The Fish and Wildlife Service's decision to reject a land exchange to facilitate construction of a road through the Izembek National Wildlife Refuge has been upheld by a federal judge in Alaska (Agdaagux Tribe of King Cove v. Jewell, 14-110-HRH, D. Alaska).
U.S. District Judge H. Russel Holland's order is a significant development in the years-long battle over the road, which local residents argue is necessary to enable sick and injured people to get to the Cold Bay Airport.
"Perhaps Congress will now think better of its decision to encumber the King Cove Road project with a [National Environmental Policy Act] requirement," the judge said. As reported by Alaska Dispatch News, "The decision could be null if [Sen. Lisa] Murkowski (R-Alaska) is successful in passing language she has offered in congressional budget negotiations, which would approve the land exchange and remove [Interior Secretary Sally] Jewell’s approval from the process."
Environmental groups hailed the judge's decision in a news release issued yesterday.
"Izembek’s lagoon complex is a globally important ecosystem that contains one of the largest eelgrass beds in the world, providing food and habitat for fish and crabs that feed migratory birds from multiple continents," the groups said. "Virtually the entire world populations of Pacific black brant and emperor geese, and a significant portion of the threatened Steller’s eider population visits the refuge to rest and feed during spring and fall migrations."
Holland said the service had not made up it mind about the land exchange and the road before choosing the "no action" alternative in an EIS it issued in February 2013. The proposed exchange was 206 acres of federal land in the Izembek NWR for 56,393 acres of State of Alaska and King Cove Corporation-owned land.
Here's the judge's conclusion:
In the [Omnibus Public Land Management Act of 2009] Congress recognized that a road from King Cove to Cold Bay would foster public health and safety and would present environmental concerns. Rather than make the hard choice between public health and safety and the environment itself, Congress left that decision to the Secretary, requiring that she comply with NEPA before approving the road and land exchange needed to construct the road. 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.
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.
Plaintiffs’ and intervenor-plaintiff’s motion for summary judgment is denied, and defendants’ and intervenor-defendants’ cross-motions are granted. There has been no NEPA violation here, nor has there been any violation of the OPLMA. The clerk of court shall enter judgment dismissing plaintiffs’ and intervenor-plaintiff’s complaints with prejudice.
Plaintiffs also argue that the Secretary [of the Interior] failed to consider the wildlife and environmental value of the offered lands in any meaningful manner. They argue that the Secretary summarily dismissed the value of the offered lands because she had decided that the 206 acres of federal land was irreplaceable.
To the extent that plaintiffs are contending that the FWS only considered the impacts that the proposed project would have on the 206 acres of federal land, plaintiffs are wrong. The FWS found that “[t]he impact of road construction on wilderness character would radiate far beyond the footprint of the road corridor.”88 Moreover, the FWS properly considered the wildlife and environmental value of the offered lands in comparison to the 206 acres. For example, although some of the state and local parcels offered for exchange have notable environmental values, none are home to the unique population of Tundra Swans that reside in the isthmus.
It is the court’s perception that plaintiffs’ arguments that the FWS did not take a “hard look” at land values are simply disagreements as to the relative weight that the FWS accorded the impacts.