Friends of Alaska Nat'l Wildlife Refuges v. Haaland
| Decision Date | 16 March 2022 |
| Docket Number | No. 20-35727, No. 20-35728,No. 20-35721,20-35721 |
| Citation | 29 F.4th 432 |
| Parties | FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES; The Wilderness Society; Defenders of Wildlife; National Audubon Society; Wilderness Watch; Center for Biological Diversity ; National Wildlife Refuge Association; Alaska Wilderness League; Sierra Club, Plaintiffs-Appellees, v. Debra HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior ; U.S. Department of the Interior ; United States Fish and Wildlife Service, Defendants-Appellants, and King Cove Corporation; Agdaagux Tribe of King Cove ; Native Village of Belkofski ; State of Alaska, Intervenor-Defendants. Friends of Alaska National Wildlife Refuges; The Wilderness Society; Defenders of Wildlife; National Audubon Society; Wilderness Watch; Center for Biological Diversity ; National Wildlife Refuge Association; Alaska Wilderness League; Sierra Club, Plaintiffs-Appellees, v. Debra Haaland, in her official capacity as Secretary of the U.S. Department of the Interior ; U.S. Department of the Interior ; United States Fish and Wildlife Service, Defendants, State of Alaska, Intervenor-Defendant, and King Cove Corporation; Agdaagux Tribe of King Cove ; Native Village of Belkofski, Intervenor-Defendants-Appellants. Friends of Alaska National Wildlife Refuges; The Wilderness Society; Defenders of Wildlife; National Audubon Society; Wilderness Watch; Center for Biological Diversity ; National Wildlife Refuge Association; Alaska Wilderness League; Sierra Club, Plaintiffs-Appellees, v. Debra Haaland, in her official capacity as Secretary of the U.S. Department of the Interior ; U.S. Department of the Interior ; United States Fish and Wildlife Service, Defendants, King Cove Corporation; Agdaagux Tribe of King Cove ; Native Village of Belkofski, Intervenor-Defendants, and State of Alaska, Intervenor-Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael T. Gray (argued), David Gunter, and Davené D. Walker, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; United States Department of Justice; Environment and Natural Resources Division; Jacksonville, Florida; Kenneth M. Lord, Attorney, United States Department of the Interior, Anchorage, Alaska; for Defendants-Appellants.
Steven W. Silver, Robertson, Monagle, and Eastaugh, PC, Reston, Virginia; James F. Clark, Law Offices of James F. Clark, Juneau; for Intervenor-Defendants/Intervenor-Defendants-Appellants King Cove Corporation, Agdaagux Tribe of King Cove, and Native Village of Belkofski.
Sean Lynch (argued) and Mary Hunter Gramling, Assistant Attorneys General; Clyde "Ed" Sniffen, Jr., Acting Attorney General; Office of the Alaska Attorney General, Juneau, Alaska, for Intervenor-Defendant/Intervenor-Defendant-Appellant State of Alaska.
Bridget Psarianos (argued) and Brook Brisson, Trustees for Alaska, Anchorage, Alaska, for Plaintiffs-Appellees.
Before: Kim McLane Wardlaw, Eric D. Miller, and Bridget S. Bade, Circuit Judges.
Opinion by Judge Miller ;
Several environmental organizations challenge a land-exchange agreement between the Secretary of the Interior and King Cove Corporation, an Alaska Native village corporation. King Cove Corporation wishes to use the land it will obtain in the exchange to build a road through the Izembek National Wildlife Refuge to allow access to the city of Cold Bay. The district court set aside the agreement. We reverse and remand.
The Native Village of King Cove and the city of Cold Bay, Alaska, are located near the southwestern end of the Alaska Peninsula. They are about 18 miles apart as the crow flies (or perhaps the raven—the area is outside of the range of the American crow). There is no road between them, and they are accessible to each other and to the rest of Alaska only by air or sea.
King Cove has just under 1,000 residents. It is home to the Agdaagux Tribe of King Cove and the Native Village of Belkofski, and about one-third of its residents are Alaska Natives. King Cove has limited medical facilities, so residents facing medical emergencies that require hospitalization must go to Anchorage or Seattle. The King Cove airport is small, dangerously close to high mountains, and frequently closed by bad weather. For several decades, the residents of King Cove have sought to build a road to Cold Bay to access its larger, all-weather airport to facilitate medical evacuations.
The proposed road would run through the Izembek National Wildlife Refuge. The refuge consists of tundra, wetlands, and lagoons, including the Izembek Lagoon, which contains one of the world's largest eelgrass beds. The refuge is an important habitat for birds, supporting almost all of the world's population of Pacific black brant, as well as emperor geese, Steller's eiders (a threatened species in the United States), and the world's only non-migratory population of tundra swans. It is also home to caribou, brown bears, and other mammals. Much of the refuge is designated as wilderness. So long as it retains that designation, no road may be built through it. 16 U.S.C. § 1133(c).
In 2009, Congress authorized the Secretary of the Interior to conduct a land exchange with King Cove Corporation under which King Cove Corporation would transfer land to the United States and, in return, the United States would transfer "all right, title, and interest of the United States" in a portion of the Izembek Refuge to allow the construction of a "single-lane gravel road between the communities of King Cove and Cold Bay" to "be used primarily for health and safety purposes (including access to and from the Cold Bay Airport) and only for noncommercial purposes." Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, §§ 6402(a), 6403(a)(1)(A), 123 Stat. 991, 1178, 1180. The statute instructed the Secretary to study the environmental impact of a road and to determine whether an exchange would be in the public interest. Id. § 6402(b)(2), (d)(1), 123 Stat. at 1178–79. It provided that the authority for construction of a road would expire in seven years unless a construction permit had been issued by then. Id. § 6406(a), 123 Stat. at 1182.
In 2013, Secretary Sally Jewell decided not to proceed with the exchange. The Secretary stated that the exchange presented "difficult and controversial issues of public policy" and that she had weighed "the concern for more reliable methods of medical transport from King Cove to Cold Bay" against the threat to "a globally significant landscape that supports an abundance and diversity of wildlife." She acknowledged that "proponents of the proposed road believe it would be a reliable method of transport in most weather conditions, but conclude[d] that other viable, and at times preferable, methods of transport remain and could be improved to meet community needs." Such alternatives, she said, included "fishing vessels ... , air service, and ferry service" and "an alternative marine-road transportation link" via landing craft. She also noted that between 2007 and 2010, a hovercraft had been used for medical evacuations from King Cove to Cold Bay, successfully completing at least 22 evacuations. Although that service was suspended because of "cost and reliability concerns," the Secretary nevertheless determined that "[a]ir, hovercraft, and ferry may be more expedient than driving." The Secretary also found that "construction of a road through the Izembek National Wildlife Refuge 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." Those harms would occur even if the road were restricted to noncommercial use.
In 2018, Secretary Ryan Zinke changed course and approved a land-exchange agreement. By then, the Secretary's authority under the 2009 Act had expired, so he relied on a provision of the Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371 (1980), allowing him, "in acquiring lands for the purposes of [ANILCA]," to exchange lands with Alaska Native village corporations. 16 U.S.C. § 3192(h)(1). Under the agreement, King Cove Corporation would transfer to the United States certain lands within the Izembek and Alaska Peninsula National Wildlife Refuges and relinquish its selection rights to certain other lands within the Izembek Refuge; in exchange, it would receive a corridor of less than 500 acres through the Izembek Refuge.
Several environmental groups—the same plaintiffs as in this case—filed suit in the District of Alaska to challenge Secretary Zinke's decision. The district court vacated the land-exchange agreement. Friends of Alaska Nat'l Wildlife Refuges v. Bernhardt , 381 F. Supp. 3d 1127, 1144 (D. Alaska 2019). It held that Secretary Zinke's decision was arbitrary and capricious because "the Secretary ignore[d] the agency's prior determinations concerning a road's environmental impact on Izembek without providing any reasoned explanation for this change." Id. at 1143. The Secretary did not appeal.
In 2019, King Cove Corporation asked Secretary David Bernhardt to reconsider a land exchange, and the Secretary approved an agreement similar to the vacated 2018 agreement. He found that the exchange "comports with the purposes of ... ANILCA because it strikes the proper balance between protection of scenic, natural, cultural, and environmental values and provides opportunities for the long-term social and physical well-being of the Alaska Native people." He also stated that "to the extent an authorization under ANILCA constitutes a policy change from that described by Secretary Jewell in the 2013 [decision] rejecting a similar, but not identical, land exchange ... , such change is warranted, necessary, and appropriate." The Secretary cited "[t]he acute necessity, underestimated...
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