Judge rules for Jewell in King Cove road lawsuit

King Cove will not get its road to Cold Bay, through the courts, anyway.

U.S. District Court of Alaska Judge H. Russel Holland on Sept. 8 denied the Agdaagux Tribe of King Cove’s attempt to overturn Interior Secretary Sally Jewell’s record of decision that has prevented the construction of an emergency access road between the Alaska Peninsula communities of King Cove and Cold Bay.

Jewell issued her decision Dec. 23, 2013, stating that the proposed 11-mile, gravel road between King Cove and Cold Bay would irreparably harm critical waterfowl habitat in the Izembek National Wildlife Refuge.

The Tribe of King Cove filed suit against Jewell in June 2014 and the State of Alaska then joined the suit on behalf of the Alaska Native group.

Holland wrote in a 38-page opinion that Congress gave the Interior secretary the option to select the no-action alternative resulting from the environmental impact statement needed to evaluate the road proposal, and thus Jewell did not violate the National Environmental Policy Act.

“Given the sensitive nature of the portion of the Izembek Wildlife Refuge which the road would cross, the NEPA requirement for approval of the proposed road probably doomed the project,” Holland wrote. “Under NEPA, the secretary evaluated environmental impacts, not public health and safety impacts.

“Perhaps Congress will now think better of its decision to encumber the King Cove road project with a NEPA requirement.”

In 2009 Congress approved a land swap of 206 acres in Izembek, needed to build the road, for about 56,000 acres of state and Native village of King Cove Corp. land on the Alaska Peninsula. The deal was part of the Omnibus Public Land Management Act signed by President Barack Obama.

Congress also paid for an emergency response hovercraft for King Cove to use across the water body of Cold Bay, but the Aleutians East Borough suspended the operation in 2011, stating the roughly $1 million in annual operating costs was too much for the small government.

The road would provide an essential link for emergency services when bad weather prevents flights out of King Cove or boat travel across Cold Bay.

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.

U.S. Coast Guard helicopter medevacs, which originate in Kodiak, are the only current means out of King Cove during inclement weather.

The Wilderness Society issued a statement praising Holland’s ruling and noting that no federal wilderness area has been stripped of its protection under the Wilderness Act of 1964 for the purpose of building a road.

“The U.S. Fish and Wildlife Service (the lead agency on the EIS) has conducted extensive scientific studies that repeatedly demonstrate the destructive nature of this unnecessary and extremely costly proposed road,” The Wilderness Society Alaska Director Nicole Whittington-Evans said in the release.” We are very pleased by the court’s ruling, and hope that this issue can finally be resolved by all parties working together to find a non-road alternative that will address local residents’ concerns while leaving Izembek’s globally significant resources intact.”

The State of Alaska has allocated money to pay for the road, estimated at about $21 million.

In December, Holland dismissed four of the five claims brought against Jewell by the state and the tribe.

He upheld the allegation that health and safety concerns had a connection to the physical environment in this case. Therefore, the tribe’s interests fell “within NEPA’s zone of interests,” Holland wrote.

However, he found that Jewell’s selection of the no-action alternative does not need to meet the purpose and need of the proposal, which it rarely does, regardless of the project, according to Holland.

Sen. Lisa Murkowski has hammered Jewell on her decision at every opportunity since it was issued.

As chair of the Senate Appropriations Subcommittee on Interior and Environment, Murkowski included include a provision in the Interior budget moved in June that calls for the state and the Interior Department to negotiate a “fair trade” land exchange that would allow the state to build the road.

Elwood Brehmer can be reached at [email protected].