Why It Matters
The Izembek National Wildlife Refuge consists of 315,000 acres where the Alaskan Peninsula meets the Aleutian islands, including 307,892 acres designated as wilderness and the Izembek Lagoon. The Izembek Refuge is one of the most unique areas in Alaska, home to diverse wildlife such as caribou, brown bears, and federally-protected species such as the Steller’s eider, northern sea otter, and Steller sea lion. Izembek is also a globally important habitat for migratory birds.
The Department of the Interior (DoI) created the Izembek National Wildlife Range in 1960, later reclassified as the Izembek National Wildlife Refuge by Congress in the 1980 Alaska National Interest Lands Conservation Act (ANILCA). Since the creation of the Izembek Refuge, residents of King Cove and Aleut community leaders have continually pushed for a road to connect the community to the all-weather airport in Cold Bay for medical emergencies. The US Fish and Wildlife Service issued assessments of proposed roads in 1980, 1985, 1996, and 1998, but consistently rejected a proposed road between King Cove and Cold Bay because of its significant environmental impact on the Refuge.
After extensive lobbying by the King Cove Corp., an Alaska Native corporation, and with the support of the National Congress of American Indians and the Alaska Federation of Natives, Congress passed the Omnibus Public Land Management Act of 2009 and directed DOI to evaluate a possible land swap to facilitate the construction of a road across the Izembek Refuge. The swap would exchange property owned by King Cove Corp for land within the refuge. In 2013, DoI once again rejected a road because of the environmental impact while acknowledging the health and safety concerns of King Cove residents. Under President Trump, DoI reversed course and signed two land-swap agreements with King Cove Corp. to facilitate road construction. The US District Court for the District of Alaska rejected the land swap, and the Trump administration appealed to the Ninth Circuit.
Under President Biden, DOJ defended the Trump-era appeal, arguing that the land swap agreements simply “placed greater weight on the welfare of the people of King Cove, and less weight on environmental harms,” and therefore did not violate the law. On March 16, 2022, the Ninth Circuit agreed, holding in a 2-1 opinion that the land swap represents a lawful exercise of agency discretion. Former President Jimmy Carter, who signed ANILCA into law in 1980, and former Secretary Bruce Babbit and Interior Solicitor John Leshy have filed amicus briefs seeking a rehearing en banc.
Timeline of Events
PRIOR AdministrationSRead more
Dec. 2, 1980, Under the Alaska National Interest Lands Conservation Act (ANILCA), Congress redesignates the Izembek National Wildlife Range as the Izembek National Wildlife Refuge.
March 30, 2009 In the Omnibus Public Land Management Act of 2009, Congress directs the Secretary of the Interior to evaluate whether a land exchange to facilitate construction of a road across the Izembek Refuge, connecting King Cove and Cold Bay, is in the public interest. Congress also mandates an Environmental Impact Statement.
Dec. 23, 2013 Secretary of the Interior Jewell issues a decision declining the proposed land exchange.
Sept. 8, 2015 The District Court for the District of Alaska affirms Secretary Jewell’s decision to reject the proposed road through Izembek because of the anticipated environmental impacts. Agdaagux Tribe of King Cove et. al. v. Jewell, No 3:14-cv-00110-HRH (D. Alaska).
Trump AdministrationRead more
Jan. 22, 2018 Secretary of the Interior Zinke signs a land swap agreement with the King Cove Corporation, transferring 500 acres in the Izembek refuge to facilitate the construction of a road. The agreement would grant land in the wildlife refuge to the Native corporation in exchange for land of equal value outside the Refuge in order to allow the corporation to complete a 12-mile road connecting King Cove to Cold Bay.
March 29, 2019 The District Court for the District of Alaska rejects DOI’s proposed land swap agreement, holding that DOI did not provide proper justification under the APA when it reversed the previous Secretary’s 2013 decision that Izembek “would be irretrievably damaged by construction and operation of the proposed road.” Friends of Alaska, et al. v. Bernhardt, et al., No 3:18-cv-00029-SLG (D. Alaska).
June 28, 2019 Secretary Bernhardt signs a second land swap agreement with the King Cove Corporation, identical to the Jan. 22, 2018 agreement signed by then-Secretary Zinke. The agreement includes an additional “Findings and Conclusions” section to explain the departure from the previous administration’s Izembek policy.
Aug. 7, 2019 Environmental groups file suit against DOI to challenge the agreed-upon land swap deal with the King Cove Corporation. Friends of Alaska National Wildlife Refuge et al. v. Bernhardt, et al., No. 3:19-cv-00216 (D. Alaska).
June 1, 2020 The District Court for the District of Alaska rejects DOI’s second proposed land exchange with the King Cove Corporation, finding DOI again failed to provide adequate reasoning to support the change in policy in violation of the APA. The court also holds that DOI violated Title VI of ANILCA by failing to follow the law’s procedural mandates for the approval of transit systems within conservation areas. Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, No. 3:19-cvCV-00216 JWS (D. Alaska).
Aug. 17, 2020 DoI files a notice of appeal to the Ninth Circuit. Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, No. 20-35728 (9th Cir).
Jan. 15, 2021 Secretary Bernhardt issues a memo allowing the Fish and Wildlife Service to approve a right-of-way permit consistent with the proposed road construction across the Izembek Refuge. Bernhardt argues that King Cove is effectively surrounded by conservation units and is therefore an “inholding” under federal law, and that ANILCA “requires me to allow adequate and feasible access to land owned by the State or private persons that are within or effectively surrounded by a conservation system unit.”
Biden AdministrationRead more
February 17, 2021 The Fish and Wildlife Service sends a letter to the Alaska Department of Transportation and Public Facilities returning the agency’s right-of-way permit application for the Izembek Refuge road and closing the file. The Army Corps submitted a similar letter on February 5. These actions do not preclude the Alaska agency from resubmitting a similar application in the future.
March 8, 2021 The DOJ files a brief in support of the Trump-era appeal. In its brief, DOJ argues that the district court erred in ruling that the land exchange violates the APA and ANILCA, stating “Interior placed greater weight on the welfare of the people of King Cove, and less weight on environmental harms,” and doing so does not violate the law. Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, No. 20-35728 (9th Cir).
March 16, 2022 The Ninth Circuit reverses the district court’s 2020 decision, holding that BLM’s 2019 land swap did not violate the APA or ANILCA. In the 2-1 opinion, Judges Eric Miller and Bridget Bade say that Congress gave the Interior Secretary “discretion to strike an appropriate balance between environmental interests and economic and social needs.” Miller and Bade are both Trump appointees. Judge Kim McLane Wardlaw, a Clinton appointee, dissents arguing that Bernhardt failed to adequately justify the “tectonic shift” in policy from Secretary Jewell’s 2013 decision finding that the road would cause “significant degradation of irreplaceable ecological resources.” Friends of Alaska Nat’l Wildlife Refuges v. Haaland, No. 20-35728 (9th Cir).
May 9, 2022 President Jimmy Carter files an amicus brief in support of conservation groups’ petition for a rehearing en banc of the Ninth Circuit’s 2-1 decision upholding the 2019 land exchange agreement. He argues that the decision is “deeply mistaken” and “unilaterally undercut[s]” the purposes of ANILCA, which Carter signed into law in 1980. Carter notes that “the secretarial powers the decision recognized would apply equally to National Parks, National Forests, National Wildlife Refuges, as well as Wilderness Areas and other conservation lands, and to all manner of development and extractive activities, not just road building.” Former Interior Secretary Bruce Babbitt and former Solicitor for Interior John Leshy also submit an amicus brief in support of the rehearing. Friends of Alaska Nat’l Wildlife Refuges v. Haaland, No. 20-35728 (9th Cir).