A long-standing priority for the Alaska delegation – and especially for Republican Senator Lisa Murkowski – was the 19-mile Izembek Road proposed to join the village from King Cove with an airport in nearby Cold Bay would cut through state-designated wilderness areas in the refuge.
Project supporters say the street would serve local residents, most of whom are Alaskan Natives, with access to emergency medical care; Opponents argue that it would cause irreparable damage to a globally recognized wetland ecosystem that provides critical habitat for thousands of migratory bird species and genuinely benefits the commercial fishing industry. King Cove on the remote edge of the Alaskan Peninsula is home to one of the state’s largest canning factories.
Izembek has become a litmus test of the Biden government’s approach to land use issues in Alaska, and the Interior Department’s road policy is still under review. Murkowski pushed Deb Haaland into her Senate confirmation Hearing as Minister of the Interior on whether, under her leadership, DOI would continue to defend projects that were completed under the previous administration. Haaland, who was sworn in as the first Native American to head the agency earlier this week, responded that she was ready to meet with King Cove residents to hear from them directly.
Izembek Street is still very much in the balance. Two previous attempts by the Trump administration to organize a land swap for the construction of the road were rejected by the courts, largely because of a 2013 Home Office finding that the project would irreversibly damage the refuge and was not publicly available, had not properly addressed interest.
Bernhardt’s memo was an 11th Hourly bid to bypass the courts by making King Cove village an “Inholding” under federal law. Such a designation applies to private or state areas that are surrounded by nature reserves such as shelters or parks so that they are not accessible in any other way. But King Cove, a town of just over 1,000 residents, has a small airport and port, and is home to a large seasonal workforce each year. It is also located approximately 20 miles from the Protection Line, undermining Bernhardt’s claim that it is “effectively” surrounded by protected areas or physical barriers.
If granted, the FWS’s holding status would empower the State of Alaska and the village of King Cove, which filed their applications with the Agency in late October, to grant rights of way. Bernhardt’s memo instructed the FWS to approve the designation despite internal questions from the agency.
If this interpretation of the law were upheld by the department, it would be easier for the state or private landowners to apply for permits to build roads through protected protection systems, even if they are designated as wilderness areas.
“Bernhardt’s position contradicts federal law and a thorough understanding of what ‘inholding’ means and what situation requires access between entities in the conservation system to private land,” said Lavin.
A Home Office spokesman said the law firm is currently reviewing Bernhardt’s memo for “legal sufficiency”. Attempts to reach Bernhardt were not immediately successful.
In a statement emailed, Murkowski defended Bernhardt’s actions, saying his “attempt to provide an additional way to connect the people of King Cove to Cold Bay Airport is the right decision.”
Bernhardt not only declared King Cove to be involved, but also unilaterally canceled the December FWS statement, which was also received from POLITICO and Type Investigations, that the application was inadequate. Bernhardt’s memo would also allow the state to circumvent strict regulations and permits required for road construction in wilderness areas, including gravel mining in the refuge, which the FWS would not approve in its letter.
“The protection of the values of natural resources cannot frustrate or effectively deny the rights of the owner,” wrote Bernhardt.
On the same day that Bernhardt issued his memo, the FWS sent the Alaska DOT a letter informing them that the agency had “reconsidered” their previous request for additional information – ten pages of detailed questions – and that the Application was now complete.
However, legal experts and some DOI staff said that Bernhardt’s recent efforts were even less successful than the land swap.
“We’re going to lose because it’s outrageous,” said a DOI employee who refused to be identified. “I think it’s reaching for straws.”
Brook Bisson, an attorney at Trustees for Alaska suing the division over the land swap agreement, said the state’s right of way application and the Bernhardt policy raise a number of legal issues.
“This is the latest attempt to build a road through Izembek after the land swap for the road was knocked down several times by the court,” she said in an email. “The state is trying to apply a novel legal theory rather than following the procedure used by the court.”
The Army Corps of Engineers, which must also sign the right of way, appears to agree. In February the corps noted that the state’s application was incomplete and has since closed the file, as indicated by other documents received from POLITICO and Type Investigations.
An Alaska Department of Transportation spokesman said it intends to do fieldwork this spring before resubmitting its right of way request. “We look forward to conducting environmental studies … so DOT can continue working towards a road link between King Cove and Cold Bay Airport,” the department spokesman wrote in an email.
Proponents of the street have argued for years the need to connect King Cove residents to medical facilities they cannot reach when dangerous weather closes the small airport and port. The road would give the village more reliable access to the much larger Cold Bay airport with regular connections to Anchorage.
“For decades, people in King Cove have asked about something the vast majority of Americans already have: access to life-saving services,” Murkowski said. “The simple solution has always been a short gravel road.”
However, conservation groups say the road has always been a ploy to promote the interests of commercial fish processors who dominate the peninsula’s economy. King Cove is almost entirely dependent on the fishing industry, and road access to Cold Bay Airport would be an economic boon. Although previous versions of the land swap proposal restricted commercial use of the road, those restrictions have largely been lifted by the scheme developed under the Trump administration and the recent memo by Bernhardt.
Although a DOI spokesman said the government’s policy on Izembek was not settled, the Justice Department recently filed a lawsuit in the land swap lawsuit before the 9thth The appeals court upheld the previous government’s argument.
However, judicial filing does not necessarily reflect future DOI policy. Still, some in the department see the decision as a sign that the administration may be ready to use Izembek as a basis for negotiations.
“It really looks like this administration needs Murkowski’s support,” said the DOI employee. “So maybe it’s ready to play ball on Izembek Street.”
Adam Federman is the Rapporteur for Type Investigations.