Whittier Road Lawsuit Update
By Stephen Wells

In July, a panel of three federal judges from the Ninth Circuit Appeals Court lifted a preliminary injunction, which had halted construction of the Whittier road, and allowed construction activities to resume. The injunction had been granted by a different three judge panel of the Ninth Circuit in June. The events leading to this puzzling flip-flop made for all the excitement of a judicial tennis match. Now, sadly, prospects for permanently stopping this misguided and destructive project are slim.

The planned road is designed to increase visitation to Alaska's once remote and spectacular Prince William Sound from 91,000 to 1.4 million people per year. Currently, access to Whittier is only by boat or by train via tunnel. The Alliance, along with the Alaska Center for the Environment and the Alaska Wilderness Recreation and Tourism Association, filed a lawsuit in the summer of 1996 to stop the construction which will destroy habitat and displace wildlife in one of Alaska's prime marine ecosystems, an area already affected by the Exxon Valdez oil spill and commercial logging. We are represented by the nonprofit environmental law firm Trustees For Alaska.

The recent chaotic events in the case began with the denial of our motion for Preliminary Injunction in U.S. District Court last summer. In his order denying our request, District Court Judge James Singleton indicated that an injunction was not necessary because he would rule on the case before Summer, 1997 when construction was scheduled to begin. But this spring it became apparent that the wheels of justice were turning very slowly and no ruling was likely. We again asked for an injunction and were again denied.

With summer construction approaching, we appealed the denial to the Ninth Circuit federal Appeals Court. Heavy equipment and materials were already in place in Portage Valley where the planned road begins. The Federal Highway Administration and the state of Alaska arrogantly believed the lawsuit was a mere nuisance. Alaska's "environment friendly," governor, Tony Knowles, even took a train into remote and scenic Bear valley to personally blow up wildlife habitat in a symbolic celebration of the beginning of construction.

Knowles and his media entourage were met by Alliance staffers Stephen Wells and Anthony Crupi who surprised them with protest banners as they boarded the dynamite express in Portage. The resulting media coverage tarnished the governor's outing, but he and the state were in for a bigger surprise.

In deciding whether or not to grant a preliminary injunction, the court reviews the arguments and makes a preliminary decision about whether the claim is likely to prevail. If so, it can halt activity until a final verdict is reached. A panel of three Ninth Circuit judges decided our case stood a fair chance and granted the injunction. Construction was halted until the District Court reached a verdict. Suddenly, the sluggish wheels of justice became greased lightning. Judge Singleton, who had been silent for months, delivered his decision the next day. Not surprisingly, the verdict automatically ended the injunction and paved the way for construction to resume.

It also allowed us to appeal the entire case to the Ninth Circuit. With equipment on the move it became a race against time to prevent construction activities that could cause irreversible harm. After fully briefing the Ninth Circuit Appeals Court, we asked for another injunction pending its decision. A second injunction was granted by the same three-judge panel that granted the first one. Obviously these judges felt that the case had merit. Finally, a glimmer of hope shone through the chaotic events of the past few weeks.

That hope was short-lived. In July, a different three judge panel convened in Anchorage to hear oral arguments in the case. Less than one day later, without explanation, that panel issued an order overturning the injunction. Two weeks later, the panel issued a final ruling in favor of the state.

The decision left us with two legal options: an appeal to a larger 11 judge panel of the Ninth Circuit, or an appeal to the U.S. Supreme Court. In both cases, the chances are slim that they would even choose to hear the case. Nevertheless, we will exhaust every reasonable legal option to pursue the case.