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Agdaagux Tribe of King Cove v. Jewell

United States District Court, D. Alaska

September 8, 2015

AGDAAGUX TRIBE OF KING COVE, et al., Plaintiffs,
v.
SALLY JEWELL, Secretary of the Department of the Interior, et al., Defendants, and STATE OF ALASKA, Intervenor-Plaintiff, and FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES, et al., Intervenor-Defendants

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          For Agdaagux Tribe of King Cove, Native Village of Belkofski, King Cove Corporation, Aleutians East Borough, City of King Cove, Etta Kuzakin, Etta Kuzakin, Plaintiffs: James F. Clark, LEAD ATTORNEY, Law Offices of James F. Clark, Juneau, AK; Steven W. Silver, LEAD ATTORNEY, Robertson Monagle and Eastaugh, Reston, VA.

         For State of Alaska, Intervenor Plaintiff: Thomas E. Lenhart, LEAD ATTORNEY, Alaska Department of Law, Office of the Attorney General, Juneau, AK.

         For Sally Jewell, Secretary of the Department of Interior, Kevin Washburn, Assistant Secretary for Indian Affairs, Dan Ashe, Director, United States Fish and Wildlife Service, Geoff Haskett, Regional Director, United States Fish and Wildlife Service, Doug Damberg, Manager, Izembek National Wildlife Refuge, Michael J. Bean, Acting Assistant Secretary for Fish Wildlife and Parks, Defendants: Richard L. Pomeroy, LEAD ATTORNEY, U.S. Attorney's Office (Anch), Anchorage, AK; Stacey M. Bosshardt, LEAD ATTORNEY, U.S. Department of Justice/ ENRD/ EES, Washington, DC.

         For Friends of Alaska National Wildlife Refuges, Defenders of Wildlife, Wilderness Watch, Center for Biological Diversity, The Wilderness Society, National Audubon Society, National Wildlife Refuge Association, National Wildlife Refuge Association, Intervenor Defendants: Brook Brisson, Katherine G. Strong, LEAD ATTORNEYS, Trustees for Alaska, Anchorage, AK.

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          ORDER

         H. Russel Holland, United States District Judge.

         Cross-Motions for Summary Judgment

         Plaintiffs and intervenor-plaintiff move for summary judgment.[1] This motion is opposed and defendants and intervenor-defendants cross-move for summary judgment.[2] The cross-motions are opposed.[3] Oral argument was not requested and is not deemed necessary.

         Facts

         Plaintiffs are the Agdaagux Tribe of King Cove, the Native Village of Belkofski, the King Cove Corporation (KCC),[4] the Aleutians East Borough, the City of King Cove, Etta Kuzakin, and Leff Kenezuroff.[5] Intervenor-plaintiff is the State of Alaska. Defendants are Sally Jewell, the Secretary of the Department of Interior; Kevin Washburn, Assistant Secretary for Indian Affairs; Michael J. Bean, Acting Assistant Secretary for Fish Wildlife and Parks; Dan Ashe, Director, United States Fish and Wildlife Service; Geoff Haskett, Regional Director, United States Fish and Wildlife; and Doug Damberg, Manager, Izembek National Wildlife Refuge. Intervenor-defendants are Friends of Alaska National Wildlife Refuges, Defenders of Wildlife, Wilderness Watch, Center for Biological Diversity, The Wilderness Society, the National Audubon Society, the National Wildlife Refuge Association, and the Sierra Club.

         The City of King Cove (" King Cove" ) is located on the Alaska Peninsula, which separates the Pacific Ocean from Bristol Bay, an arm of the Bering Sea. King Cove has 938 residents, of whom more than one third are Alaska Natives.[6] King Cove is one of the communities within the Aleutians East Borough (AEB). Another community within the AEB is Cold Bay. Cold Bay is a small community located approximately 18 miles from King Cove and home to the only all-weather airport in the vicinity of King Cove. Both King Cove and Cold Bay are accessible only by air and sea.

         King Cove and Cold Bay are both located within the Izembek National Wildlife Refuge, which was established in 1980 as part of the Alaska National Interest Lands Conservation Act (ANILCA). The Izembek National Wildlife Refuge was established

(i) to conserve fish and wildlife populations and habitats in their natural diversity including, but not limited to, waterfowl, shorebirds and other migratory birds, brown bears and salmonoids;
(ii) to fulfill the international treaty obligations of the United States with respect to fish and wildlife and their habitats;
(iii) to provide, in a manner consistent with the purposes set forth in subparagraphs (i) and (ii), the opportunity for continued subsistence uses by local residents; and

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(iv) to ensure, to the maximum extent practicable and in a manner consistent with the purposes set forth in paragraph (i), water quality and necessary water quantity within the refuge.

Pub. L. 96-487 (HR 39), Title III § 303(3) (Dec. 2, 1980). " The Izembek Wildlife Refuge is important largely to the millions of waterfowl and shorebirds which rest and feed there for several months during spring and fall migrations." S. Rep. 96-413 at 221-222 (1979), reprinted in 1980 U.S.C.C.A.N. 5070 at 5165-66 (1980). " The world-famous eelgrass beds of the Izembek Lagoon ... attract the largest concentration of migratory birds. At times the entire world population of several species such as black brant and emperor geese can be found in these areas." Id. at 179. " Izembek Refuge also has the only non-migratory population of Tundra Swans in the world." [7] " Other waterfowl species rely on the wetlands as well as the lagoons -- including Steller's Eiders, the U.S. population of which is threatened. A significant percentage of the world's population of these birds (up to 40% at times) winter on the Refuge." [8] The Refuge is also home to " abundant brown bears, caribou and wolves" and " [b]etween 10,000 to 15,000 sea otters inhabit the waters off Izembek." S. Rep. 96-413 at 222. " Ringed, bearded, harbor and fur seals, walrus, beluga whales and porpoises also frequent these waters." Id. " Four species of salmon, dolly varden[] and rainbow trout inhabit streams and lakes and king crabs, halibut and razor clams are abundant in lagoons and offshore waters." Id. " In 1986, the Izembek Refuge received global attention as one of the first U.S. sites to be designated a 'Wetland of International Importance' by the Ramsar Convention on Wetlands of International Importance." [9]

         " The idea of a road connecting King Cove and Cold Bay has been discussed since at least the 1980's." [10] " Residents of King Cove community have long expressed interest in a road to improve access to Cold Bay and its airport for personal, medical, and commercial purposes." [11] Plaintiffs allege that " [t]he road would provide safe, reliable, and affordable access from King Cove to the Cold Bay Airport to allow medical evacuations from King Cove to Anchorage, particularly when wind and wave conditions make air and boat travel dangerous or highly uncomfortable for medical evacuees." [12]

         " In 1999 Congress passed the King Cove Health and Safety Act (Section 353) of the Consolidated and Emergency Supplemental Appropriations Act of 1999 (Public Law 105-277)...." [13] Under the Act, " $20 million was provided to construct a road-hovercraft link between King Cove and Cold Bay, $15 million was for improvements to the King Cove airstrip, and $2.5 million was for a major renovation of the King Cove health clinic." [14] " In 2006, the Aleutians

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East Borough constructed a one-lane gravel road from the King Cove airstrip to a temporary hovercraft dock four miles away where a hovercraft ... carrie[d] up to 49 passengers, an ambulance, and cargo to and from Cold Bay." [15] " This marine-road system was the preferred alternative evaluated in a 2003 Final Environmental Impact Statement completed by the Army Corps of Engineers." [16] " King Cove residents, however, continue[d] to seek a road linking their community with Cold Bay due to concerns about the reliability of the hovercraft in severe weather and uncertainty about future funding for the operational costs associated with the hovercraft." [17] And in fact, the hovercraft service was discontinued in 2011 by the AEB due to " cost and reliability concerns[.]" [18] In its years of operation from 2007-2011, the hovercraft was used to complete 22 medical evacuations.[19]

         " In 2009 Congress passed the Omnibus Public Land Management Act of 2009 (Public Law 111-11), Title VI, Subtitle E (OPLMA)...." [20] The OPLMA " authorized the Secretary of the Interior to exchange lands within the Izembek National Wildlife Refuge for lands owned by the State of Alaska and the King Cove Corporation for the purpose of constructing a single lane gravel road between the communities of King Cove and Cold Bay, Alaska." [21] More specifically, Section 6402(a) of the OPLMA provided:

Upon receipt of notification by the State and the Corporation of the intention of the State and the Corporation to exchange the non-Federal land for the Federal land, subject to the conditions and requirements described in this subtitle, the Secretary may convey to the State all right, title, and interest of the United States in and to the Federal land. The Federal land within the Refuge shall be transferred for the purpose of constructing a single-lane gravel road between the communities of King Cove and Cold Bay, Alaska.

Pub. L. 111-11, Title VI, Subtitle E, § 6402(a). The OPLMA provided that the road " shall be used primarily for health and safety purposes (including access to and from the Cold Bay Airport)...." Id. § 6403(a)(1)(A).

         " On determining whether to carry out the land exchange" the Secretary was required to comply with the National Environmental Policy Act of 1969 (NEPA) and " any other applicable law (including regulations)." Id. § 6402(b)(1). Any NEPA analysis was to contain--

(i) an analysis of--

(I) the proposed land exchange; and

(II) the potential construction and operation of a road between the communities of King Cove and Cold Bay, Alaska; and
(ii) an evaluation of a specific road corridor through the Refuge that is identified in consultation with the State, the City of King Cove, Alaska, and the Tribe.

Id. § 6402(b)(2)(B). The OPLMA provided that certain entities " may participate as ... cooperating"

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agencies " [d]uring the preparation of the environmental impact statement...." Id. § 6402(b)(3)(A). Entities entitled to participate as cooperating agencies included the State, the AEB, King Cove, and the Agdaagux Tribe. Id. § 6402(b)(3)(B).

         After the OPLMA was enacted, the Secretary directed the United States Fish and Wildlife Service (FWS) to prepare an environmental impact statement (EIS) for the proposed land exchange/road corridor. A notice of intent to prepare an EIS was published on August 6, 2009 and a " revised Notice of Intent was published on February 24, 2010 ... to announce the public scoping meetings and invite suggestions on the scope of issues to be addressed in the EIS." [22] " Seven public scoping meetings were conducted in March and April 2010 in Washington, D.C. and Anchorage, Alaska, as well as Cold Bay, False Pass, King Cove, Nelson Lagoon, and Sand Point, Alaska." [23]

         The FWS developed and analyzed five alternatives for the proposed land exchange/road corridor: 1) the no action alternative, 2) the land exchange and southern road alignment alternative, 3) the land exchange and central road alignment alternative, 4) the hovercraft operation alternative, and 5) the Lenard Harbor Ferry with Cold Bay Dock improvements alternative.

         On November 15, 2011, Stanley Mack, the mayor of the AEB, advised the FWS that

[a]fter another detailed analysis of the financial costs of the Borough's hovercraft, we have concluded that it is not financially feasible or responsible to authorize the re-start of King Cove - Cold Bay hovercraft operations. For more than three years the hovercraft was in operation, it required an annual operating subsidy in excess of $1 million from the Borough's general fund. This amount of annual funding is not sustainable or realistic for a remote, regional local government consisting of six communities with a population of 2500.[24]

         Thus, Mack recommended that the " Izembek Land Exchange EIS consultant team ... amend Alternative 1 (No Action) in the PDEIS to document there will be no resumption of hovercraft service in the foreseeable future." [25]

         On February 24, 2012, Mack wrote to the Corps of Engineers to provide it with " information ... about the recent announcement by the ... AEB regarding its decision not to operate the hovercraft between the Northeast Corner and Cross Wind Cove or other Cold Bay location." [26] Mack advised that " [i]f the Secretary does not approve the land exchange, the AEB will develop an alternative transportation link between King Cove and Cold Bay. Any alternative we develop will include the utilization of the road to Northeast Corner and associated facilities, now being constructed under the King Cove Health and Safety Act and COE Permit #2-2000-0300 Cold Bay 12." [27] Mack further advised that

[a] transportation link the Borough is exploring (and we believe holds promise) is an aluminum landing craft/passenger ferry. Please see the attached conceptual drawing. The Borough hopes that this type of a transportation link could be more technically and financially viable than a hovercraft. Such a landing craft/passenger ferry vessel could be designed to carry approximately 30 passengers,

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occasional wheeled vehicles (in particular an ambulance) and limited cargo. It could use the same route as has been described for the hover-craft in the past. We are looking at building materials and techniques, such as hardening the vessel bottom with replaceable UHMW wear pad to prevent damage to the hull from abrasion on the landing pad, that allow the vessel to use the landing pad at the Northeast Corner which is to be constructed in accordance with the existing plans, specs and permits.[28]

         A draft EIS (DEIS) was published and made available for public comment on March 19, 2012. The DEIS discussed the five alternatives set out above. Public testimony on the the DEIS was taken at five public meetings held in Anchorage, Cold Bay, King Cove, and Sand Point.[29] The FWS " received a total of 71,960 submissions on the [DEIS], of these 1,849 were considered unique." [30] 70,111 form letters opposing a road were received, and 390 submissions in support of a road were received.[31]

         On April 18, 2012, the FWS contacted the AEB for additional information about the " aluminum landing craft/passenger ferry" because this " information is needed to update the No Action Alternative in the Izembek NWR Land Exchange/Road Corridor EIS. The No Action Alternative must describe what would occur if the U.S. Fish and Wildlife Service takes no action in this EIS." [32] The FWS asked where the landing craft would be moored when not in service, whether " the footprint [will] change at the proposed hovercraft landing location at the Northeast Terminal or at Cross Wind Cove[,]" what the vessel's specifications and estimated operability limits were, what the estimated costs of the vessel were, and what the proposed timeline for purchase and implementation was.[33]

         On July 9, 2012, Mack responded that " the AEB can provide no further information on this potential project which remains in early consideration by the AEB." [34] In their comments on the DEIS, the KCG wrote that

the AEB has outlined a conceptual plan for an aluminum landing craft that might be modified to allow the vessel to use the landing pads at the northeast corner and at Cross Wind Cove. It must be noted that this conceptual plan IS only a concept. There is no vessel and the concept will only be explored further if and only if the Secretary does not find the land exchange is in the public interest.[35]

         The KCG further advised the FWS that

[t]he concept of a landing craft is simply that: a concept.... This ongoing research was previously suggested for the King Cove to Cold Bay link as simply a POTENTIAL consideration should the Izembek land exchange not be approved. Furthermore, there has been no public discussion of this concept and whether it would be viable and acceptable to the public.
* * *
Consequently, there is no predictability that the conceptual craft proposed in the USFWS No Action Alternative will work and therefore no predictability of how service will be provided or what the

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costs will be to acquire and operate such a craft. Consequently, no description of this craft can or should be included in a No Action Alternative.[36]

         In their October 24, 2012, comments on the PEIS, the KCG stated that

[t]he [FWS] has unilaterally determined to include a conceptual landing craft operating from existing and authorized facilities at the Northeast and Cross Wind terminals. To be consistent with NEPA, the KCG strongly recommends the [FWS] also include a new alternative that includes the conceptual landing craft with required modifications to existing authorizations in the same manner as the ferry alternative that would require new authorizations from the State and the Corps.[37]

         On February 6, 2013, the final EIS (FEIS) was published and made available for public comment. The FEIS stated that the " basic" purpose of the proposed project " is to provide a transportation system between the City of King Cove and the Cold Bay Airport" and that the " overall" purpose of the proposed project " is to construct a long term, safe, and reliable year round transportation system between the cities of King Cove and Cold Bay." [38] The FEIS listed the " need[s] for the proposed action" as 1) Health and Safety, 2) Quality of Life and 3) Affordable Transportation.[39] The FEIS acknowledged that these needs were " broader than the focused purpose specified in the" OPLMA,[40] which stated that the purpose of the land exchange, if approved, was " constructing a single-lane gravel road" between King Cove and Cold Bay. OPLMA § 6402(a). The FEIS analyzed the impacts of the five alternatives set out above. The hovercraft and ferry alternatives were considered at the request of the Corps of Engineers, which was a cooperating agency.[41]

         In their March 13, 2013 comments to the FEIS, the KCG stated that the FEIS was deficient because it failed

to use available information about operability of the conceptual landing craft developed by the EIS consultant for the Service to provide: 6 day a week, ... year-round ability to meet scheduled air service at the Cold Bay Airport; and for 24/7 ability to provide transportation for urgent medical care and for emergency medical evacuation. The 2003 King Cove Access Project provided ... data that were incorporated by the Service in the DEIS and FEIS includ[ing] known wind and wave conditions in Cold Bay and at the Northeast and Cross Wind Cove Terminal as well as the physical and biological factors associated with the terminals. Although used in the DEIS and FEIS for reliability conclusions for the road, hovercraft and ferry alternatives, the Service chose not to validate the key FEIS assumption that no in-water modifications are required for the conceptual landing craft to provide safe and reliable loading and unloading of an ambulance, passengers, and other vehicles.[42]

         On March 21, 2013, the Secretary directed Kevin Washburn, the Assistant Secretary of Interior for Indian Affairs (AS-IA), " to hold additional government-to-government consultations," to " tour the area to assess the medical evacuation benefits from the proposed road," and to " provide a report to the Secretary of the Interior." [43]

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" In preparing the report, the Assistant Secretary will address whether and to what extent the road is needed to meet medical emergency requirements of King Cove. The report should specifically address, after consultation with the Indian Health Service, the emergency medical needs of King Cove." [44] Washburn visited the King Cove area on June 26-29, 2013 and prepared a report that was dated October 28, 2013. Washburn wrote that the " directive was to assess the medical evacuation benefits of the proposed road. Our methodology was prescribed: a visit to the King Cove community, tribal consultation, and consultation with experts." [45] Washburn wrote that

[w]e engaged in active listening to understand the views of the tribal entities involved here. We viewed our task not to produce a 'balanced' report as to the merits of the road issue overall because we were asked to focus only on one important aspect of the road issue and were instructed to consult only with the relevant tribal communities and medical experts. We believe that this report fairly presents the tribal views in this decision making process and thus meets the Administration's consultation duties under the trust responsibility.[46]

         Washburn then summarized the information that was gathered during the consultation regarding the difficulties of traveling in and out of King Cove for medical treatment, both emergency and non-emergency treatment. Washburn noted in his report that King Cove " strongly supports the road alternative." [47]

         On March 21, 2013, the Secretary also indicated that he would " hold an official meeting in King Cove and receive written and oral testimony on the medical evacuation benefits of the proposed road." [48] On August 30, 2013, the Secretary traveled to King Cove and Cold Bay for community meetings.

         On December 23, 2013, the Secretary published the Record of Decision (ROD). " [T]he Department ... decided to adopt the 'no action' alternative in the EIS. This alternative declines the offered land exchange for road construction and includes a description of a proposal for a landing craft/passenger ferry that could use the road that has been constructed to the Northeast Terminal on the border of the Refuge." [49] The Secretary explained that

[t]he EIS shows that construction of a road through the Izembek National Wildlife Refuge would lead to significant degradation of irreplaceable ecological resources that would not be offset by the protection of other lands to be received under an exchange.... [B]ecause reasonable and viable transportation alternatives exist to meet the important health and safety needs of the people of King Cove, the final decision of the Department is to adopt the no action alternative as described in the EIS.[50]

         The Secretary stated that

[w]hile there are examples on other conservation system units of wildlife and roads co-existing, the EIS documents that uses of the habitat of the Izembek Refuge by the large number of species that are dependent on the isthmus would be irreversibly and irretrievably changed by the presence of a road. Construction of a road in this roadless area

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would bring increased human traffic, noise, hydrological changes, damage to wetlands, run off, introduction of contaminants, and invasive species. Once a road is in place there would be a certainty of increased human access and activity. Year-round and increased human access radiating off the road corridor via pedestrian traffic or all-terrain vehicles coupled with the physical impacts caused by predictable all-terrain vehicle use on wet soils made possible by the presence of the road would have profound adverse effects on wildlife use and habitats of the narrow isthmus that comprises the Refuge. The likely increased activity associated with the road would also place a strain on Refuge management at a time of decreasing Refuge budget and capacity.[51]

         The Secretary acknowledged that the FWS

would have a net gain of over 55,000 acres for the National Wildlife Refuge System under the proposed exchange and the parcels proposed to be received by the Service in the exchange include notable resource values such as caribou habitat, brown bear habitat, and Tundra Swan nesting habitat. Some of the parcels to be received would be included within the Izembek Wilderness boundary. However, the Service has determined that the increased acreage would not compensate for the overall values of existing Izembek Refuge lands and Wilderness that would be removed. Nor would the offered lands compensate for the anticipated impacts that the proposed road would have on wildlife and the habitat that surround the road corridor. The lands offered for exchange contain important wildlife habitat, but they do not provide the wildlife diversity of the internationally recognized wetland habitat that is proposed for the exchange, nor would they compensate for the adverse effects of removing a corridor of land and constructing a road within the narrow, irreplaceable Izembek isthmus. Further, the lands proposed for exchange are not likely to be developed, if retained in their current ownership, in ways that would affect the same resources that would be affected by the construction and operation of a road through the Izembek Refuge. Thus, a conveyance of these lands to the United States does not actually offset the environmental impacts from the proposed road construction and operation.[52]

         As for the transportation alternatives, the Secretary explained that

[t]he administrative record shows that there are viable alternatives to a road that would provide for the continued health and safety of King Cove residents. The Borough has indicated to the U.S. Army Corps of Engineers that, if the road through the Refuge is not approved, it will consider developing an alternative transportation link in the form of an aluminum landing craft/passenger ferry between Northeast Terminal ... which is at the end of the road that has now been completed ... and the Cold Bay Airport. According to the Borough, the landing craft " ... holds promise..." and could be more technically and financially viable than a hovercraft. It also would traverse a shorter eight mile distance across Cold Bay than what the hovercraft had successfully traversed when it was in service. Analysis of Alternative 5, including improvements to the harbor facilities at Cold Bay, also serves as an update to the 2003 EIS and is available for use in development of

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actions to address that long-standing need. Thus, while a marine link may not be preferred by proponents of the road, viable and reliable options to a road exist to meet the public health and safety needs of the King Cove residents.[53]

         The Secretary stated that

" [i]n a February 24, 2012 letter to the Corps, the Borough has indicated that it will explore the option of using an aluminum landing craft/ferry to provide a marine-road link between the Northeast Terminal and Cross Wind Cove if the land exchange is not approved. The vessel described by the Borough is a 59-foot by 16-foot landing craft.... According to the Borough, the vessel could accommodate approximately 30 passengers, occasional vehicles/ambulances, and limited cargo. The vessel bottom would be hardened with replaceable wear pads to prevent damage to the hull from abrasion, allowing the vessel to use the former hovercraft terminals. The vessel would operate between the Northeast Terminal and Cross Wind Cove, the same route analyzed in the 2003 EIS. Neither the February 24, 2012 letter to the Corps, nor subsequent correspondence with the Borough contain any description of the frequency of service being considered nor the costs associated with the acquisition and operation of a landing craft/passenger ferry.[54]

         On June 4, 2014, plaintiffs commenced this APA action in which they challenge the Secretary's adoption of the No Action Alternative. On July 21, 2014, the State of Alaska's motion to intervene as a plaintiff in this matter was granted,[55] and on July 29, 2014, the State filed its complaint in intervention.[56] Plaintiffs and intervenor-plaintiffs asserted the same five claims for relief in their complaints: 1) a claim alleging that the Secretary violated the OPLMA in a variety of ways, 2) an APA claim, 3) a NEPA claim, 4) an ANILCA claim, and 5) a claim that defendants violated the trust responsibility the federal government has to American and Alaska Native citizens. On December 19, 2014, the court dismissed[57] the portion of plaintiffs' and intervenor-plaintiff's OPLMA claims that were based on allegations that the Secretary failed to make a public interest determination and their APA, ANILCA, and trust claims.

         Plaintiffs and intervenor-plaintiff now move for summary judgment on their remaining claims. Defendants and intervenor-defendants cross-move for summary judgment on ...


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