cove Corp. land on the Alaska Peninsula on Dec. 23, 2013.

At the heart of the issue is a planned 11-mile gravel road that would cut across what is now Izembek land and complete a connection between the villages King Cove and Cold Bay.

Area residents, the state and Alaska’s congressional delegation have all pushed for the road claiming it would provide safe and reliable access to Cold Bay’s 10,000-plus foot runway — a World War II military post — from where large planes can fly patients in need of urgent medical care to Anchorage.

The sole claim Holland upheld was that the plaintiffs’ health and safety concerns arising from the Jewell’s decision do fall under the National Environmental Policy Act in this case. The Interior Department argued that the concerns fall outside of NEPA because they are not related to the environment. Holland ruled that they are at least worthy of consideration under NEPA given Jewell’s ruling was based at least partly on environmental concerns.

When she made her decision, Jewell said the risk of impacting habitat to certain rare species of waterfowl with the road was too great and that an alternative could be sought.

The federal government has spent nearly $40 million on improvements to King Cove care facilities and alternative transportation across the marine body of Cold Bay. Still, area residents assert the road is the only permanent fix. Over the years 19 people have died in plane crashes or waiting to get medevac service out of King Cove. However, no one has died trying to leave since 1994.

Holland heard oral argument on the department’s motion to dismiss Oct. 20 in Anchorage.

Holland agreed with the Interior Department that the plaintiff consortium’s claim that Jewell did not need to include a public interest determination with her decision because she chose the “no action” alternative. He wrote that the 2009 Omnibus Public Land Management Act passed by Congress that approved the land transfer “expressly addressed the specific question of when a public interest determination is required.” Such a finding would be needed only if Jewell had chose to approve the deal, according to Holland’s order.

Also dismissed was an argument that Jewell violated the Alaska National Interest Lands Conservation Act, or ANILCA. Holland wrote that while the road could improve subsistence access to the Izembek Refuge as two of the plaintiffs alleged, the “no action” alternative invoked did not change public land status. Therefore the threshold for an ANILCA claim was not met.

Holland ruled that the Interior Department did not violate a trust responsibility owed to Alaska Natives by the federal government because neither the 1976 Indian Health Care Improvement Act, nor the 2009 land transfer legislation place such a duty on the Interior Secretary to execute the land exchange.

Finally, a claim that the department violated the Administrative Procedures Act was dismissed as duplicative to the Public Land Management Act and NEPA claims.

Regardless of the outcome in court, Sen. Lisa Murkowski has made approval of the land transfer one of her central issues. She has railed on Jewell at every opportunity over the past year and she regretted voting to confirm the secretary when Jewell announced her decision.

After fellow Republican Dan Sullivan defeated incumbent Mark Begich, Murkowski said Jewell was probably not happy with the outcome.

“Sally Jewell is probably looking at the outcome tonight (Nov. 4) with a little concern about what she may be facing because I will not only be the chairman of the Energy and Natural Resources Committee, I will also be the chair of the Interior Appropriations subcommittee that has the authority over her budgets,” Murkowski said. “I’m not going to forget those women. I’m not going to forget these families. I’m not going to forget the people of King Cove. I’m not going to give up.”

Elwood Brehmer can be reached at [email protected].

Updated: 
11/18/2016 - 2:13pm

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