Current Status
Secretary Haaland withdrew the land exchange on March 14, 2023, noting that the Trump administration granted the land exchange without public participation or analyzing the effects of the exchange on subsistence uses and habitat. The Department of the Interior will prepare a supplemental environmental impact statement (EIS) evaluating the proposed land swap and road.
Why It Matters
The Izembek National Wildlife Refuge is a 315,000 acre area where the Alaskan Peninsula meets the Aleutian islands, and includes 307,892 acres designated as wilderness and the Izembek Lagoon. The refuge is one of the most unique areas in Alaska, home to caribou, brown bears, and federally-protected species such as the Steller’s eider, northern sea otter, and Steller sea lion, and also provides important habitat for migratory birds.
Since the creation of the Izembek Refuge in 1960, residents of King Cove and Aleut community leaders have pushed for a road to connect the community to the all-weather airport in Cold Bay for medical emergencies. Under President Trump, DOI signed two land-swap agreements with King Cove Corp. to facilitate construction of a road, which were then withdrawn under President Biden by Secretary Haaland.
Timeline
Prior Administrations
Dec. 2, 1980 Under the Alaska National Interest Lands Conservation Act (ANILCA), Congress redesignated the Izembek National Wildlife Range as the Izembek National Wildlife Refuge.
March 30, 2009 In the Omnibus Public Land Management Act (OPLMA) of 2009, Congress directed 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 mandated an Environmental Impact Statement (EIS).
Dec. 23, 2013 Interior issued a Record of Decision declining the proposed land exchange, based on the final EIS issued on Feb. 6, 2013. On Sep. 8, 2015, the District Court for the District of Alaska upheld the decision as consistent with NEPA and the OPLMA. Agdaagux Tribe of King Cove et. al., v. Jewell, No. 3:14-cv-0110-HRH (D. Alaska).
Trump Administration
Jan. 22, 2018 Secretary of the Interior Zinke signed 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. On March 29, 2019, the District Court for the District of Alaska rejected the land swap agreement, finding that Interior failed to properly justify reversing the 2013 record of decision. Friends of Alaska, et al. v. Bernhardt, et al., No 3:18-cv-00029-SLG (D. Alaska).
July 3, 2019 Secretary Bernhardt signed a second land swap agreement with the King Cove Corporation, identical to the Jan. 22, 2018 agreement signed by then-Secretary Zinke. The agreement included an additional “Findings and Conclusions” section to explain the departure from the previous administration’s Izembek policy. Environmental groups challenged the agreement, and on June 1, 2020, the district court rejected the second agreement, finding Interior again failed to justify the policy reversal. Friends of Alaska National Wildlife Refuge et al. v. Bernhardt, et al., No. 3:19-cv-00216 (D. Alaska). On March 16, 2022, the Ninth Circuit reversed the district court’s 2020 decision, holding that the 2019 land swap did not violate the APA or ANILCA. Friends of Alaska Nat’l Wildlife Refuges v. Haaland, No. 20-35728 (9th Cir). However, on Nov. 10, 2022, the Ninth Circuit vacated the three-judge panel opinion to rehear the consolidated cases en banc. Friends of Alaska Nat’l Wildlife Refuges et al. v. Haaland et al., No. 20-35721 (9th Cir.); Friends of Alaska Nat’l Wildlife Refuges et al. v. Haaland et al., No. 20-35727 (9th Cir.); Friends of Alaska Nat’l Wildlife Refuges et al. v. Haaland et al., No. 20-35728 (9th Cir.) (consolidated under No. 20-35721).
Jan. 15, 2021 Secretary Bernhardt issued 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 argued 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 Administration
Feb. 17, 2021 The Fish and Wildlife Service sent 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 14, 2023 Secretary Haaland withdrew the Trump-era land exchange, noting that the 2019 authorization contained several “procedural flaws” including a lack of public participation and failure to analyze potential effects on subsistence uses and habitat. The Department of Justice then asked the Ninth Circuit to dismiss its case reviewing the land exchange, arguing the withdrawal moots the case. On June 15, 2023, the Ninth Circuit granted DOJ’s motion and vacated the District Court’s June 1, 2020 decision rejecting the land swap agreement. Friends of Alaska Nat’l Wildlife Refuges, et al. v. Haaland et al., No. 20-35721 (9th Cir).