By Carli Berasi

Of the 2,428,213,158 acres that make up the land area of the United States,[1] a mere twelve percent is protected land that “has been conserved as national parks, wilderness areas, permanent conservation easements, state parks, national wildlife refuges, national monuments, or other protected areas.”[2]  Protected lands, which comprise twenty-four percent of the United States’ land mass, benefit from safeguards by the United States for such purposes as nature conservation, recreation, grazing, and wildlife defense.[3]  As such, the government (both at the federal and state level) can protect and regulate activities that occur in these areas, including conservation, recreation, and measured commercial activity.[4]  

Alaska only encompasses 365 million acres of the United States’ total land area, yet singularly contributes to over half of the United States’ “federally-designated wilderness.”[5]  Eighty-eight percent of Alaska is owned by the public, and it possesses “[thirty-two] state game refuges, critical habitat areas, and wildlife sanctuaries across the state, totaling over 3.2 million acres.”[6]  Following the passage of the Alaska National Interest Lands Conservation Act (“ANILCA”) in 1980, 148 million acres in Alaska were “dedicated to conservation purposes . . . constituting 70 percent of all national park lands in America, 80 percent of wildlife refuge acreage, and 53 percent of designated Wilderness in the National Wilderness Preservation System.”[7]  As a result, Alaska possesses the coveted status of being one of the most environmentally protected states[8] and functions as a haven for the ecological diversity it possesses.[9]

Many of the protected land areas, as well as residential and commercial areas, in Alaska are inaccessible by visitors through roadways.[10]  For example, only three of the eight national parks in Alaska are “accessible by road.”[11]  Further, “[a]s many as 8 out of 10 of Alaska’s communities are not connected to the road system” established in Alaska.[12]  This means that Alaska’s visitors and residents (of which there are 724,357—firmly securing its spot on the list of least populated states[13]) can be faced with significant accessibility concerns associated with living in and traveling within the state.[14]  As one article noted, “Alaska is roughly twice the size of Texas, with a road system about the size of Hawaii’s.  This means that the vast majority of Alaska cannot be accessed by highway vehicle.”[15]  Startlingly, this amounts to a mere twenty percent of Alaska being “accessible by roads.”[16]

While some might view Alaska’s lack of accessibility as a small price to pay for the adventurous charm of the “Last Frontier’s” remote, rugged, and awe-inspiring landscape, as well as flourishing wildlife,[17] others focus on the pitfalls associated with a more “remote” way of life.[18]  While it is acknowledged that tourism activities resulting from the allure of Alaska’s protected landscape has substantially bolstered the state’s economy, “many Alaskans still believe federal management is too restrictive and has held back potential growth in tourism and other industries.”[19]  Further, the inaccessibility of some remote towns in Alaska creates obstacles for residents to obtain basic provisions.[20]

In 2018, these two perspectives collided when the United States government and King Cove Corporation structured a land-exchange agreement.[21]  The land exchange would give King Cove Corporation a plot of land within Izembek National Wildlife Refuge (“the Refuge”) for the purpose of building a twelve-mile road to connect King Cove with Cold Bay.[22]  In response to the agreement, the Friends of Alaska National Wildlife Refuges, among other conservation groups, filed a lawsuit against the Trump Administration to prevent the swap and construction, asserting that the agreement “will result in the removal of designated Wilderness from the Refuge for the purpose of constructing a road through the heart of Izembek.”[23]

Izembek National Wildlife Refuge is not only a wildlife haven but also has been a protected area since 1960 due to “its ecologically unique habitat and wilderness characteristics.”[24]  The Refuge is 315,000 acres,[25] and it is also home to many “federally-protected species,” including the northern sea otter and the Stellar sea lion, as well as migratory fowl, brown bears, and caribou.[26]  Opponents of the land-swap and road assert both legal arguments and environmental concerns against the land exchange, such as that sanctioning the land exchange violated ANILCA, since “the exchange does not meet ANILCA’s conservation purposes or the specific purposes of Izembek Refuge to protect wilderness and wildlife values.”[27]  Additionally, opponents of the road “have long-standing interests in protect[ing] Izembek from a land exchange and road construction . . . includ[ing] preserving and enjoying the wildlife, habitat, and wilderness values of Izembek . . . .”[28]  Notably, prior to the Trump Administration’s agreement, the Obama Administration had years earlier rejected such an arrangement due to similar concerns, as the Interior Secretary stated that “the road ‘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,’” and “there were other ways to get from one town to the other.”[29]

King Cove and Cold Bay, which are “two remote towns on the Aleutian Islands archipelago,” can currently only reach each other via air or sea travel, and this new road through the Refuge would be the first road connecting the two areas.[30]  Significantly, the road would enable King Cove residents to reach Cold Bay’s “larger, all-weather airport to ‘facilitate medical evacuations.’”[31]  King Cove residents believe this is necessary, as its local airport “is small and often closed by bad weather conditions . . . .”[32]  

Initially, the federal district court ruled in favor of the plaintiffs, “void[ing] [the] land exchange deal,” as the government did not provide adequate justification for now engaging in the agreement, since the government had entered a “previous decision that alternatives to a road exist and that road would cause significant environmental harm.”[33]  Following this ruling,  the U.S. Interior Department entered into a new agreement with King Cove Corporation, similar to the original land-swap arrangement, differing in that “the swap is not limited to 500 acres, and the agreement does not say the road is limited to noncommercial use—though it does specify it would be unpaved.”[34]  Again, a lawsuit was filed to prevent the land-swap agreement and thus the road from being built, alleging that “the justification [for the new swap agreement] is still inadequate.”[35]  The plaintiffs emphasized not only the ecological significance of the land, but also that King Cove is so remote that a road would not eliminate their safety concerns.[36]  Proponents countered that “the road would be passable nearly all the time and is the only practical option.”[37]  Once again, the district court found in favor of the plaintiffs, as “the administration’s new justification for the swap ‘offers no new information or data to justify his contrary finding that the value of the added acreage to the refuge system counters the negative effects of a road through Izembek . . . .’”[38]

However, in March 2022, the Ninth Circuit Court of Appeals reversed course from the previous district court decisions. The court stated that “the value of a road to the King Cove community outweighed the harm that it would cause to environmental interests . . . ”[39] and held that the government “did not violate ANILCA because ANILCA’s protections would no longer apply with the completion of the exchange and the lands are then private . . . [and the district court] erred in finding that ANILCA’s purposes exclude social and economic concerns and that the Secretary has broad discretion to reverse course on policy decisions.”[40]  In response to the decision, the plaintiffs have committed to “continue the fight to save the Izembek Refuge.”[41]

This case demonstrates the tension between infrastructure and progress and preserving our nation’s protected lands.  While the proposed road through Izembek may seem inconsequential at only twelve miles, it presents significant concerns that such development might result in a slippery slope towards a pattern of building infrastructure in environmentally protected areas.  As noted by the Trustees for Alaska, “[a]llowing a road through Izembek would set a precedent that would imperil the entire Refuge System.”  When alternatives exist, therefore, we must safeguard, respect, and protect our designated public lands.

[1] State Area Measurements and Internal Point Coordinates, United States Census Bureau, (Dec. 16, 2021).

[2] Matt Lee-Ashley et al., How Much Nature Should America Keep? cap (Aug. 6, 2019)

[3] America’s Protected Areas, ESRI, (last visited Mar. 30, 2022).

[4] Id.

[5] Who Owns Alaska?,  Resource Review 1, 3 (n.d.), (Specifically, fifty-eight million acres of the 109.5 million total acres of “federally-designated wilderness” exist in Alaska.).

[6] Conservation Areas, Alaska Department of Fish and Game,,of%20fish%20and%20wildlife%20habitats (last visited Mar. 30, 2022).

[7] Who Owns Alaska?, supra note 5, at 2.

[8] Annalise Mantz, States that Are Conserving the Most Land, Stacker (Sept. 10, 2018),

[9] About the Region, National Park Service, (last visited Mar. 30, 2022).

[10]Alaska’s National Parks & Public Lands, Alaska.Org,,a%20boat%20or%20air%20taxi (last visited Mar. 30, 2022).

[11] Id.

[12] Infrastructure for All Alaskans,, (last visited Mar. 30, 2022).

[13] US States – Ranked by Population 2022, World Population Review, (last visited Mar. 30, 2022).

[14] Infrastructure, supra note 12 (stating that “Large portions of Alaska are only accessible by air or water”).

[15] Accessing Alaska: What’s the Best Way to Get Around, Alaska Outdoors Supersite, (last visited Mar. 30, 2022).

[16] Liz, Transportation in Alaska, Golden North Van Lines (July 11, 2019),

[17] Kraig Becker, 7 Reasons Why Alaska is Still ‘The Last Frontier’, Men’s Journal,,close%20of%20the%2019th%20century (last visited Mar. 30, 2022).

[18] Alex DeMarban, Federal Appeals Court Rules in Favor of Village’s Efforts to Extend a Road Through Alaska’s Izembek National Wildlife Refuge, Anchorage Daily News (Mar. 16, 2022),

[19] Who Owns Alaska?, supra note 5.

[20] Zachary Crockett, How a Remote Alaska Town Gets Its Groceries, Hustle (May 3, 2020),

[21]Dan Joling, Deal Reached on Land Swap for Road Through Izembek Wildlife Refuge, Anchorage Daily News (July 24, 2019),

[22] Id.

[23] Complaint at 6, Friends of Alaska National Wildlife Refuges v. Zink (D. Alaska 2018) (No. 3:18-cv-00029-TMB),

[24] Complaint, Friends of Alaska National Wildlife Refuge, 3:18-cv-00029-TMB at 6.

[25] Hillel Aron, Controversial Road on Alaska Peninsula Gets Another Chance After Ninth Circuit Steps In, Courthouse News Service (Mar. 16, 2022)

[26] Complaint at 10–11, Friends of Alaska National Wildlife Refuges v. Zink (D. Alaska 2018) (No. 3:18-cv-00029-TMB.

[27] Press Release, Chessie Sharp, Friends of Alaska National Wildlife Refuges, Izembek (June 7, 2020),

[28] Complaint at 6, Friends of Alaska National Wildlife Refuges v. Zink (D. Alaska 2018) (No. 3:18-cv-00029-TMB).

[29] Aron, supra note 25.

[30] Id.

[31] Id.

[32] Id.

[33] Court Win Protects Izembek!, Trustees for Alaska (Mar. 29, 2019),

[34] Liz Ruskin, It’s Back: U.S. Interior Dept. Signs New Land Deal for King Cove Road, KTOO (July 23, 2019),

[35] Liz Ruskin, Environmental Groups File New Lawsuit to Block New Izembek Land Swap Deal, KTOO (Aug. 7, 2019),

[36] Id.

[37] Id.

[38] Laura Bies, Court Halts Road Through Izembek National Wildlife Refuge, The Wildlife Society (June 10, 2020),

[39] Aron, supra note 25.

[40] Jamie Rappaport Clark, Ninth Circuit Ruling Threatens Land, Water, Wildlife in Izembek Refuge, Defenders of Wildlife (Mar. 16, 2022)

[41] Id.

Royalty free scarcity photos | Pikist

Tim Maguire

Water is imported, exported, bought and sold, and transported intrastate, interstate, and internationally.[1]  It has powered the transportation industry and empowered manufacturing. Disagreements over its use and misuse have led to armed conflicts and even war.[2]  With respect to its vitalness, it is equally as precious to other natural resources such as oil, if not more so.  Given its dominance in everyday life and global impact, could it be possible that its conservation and regulation is often overlooked?[3]

Water is necessary to the everyday lives and survival of the human race, but yet, in the eyes of the law, it is largely ignored.  Even with many of the same functions and importance as other precious resources, for most people, water is typically placed on the backburner.  With its increasing scarcity due to climate change and population growth,[4] conservation of water needs to be at the forefront of every citizen’s radar. No stranger to this water crisis are the state of Colorado, the Colorado River, and the six other states that rely on the river for its water supply.[5]

Climate change may exacerbate environmental trends already occurring throughout the country.  Western states, especially in the arid Rocky Mountain Region and the Southwest, have historically relied on snowmelt for water supply through the dry summer months.[6]  Climate change, however, is causing earlier snowmelt in the spring, making late-summer flows continuously lower as the average global temperature continues to rise, and the resulting runoff in the West is already occurring twenty days earlier than historical averages.[7]

There are two ways that Coloradans get water: precipitation[8] and underground water.[9]  The precipitation feeds the watershed systems of Colorado, including the Colorado river, which supplies most of the water to the state.[10]  Approximately eighty-percent of water from the Colorado River heads west at the continental divide, which leaves twenty-percent as ground water, of which eighteen-percent is utilized by the Colorado population as their primary source of water.[11]

Millions of people rely on the Colorado River, but the decrease in precipitation is placing many people’s water supply in peril.[12]  Global warming has caused the Rocky Mountain snowpack to produce much less runoff, decreasing the river’s annual flow by twenty percent.[13]  Typically, snow and ice reflect sunlight back away from the earth’s surface; however, the loss of snow and ice means the earth absorbs more heat, thus creating a positive feedback loop of water shortage.[14]  Research has shown that for every degree Celsius of warming, the Colorado River’s flow decreases approximately nine percent.[15]  So far, the world has heated approximately one degree Celsius, but it is on course to rise three degrees Celsius by the end of the century—unless radical measures are taken.[16]

Climate change leads to an issue of supply and demand with water. The economic conclusion is simple: demand will soon exceed supply.[17]  By the middle years of this century, Colorado can expect a 3.8 million acre-foot deficit in water supply.[18]  This shortage of supply could put 36 million people’s drinking water, agriculture, future economic growth, and outdoor recreational economy in jeopardy, as well as threaten a quarter-million jobs.[19] 

So, what is the solution to this looming water crisis?  Unfortunately, there is no magic wand that can erase the negative effects of climate change.  The obvious consequence of this trend is that citizens and local municipalities of western states will have to manage water supply with heightened resourcefulness.[20]  At the forefront of this effort is conservation.  Conservation can be completed through improved landscaping techniques,[21] routine water audits across the local municipalities,[22] and enhanced watershed protection. 

The Colorado Legislature can also address water conservation by providing rebate programs to incentivize the purchase of water-saving devices.  This proposal serves two functions: (1) it will lower the cost of the, generally, more expensive efficient appliances, thus boosting sales and the economy; and (2) it will promote the use of water-friendly appliances and thereby promote the conservation of water.

Additionally, conservation can be aided by utilizing more water-friendly irrigation techniques.  Many western states utilize flood and furrow irrigation, which are the least efficient manners of irrigation because water is lost to surface runoff, groundwater, and evaporation.[23]  There are various more efficient methods of irrigation that Colorado can utilize to conserve water including drip irrigation, sprinklers, and micro-spray irrigation.[24]

Harvesting rainwater can aid in the conservation effort as well.  Capturing and storing rainwater on one’s property has many uses including evaporative coolers, toilet flushing, car washing, swimming pools, and surface irrigation.[25]  Precipitation capture on residential property serves as a free natural water source for landscaping while using water that contains no chemicals such as fluoride and chlorine, no dissolved salts, and no minerals from the soil.[26]  In addition, residential precipitation capture may lower a homeowner’s water costs while furthering conservation efforts.[27] 

 Further, wastewater reuse is a viable option.  A major hurdle of “selling” reused potable water as drinking water is public perception.  Public opinion, however, is misguided, and recycled water can be purer than current drinking water.[28]  Water treatment plants have the ability to implement membrane technology, particularly reverse osmosis, to produce highly purified recycled water.[29]  Reverse osmosis provides better assurances in safety of drinking water thanks to its ability to simultaneously remove a broad range of contaminants including total dissolved solids, pathogens, viruses, bacteria, and low molecular chemical contaminants.[30]

Utilizing groundwater can be another viable option to decrease the stress placed on the Colorado River.  Desalination uses have historically been most prevalent in coastal areas, treating either seawater supplies directly, or seawater influenced groundwaters; however, as desalination technologies have advanced, and water supplies have become more stressed, inland locations have increasingly turned to desalination as well.[31]  Colorado has brackish groundwater that sits at a depth of approximately 500 feet.[32]  This brackish water can be pumped, treated, and potentially generate 620,000 acre-feet of water.[33] 

There are preventative measures that humans can take to stave off this impending crisis.  Whether these preventative measures are followed is to be determined.  It seems obvious, but it is the truth—water is a resource that every creature needs to survive.  With its endless value juxtaposed by its scarcity, humans must respect, conserve, and protect it.  Conservation efforts must be put into place and awareness must be spread because it is our collective and individual responsibility to preserve and tend to the environment in which we all live.[34]

[1] Robert W. Adler, Climate Change and the Hegemony of State Water Law, 29 Stan. Envtl. L.J. 1, 2 (2010).

[2] Id.

[3] Id.  

[4] The world population and the United States population is continuing to grow.  According to the Pew Research Center, the United States population will grow to 438 million people by 2050, which is a forty-eight percent increase from 296 million in 2005. See Jeffrey S. Passel & D’vera Cohn, U.S. Population Projections 2005–2050, Pew Rsch. Ctr., (Feb. 11, 2008),  A significant portion of that growth will also occur in the arid west as Colorado’s population is also expected to increase nearly fifty percent by 2050. Matthew Brodahl & William A. Shutkin, Exactly the Right Amount: Municipal Water Efficiency, Population Growth, & Climate Change, 14 U. Denv. Water L. Rev. 337, 338 (2011) (estimating a population increase in the state of Colorado from 5.1 million people in 2008 to anywhere from 8.6 to 10 million people in 2050).

[5] See generally Bruce Finley, West Wrestles with Colorado River “Grand Bargain” as Changing Climate Depletes Water Governed by 1922 Compact, Denver post, (Aug. 25, 2019), (noting that Wyoming, Utah, New Mexico, California, Arizona, and Nevada are privy to use of the Colorado River for water supply).

[6] Brodahl & Shutkin, supra note 4, at 339.  With an increase in global temperatures, experts believe precipitation   events will become less frequent in the arid southwestern U.S. Global Climate Change Impacts in the U.S. 41 (Thomas R. Karl et al. eds., 2009).

[7] Global Climate Change Impacts in the U.S., supra note 6, at 45–46.

[8] On average, Colorado gets approximately twenty inches of precipitation per year, with most of that falling as snow. Water Economics in Colorado: Supply and Demand, Res. Cent. (Feb 12, 2020),

[9] Brackish water is a term used to describe groundwater that is composed of more salinity than groundwater, but not as much as seawater.  Colorado has brackish water sitting at a depth of approximately 500 feet.  Dave Stewart, Inland Desalination – The Future of Water in the West, U.S. Green Building Council (Feb. 2, 2016),; William M. Alley, Desalination of Ground Water: Earth Science Perspectives, U.S. Geological Surv. (Feb. 18, 2014),

[10] Water Economics in Colorado: Supply and Demand, supra note 8.

[11] Id.

[12] Jordan Davidson, Colorado River Has Lost 1.5 Billion Tons of Water to the Climate Crisis, ‘Severe Water Shortages’ May Follow, Ecowatch (Feb. 21, 2020, 03:53PM),

[13] Id.

[14] Id.; see also The Albert Team, Positive and Negative Feedback Loops in Biology, Albert (Jun. 1, 2020), (“A positive feedback loop occurs in nature when the product of a reaction leads to an increase in that reaction. . . . [A] positive feedback loop moves a system further away from the target of equilibrium.”).

[15] Davidson, supra note 12.

[16] Id.

[17] Id.

[18] The Hardest Working River in the West: Common-Sense Solutions for a Reliable Water Future for the Colorado River Basin, Western Res. Advoc. (July 17, 2014),

[19] Id.  

[20] Brodahl & Shutkin, supra note 4, at 339.

[21] Xeriscaping is a replacement for water-hungry grass. It can reduce water use by fifty to seventy-five percent by utilizing efficient irrigation methods through drip and soaker hoses, which place water directly at the base of the plant preventing the water from evaporating as realized with sprinkler devices.  Studies of homes that choose to use xeriscaping over grass estimated that it saved approximately 120 gallons of water per day. Xeriscaping, Nat’l. Geographic, (last visited Nov. 29, 2020).

[22] An economical way to implement water policy that promotes conservation is to increase rates when water is in high demand, and, correspondingly, reduce rates as the demand drops.  In a conservation-based structure, water usage will be measured in tiers.  As a user ascends into a new tier, all water used from that point on is charged at a higher rate. See Brodahl & Shutkin, supra note 4, at 350.

[23] Heather Karsten et al., Food and the Future of Food, Pa. State Univ., (last visited Nov. 29, 2020).

[24] Id.

[25] Ryan S. Hansen, Colorado Residential Property Owners & Their Cloudy Right to Precipitation Capture, 46 Tulsa L. Rev. 323, 337–38 (2010).

[26] Id.

[27] Id.

[28] See Kieron Monks, From Toilet to tap: Getting a Taste for Drinking Recycled Wastewater, CNN (Nov. 17, 2015, 05:50AM),

[29] The process of reverse osmosis removes contaminants from unfiltered water by using pressure to force it through semipermeable membranes. Chuyang Y. Tang et al., Potable Water Reuse through Advanced Membrane Technology, 52 Env’t Sci. Tech. 10215, 10217 (2018).

[30] Id. at 10215.

[31] Stewart, supra note 9.

[32] Id.

[33] The Hardest Working River in the West: Common-Sense Solutions for a Reliable Water Future for the Colorado River Basin, supra note 18.

[34] Quotes, Do One Thing: Be a Hero for a Better World, (last visited Nov. 29, 2020).