Opinion | Will the Future of Alaska’s Wild Lands Hang on a Dispute Over a Gravel Road?

In June 1962, I graduated from high school, purchased my first airline ticket and set off for Alaska. I had talked myself into a summer job with the United States Fish and Wildlife Service. My job included weekly flights with a bush pilot delivering supplies to points all over the Alaska Peninsula.

Near the western edge of the peninsula, just before it juts into the Aleutian Islands, lay a small fishing village with a cannery called King Cove. It was not large in my consciousness 60 years ago. But today King Cove has emerged as the epicenter of perhaps the most far-ranging conservation peril Alaska has faced.

A dispute has raged for years over the construction of a road that would cross at least 11 miles of the Izembek National Wildlife Refuge, nearly all of which is a federal wilderness considered one the world’s most important migratory bird stopovers. Allowing the road would threaten not only the refuge’s delicate wetlands that beckon and sustain the birds but also the legal foundation that protects more than 100 million acres of federal land in the state.

A land swap with an Alaskan Native Village corporation approved by the Trump administration would strip a narrow corridor in the refuge of its protection and turn it into a gravel road. A Federal District Court judge concluded that the deal was illegal, but then a federal appeals court panel voted 2-1 to reverse that decision. The two judges voting for the road were appointed by former President Donald Trump.

Another former president, Jimmy Carter, who signed the landmark law preserving more than 100 million acres in Alaska, has called that decision “not only deeply mistaken” but also “dangerous.” Those protections would be “negated” if the ruling were upheld, Mr. Carter wrote in a legal brief to the United States Court of Appeals for the Ninth Circuit.

An 11-member panel of the United States Court of Appeals for the Ninth Circuit is now reconsidering the decision. A majority of the panel members are Trump appointees.

All of this could be avoided if the Interior secretary, Deb Haaland, would simply stop the land swap with the King Cove Corporation, the Alaskan Native Village corporation that supports the road. And that’s what she should do: cancel the deal, immediately. She has the power. The Justice Department, in a letter to the clerk of the Ninth Circuit in 2021, said that “it is possible” that Secretary Haaland “could take action that would render the litigation as a whole moot.”

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The problem is, the Biden administration has been arguing in court in support of the Interior secretary’s authority to make the swap, though it has said that “the merits of this land exchange” is an “issue that remains to be addressed in litigation.”

For half a century, King Cove, which has a population of about 800, has sought to build a road about 40 miles long to Cold Bay and its roughly 100 residents. Both communities are accessible only by boat or plane, which is not unusual in Alaska. King Cove has a large fish processing plant. Cold Bay has a leftover World War II airport with a two-mile runway that can handle cargo planes with enough range to ship fresh salmon to Asia and the Lower 48.

Because of the geography of the roughly three-mile-wide Izembek Isthmus, any road would have to cross the Izembek National Wildlife Refuge, home to more than 200 species of wildlife, including grizzly bears, caribou, wolves, salmon and Steller sea lions. What is especially distinctive about the refuge, Alaska’s smallest at just over 300,000 acres, is that it is a vitally important stop for millions of migratory birds, including virtually the entire global population of the Pacific black brant and more than half the population of emperor geese, which feed on some of the most extensive eelgrass meadows in the world on the refuge’s coastal wetland. A road would disrupt this world.

A creek snakes through wetlands in the Izembek National Wildlife Refuge near Cold Bay, Alaska.Credit…Acacia Johnson for The New York Times

Efforts to build a road between King Cove and Cold Bay have been blocked multiple times over the last several decades. In 2009, following heavy lobbying by road supporters, Congress directed the Interior Department to explore a possible land swap but stipulated that authority for road construction in the refuge would expire in 2016. After a four-year study that evaluated the utility of such a road for year-round medical evacuations from King Cove, the former Interior Secretary Sally Jewell rejected the swap in 2013, concluding there were better options than a destructive intrusion through the preserve.

Then in 2019, David Bernhardt, who was the Interior secretary under President Trump, teed up yet another land swap for the road, building on earlier plans within the administration. This time, though, he argued that the economic and public safety benefits of the road to residents of the two communities outweighed the environmental costs.

But legally, it doesn’t matter how great the economic benefits might be. The secretary of the Interior does not have the authority to plow a road through a wilderness area protected by law.

And that’s where things stand today as those Ninth Circuit judges weigh the future of the Izembek reserve.

This should not be happening. Congress wrestled for decades over the proper allocation of federal lands in Alaska. First, it provided over 100 million acres to the state for economic development purposes in the Alaska Statehood Act of 1958. Then, in 1971, it settled Alaska Native aboriginal land claims by conveying roughly 45 million acres of land to Native corporations owned by Native shareholders. The federal government also paid those corporations nearly $1 billion in a settlement for land lost. Finally, in 1980, Congress granted various levels of permanent protection to over 100 million acres with exceptional biological or scenic characteristics. The legislative measure that accomplished this last goal was the Alaska National Interest Lands Conservation Act (ANILCA), signed by Mr. Carter.

Its purpose was twofold: to preserve Alaskan landscapes and to allow rural and Native people living subsistence lives on the land to continue to do so. Congress deliberately made it very difficult to tinker with the balances the law had achieved. To build a road through a designated wilderness area, ANILCA requires the Interior secretary to produce an extensive, multiagency analysis and a statement of its environmental impact. The project then must be approved by the president and by Congress.

A bald eagle perches near the boundary of the Izembek National Wildlife Refuge.Credit…Acacia Johnson for The New York Times

None of this was done. As Mr. Carter put it in his brief, the decision by the three-judge panel “rests on a grave misunderstanding.” He argued that Congress did not give the Interior secretary the discretion he claimed in agreeing to the land swap. “That is precisely what ANILCA disallowed,” Mr. Carter argued.

If the Ninth Circuit upholds the decision of the smaller panel of its judges, Mr. Carter said, it will render ANILCA’s environmental protections at best, “provisional, and at worst, meaningless.”

What’s also worrisome is what this legal fight portends for other public land battles, especially in the West. In Mr. Trump’s efforts to reshape the federal judiciary, one particular target was the Ninth Circuit, which he deemed a “complete and total disaster” in a 2018 tweet.

Because the Ninth Circuit covers nine western states, including Alaska and Hawaii, as well as Guam and the Northern Mariana Islands, it hears a large fraction of the nation’s most important public lands cases. Mr. Trump managed to appoint more than one-third of its 29 active judges.

If the Ninth Circuit permits the Izembek road, this calamitous precedent will invent from whole cloth a new, open-ended power for future Interior secretaries to decide to allow any commercial project on protected Alaska land simply by arguing that its economic value exceeds any ecological loss.

When President Carter signed the Alaska conservation act in 1980, he expressed hope that the lands the law set aside would be preserved, “now and, I pray, for all time to come.”

Without action by the Biden administration, it may be time to start praying.

Denis Hayes is the chief executive of the Bullitt Foundation, which is focused on protecting the natural environment of the Pacific Northwest. He was the principal national organizer of the first Earth Day in 1970.

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