Bernhardt’s memo was an 11th hour bid to sidestep the courts by declaring the village of King Cove an “inholding” under federal law. Such a designation applies to private or state lands that are surrounded by conservation units such as refuges or parks — making them inaccessible by any other means. But King Cove, a town of just over 1,000 people, has a small airport and harbor and accommodates a large seasonal work force every year. It is also located about 20 miles from the refuge boundary, undercutting Bernhardt’s contention that it is “effectively surrounded” by protected lands or physical barriers.
If granted, inholding status would give FWS the authority to issue a right of way permit to the state of Alaska and Village of King Cove, which submitted their application to the agency in late October. Bernhardt’s memo instructed the FWS to approve the designation despite internal questions raised by the agency.
If this interpretation of the law were to be upheld by the department, it would make it easier for the state or private landowners to apply for permits to build roads through protected conservation systems, even those designated as wilderness areas.
“Bernhardt’s position is inconsistent with federal law and the well-established understanding of what ‘inholding’ means and what kind of situation properly calls for access across conservation system units to private lands,” said Lavin.
An Interior Department spokesperson said the solicitor’s office is currently reviewing Bernhardt’s memo for “legal sufficiency.” Attempts to reach Bernhardt were not immediately successful.
In an emailed statement, Murkowski defended Bernhardt’s action, and said his “effort to offer an additional avenue to connect the people of King Cove to the airport in Cold Bay was the right decision.”
In addition to declaring King Cove an inholding, Bernhardt unilaterally rescinded a December FWS finding, also obtained by POLITICO and Type Investigations, that the application was insufficient. Bernhardt’s memo would also allow the state to skirt stringent regulations and approvals required for road building in wilderness areas, including gravel mining in the refuge that the FWS said in its letter would not be authorized.
“Protection of natural resource values cannot frustrate or effectively deny inholders their rights,” Bernhardt wrote.