A red fox (Vulpes vulpes) prowls the edges of Izembek Lagoon.

A recent ninth circuit decision regarding Izembek Refuge poses a threat to all of Alaska’s refuges, parks, and wilderness

In March, a majority decision in the Ninth Circuit upheld a Trump administration land exchange, setting an incredibly problematic precedent for conservation and subsistence in  Alaska.

The majority opinion was developed and affirmed by two Trump-appointed Ninth  Circuit judges, and a very strong dissent was authored by a third judge who has been part of the  appellate court for decades since President Clinton appointed her. Beyond the extensive destruction that this decision causes to the subsistence and ecological values of Izembek, the  Ninth Circuit’s decision poses a broad existential threat to conservation, subsistence, and  conservation system unit (CSU) lands across Alaska, including national parks, wildlife refuges,  and congressionally designated Wilderness. With this decision, any Secretary will be able to  simply give away protected federal lands for industrial development while avoiding protections  for conservation and subsistence put in place by Congress. This decision undermines Alaska  National Interest Lands Conservation Act (ANILCA) in two important ways, as found by the  federal District Court: 

First, under ANILCA, the Secretary may only exchange lands where such an exchange furthers  ANILCA’s purposes. What the Ninth Circuit did in upholding Secretary Bernhardt’s land  exchange in Izembek National Wildlife Refuge was to unilaterally determine that economic and  social benefits to Alaska Native Corporations or other entities can override ANILCA’s long  established purposes aimed at conservation, subsistence and protection of ecologically important  habitats, wildlife and wilderness values. This decision circumvents and thereby nullifies the  protections Congress established when adopting ANILCA, putting economic benefits on  par or superior to conservation and subsistence. The decision also provides the Interior Secretary broad and nearly unreviewable discretion to make such decisions. Under the  majority’s interpretation, the Secretary could, for example, trade away the heart of Denali  National Park — North America’s tallest mountain — based on finding economic benefits to  private landowners from charging hikers and climbers for use and access. 

Second, ANILCA Title XI governs the approval of all transportation systems proposed through CSUs and requires a very specific agency and public process to make sure impacts to CSUs are  minimized. In fact, for transportation systems proposed through Wilderness, Title XI expressly  limits the Executive Branch’s authority by requiring approval by both houses of Congress and  

the President. When entering the land exchange agreement, Secretary Bernhardt ignored this  mandate and unilaterally sought to exchange lands out of federal ownership to avoid Title XI’s  process and Congress’s role. The Ninth Circuit majority opinion upheld Bernhardt’s approach,  agreeing that Title XI doesn’t apply because once lands are exchanged, the lands are no longer federal lands, creating a huge loophole and allowing any Secretary to circumvent Congress’s  intent. 

Such an approach is ripe for abuse. Under this precedent, any future Secretary of the Interior  would have full discretion to enter into land exchanges in CSUs across Alaska that circumvent  ANILCA’s purposes and mandates. The Secretary could swap protected federal lands if the 

Secretary determines it would benefit Alaska Native or other corporations or entities  economically or socially, and completely bypass the strict procedures contained in Title XI to  allow roads, pipelines, or other transportation systems in CSUs. This puts millions of acres of  protected lands at risk by allowing the Secretary to overwrite Congressionally designated legal  protections.  

The Ninth Circuit decision also determined that the Secretary had adequately explained his  decision reversing the prior administration’s decision to not exchange lands for a road, going  against years of precedent under the Administrative Procedures Act. This aspect of the decision  has the potential to impact all federal regulatory decisions in the future. 

Izembek Background: 

The Izembek National Wildlife Refuge, located on the southern end of the Alaska Peninsula,  encompasses a globally significant wetlands complex that sustains an extraordinary level of  biodiversity. The refuge provides important subsistence resources for Alaska Natives much  beyond refuge boundaries and vital habitat for terrestrial and marine species, including virtually  the entire global population of Pacific black brant. Nearly all of the Izembek Refuge is  Congressionally designated Wilderness. 

For decades the Aleutians East Borough and the City of King Cove have advocated for a road  through the refuge’s designated Wilderness to connect the community of King Cove with the community of Cold Bay. Numerous legislative, administrative, and judicial decisions have found  that constructing a road through the refuge would be destructive and unnecessary. In 2013, the  U.S. Fish and Wildlife Service (FWS) determined that the proposed road would result in  significant impacts to refuge resources and would have “major effects” on brant and other  migratory birds due to increased human access, hunting pressure and disturbance. As a result of  this finding, Secretary Jewell rejected a land exchange to allow for a road. 

In 2018, Secretary Bernhardt approved a land exchange to allow for a road using the land  exchange provision of the Alaska National Interest Lands Conservation Act (ANILCA) without  any public process or environmental analysis. Secretary Bernhardt justified this action under the  theory that once the lands were exchanged out of federal ownership, they would be private lands  and thus no longer be subject to the protections put in place for wildlife refuges and Wilderness (which prohibit road construction). 

That exchange was invalidated by the U.S. District Court in Alaska, resulting in a second  exchange in 2019. That second exchange agreement was also invalidated by the U.S. District  Court. The district court found that the exchange did not further ANILCA’s purposes, which are  for conservation and subsistence. The court further found that Secretary Bernhardt did not  comply with the mandatory provisions governing the authorization for a road in a refuge and  Wilderness contained in ANILCA Title XI, which requires action by the President and  Congressional approval. The court also concluded that Secretary Bernhardt did not adequately  explain Interior’s change in position considering Secretary Jewell’s 2013 decision rejecting a  similar exchange. Secretary Bernhardt successfully appealed this ruling to the Ninth Circuit  Court of Appeals.