Advocacy Updates – Page 2 – Friends of Alaska National Wildlife Refuges

March Advocacy Report: Spring brings SOME good news

by David Raskin, Friends Board President

Arctic Refuge
Trustees for Alaska and the Native Village of Venetie filed reply briefs in support of Department of Justice (DOJ) on February 17, 2023. DOJ had previously filed its opposition to the plaintiffs’ motion for summary judgment in the federal lawsuit by the Alaska Industrial Development and Export Authority (AIDEA) and the State that challenged the moratorium on oil and gas development in the Coastal Plain. Friends had intervened along with many conservation organizations and Tribal governments on behalf of the Biden administration. AIDEA and the State must file their reply brief by March 20. AIDEA also requested oral argument, which the court will likely schedule after their reply brief is submitted.

On February 8, 2023, the Fish and Wildlife Service (FWS) filed a Federal Register notice regarding the preparation of an Environmental Assessment (EA) for the December 2021 SF 299 application by Kaktovik Inupiat Corporation (KIC) for a winter right-of-way (ROW) across the tundra in a wilderness study area. The draft EA is scheduled for September 2023 followed by a public comment period. The permit will require compliance with the Marine Mammal Protection Act regarding potential impacts on polar bears and a full Environmental Impact Statement process may result in a requirement for an incidental take permit, which could become a major problem for the ROW application. It should be noted that the request for a winter right-of-way across the Refuge may have implications for Alaska National Interest Lands Conservation Act (ANILCA) and the Izembek road controversy.

A draft report on the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas, is still under review. Under the solicitor’s opinion in the previous administration, the Refuge is open to motorized vehicles, but there has been little activity to date.

Izembek Refuge
On December 13, 2022, the Ninth Circuit Court of Appeals heard oral arguments in its en banc review of the DOJ and State appeal of our second successful lawsuit that had stopped the illegal land transfer for the proposed Izembek road. The decision to rehear the case en banc nullified the disastrous panel decision and began the road proponents appeal anew. The panel, a majority appointed by Trump, could issue a decision as early as this month. The Izembek coalition is working at all levels of the administration and Congress to convince Secretary Haaland to withdraw the illegal land exchange before Ninth Circuit issues a decision. That is the only way to immediately put an end to the threats to Izembek National Wildlife Refuge and up to 150 million acres of federal conservation lands currently protected by ANILCA.

Kenai Refuge
The Supreme Court on March 6, 2023, denied the State of Alaska’s writ of certiorari that sought a review of the Ninth Circuit’s decision that upheld the District Court decision that supported FWS hunting regulations. This is a great win for the Kenai Refuge, its wildlife, and all who worked so hard to help this happen.

We also received the wonderful news that FWS withdrew the June 11, 2020, Trump administration proposed rule to amend the refuge-specific regulations for Kenai Refuge. Based on the extensive public comments that Friends helped to organize, FWS reviewed the new information provided and determined that the best course of action was withdrawing the proposed rule.

Yukon Flats National Wildlife Refuge
We have heard nothing further on the results of Hilcorp’s shallow exploration on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this may lead to oil and gas development that could negatively impact the world-class wildlife and fisheries and subsistence resources in the Refuge.

February Advocacy Report: Our work continues

by David Raskin, Friends Board President

Arctic National Wildlife Refuge

The Department Of Justice (DOJ) filed its opposition to the plaintiffs’ motion for summary judgment in the federal lawsuit by the Alaska Industrial Development and Export Authority (AIDEA) and the State that challenged the moratorium on oil and gas development in the Coastal Plain. Friends had intervened along with many conservation organizations and Tribal governments on behalf of the Biden administration. Trustees for Alaska will be filing our reply brief this month in support of the DOJ.

On February 8, 2023, the Fish and Wildlife Service (FWS) filed notice in the Federal Register regarding the preparation of an Environmental Assessment (EA) for the December 2021 SF 299 application by Kaktovik Inupiat Corporation (KIC) for a winter Right- of-Way (ROW) across the tundra in a wilderness study area (https://www.fws.gov/refuge/arctic). The draft EA is scheduled for September 2023 followed by a public comment period. We expect this to be a lengthy process that will require compliance with the Marine Mammal Protection Act regarding potential impacts on polar bears and a full EIS process. This may result in a requirement for an incidental take permit, which could become a major problem for the ROW application. It should be noted that the request for a winter Right- of-Way across the Refuge may have implications for the Alaska National Interest Lands Conservation Act (ANILCA) and the Izembek road controversy.

A draft report on the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas, is still under review. Under the solicitor’s opinion in the previous administration, the Refuge is open to motorized vehicles, but there has been little activity to date

Izembek National Wildlife Refuge
On December 13, 2022, the Ninth Circuit Court of Appeals heard oral arguments in its en banc review of the appeal by the DOJ and the State of our second successful lawsuit that had stopped the illegal land transfer for the proposed Izembek road. Their decision to rehear the case en banc nullified the disastrous panel decision and began the road proponents appeal anew. We were extremely fortunate to obtain the pro bono services of San Diego expert appellate attorney Jennifer Bennett, who brilliantly argued our case before the 11-judge panel that unfortunately included a majority of six recent appointees by former President Trump. Assuming the panel decision could come as early as late March, the Izembek coalition is working diligently to convince Secretary Haaland to withdraw the illegal land exchange before the Ninth Circuit issues a decision. That is the only way to immediately put an end to potential threats to Izembek National Wildlife Refuge and more than 100 million acres of federal conservation lands currently protected by ANILCA

Kenai National Wildlife Refuge
We have heard nothing concerning the October 27, 2022, State of Alaska writ of certiorari to the U.S. Supreme Court seeking review of the Ninth Circuit’s decision that supported our win in the District Court. The State claims that the case raises questions of “exceptional importance” to states and the Ninth Circuit decision is “unsustainable on the merits.” It is noteworthy that Safari Clubs International did not join the State in this latest appeal. The Supreme Court rejects most petitions for review, and we expect the same in this case.

Yukon Flats National Wildlife Refuge
We have heard nothing further on the results of Hilcorp’s shallow exploration on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this may lead to oil and gas development that could negatively impact the world-class wildlife and fisheries and subsistence resources in the refuge

January Advocacy Report: The current state of Refuge System funding.

by Caroline Brouwer, Friends Board Member

We are dedicating this advocacy report to the current state of Refuge System funding. Refuges across the nation are underfunded to the point of neglect and closure. Here in Alaska, Friends support 16 refuges that make up over 80% of the land acres in the Refuge System. Alaska refuges’ funding needs include climate science research and additional biologists and visitor services staff across all refuges, and additional dollars for maintenance of not just habitat, but infrastructure and roads. But perhaps most importantly, we need staff who can work with our local communities to ensure refuges meet the needs not only of our incredible wildlife, but the people who live near them.

First, a few numbers: there are 95 million land acres in the Refuge System, 80 million of which are in Alaska (84% of the land mass of the Refuge System is in Alaska). There are an additional 750 million acres of vast stretches of ocean – both Pacific and Atlantic – in the refuge system, Alaska is the nursery for songbirds and waterfowl which migrate through or winter in the lower 48 and Hawai’i. Refuges provide a network of wildlife habitat that stretches for thousands of miles; these lands and waters are interconnected, and deserve protection and robust funding.

But there is not enough funding to take care of these lands and waters. Congress just passed a spending bill that increased the refuge system budget from $519 million to $542 million. Although it looks like a decent increase, it will be erased due to inflation and 1-2% staff pay increases. For the last dozen years, refuges have lost hundreds of millions of dollars in capacity, and we can see those losses on the ground.

In the Lower 48, these funding decreases have meant closing whole programs like environmental education and visitor services. Most refuge units have no federal wildlife officers to stop poaching. A significant majority of refuges have no staff dedicated solely to that refuge, and are minimally managed. This all results in an erosion of habitat quality due to lack of biological data to inform management decisions, invasive species, wildlife harassment and poaching, the closure of school environmental programs, and on and on.

Refuges in all 50 states are threatened by the effects of climate change, from saltwater inundation to melting permafrost to fires and floods, the impacts of invasive species that crowd out native species, and the increased use we have seen in recent years – over 65 million people visit refuges each year.

In Alaska, these funding decreases right now mean that the regional office is being forced to complex refuges, which means a refuge that formerly had dedicated staff now shares its staff with at least one other refuge. Alaskan refuges are massive – in many cases the size of entire states in the Lower 48. They are complicated to manage, and each one needs its own dedicated staff to manage that complexity. Innoko, Koyukuk, and Nowitna National Wildlife Refuges are already complexed. And now, funding levels are so low that Kanuti and Yukon Flats Refuges are in discussion to be complexed. Kanuti, for example, is the size of the largest of the Lower 48 refuges (Desert National Wildlife Refuge in Nevada at 1.6 million acres). Complexing is only the right answer if we accept that refuges should be underfunded in perpetuity. Instead, we need to focus on addressing the overall funding issue and bring Refuge System funding up to a sustainable level.

So how much money does the Refuge System really need? Well, the Fish and Wildlife Service has been examining these numbers for the last year, talking to each of the eight regional offices around the country to figure out the true need of the System. The answer? $1.5 billion dollars. That need is nearly three times the current funding levels.

Full funding of the Refuge System would mean that not only are wildlife protected, but there is enough funding available for infrastructure repairs, construction, road maintenance, community engagement, environmental education, and support for volunteers. Anyone who has visited a national park has seen educational signage, welcoming staff, well maintained infrastructure, and auto tour routes. The Park Service also has a budget 6 times larger than the Refuge System, and the vast majority of refuges do not receive anywhere near the level of funding as parks do.

The Refuge System is an American treasure. – the largest system of public lands set aside for wildlife in the world. We owe it to ourselves to maintain it. We all know that Congress is not going to suddenly fund the System at $1.5 billion, but our goal is to increase current funding by $200 million each year until that goal is met. The 118th Congress was just sworn in a few days ago. We will be in touch with next steps for increasing funding for the Refuge System later in the spring when Congress begins their appropriations process.

December Advocacy Report: the year will end soon but our efforts will continue. Join in!

by David Raskin, Friends Board President

Arctic National Wildlife Refuge

There are no recent developments on the existing leases, but a second lease sale in 2024 is required by the existing legislation. We expect that a second lease sale will be another bust like the first sale. In the meantime, US Fish and Wildlife Service (FWS) and the Bureau of Land Management (BLM) continue the lengthy and expensive process of developing the Supplemental Environmental Impact Statement (SEIS) required by order of the Secretary. The public release of the SEIS has now been postponed until the second quarter of 2023. Many conservation organizations, including Friends have intervened on behalf of the government in the federal lawsuit by the Alaska Industrial Development and Export Authority (AIDEA) and the State.

The FWS is beginning the preparation of a Draft Environmental Impact Statement for the SF 299 application by Kaktovik Inupiat Corporation (KIC) for a winter right-of-way across the tundra in a wilderness study area. It should be noted that the request for a winter right-of-way across the Refuge may have implications for the Alaska National Interest Land Conservation Act (ANILCA) and the Izembek road controversy. A draft report on the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas, is currently under review. Under the solicitor’s opinion in the previous administration, the Refuge is open to motorized vehicles, but there has been little activity to date.

Izembek National Wildlife Refuge

On November 10, 2022, the Ninth Circuit Court of Appeals granted our petition for en banc review of their March 16, 2022, panel decision that overturned our second successful lawsuit that had stopped the illegal land transfer for the proposed Izembek road. That disastrous panel of two Trump appointees rewrote ANILCA to allow land transfers for economic and social purposes as a basis for reinstating the land exchange for the road. The decision to rehear the case en banc nullified the disastrous panel decision, canceled the land exchange, and began the road proponents’ appeal anew.

Nicole Whittington-Evans, Alaska manager of Defenders of Wildlife and Deborah Williams, former Special Assistant to the Secretary of Interior, spearheaded the successful efforts to obtain amicus briefs from President Carter, former Interior Secretary Bruce Babbitt, former Interior Solicitor John Leshy, and the Native Village of Hooper Bay and the Sea Lion Corporation in the Yukon Delta. The latter brief was shepherded by the tireless work of Myron Naneng of Hooper Bay. We are also extremely fortunate to have obtained the services of expert appellate attorney Jennifer Bennett who will argue our case before the en banc panel of the Ninth Circuit on December 13. Unfortunately, Interior Secretary Haaland has so far failed to withdraw the blatantly illegal land exchange that would end the legal case and protect Izembek and 104 million acres of federal conservation lands from commercial and industrial exploitation. We continue working with our conservation partners to develop other approaches to permanently preserve the Izembek Refuge and all Alaska federal conservation lands.

Kenai National Wildlife Refuge
On October 27, 2022, the State of Alaska filed a writ of certiorari with the Supreme Court seeking review of the Ninth Circuit’s decision that supported our win in the District Court. The State claims that the case raises questions of “exceptional importance” to states and the Ninth Circuit decision is “unsustainable on the merits.” It is noteworthy that Safari Clubs International did not join the State in this latest appeal. The Supreme Court rejects most petitions for review.

Yukon Flats National Wildlife Refuge
We have heard nothing further on the results of Hilcorp’s shallow exploration on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this may lead to oil and gas development that could negatively impact the world-class wildlife and fisheries and subsistence resources in the Refuge.

Ski and sled track over a frozen lake. Accessing a public use cabin in the winter over a frozen lake can mean hiking, skiing, or snowshoeing while towing a sled of gear. Credit: Lisa Hupp/USFWS.

November Advocacy Report: We keep on keeping on …

by David Raskin, Friends Board President

Since the Department of the Interior announced that a Special Assistant for Alaska will be appointed, there is still no word about who is being considered or any announcement. We are beginning to think that there will be no special assistant appointed and that staff from the previous administration may be assuming more responsibilities.

Arctic National Wildlife Refuge
There are no recent developments on the existing leases, but a second lease sale is required by the existing legislation. However, as more major insurers adopt policies that prohibit involvement in arctic oil and gas development, this adds to the already low interest by major oil companies. We expect that a second lease sale will be another bust like the first sale. In the meantime, U.S. Fish & Wildlife Service (USFWS) and Bureau of Land Management (BLM) continue the lengthy and expensive process of developing the Supplemental Environmental Impact Statement (EIS) required by order of the Secretary. Many conservation organizations, including Friends have intervened on behalf of the government in the federal lawsuit by the Alaska Industrial Development and Export Authority (AIDEA) and the State.

We have no update on the threat to the Coastal Plain by the submission of the SF 299 application by Kaktovik Inupiat Corporation (KIC) for a winter right-of-way across the tundra in a wilderness study area. It should be noted that the request for a winter right-of-way across the refuge may have implications for Alaska National Interest Lands Conservation Act (ANILCA) and the Izembek road controversy. We expect that an environmental review may begin early next year. A draft report on the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas, is currently under review. Under the solicitor’s opinion in the previous administration, the refuge is open to motorized vehicles, but there has been little activity to date.

Izembek National Wildlife Refuge
The March 16, 2022, panel decision of the Ninth Circuit Court of Appeals in favor of defendants’ appeal overturned our second successful lawsuit that had stopped the illegal land transfer for the proposed road. This disastrous decision rewrote ANILCA to reinstate the land exchange for the road through the heart of the Izembek Wilderness. The far-reaching implications of this decision on 104 million acres of federal conservation units and lands in Alaska are potentially devastating. We await a decision from the Ninth Circuit regarding our petition for en banc review. A decision to rehear the case would nullify the disastrous panel decision and begin the appeal anew. However, denial of our petition would pose great dangers for Izembek, and we will work with our conservation partners to develop other approaches to save the Izembek Refuge and all Alaska federal conservation lands.

Alaska Maritime National Wildlife Refuge
Following the welcome news that the Bureau of Ocean Energy Management (BOEM) canceled the proposed lease sale for Lower Cook Inlet oil and gas development, the Biden administration announced a new five-year leasing plan that includes a lease sale on December 30 .

This resurrects the specter of drilling platforms, underwater pipelines, and greatly increased industrial transportation in Lower Cook Inlet and the high risk of oil spills that could seriously impact lands and wildlife in the Maritime Refuge.

Kenai National Wildlife Refuge
On October 27, the State of Alaska filed a writ of certiorari with the Supreme Court seeking review of the Ninth Circuit’s decision that supported our win in the District Court. The State claims that the case raises questions of “exceptional importance” to states and the Ninth Circuit decision is “unsustainable on the merits.” It is noteworthy that Safari Club International did not join the State in this latest appeal. Based on the Court’s schedule and the timelines in the rules, the earliest we might expect a decision is early December. The Supreme Court rejects most petitions for review.

Yukon Flats National Wildlife Refuge
We have heard nothing further on the results of Hilcorp’s shallow exploration on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this may lead to oil and gas development that could negatively impact the world-class wildlife and fisheries and subsistence resources in the refuge.

September Advocacy Report: Waiting for an Announcement

by David Raskin, Friends Board President

Department of the Interior announced that a Special Assistant for Alaska will be appointed soon. We have not heard who is being considered and await an official announcement.

Arctic National Wildlife Refuge
The bad news is the recently passed Inflation Reduction Act failed to include repeal of the Arctic National Wildlife Refuge oil and gas program and a buy-back of all existing leases. The good news is that Knik Arm Services canceled its lease in the Arctic National Wildlife Refuge. Along with Regenerate Alaska’s recent lease withdrawal, this is another step by oil and gas interests to walk away from drilling on lands sacred to the Gwich’in people. Only the State of Alaska’s Industrial Development and Export Authority (AIDEA) retains its leases, but the prospect of an oil company acquiring those leases becomes dimmer each year as the regulatory problems and the costs of development in the arctic make such efforts very unattractive. In the meantime, US Fish and Wildlife Service (USFWS) and Bureau of Land Management continue the lengthy and expensive process of developing the Supplemental Environmental Impact Study required by order of the Secretary. Many conservation organizations, including Friends have intervened on behalf of the government in the federal lawsuit by the AIDEA and the State.

We have no updates on the threat to the Coastal Plain by the submission of the SF 299 application by Kaktovik Inupiat Corporation (KIC) for a winter right-of-way across the tundra in a wilderness study area and the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas.

As lead plaintiff in this case, Friends worked closely with Deborah Williams (former Alaska Special Assistant to Secretary Babbitt for Alaska), Nicole Whittington-Evans (Alaska Director for Defenders of Wildlife), and others to develop options and strategy to undo this extremely dangerous decision. These efforts resulted in amicus briefs by President Jimmy Carter, former Interior Secretary Bruce Babbitt, and former Interior Solicitor John Leshy. These developments influenced Trustees for Alaska to petition the Ninth Circuit to rehear the case en banc, (when all the judges of a court hear a case). On May 16, the Court ordered the defendants to file a response to our petition, which has been filed along with their supporting amicus briefs. We are hopeful that these developments will be followed by a majority vote of the full Court that grants the en banc rehearing, which we await. A decision to rehear the case would nullify the disastrous panel decision and begin the appeal anew.

August Advocacy Report: Fresh from the ocean

by David Raskin, Friends Board President

Arctic National Wildlife Refuge
The Budget Reconciliation bill that included repeal of the Arctic National Wildlife Refuge oil and gas program and a buy-back of all existing leases was torpedoed by Senator Manchin. A minimal reconciliation bill is expected to come before the Senate in August without the Arctic Refuge oil and gas repeal. There is a possibility that an amendment to include the repeal might be adopted, but the chances are not good. If Manchin opposes it, the Democrats will need at least one Republican vote to adopt it. However, it appears that the Secretary of Interior has the power to cancel the lease sale, but there is much uncertainty in all of this. In the meantime, the U.S. Fish and Wildlife Service and Bureau of Land Management continue the lengthy and expensive process of developing the Supplemental Environmental Impact Statement required by order of the Secretary.

The contractor hired by the USFWS completed its report about the results of its evaluation of the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas. We expect that the report includes little hard evidence to support the claim of historic use of vehicles. The USFWS is still processing the application to decide the validity of the Kaktovik claim.

Izembek National Wildlife Refuge
The March 16, 2022, panel decision of the Ninth Circuit Court of Appeals in favor of defendants’ appeal overturned our second successful lawsuit that had stopped the illegal land transfer for the proposed road. This disastrous decision rewrote Alaska National Interest Lands Conservation Act (ANILCA) to reinstate the land exchange for the road through the heart of the Izembek Wilderness. The far-reaching implications of this decision on 104 million acres of federal conservation units and lands in Alaska are potentially devastating.

As lead plaintiff in this case, Friends worked closely with Deborah Williams (former Alaska Special Assistant to Secretary Babbitt for Alaska), Nicole Whittington-Evans (Alaska Director for Defenders of Wildlife), and others to develop options and strategy to undo this extremely dangerous decision. Following Trustees for Alaska petition the Ninth Circuit to rehear the case en banc, extensive efforts spearheaded by Ms. Williams achieved huge support for the petition by amicus briefs by President Jimmy Carter and former Interior Secretary Bruce Babbitt and former Interior Solicitor John Leshy. Trustees also obtained amicus support from a group of 25 law professors. The Court ordered the defendants to expeditiously file a response to our petition, which is the first step toward a possible rehearing. This was very encouraging, and the Department of Justice requested a 30-day extension to file their response and then requested another 30-day extension, both of which the Court granted with the admonition that no more extensions will be granted. Their new deadline to file is August 5, and amicus briefs in support of the defendants must be filed within 10 days. A majority vote of the full Court is required to grant the en banc rehearing, which may take several months for a decision. A decision to rehear the case would nullify the disastrous panel decision and begin the appeal anew. However, if our petition is granted, the Secretary of Interior could withdraw the land exchange, which would end the legal process and leave our district court victory intact.

The National Wildlife Refuge Association and Defenders of Wildlife drafted and submitted a letter to Secretary Haaland on behalf of 13 CEOs of national conservation organizations and Friends of Alaska National Wildlife Refuges requesting a meeting with the Secretary to discuss the problems created by the land exchange and the Ninth Circuit decision. . We were granted a 30-minute virtual meeting with the secretary and her key staff that occurred on July 14. The agenda and presentations were superbly organized by the Defenders of Wildlife staff in Anchorage and Washington, DC. The meeting went extremely well, and the notes can be found here. We are hopeful that the meeting will produce positive actions by her.

Alaska Maritime National Wildlife Refuge
After the extremely welcome news that the Bureau of Ocean Energy Management (BOEM) canceled the proposed lease sale for the Lower Cook Inlet oil and gas development lease sale because of lack of interest by the oil and gas industry, we received the disappointing announcement that the Biden administration has again included a lease sale in the new five-year plan.

Kenai National Wildlife Refuge
On April 18, 2022, the Federal Ninth Circuit Court of Appeals issued a sweeping decision that rejected the appeal of the Kenai Refuge wildlife regulations lodged by Safari Clubs International and the State of Alaska. This decision maintained the Kenai regulations that include a ban on baiting of brown bears and other sensible controls on trapping and predator control. Friends was one of many intervenor-defendants in support of the government. Trustees for Alaska Staff Attorneys Katie Strong and Rachel Briggs did an outstanding job to secure this important victory. However, the State has now petitioned the Ninth Circuit Court for an en banc rehearing of the case. Our attorneys have indicated that they do not feel that the State has made a compelling case for a rehearing, very few of which are granted.

Yukon Flats National Wildlife Refuge
We have heard nothing further on Hilcorp’s plans to begin seismic exploration next winter on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this will lead to oil and gas development that could negatively impact the world-class wildlife and fisheries and subsistence resources in the Refuge. If our appeal of the Izembek decision fails, it may to lead to administrative actions to facilitate possible oil and gas development by means of a land trade or other mechanism.

A female brown bear pauses on the bank of the Kenai River in Kenai National Wildlife Refuge.

May Advocacy Report: Seasons Change, We Keep On!

by David Raskin, Friends Board President

We are pleased that the Fish and Wildlife Service leadership positions have been filled but continue to hope that a Special Assistant for Alaska will be appointed soon. We have heard rumors but have seen no official announcement.

As lead plaintiff in this case, Friends worked closely with Deborah Williams (former Alaska Special Assistant to Secretary Babbitt for Alaska), Nicole Whittington-Evans (Alaska Director for Defenders of Wildlife), and others to develop options and strategy to undo this extremely dangerous decision. Trustees for Alaska ultimately decided to petition the Ninth Circuit to rehear the case en banc. Extensive efforts spearheaded by Ms. Williams achieved huge support for the petition by amicus briefs by President Jimmy Carte r and former Interior Secretary Bruce Babbitt and former Interior Solicitor John Leshy. Trustees also obtained amicus support from a group of 25 law professors. On May 16, the Court ordered the defendants to file a response to our petition, which is the first step toward a possible rehearing. This is very encouraging, but must be followed by a majority vote of the full Court. We hope that the Ninth Circuit will grant the en banc rehearing, which may take several months for a decision. A decision to rehear the case would nullify the disastrous panel decision and begin the appeal anew.

Fulfilling her commitment to Senator Murkowski, Secretary of the Interior Haaland visited the Izembek Refuge and King Cove on April 19. She was accompanied by her Special Advisor Raina Thiele, Senator Murkowski, USFWS Director Martha Williams, Regional Director Sara Boario, Regional Chief of Refuges Brian Glaspell, and Izembek Manager Maria Fosado. After a very emotional welcome and ceremonies in King Cove, Secretary Haaland received a guided tour of the Refuge to see the values of wildlife, habitat, and Wilderness that would be severely impacted by the land exchange and the unnecessary and destructive road. The FWS personnel provided her with extensive information and documents about the destructive aspects of the road and more acceptable and positive alternatives to the unnecessary road. We do not expect a decision by the Secretary until the pending appeal is resolved although she may decide at any time.

Alaska Maritime National Wildlife Refuge
We received the extremely welcome news that the Bureau of Ocean Energy Management (BOEM) canceled the proposed lease sale for the Lower Cook Inlet oil and gas development lease sale of approximately 1.09 million acres of seafloor from Kalgin Island in the north to Augustine Island in the south. This halted any proposed developments that would have created drilling platforms, underwater pipelines, and greatly increased industrial transportation in Lower Cook Inlet and the high risk of oil spills that could seriously impact lands and wildlife in the Maritime Refuge. Liz Mering of the Cook InletKeeper did an outstanding job of organizing and spearheading this major conservation victory.

Kenai National Wildlife Refuge
On April 18, 2022, the Federal Ninth Circuit Court of Appeals issued a sweeping decision that rejected the appeal of the Kenai Refuge wildlife regulations lodged by Safari Clubs International and the State of Alaska, This decision maintained the Kenai regulations that include a ban on baiting of brown bears and other sensible controls on trapping and predator control. Friends was one of many intervenor-defendants in support of the government. Trustees for Alaska Staff Attorneys Katie Strong and Rachel Briggs did an outstanding job to secure this important victory..

Yukon Flats National Wildlife Refuge
We have heard nothing further on Hilcorp’s plans to begin seismic exploration next winter on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this will lead to oil and gas development that could negatively impact the world-class wildlife and fisheries and subsistence resources in the Refuge.

April Advocacy Report: New leadership, looking forward!

by David Raskin, Friends Board President

Friends welcomed recently appointed Alaska Regional Director Sarah Boario on our April board meeting. We had a wonderful interaction with her and look forward to a productive working relationship on programs and issues facing Alaska’s refuges. Now that the leadership positions have been filled, we hope that a Special Assistant for Alaska will be appointed soon. We have heard rumors but have seen no official announcement.

Arctic National Wildlife Refuge
The Budget Reconciliation bill that includes repeal of the Arctic National Wildlife Refuge oil and gas program and a buy-back of all existing leases seems to be headed to a possible reformulation. There are glimmers of hope that Senator Manchin will support a lesser version that will include the Arctic Refuge lease repeal in a revised version of the legislation. This may occur before summer. In the meantime, US Fish and Wildlife Service (USFWS) and Bureau of Land Management (BLM) continue the lengthy and expensive process of developing the Supplemental Environmental Impact Statement (EIS) required by order of the Secretary. Many conservation organizations, including Friends have intervened on behalf of the government in the federal lawsuit by the Alaska Industrial Development and Export Authority (AIDEA) and the State.

The threat to the Coastal Plain continues after the submission of the SF 299 application by Kaktovik Inupiat Corporation (KIC) for a winter right-of-way across the tundra in a wilderness study area. The validity of their claim that Kaktovik lands are an inholding without adequate and reasonable access must be decided by the Secretary in consultation with the Solicitor. If KIC prevails, there must be a notice of intent and a NEPA process. The significance of this effort by KIC is related to the Izembek application for a similar inholding right-of-way. If these questionable gambits succeed, it will make that process available for similar claims in other refuges and possibly all federal conservation units. That would be a disaster for all national conservation lands.

The contractor hired by the USFWS has completed its report about the results of its evaluation of the Kaktovik claim of historical vehicle use for subsistence activities in the Arctic Refuge tundra, including wilderness study areas. We expect that the report includes little hard evidence to support the claim of historic use of vehicles. The USFWS will proceed with the administrative process to decide the validity of the Kaktovik claim.

Izembek National Wildlife Refuge
On March 16, a panel of the Ninth Circuit Court of Appeals ruled 2-1 in favor of defendants’ appeal of our second successful lawsuit that had stopped the illegal land transfer for the proposed road. This disastrous decision rewrote Alaska National Interest Lands Conservation Act (ANILCA) to reinstate the land exchange for the road through the heart of the Izembek Wilderness. The far-reaching implications of this decision on more than 100 million acres of federal conservation units and lands in Alaska are potentially devastating, as described in the summary of the decision . As lead plaintiff in this case, Friends is working with our legal team Trustees for Alaska and the other conservation clients on options and strategy to undo this extremely dangerous decision.

Secretary Haaland will be visiting Izembek Refuge and King Cove on April 19. We understand that she will be accompanied by Senator Murkowski, USFWS Director Martha Williams, Regional Director Sara Boario, and Alaska Chief of Refuges Brian Glaspell. Weather permitting, we expect that she will receive a guided tour of the Refuge to see the values of wildlife, habitat, and Wilderness that would be severely impacted by the land exchange and the unnecessary and destructive road.

Alaska Maritime National Wildlife Refuge
We await the Final EIS from the Bureau of Ocean Energy Management (BOEM) for the Lower Cook Inlet oil and gas development lease sale of approximately 1.09 million acres of seafloor from Kalgin Island in the north to Augustine Island in the south. The proposed developments would create drilling platforms, underwater pipelines, and greatly increased industrial transportation in Lower Cook Inlet and pose a high risk of oil spills that could seriously impact lands and wildlife in the Maritime Refuge.

Kenai National Wildlife Refuge
Oral arguments on the Federal Ninth Circuit appeal of the Kenai Refuge regulations by Safari Clubs International and the State were held on February 18. The Kenai regulations include a ban on baiting of brown bears and other sensible controls on trapping and predator control. Friends is one of many intervenor-defendants in support of the government. We were represented by Trustees for Alaska Staff Attorney Rachel Briggs who did an outstanding job. Based on the questions by the 3-justice panel, we expect that our victory in the Federal District Court will be upheld..

Yukon Flats National Wildlife Refuge
Hilcorp announced plans to begin seismic exploration next winter on Doyon Corporation inholdings in the Yukon Flats Refuge. There is great concern that this will lead to oil and gas development that could negatively impact wildlife and fisheries in the Refuge.

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.

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