Friends of Alaska Nat'l Wildlife Refuges v. Bernhardt, Case No. 3:18-cv-00029-SLG

• Decision Date: 29 March 2019
• Docket Number: Case No. 3:18-cv-00029-SLG
• Citation: 381 F.Supp.3d 1127
• Parties: FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES, et al., Plaintiffs, v. David BERNHARDT, in his official capacity as Acting Secretary of the U.S. Department of the Interior, et al., Defendants, and King Cove Corporation, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Alaska

381 F.Supp.3d 1127

FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES, et al., Plaintiffs,

v.David BERNHARDT, in his official capacity as Acting Secretary of the U.S. Department of the Interior, et al., Defendants,andKing Cove Corporation, et al., Intervenor-Defendants.

Case No. 3:18-cv-00029-SLG

United States District Court, D. Alaska.

Signed March 29, 2019

Brook Brisson, Katherine G. Strong, Valerie L. Brown, Bridget Earley Psarianos, Trustees for Alaska, Anchorage, AK, for Plaintiffs.

Davene Dashawn Walker, U.S. Department of Justice, Washington, DC, Rickey Doyle Turner, Jr., United States Department of Justice, Denver, CO, for Defendants.

James Francis Clark, Law Offices of James F. Clark, Juneau, AK, Steven W. Silver, Robertson Monagle and Eastaugh, Reston, VA, for Intervenor Defendants.

ORDER RE MOTION FOR SUMMARY JUDGMENT

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 50 is Plaintiffs Friends of Alaska National Wildlife Refuges; The Wilderness Society; National Audubon Society; Wilderness Watch; Center for Biological Diversity; Defenders of Wildlife; National Wildlife Refuge Association; Alaska Wilderness League; and the Sierra Club's ("Plaintiffs") motion for summary judgment. Defendants Ryan Zinke — later replaced by David Bernhardt¹ — U.S. Department of the Interior; and U.S. Fish and Wildlife Service ("Federal Defendants") opposed at Docket 65. Intervenor-Defendants King Cove Corporation; Agdaagux Tribal Council; Aleutians East Borough; City of Cold Bay; City of King Cove; and Native Village of Belkofski ("Intervenor-Defendants") opposed at Docket 66. Amicus Curiae State of Alaska filed a brief in opposition to Plaintiffs' motion at Docket 70. Plaintiffs replied in support of their motion at Docket 71. Oral argument was not requested by any party and was not necessary to the Court's decision.

BACKGROUND

The Izembek National Wildlife Refuge ("Izembek") is a 311,000-acre refuge that was established in 1980 as part of the Alaska National Interest Lands Conservation Act ("ANILCA").² The Department of the Interior ("DOI") manages the refuge through the Fish and Wildlife Service ("Service").³ The City of King Cove ("King Cove") and the City of Cold Bay ("Cold Bay") are small communities located approximately 18 miles apart and in close proximity to Izembek.⁴ Cold Bay is home to the only all-weather airport in the vicinity of King Cove.⁵ Both King Cove and Cold Bay are accessible only by air and sea.⁶

While King Cove and Cold Bay are only 18 miles apart, frequent severe weather makes it difficult for King Cove residents to travel to Cold Bay by sea or air.⁷ Accordingly, "[r]esidents of the King Cove community have long desired and advocated for a road as the only safe, reliable and affordable means of year-round access to Cold Bay and its all-weather airport."⁸ However, a road between the two communities would have to pass through lands that are currently part of Izembek.⁹ DOI and the Service have evaluated the effect of such a road several times in the past. In the early 1980s, DOI conducted a road analysis as part of a regional planning effort and concluded that a road would negatively affect both local wildlife and subsistence uses.¹⁰ The Service conducted another road analysis in 1996, and again found that a road through Izembek would have adverse environmental impacts.¹¹

In 1998, Congress passed the King Cove Health and Safety Act of the Consolidated and Emergency Supplemental Appropriations Act of 1999.¹² The Act appropriated funds to purchase a hovercraft to travel between King Cove and Cold Bay, construct a road to the hovercraft terminal, and improve King Cove's airstrip and health clinic.¹³ The hovercraft operated between 2007 and 2010, but the Aleutians East Borough ultimately suspended hovercraft services, citing unreliability and cost.¹⁴

In 2009, Congress again sought to address King Cove's transportation concerns. In the Omnibus Public Land Management Act of 2009 ("OPLMA"), Congress directed the Secretary to determine whether a land exchange and road construction within Izembek would be in the public interest.¹⁵ The proposed exchange would have transferred a corridor of Izembek land to the State of Alaska "for the purpose of constructing a single-lane gravel road between the communities of King Cove and Cold Bay, Alaska."¹⁶ With limited exceptions, use of the road would have been restricted "primarily [to] health and safety purposes (including access to and from the Cold Bay Airport) and only for noncommercial purposes."¹⁷ The Act required a determination by the Secretary that the exchange was in the public interest in order to authorize construction of the road.¹⁸ OPMLA also directed the Secretary to "initiate the preparation of an environmental impact statement" analyzing the proposed exchange and the potential construction and operation of a road, as "required under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. )."¹⁹

In February 2013, DOI issued the Final Environmental Impact Statement ("EIS") required by the OPMLA.²⁰ The EIS evaluated the effects of the proposed land exchange and the effects of several alternatives to the exchange.²¹ The EIS concluded that a land exchange and construction of a road "would have major adverse effects to birds and land mammals" and "would diminish the ability of the Service to meet" several of the purposes of Izembek.²²

In December 2013, the Secretary released a 20-page Record of Decision ("ROD") concluding that the proposed road would not be in the public interest.²³ The ROD explained that construction of a 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 that "reasonable and viable transportation alternatives exist to meet the important health and safety needs of the people of King Cove."²⁴ The ROD "identifie[d] all alternatives considered" and "specifie[d] the alternatives that were considered to be environmentally preferable."²⁵ These included use of a hovercraft, a landing craft, or a ferry to facilitate travel between King Cove and Cold Bay.²⁶ In light of the Secretary's desire to "protect[ ] the unique resources" of Izembek, the ROD adopted the "no action" alternative from the EIS, which "decline[d] the offered land exchange for road construction."²⁷ King Cove submitted a request for reconsideration, but the Secretary denied the request.²⁸ King Cove then challenged the Secretary's decision in this Court; the Court granted the federal government's motion for summary judgment.²⁹

Following the 2016 Presidential election, the new Secretary pledged his commitment to work on the land exchange issue with King Cove Corporation.³⁰ In early 2017, King Cove Corporation formally requested that DOI agree to an exchange to facilitate construction of a road between King Cove and Cold Bay.³¹ On January 22, 2018, the Secretary entered into an Agreement for the Exchange of Lands ("Exchange Agreement") with King Cove Corporation.³² The Agreement commits the federal government and King Cove to an equal value exchange whereby King Cove will convey the surface estate of certain lands within the exterior boundaries of Izembek and the Alaska Peninsula National Wildlife Refuge to the United States — and relinquish selection rights under ANCSA to additional Izembek lands — in exchange for a corridor of land through the Izembek refuge.³³ When the location of the corridor is finalized, the precise number of acres to be conveyed to the United States will be adjusted to ensure an equal-value exchange.³⁴ The Exchange Agreement states that the road is to be "used primarily for health, safety, and quality of life purposes (including access to and from the Cold Bay Airport)."³⁵

On January 31, 2018, Plaintiffs filed the Complaint that initiated this suit.³⁶ Plaintiffs filed an Amended Complaint on April 19, 2018.³⁷ The Amended Complaint is brought pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702 – 06, and alleges that the Exchange Agreement violates four federal laws: (1) Section 1302 of ANILCA, 16 U.S.C. § 3192 ; (2) Title IX of ANILCA, 16 U.S.C. §§ 3161 – 3173 ; (3) the National Environmental Policy Act, 42 U.S.C. §§ 4321 – 4370(h) ; and (4) the Endangered Species Act, 16 U.S.C. §§ 1531 – 1544.³⁸ Plaintiffs seek "vacatur, declaratory, and injunctive relief because the land exchange decision is arbitrary, capricious, an abuse of discretion, and not in accordance with the law."³⁹

On July 11, 2018, Plaintiffs filed the instant motion for summary judgment.⁴⁰

JURISDICTION

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which "confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate."⁴¹

STANDARD OF REVIEW

"[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did."⁴² "In reviewing an administrative agency decision, ‘summary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.’ "⁴³

The APA instructs a reviewing court to "hold unlawful and set aside agency action, findings, or conclusions" if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."⁴⁴ An agency's action is arbitrary and capricious when it "relie[s] on factors which Congress has not intended it to consider, entirely fail[s] to consider an important aspect of the problem, offer[s] an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."⁴⁵

DISCUSSION

1. Plaintiffs have standing to challenge the Exchange Agreement and the Exchange...