Feds suspend permit for road construction through Alaska wildlife refuge, amid legal questions

State officials say they retain the right to build the first 2.8 miles of a road that would run through the Izembek National Wildlife Refuge; but road opponents disagree

Green eelgrass appears at low tide in the vast wetlands of Izembek Lagoon, at the edge of Izembek Refuge on April 17, 2021. The refuge has one of the world's biggest eelgrass beds, making the area a global site for migratory birds. (Kristine Sowl/U.S. Fish and Wildlife Service)

By Yereth Rosen

Alaska Beacon

Federal regulators have suspended a wetlands-fill permit allowing construction of a controversial road through an Alaska national wildlife refuge, but the on-the-ground result of that action is a subject of legal contention.

State officials say they still intend to start the work in coming weeks on the first part of the road that is planned to cross through the Izembek National Wildlife Refuge. But environmental groups and Native tribal governments who oppose the road argue that the U.S. Army Corps of Engineers’ Aug. 26 suspension of the wetlands-fill permit for the road project precludes work on any part of it.

At issue is an 18.9-mile road that would link the isolated Alaska Peninsula community of King Cove to the military legacy, all-weather airport at Cold Bay. The road, as planned, would cut through an area of designated wilderness within the wildlife refuge.

The Corps in July issued a wetlands-fill permit to the state, a key permit needed for road construction. But on Aug. 18, U.S. District Court Judge Sharon Gleason overturned a land trade that was necessary to allow construction of the road project. The state said it plans to appeal the decision. 

“You are directed to stop any activities that were previously authorized by the suspended permit. . . . Any further work in these areas shall be considered a knowing, repeat, and flagrant violation of Federal law,” the Corps said in its letter following the ruling to the Alaska Department of Transportation and Public Facilities.

The permit suspension will give the Corps time to evaluate the full implications of Gleason’s decision on the land trade, the letter said.

There is disagreement about what the now-suspended permit covers, however.

The Department of Transportation and Public Facilities holds the position that the suspension should not interfere with this fall’s plans, and that it still has the right to build the first 2.8-mile section of the road, according to a department spokesperson

That portion of road is not subject to the wetlands-fill permit because it would not require disposal of fill into waters, state officials argue. And the area involved is outside of the disputed land trade, on land already owned by the King Cove Corporation, the community’s village Native corporation, state officials said.

“The State still plans to begin construction in September. The 2026 construction does not rely upon this permit, as it will not discharge fill into Waters of the U.S., including wetlands,” Justin Shelby, the Department of Transportation and Public Facility’s Central Region administrative operations manager, said by email. 

Areas considered “Waters of the United States,” a legal term, are subject to certain Clean Water Act requirements.

Shelby pointed out that the state itself asked for the permit suspension. In the department’s request letter, the state argued suspension of the permit would reduce possible confusion in the ongoing litigation and allow the federal court “to consider all arguments raised by the plaintiffs without the perception of pressure from the State of Alaska’s need to rely on the permit authorizations.” 

The environmental and Yukon-Kuskokwim tribal plaintiffs who have challenged both the land trade and the wetlands-fill permit, in contrast, argue that the entire road is covered by both authorizations, and that any construction now would be illegal.

Suspension of the permit was good news for road opponents, one of the plaintiff attorneys said.

“What a huge relief to see this permit pulled, because it was clear that Trump officials were ignoring the law with these destructive plans. A road would completely ravage Izembek’s globally important wetlands,” said Rebecca Noblin, Alaska legal director at the Center for Biological Diversity. “The refuge is vital for ​migratory birds that Y-K Delta Tribes like Hooper Bay, Paimiut, and Chevak depend on for food. No administration should be allowed to ignore federal public land protections to push construction projects through crucial wildlife habitat.”

Tribes in those three villages have sued to block the land trade and overturn the Corps permit.

The Corps on Monday declined to comment on the opposing legal interpretations, citing policies on pending litigation. The Corps’ public affairs officer referred questions about the subject to the U.S. Department of Justice.

The Department of Transportation and Public Facilities has mobilized equipment and materials to start building the initial 2.8-mile section. That portion of the road includes a bridge that is “the most complex and expensive feature of the entire road construction project,” according to a state Department of Law status report filed in federal court on Aug. 20.

The state expects an allocation of $18 million for the project during the current fiscal year, with nearly $16.4 million of that coming from federal funds and the remainder from a state match, according to the statewide transportation plan.

The Izembek road proposal has been debated for decades.

State officials argue that it is needed as a lifesaving access for the approximately 750 residents of King Cove. Environmentalists argue that it would harm globally important wetlands and would set a bad precedent for protected lands elsewhere in the nation.

The debate has also divided Native groups.

King Cove residents, largely Aleut and shareholders in the Aleut-owned corporation involved in the disputed land trade, have advocated for it. They say that flying in and out of the  King Cove airport is dangerous in bad weather, while the nearby Cold Bay airport, with a runway extending over 10,000 feet, can accommodate jets providing safe air travel in most conditions.

Members of some Yup’ik tribal organizations on Western Alaska’s Yukon-Kuskokwim Delta, however, argue that the road would do substantial damage to wetlands habitat for migratory birds that are important to traditional subsistence hunting.

The refuge’s lagoons support hundreds of thousands of migratory birds each year, including nearly the entire global population of Pacific black brant and more than half the world’s population of emperor geese.

• Yereth Rosen came to Alaska in 1987 to work for the Anchorage Times. She has been reporting on Alaska news ever since, covering stories ranging from oil spills to sled-dog races. She has reported for Reuters, for the Alaska Dispatch News, for Arctic Today and for other organizations. Alaska Beacon is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.