29 F.4th 432
9th Cir.2022Background
- King Cove, AK residents seek a single-lane gravel road across the Izembek National Wildlife Refuge to reach Cold Bay’s all-weather airport for medical evacuations; the refuge is ecologically sensitive and largely wilderness-designated.
- Congress in 2009 authorized a specific land-exchange study for a road; Secretary Jewell (2013 ROD) denied a land exchange, finding significant, unmitigable environmental harm and viable non-road alternatives.
- Secretary Zinke (2018) approved a land exchange under ANILCA; a district court vacated that agreement; Zinke did not appeal.
- Secretary Bernhardt (2019) approved a similar exchange under ANILCA §3192(h), citing changed factual findings and a rebalancing in favor of King Cove’s social/economic needs; plaintiffs challenged and the district court vacated the 2019 exchange.
- Ninth Circuit (majority) reversed and remanded: held the Secretary correctly interpreted ANILCA to allow balancing of economic/social needs, did not violate the APA in changing policy, and Title XI procedures did not apply to the land exchange; Judge Wardlaw dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ANILCA authorizes the Secretary to weigh "economic and social needs" when approving land exchanges | ANILCA’s purposes are preservation and subsistence only; §3101(d) is not a standalone grant to further economic/social aims | §3101(d) expresses Congress’s dual aims and gives the Secretary discretion to balance environmental values against economic/social needs | Court: §3101(d) reflects dual purposes; Secretary may weigh economic/social needs and properly did so |
| Whether Bernhardt’s reversal of Jewell violated the APA as arbitrary and capricious | Bernhardt contradicted prior factual findings and failed to give reasoned explanation for changing course | APA permits policy changes; agency must show awareness and good reasons; Bernhardt provided reweighing + relied on alternative facts | Court: Bernhardt’s explanation and rebalancing satisfied APA; no arbitrary-and-capricious reversal |
| Whether the land exchange is subject to ANILCA Title XI procedures for approving transportation systems | The exchange is a partial authorization for a road through a conservation unit and thus triggers Title XI’s procedural safeguards | §3192(h) authorizes land exchanges but is not an "applicable law" that grants authorization for transportation systems; Title XI therefore does not apply | Court: §3192(h) is not an "applicable law" under Title XI; Title XI procedures not required for this exchange |
| Whether the Secretary had statutory authority under ANILCA to approve the exchange (dissent) | The exchange does not further ANILCA’s core purposes and thus is unauthorized under §3192(h) | §3192(h) authorizes land exchanges to further ANILCA purposes; Secretary’s judgment falls within his statutory discretion | Majority: Secretary acted within ANILCA authority; Dissent: would find lack of authority and vacate |
Key Cases Cited
- Sturgeon v. Frost, 139 S. Ct. 1066 (U.S. 2019) (ANILCA embodies a "twofold" balancing of conservation and Alaskan social/economic needs)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (U.S. 1983) (arbitrary-and-capricious standard; agency must connect facts and choice)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (U.S. 2009) (no heightened APA requirement for policy changes, but agency must acknowledge change and give reasons)
- Organized Village of Kake v. U.S. Dep't of Agric., 795 F.3d 956 (9th Cir. 2015) (agency may reprioritize concerns and reweigh the record; greater deference to policy shifts)
- SEC v. Chenery Corp., 318 U.S. 80 (U.S. 1943) (review confined to the agency’s contemporaneous rationale)