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Can they do that? Conservation groups say feds could be vulnerable to lawsuit over refuge road

The village of King Cove wants to build a road through the Izembek National Wildlife Refuge to the jet airstrip in the nearby town of Cold Bay. (Paul Dennler/Aleutians East Borough via The New York Times)

Will Monday's agreement to advance the proposed road through a remote Southwest Alaska wildlife refuge stand up in court?

Even before the deal's announcement, environmental advocacy groups were already warning that they would sue over the controversial proposal.

The signed, eight-page agreement released Monday by the Department of the Interior draws the legal battle lines. And conservation groups argue that by pressing the road project through its executive powers rather than through legislation in Congress, the Trump administration could be legally vulnerable.

Ryan Zinke (REUTERS/Brian Snyder)

Interior Secretary Ryan Zinke, in a phone interview late Sunday, said he's not worried.

"We have 400 attorneys in Washington, D.C.," he said. "We made sure that our actions are defendable in court."

The document released Monday sets the terms for a land swap between the Interior Department and King Cove Corp., the Alaska Native village corporation pressing for the road to connect King Cove with the jet airstrip in nearby Cold Bay.

In the document, the Interior Department asserts that its authority for the exchange flows from a section of the landmark 1980 Alaska National Interest Lands Conservation Act, or ANILCA.

That bill, assembled over four years, protected 104 million acres in Alaska — an area the size of California — spread over national parks, forests, monuments and wildlife refuges.

The legislation included a specific provision, section 1302(h), allowing the Interior Secretary to exchange protected lands with Native corporations and other entities. But the section also requires such trades to meet ANILCA's purposes.

Those purposes, set out in a preamble to the rest of the bill, include preservation of land and water with "nationally significant natural, scenic, historic" and other values, along with wildlife species "of inestimable value."

The question of whether a land trade under section 1302(h) meets ANILCA's purposes has never been tested in court, said Katie Strong, an attorney with an environmental law firm, Trustees for Alaska, who's worked on past King Cove road litigation.

But Strong pointed to 1985 correspondence from Mo Udall, the late Arizona congressman who was involved in the debate over ANILCA, which said section 1302(h) was intended to expand and consolidate protected areas — not to facilitate development within them.

"Trading away the heart of the Izembek refuge is completely contrary to those purposes, is not supported by the statute and it flies in the face of what the drafters of ANILCA intended," Strong said in a phone interview Monday.

Allowing such a land trade in Izembek, Strong added, would set a precedent that threatens other federal lands. If the exchange goes forward, she said, "none of these areas are safe."

Zinke wouldn't speak to the specific legal details of the land trade in the phone interview, and an Interior Department spokeswoman said Monday that the agency's attorneys were unavailable because of the government shutdown.

But one attorney who helped write ANILCA as a Congressional committee staffer said he thinks Strong's interpretation is "110 percent wrong."

Bill Horn, a former aide to Rep. Don Young and the late Sen. Ted Stevens, said ANILCA was specifically drafted to be flexible when it comes to Alaska Natives and their corporations. That's because in some cases, those corporations owned large swaths of land within protected areas, including entire villages, he added.

Democrats like Udall wanted to ensure the continuity of protected areas by placing tougher restrictions on activity that could happen inside them, Horn said, but Alaska lawmakers argued against that.

"You're going to draw these large units and put people inside them and they are living there," Horn said. "You can't put them under rules that are going to apply in Outside parks and refuges."

As for the purposes of ANILCA, Horn added, the legislation also refers to giving "adequate opportunity for satisfaction of the economic and social needs of the state of Alaska and its people."

The attorneys interviewed Monday said they were aware of just one case in which a 1302(h) land swap was challenged. That ended in a 1984 federal court decision invalidating a trade between the Interior Department and three Alaska Native corporations.

The corporations wanted a wilderness area on St. Matthew Island, in the Bering Sea, that was within the Alaska Maritime National Wildlife Refuge; it was going to be leased for infrastructure in support of offshore oil development. The Native corporations were set to trade back to the federal government land inside the Kenai and Yukon Delta national wildlife refuges.

The court said Interior Secretary James Watt — represented at the time by Horn, who was serving as deputy under-secretary — had abused his discretion under ANILCA by wrongly finding that the exchange was in the "public interest."

But that public interest finding is only required when the lands to be exchanged are of unequal value. That's not the case with the Izembek trade, so a lawsuit challenging the swap would be treading new legal ground.

Section 1302(h) has been used successfully before, Horn said. One major trade was in the early 1980s, when Arctic Slope Regional Corp. gave the federal government about 100,000 acres to expand Gates of the Arctic National Park.

In exchange, the corporation received subsurface rights inside the Arctic National Wildlife Refuge, under the village of Kaktovik, which generated millions of dollars in exploratory agreements with oil companies, according to ASRC.

That deal, the Chandler Lake Land Exchange, also led to the only oil well ever drilled in that refuge. The results of the drilling effort remain a closely guarded secret.

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