A federal judge handed advocates of the Juneau Road a big defeat in February when he overturned the project's approval, and then a smaller defeat last month when he refused to reconsider that decision.
State Department of Transportation and Public Facilities officials are maintaining that U.S. District Court Judge John Sedwick misread the evidence and got the decision wrong, however.
Now the state's next action on the Juneau Access Project must be made by June 5. That's the deadline by which the state must decide whether to appeal Sedwick's decision to the Ninth Circuit Court of Appeals.
Sedwick ruled that the Environmental Impact Statement for the 50.8-mile road up Lynn Canal to the Katzehin River must also consider ways to use existing ferries to improve service, along with the department's preferred option of a road up the east side of Lynn Canal.
"Based on our review of the record, additional ferry service in Lynn Canal was considered and the court reached the wrong conclusion," said Leo von Scheben, DOT&PF commissioner, in a recent press release. That release came after Sedwick made his original ruling, and then declined to reconsider it.
The plaintiffs in the case, including the Southeast Alaska Conservation Council, were represented by Earthjustice, a non-profit environmental law firm.
Judge Sedwick reached the correct decision on the reconsideration, said Earthjustice attorney Kate Glover.
"He determined, rightly, that he'd already considered that argument and rejected the motion," Glover said.
"At this point (the state) needs to decide whether they are appealing, are going to redo the EIS and take a look at ferry service, or just drop the project altogether," she said.
A decision on whether to appeal is now being made, said Sean Lynch, assistant attorney general with the Alaska Department of Law. A supplemental EIS is also under consideration.
An appeal through the court process could mean a long delay for the project, and even longer if the appeal goes on to the U.S. Supreme Court. months to years
A supplemental EIS to take a look at improved ferry service in Lynn Canal could also take significant time to complete, Lynch said.
"It's nothing that's just slapped together," he said. "There's a public process involved."
Gov. Palin last week issued a press release suggesting an appeal may not be in the works.
"Tying this issue up in court certainly doesn't help this project move forward," she said, adding that the project was still needed. "Improved access into Juneau will boost the future economy and increase jobs."
Palin said she asked the law and transportation departments to "develop a plan to move forward where all of the facts relevant to the project can be considered without a cloud of litigation hanging over it."
SEACC spokesman Mark Gnadt said he doubts an appeal would be successful.
"The judge's decision was pretty decisive," he said. "Maybe they're thinking that the Ninth Circuit would be in their favor."
"The ball's in the governor's court now," he said.
When Palin became governor in late 2006 she canceled initial work begun on the project by former Gov. Frank Murkowski, and insisted that the project clear legal hurdles before moving forwards.
Sedwick, in February's ruling, issued an injunction against the project that will prevent work from restarting.
Contact reporter Pat Forgey at 523-2250 or firstname.lastname@example.org.