463 F.Supp.3d 1011
D. Alaska2020Background
- Izembek NWR is a narrow, internationally significant 311,000-acre refuge; a road corridor between King Cove and Cold Bay would cross its critical isthmus.
- DOI/USFWS previously rejected a land exchange and road in a 2013 Record of Decision (ROD) due to major, irreplaceable ecological harms; that ROD found non-road marine alternatives viable.
- After an earlier 2018 Exchange Agreement was vacated by this court for inadequate reasoning, the Secretary executed a June 28, 2019 Exchange Agreement (up to 500 acres) plus a Memo justifying a policy change emphasizing King Cove’s socioeconomic and safety needs.
- The 2019 Exchange Agreement contains no use restrictions on the road; the Memo claims harms can be mitigated by restrictions and by acquiring other acreage, and asserts marine alternatives are not viable.
- Plaintiffs sued under the APA (arbitrary and capricious), ANILCA, and Title XI; they moved for summary judgment. The court granted summary judgment, vacating the Exchange Agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Secretary's Exchange Agreement is arbitrary and capricious (policy change) | Secretary flipped prior conclusions without adequate, substantial justification for contradicting 2013 factual findings | Secretary identified a permissible policy rebalancing favoring socioeconomic/safety concerns and supplied a Memo explaining it | Court: Arbitrary and capricious — Memo fails to adequately justify contradictory factual findings (mitigation, added acreage, and infeasibility of marine alternatives) |
| Whether the Exchange Agreement is permissible under ANILCA §1302(h) | Exchange does not further ANILCA’s conservation and subsistence purposes; harms to Izembek’s isthmus outweigh asserted benefits | Exchange furthers ANILCA by balancing conservation with social/economic needs of King Cove | Court: Not permissible — Secretary failed to show the exchange advances ANILCA purposes; reliance on mitigation and acreage gains unsupported |
| Whether Title XI transportation-approval process applies | Land exchange authorizes a road and thus is an approval of a transportation system requiring Title XI procedures | Defendants: Title XI inapplicable because post-exchange the road corridor would not be on federal lands | Court: Title XI applies — substance controls; the exchange is an authorization triggering Title XI and its procedural requirements, which were not followed |
| Remedy: appropriate relief for violations | Plaintiffs seek vacatur and injunctive relief under ESA as needed | Defendants request remand or opportunity to fix record; KCC urges deference to Native corporation interests | Court: Vacatur of the Exchange Agreement (presumptive APA remedy); no injunction issued; remand unnecessary at this stage |
Key Cases Cited
- FCC v. Fox Television Stations, 556 U.S. 502 (2009) (agency must provide reasoned explanation for policy changes; additional justification required when new policy contradicts prior factual findings)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking and review)
- Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) (Ninth Circuit application of heightened justification requirement for agency policy reversals)
- RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) (principle that specific statutory provisions govern over general ones)
- Alliance for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105 (9th Cir. 2018) (vacatur is the presumptive remedy for unlawful agency action)