Mar. 17—The U.S. 9th Circuit Court of Appeals this week issued a ruling in support of a Trump-era decision and a Southwest Alaska village that has long sought construction of an 11-mile road through the Izembek National Wildlife Refuge.
A three-judge panel for the court, with one judge dissenting, determined Wednesday that former Interior Secretary David Bernhardt in 2019 correctly approved a land exchange between the Interior Department and King Cove's Alaska Native village corporation, according to the 44-page decision. The land exchange would pave the way for the road.
The village has sought to build the road for decades, arguing that it would prevent deaths by allowing residents to quickly reach the community of Cold Bay, which has an all-weather airport and access to emergency flights. Conservation groups have argued that the road would support commercial interests, such as for fishing, and harm migrating waterfowl and other wildlife that depend on the 310,000-acre refuge near the tip of the Alaska Peninsula.
Conservation groups in the case decried the decision, and an attorney in the case representing those groups said the ruling could set an "incredibly dangerous" precedent that threatens Alaska federally protected parks, refuges and wilderness areas in Alaska.
Della Trumble with the King Cove Corp., representing Alaska Native people from the village, said the ruling is welcome after a roughly 40-year fight.
"Basically we're happy at this point of the ruling, but that's all we can say because we haven't taken the time to read through it," she said in an interview.
The ruling on Wednesday reverses a 2020 opinion by District Court Judge John Sedwick of Anchorage rejecting the land exchange, and sends the case back to the district court.
Last March, the Biden administration appealed Sedwick's decision, defending the land exchange agreement. It was a departure from a variety of other actions by the new administration seeking to stop major Trump-era decisions impacting Alaska.
Trustees for Alaska, representing several conservation groups in the case, decried the decision on Wednesday.
The group said the ruling threatens land, water and wildlife in the refuge and trades away congressionally designated wilderness to a private corporation for the purposes of building a commercial road.
"We are deeply disappointed that this decision 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," said David Raskin, president of Friends of Alaska National Wildlife Refuges. "We will use every means at our disposal to continue the fight to save the Izembek Refuge."
In a post on social media, Alaska Republican Gov. Mike Dunleavy called the ruling "great news!"
"This is a huge step forward for the residents getting the road their community needs!" the governor said.
Alaska's all-Republican congressional delegation said in a statement on Wednesday that the 9th Circuit made the right decision.
"The proposed single-lane gravel road enjoys bipartisan support across two administrations for good reason: in the event of medical emergencies, natural disasters, or any other crisis, access to surface transportation can mean the difference between life and death for residents of King Cove," Rep. Don Young said in the statement.
Sen. Dan Sullivan and Sen. Lisa Murkowski noted the issue isn't yet settled: "I'm hopeful that courts at all levels will read this ruling and support the land exchange agreement signed by former Secretary Bernhardt," Murkowski said.
Judges Eric D. Miller and Bridget S. Bade, appointees of former Republican President Donald Trump, issued the opinion supporting Bernhardt's decision.
Judge Kim McLane Wardlaw, appointed by former Democratic President Bill Clinton, dissented.
The opinion, written by Miller, argues that Bernhardt correctly analyzed the statutory purposes of the Alaska National Interest Lands Conservation Act, the 1980 law that classified Izembek as a refuge and created other specially protected federal conservation lands across Alaska.
Under the law, Bernhardt had the right to find the appropriate balance between environmental interests and the economic and social needs of King Cove, and he did so, the ruling says.
Bernhardt acknowledged previous findings from Interior that preventing a road would best protect the refuge's habitat and wildlife, the ruling says.
"But after examining the most recent available information about alternatives to a road, Secretary Bernhardt concluded that the value of a road to the King Cove community outweighed the harm that it would cause to environmental interests," the ruling said.
Also, the ruling asserts that Judge Sedwick's view of the 1980 conservation law did not agree with the U.S. Supreme Court's 2019 decision in favor of Alaskan moose hunter John Sturgeon. In that decision, the Supreme Court upheld state management of state-owned navigable waterways running through federal conservation lands in Alaska.
In the Sturgeon case, the Supreme Court determined that Congress in the Alaska conservation law had sought to balance "scenic, natural, cultural and environmental values" in the state with the economic and social needs of its people, the ruling said.
"One of the purposes of ANILCA, therefore, is to address the economic and social needs of Alaskans," the ruling says. "The Secretary appropriately weighed those needs against the other statutory purposes in deciding whether to enter the land exchange agreement."
Wardlaw, in her dissent, argued that Bernhardt had contradicted key findings of a 2013 decision by former Interior Secretary Sally Jewell and violated the stated purposes and procedural requirements of the Alaska conservation act.
Bernhardt broke with Jewell's decision rejecting a land swap in the refuge. But Bernhardt did not violate the Administrative Procedure Act when he did so, the ruling also says.
Bridget Psarianos, staff attorney with Trustees for Alaska, said the decision sets an "incredibly dangerous" precedent for parks, refuges and other conservation units in Alaska.
"It says an Interior secretary can give away lands that Congress has designated as wilderness, if it's economically beneficial to Alaska," she said.
Psarianos said the case is being remanded back to the district court to address other challenges the conservation groups had raised but that were not ruled upon by Sedwick after he had determined the land exchange was illegal.
Those remaining issues deal with procedural errors the conservation groups alleged took place under laws such as the Endangered Species Act. Those missteps are important and should be corrected, she said.
But a future ruling by the district court on those issues could delay a land exchange, but not stop it, she said.
The groups in the case are weighing their options, she said, which could include asking for an en banc review before 11 judges with the 9th Circuit, though such reviews rarely overturn previous decisions by the appeals court, she said.
"We're still evaluating what we'll do, but this fight is far from over," she said.
