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Controversial road on Alaska Peninsula gets another chance after Ninth Circuit steps in

The idea of a gravel road linking two tiny Alaskan towns has been kicked around in Congress — and federal court — since 2009.

(CN) — King Cove, a tiny town of less than 1,000 people on the Alaska Peninsula, has for decades sought to build a road to Cold Bay, an even smaller town about 18 miles away. The only problem is that the road would have to run clean through the 315,000-acre Izembek National Wildlife Refuge.

Two federal judges have nixed proposals to land swaps with the federal government that would make the road possible. But on Wednesday, the road was given a new lease on life, thanks to a 2-1 decision by the Ninth Circuit which throws out a ruling by the lower court.

In his majority opinion, U.S. Circuit Judge Eric Miller, a Donald Trump appointee wrote "the value of a road to the King Cove community outweighed the harm that it would cause to environmental interests."

David Raskin, president of Friends of Alaska National Wildlife Refuges, one of nine environmental groups that had sued to block the road, said in a written statement that the ruling "reinstates the unethical efforts by the Trump administration to circumvent decades of legislation and regulations enacted to protect public lands and natural areas from destructive developments and preserve them for the benefit of all Americans."

He added: "We will use every means at our disposal to continue the fight to save the Izembek Refuge.”

There is currently no road that connects the two remote towns on the Aleutian Islands archipelago. The only way to get from one to the other is by plane or boat. King Cove's airport is small and often closed by bad weather conditions, and residents there have said the single-lane gravel road is needed, primarily, so that they can access Cold Bay's larger, all-weather airport to "facilitate medical evacuations." Two Alaska Native tribes — the Agdaagux Tribe and the Native Village of Belkofski — advocated in favor of the road, and joined the lawsuit as intervenors.

Congress first signed off on the land swap, in which the King Cove Corporation would give land to the the wildlife refuge in exchange for a thin, 500-acre strip of land for the road, in 2009. Congress specified that the road would "be used primarily for health and safety purposes (including access to and from the Cold Bay Airport) and only for noncommercial purposes.”

But in 2013, Interior Secretary Sally Jewell, a Barack Obama appointee, decided not to go through with the land swap, writing that the road "would lead to significant degradation of irreplaceable ecological resources that would not be offset by the protection of other lands to be received under an exchange.” She noted there were other ways to get from one town to the other, including fishing boats, ferries, airplanes and even hovercrafts.

Five years later, President Donald Trump's Interior chief Ryan Zinke reversed course and approved the land exchange, using as justification a different law — the Alaska National Interest Lands Conservation Act. The nine environmental groups field a lawsuit and a federal judge blocked the deal. The next year, Zinke's replacement David Bernhardt approved of a nearly identical land swap.

Bernhardt noted that since 2013, “there have been over 70 medevacs from King Cove to hospital facilities in Cold Bay, Anchorage or Seattle,” and more than 20 “had to be handled by the U.S. Coast Guard at a cost of approximately $50,000 per rescue mission.” He also pointed out a 2015 study by the Army Corps of Engineers which found that alternatives to the road, like the hovercraft, were “prohibitively costly and/or insufficiently dependable.” Bernhardt said that he placed great weight in the "Alaska Native Aleut people [who] have lived at the King Cove village site for thousands of years before [Congress] designated their backyard wilderness.”

Bernhardt's version of the deal did not limit the use of the road to health and safety purposes or expressly prohibit commercial uses.

The same nine environmental groups sued to prevent the land exchange, and a federal judge granted summary judgment and vacated the agreement, writing that it failed to "advance the stated purposes of" the Alaska National Interest Lands Conservation Act, the purposes of which, according to the judge, did not include furthering "the economic and social needs of Alaska and its people.”

That was the argument at the core of the appeal: whether the act was purely a law about preserving habitat, or whether it considered the economic and social needs of humans living in Alaska. Two of the Ninth Circuit judges, Miller and fellow Trump appointee Bridget Bade, agreed that it was the latter.

U.S. Circuit Judge Kim Wardlaw, a Bill Clinton appointee, disagreed. In her dissent, she wrote: "As nearly any environmentally destructive project could be billed as furthering economic and social needs, this putative statutory purpose would convert ANILCA from a constraint on over-using Alaska’s natural resources to a rubber stamp for any land exchange that the current Secretary may desire." She added that Congress had not intended to "give carte blanche to the agency to depredate Alaska’s irreplaceable natural wonders under the guise of pursuing the “economic and social needs” of Alaskans."

The panel remanded the case to the lower court for trial.

A phone call to the King Cove Corporation was not returned. A spokesperson for the Department of the Interior said they were "reviewing the decision."

The nine environmental groups said they would continue to press their case in court.

"This dangerous ruling allows an unelected Interior secretary to overrule Congress by simply giving away lands designated as Wilderness,” said Bridget Psarianos, staff attorney with Trustees for Alaska. “This is not about medical access. This is about
commercial corporate interests and the disregard for the laws that protect our nation’s lands, waters, and wildlife."

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