Friends of Alaska Nat'l v. Debra HaalandFriends of Alaska Nat'l v. Debra Haaland
FOR PUBLICATION
FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES; THE WILDERNESS SOCIETY; DEFENDERS OF WILDLIFE; NATIONAL AUDUBON SOCIETY; WILDERNESS WATCH; CENTER FOR BIOLOGICAL DIVERSITY; NATIONAL WILDLIFE REFUGE ASSOCIATION; ALASKA WILDERNESS LEAGUE; SIERRA CLUB, Plaintiffs-Appellees, v. DEBRA HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES FISH AND WILDLIFE SERVICE, Defendants-Appellants, and KING COVE CORPORATION; AGDAAGUX TRIBE OF KING COVE; NATIVE VILLAGE OF BELKOFSKI; STATE OF ALASKA, Intervenor-Defendants.
FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES; THE WILDERNESS SOCIETY; DEFENDERS OF WILDLIFE; NATIONAL AUDUBON SOCIETY; WILDERNESS WATCH; CENTER FOR BIOLOGICAL DIVERSITY; NATIONAL WILDLIFE REFUGE ASSOCIATION; ALASKA WILDERNESS LEAGUE; SIERRA CLUB, Plaintiffs-Appellees, v. DEBRA HAALAND, in her official capacity as Secretary of the U.S. DEPARTMENT OF THE INTERIOR; U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES FISH AND WILDLIFE SERVICE, Defendants, STATE OF ALASKA, Intervenor-Defendant, and KING COVE CORPORATION; AGDAAGUX TRIBE OF KING COVE; NATIVE VILLAGE OF BELKOFSKI, Intervenor-Defendants-Appellants. No. 20-35727 D.C. No. 3:19-cv-00216-JWS
FRIENDS OF ALASKA NATIONAL WILDLIFE REFUGES; THE WILDERNESS SOCIETY; DEFENDERS OF WILDLIFE; NATIONAL AUDUBON SOCIETY; WILDERNESS WATCH; CENTER FOR BIOLOGICAL DIVERSITY; NATIONAL WILDLIFE REFUGE ASSOCIATION; ALASKA WILDERNESS LEAGUE; SIERRA CLUB, Plaintiffs-Appellees, v. DEBRA HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES FISH AND WILDLIFE SERVICE, Defendants, KING COVE CORPORATION; AGDAAGUX TRIBE OF KING COVE; NATIVE VILLAGE OF BELKOFSKI, Intervenor-Defendants, and STATE OF ALASKA, Intervenor-Defendant-Appellant. No. 20-35728 D.C. No. 3:19-cv-00216-JWS
OPINION
Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding
Argued and Submitted August 4, 2021 Anchorage, Alaska
Filed March 16, 2022
Before: Kim McLane Wardlaw, Eric D. Miller, and Bridget S. Bade, Circuit Judges.
Opinion by Judge Miller; Dissent by Judge Wardlaw
SUMMARY*
Alaska National Interest Lands Conservation Act
The panel reversed the district court‘s judgment, which set aside a land-exchange agreement between the Secretary of the Interior and King Cove Corporation, an Alaska Native village corporation, and remanded.
King Cove Corporation wishes to use the land it will obtain in the exchange to build a road through the Izembek National Wildlife Refuge to allow access to the City of Cold Bay. The residents of King Cove sought to build the road to access Cold Bay‘s larger, all-weather airport to facilitate medical evacuations.
In 2019, Secretary David Bernhardt approved a land exchange agreement, finding that the exchange comported with the purposes of the Alaska National Interest Lands Conservation Act (“ANILCA“).
The panel held that the Secretary‘s analysis of ANILCA‘s statutory purposes was correct. Congress gave the Secretary discretion to strike an appropriate balance between environmental interests and “economic and social needs.”
The panel disagreed with the district court‘s conclusion that Secretary Bernhardt violated the Administrative Procedure Act (“APA“) by departing from the position of his predecessor, Secretary Sally Jewell, on the land exchange without adequate explanation. Secretary Bernhardt acknowledged the competing policy considerations and the prior findings that keeping the area roadless would best protect the habitat and wildlife of the Izembek Refuge. But after examining the most recent available information about alternatives to a road, Secretary Bernhardt concluded that the value of a road to the King Cove community outweighed the harm that it would cause to environmental interests. The panel held that there was no reason to look beyond the valid justification that Secretary Bernhardt offered. Even if it was necessary to review Secretary Bernhardt‘s assessment of the facts, the panel would not agree with the district court that Secretary Bernhardt arbitrarily contradicted prior agency findings.
Finally, the panel considered whether the land-exchange agreement was subject to the special procedures that ANILCA required for the approval of transportation systems. Title XI of ANILCA sets forth provisions that require an agency approving a transportation system to engage in a process of public consultation and make findings on various issues.
Judge Wardlaw dissented. She would hold that the district court properly concluded that Secretary Bernhardt‘s decision to accede to King Cove‘s wish to build a road through Izembek National Wildlife Refuge, despite the Department of the Interior (“DOI“)‘s long history of considering the impacts of the road and prior ruling against the road based on the detrimental effects on Izembek‘s ecological resources, violated both the APA and ANILCA. Secretary Bernhardt‘s memorandum contradicts key findings of the 2013 Record of Decision (ROD). Moreover, although the DOI purports to have the authority to enter the 2019 land-exchange agreement under ANILCA, in fact the agreement fails to advance ANILCA‘s stated purposes, and DOI failed to follow the procedural requirements set forth in Title XI of ANILCA. Judge Wardlaw would set aside the land exchange.
COUNSEL
Michael T. Gray (argued), David Gunter, and Davene D. Walker, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; United States Department of Justice; Environment and Natural Resources Division; Jacksonville, Florida; Kenneth M. Lord, Attorney, United States Department of the Interior, Anchorage, Alaska; for Defendants-Appellants.
Steven W. Silver, Robertson, Monagle, and Eastaugh, PC, Reston, Virginia; James F. Clark, Law Offices of James F. Clark, Juneau; for Intervenor-Defendants/Intervenor-Defendants-Appellants King Cove Corporation, Agdaagux Tribe of King Cove, and Native Village of Belkofski.
Sean Lynch (argued) and Mary Hunter Gramling, Assistant Attorneys General; Clyde “Ed” Sniffen, Jr., Acting Attorney General; Office of the Alaska Attorney General, Juneau, Alaska, for Intervenor-Defendant/Intervenor-Defendant-Appellant State of Alaska.
Bridget Psarianos (argued) and Brook Brisson, Trustees for Alaska, Anchorage, Alaska, for Plaintiffs-Appellees.
MILLER, Circuit Judge:
Several environmental organizations challenge a land-exchange agreement between the Secretary of the Interior and King Cove Corporation, an Alaska Native village corporation. King Cove Corporation wishes to use the land it will obtain in the exchange to build a road through the Izembek National Wildlife Refuge to allow access to the city of Cold Bay. The district court set aside the agreement. We reverse and remand.
I
The Native Village of King Cove and the city of Cold Bay, Alaska, are located near the southwestern end of the Alaska Peninsula. They are about 18 miles apart as the crow flies (or perhaps the raven—the area is outside of the range of the American
King Cove has just under 1,000 residents. It is home to the Agdaagux Tribe of King Cove and the Native Village of Belkofski, and about one-third of its residents are Alaska Natives. King Cove has limited medical facilities, so residents facing medical emergencies that require hospitalization must go to Anchorage or Seattle. The King Cove airport is small, dangerously close to high mountains, and frequently closed by bad weather. For several decades, the residents of King Cove have sought to build a road to Cold Bay to access its larger, all-weather airport to facilitate medical evacuations.
The proposed road would run through the Izembek National Wildlife Refuge. The refuge consists of tundra, wetlands, and lagoons, including the Izembek Lagoon, which contains one of the world‘s largest eelgrass beds. The refuge is an important habitat for birds, supporting almost all of the world‘s population of Pacific black brant, as well as emperor geese, Steller‘s eiders (a threatened species in the United States), and the world‘s only non-migratory population of tundra swans. It is also home to caribou, brown bears, and other mammals. Much of the refuge is designated as wilderness. So long as it retains that designation, no road may be built through it.
In 2009, Congress authorized the Secretary of the Interior to conduct a land exchange with King Cove Corporation under which King Cove Corporation would transfer land to the United States and, in return, the United States would transfer “all right, title, and interest of the United States” in a portion of the Izembek Refuge to allow the construction of a “single-lane gravel road between the communities of King Cove and Cold Bay” to “be used primarily for health and safety purposes (including access to and from the Cold Bay Airport) and only for noncommercial purposes.”
In 2013, Secretary Sally Jewell decided not to proceed with the exchange. The Secretary stated that the exchange presented “difficult and controversial issues of public policy” and that she had weighed “the concern for more reliable methods of medical transport from King Cove to Cold Bay” against the threat to “a globally significant landscape that supports an abundance and diversity of wildlife.” She acknowledged that “proponents of the proposed road believe it would be a reliable method of transport in most weather conditions, but conclude[d] that other viable, and at times preferable, methods of transport remain and could be improved to meet community needs.” Such alternatives, she said, included “fishing vessels . . . , air service, and ferry service” and “an alternative marine-road transportation link” via landing craft. She also noted that between 2007 and 2010, a hovercraft had been used for medical evacuations from King Cove to Cold Bay, successfully completing at least 22 evacuations. Although that service was suspended because of “cost and reliability concerns,” the Secretary nevertheless determined that “[a]ir, hovercraft, and ferry may be more expedient than
In 2018, Secretary Ryan Zinke changed course and approved a land-exchange agreement. By then, the Secretary‘s authority under the 2009 Act had expired, so he relied on a provision of the Alaska National Interest Lands Conservation Act (ANILCA),
Several environmental groups—the same plaintiffs as in this case—filed suit in the District of Alaska to challenge Secretary Zinke‘s decision. The district court vacated the land-exchange agreement. Friends of Alaska Nat‘l Wildlife Refuges v. Bernhardt, 381 F. Supp. 3d 1127, 1144 (D. Alaska 2019). It held that Secretary Zinke‘s decision was arbitrary and capricious because “the Secretary ignore[d] the agency‘s prior determinations concerning a road‘s environmental impact on Izembek without providing any reasoned explanation for this change.” Id. at 1143. The Secretary did not appeal.
In 2019, King Cove Corporation asked Secretary David Bernhardt to reconsider a land exchange, and the Secretary approved an agreement similar to the vacated 2018 agreement. He found that the exchange “comports with the purposes of ... ANILCA because it strikes the proper balance between protection of scenic, natural, cultural, and environmental values and provides opportunities for the long-term social and physical well-being of the Alaska Native people.” He also stated that “to the extent an authorization under ANILCA constitutes a policy change from that described by Secretary Jewell in the 2013 [decision] rejecting a similar, but not identical, land exchange ... , such change is warranted, necessary, and appropriate.” The Secretary cited “[t]he acute necessity, underestimated in the 2013 [decision], for a road connecting King Cove and Cold Bay to serve the future emergency medical and other social needs of the Alaska Native residents of King Cove and the Alaskan people.” He also pointed to “[c]hanged information concerning the viability and availability of alternative means of transportation that have since proven to be neither viable nor available.”
Secretary Bernhardt found that the feasibility of a marine transportation link—a “key” alternative mode of transportation considered in the 2013 decision—was “highly speculative at the time” and that “[d]ecades of experience have established that ... theoretical [transportation] alternatives have been consistently found by the King Cove Native people to be infeasible or inadequate to provide for their health and safety.” He explained that since 2013, “there have been over 70 medevacs from King Cove to hospital facilities in Cold Bay, Anchorage, or Seattle,” and more than 20 “had to be handled by the U.S. Coast Guard at a cost of approximately $50,000 per rescue mission.” The Secretary also stated that a 2015 study of transportation
Plaintiffs again challenged the agreement. The State of Alaska, King Cove Corporation, the Agdaagux Tribe of King Cove, and the Native Village of Belkofski intervened in defense of the agreement.
The district court granted summary judgment to plaintiffs and vacated the agreement. The district court held that “the Exchange Agreement fails to advance the stated purposes of ANILCA, [so] it is not permissible under that statute.” It also held that “the Secretary‘s decision to enter into the Exchange Agreement is arbitrary and capricious . . . because the Secretary failed to provide adequate reasoning to support the change in policy in favor of a land exchange and a road through Izembek.” Finally, it concluded that “the Exchange Agreement is ... an approval of a transportation system that falls within the ambit of [ANILCA] Title XI,” which establishes procedures for approving such systems, and that the Secretary failed to follow that law‘s procedural requirements. See
II
We begin by considering whether Secretary Bernhardt correctly understood ANILCA‘s purposes when he decided that a land exchange was appropriate under that statute. The Secretary stated that he placed great weight on the interests of “[t]he Alaska Native Aleut people [who] have lived at the King Cove village site for thousands of years before ANILCA designated their backyard Wilderness.” He reasoned that the exchange would promote ANILCA‘s purposes by “providing an adequate opportunity for satisfaction of the economic and social needs of the Alaska Native people of King Cove.” The district court, however, concluded that ANILCA‘s purposes do not include “further[ing] the economic and social needs of Alaska and its people,” so it held that the Secretary acted improperly in relying on those factors.
ANILCA authorizes the Secretary, “in acquiring lands for the purposes of this Act, . . . to exchange lands (including lands within conservation system units and within the National Forest System)” with Alaska Native village corporations.
The district court construed ANILCA to be focused narrowly on “preservation and subsistence.” The text of the statute reveals otherwise. The statute identifies its purposes in a section entitled “Congressional statement of purpose.”
According to the district court,
The district court‘s reading of ANILCA is contrary to the Supreme Court‘s decision in Sturgeon v. Frost, 139 S. Ct. 1066 (2019). In that case, the Court explained that ANILCA reflects a “grand bargain,” id. at 1083, in which Congress “sought to ‘balance’ two goals, often thought conflicting“: to protect “scenic, natural, cultural and environmental values” and to “provide[] adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people,” id. at 1075 (alteration in original) (quoting
The district court relied on our decision in Alaska v. Federal Subsistence Board, 544 F.3d 1089 (9th Cir. 2008), in which we said that ANILCA has the purposes of “protecting and preserving the subsistence lifestyle and protecting and preserving wildlife,” id. at 1098. But we did not say that those were the statute‘s only purposes—economic and social needs were not at issue in the case—and we have previously described the “dual purpose” of ANILCA more broadly: “ANILCA was passed to furnish guidelines for the protection for the national interest in the scenic, natural, cultural and environmental values of the public lands in Alaska and to provide an adequate opportunity for satisfaction of the economic and social needs of the people of Alaska.” City of Angoon v. Marsh, 749 F.2d 1413, 1415–16 (9th Cir. 1984) (emphasis added).
One of the purposes of ANILCA, therefore, is to address the economic and social needs of Alaskans. The Secretary appropriately weighed those needs against
III
The district court also concluded that Secretary Bernhardt violated the Administrative Procedure Act by departing from his predecessor‘s position on the land exchange without adequate explanation. We disagree.
The APA requires a court to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Secretary Bernhardt‘s decision satisfies those standards. Secretary Bernhardt acknowledged the competing policy considerations, approvingly quoting Secretary Jewell‘s description of the decision as requiring weighing “on the one hand the concern for more reliable methods of medical transport from King Cove to Cold Bay and, on the other hand, a globally significant landscape that supports an abundance and diversity of wildlife unique to the Refuge.” He acknowledged the prior findings that “keeping the isthmus roadless” would “best protect[] the habitat and wildlife of the Izembek Refuge” and that building a road “would be likely to have negative effects” on the many species for which the refuge is an important habitat. But after examining the most recent available information about alternatives to a road, Secretary Bernhardt concluded that the value of a road to the King Cove community outweighed the harm that it would cause to environmental interests: “I choose to place greater weight on the welfare and well-being of the Alaska Native people who call King Cove home.”
Had the Secretary been writing on a blank slate, there seems to be no dispute that his explanation of his decision would be adequate to survive review. But the district court concluded that the Secretary “failed to provide adequate reasoning to support the change in policy” from Secretary Jewell‘s contrary decision in 2013. That conclusion reflects a misunderstanding of how courts review an agency‘s change in policy.
Before the Supreme Court‘s decision in FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), some courts had suggested that the APA requires agencies to provide a special explanation whenever they change policy. See, e.g., New York Council, Ass‘n of Civilian Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir. 1985). But in Fox, the Court held that the APA “makes no distinction . . . between initial agency action and subsequent agency action undoing or revising that action.” 556 U.S. at 515. It is therefore not true that “every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.” Id. at 514. While the agency must “display awareness that it is changing position” and must “show that there are good reasons for the new policy,” “it need not demonstrate to a court‘s satisfaction that the reasons for the new policy are better than the reasons for the old one.” Id. at 515 (emphases omitted).
Sometimes, Congress may restrict an agency‘s authority to alter policies once they are in place. See, e.g.,
To be sure, when an agency‘s “new policy rests upon factual findings that contradict those which underlay its prior policy,” then the agency may need to provide a more detailed explanation for changing course. Fox, 556 U.S. at 515. But in that situation, it is not “the mere fact of policy change” that demands explanation, but instead “that a reasoned explanation is needed for disregarding facts and circumstances that underlay . . . the prior policy.” Id. at 515–16; accord Organized Vill. of Kake, 795 F.3d at 968.
Here, the decision whether to approve the land exchange required balancing two competing objectives, with the outcome depending on which one was given greater weight. Secretary Bernhardt stated: “While I appreciate that Secretary Jewell placed greater weight on protecting ‘the unique resources the Department administers for the entire Nation,’ I choose to place greater weight on the welfare and well-being of the Alaska Native people who call King Cove home.” The choice to place greater weight on the interests of King Cove residents sufficiently explained the change in policy. And the Secretary was entitled in 2019 “to give more weight to socioeconomic concerns” than his predecessor
It is true that Secretary Bernhardt also found that some facts had changed since 2013. But he made clear that his decision did not depend on those findings. Specifically, he stated that he would reach the same decision “even assuming all the facts as stated” by Secretary Jewell. Secretary Bernhardt elaborated that if the facts were the same as in 2013, “that is, that a road is a viable alternative but (a) there are ‘viable, and at times preferable’ transportation alternatives for medical services and (b) resources would be degraded by the road‘s construction—human life and safety must be the paramount concern.” Thus, the Secretary “did not rely on new facts, but rather on a reevaluation of which policy would be better in light of the facts.” National Ass‘n of Home Builders, 682 F.3d at 1038; see Fox, 556 U.S. at 514–16. His explanation of that reevaluation was sufficient to satisfy the APA.
For that reason, the district court‘s criticisms of the Secretary‘s factual findings are beside the point. It is true that a court must evaluate an agency‘s action on the basis of the explanation the agency gave at the time. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). But an agency may offer alternative rationales for its decision, and if the agency makes clear that one would have been independently sufficient to justify its action, then a court need not consider the others if it finds the first to be valid. See National Fuel
Gas Supply Corp. v. FERC, 468 F.3d 831, 839 (D.C. Cir. 2006); United States v. Ross, 848 F.3d 1129, 1135 (D.C. Cir. 2017). Plaintiffs do not dispute that both components of Secretary Bernhardt‘s decision—his new factual findings and his determination that changed policy priorities would lead him to the same result even without the new factual findings—were “genuine justifications” for his action. See Department of Com. v. New York, 139 S. Ct. 2551, 2575–76 (2019). The justifications were clearly stated in the decision; they “can be scrutinized by courts and the interested public“; and they allow the public to know where to assign credit or blame for the decision. Id.; see also Department of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907–10 (2020); East Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 990–91 (9th Cir. 2020) (Miller, J., concurring in part and dissenting in part). There is therefore no reason to look beyond the valid justification that Secretary Bernhardt offered.
In any event, even if we considered it necessary to review Secretary Bernhardt‘s assessment of the facts, we would not agree with the district court that Secretary Bernhardt arbitrarily contradicted Secretary Jewell‘s factual findings. First, the district court concluded that Secretary Bernhardt contradicted prior agency findings by determining “that the environmental harms to Izembek can be adequately mitigated through restrictions and added acreage.” That is not what Secretary Bernhardt said. Secretary Jewell had found that the adverse effects of road use would not be mitigated by regulation or roadside barriers and that the lands offered in exchange by King Cove would not “compensate for the adverse effects of ... constructing a road.” But as the district court acknowledged, Secretary Bernhardt did not challenge those findings. Instead, he made the uncontroversial observations that adding acreage to federal ownership promotes environmental values, and that the uses to which a single-lane gravel road can be put are inherently
Second, the district court observed that Secretary Bernhardt‘s “finding that there are no reasonable transportation alternatives to meet the urgent needs of King Cove residents” contradicts Secretary Jewell‘s earlier finding that a hovercraft, a landing craft, or a ferry were all viable options. That is indeed a difference in the assessment of the facts, but it is one that Secretary Bernhardt explained. He acknowledged the “theoretical alternatives” but concluded that “[d]ecades of experience have established that [they] have been consistently found by the King Cove Native people to be infeasible or inadequate to provide for their health and safety.” Specifically, he cited a 2015 report prepared by the Army Corps of Engineers that identified the costs and risks of alternatives to a road and, as he put it, “indicate[d] that alternative transportation routes have ... proven to be prohibitively costly and/or insufficiently dependable.” Indeed, despite years of study and a now-defunct hovercraft program, none of the alternatives considered by Secretary Jewell has developed into a reliable means of transportation. That has resulted in what Secretary Bernhardt described as an “unsatisfactory status quo,” and it supports his findings about the availability and practical viability of the alternatives.
IV
Finally, we consider whether the land-exchange agreement is subject to the special procedures that ANILCA requires for the approval of transportation systems. Title XI of ANILCA sets out “a single comprehensive statutory authority for the approval or disapproval of applications for [transportation and utility] systems,” including roads, within conservation units or areas in Alaska.
The Secretary did not follow that process, but the government argues that he did not have to do so because
...
Title XI defines an “applicable law” as “any law of general applicability ... under which any Federal department or agency has jurisdiction to grant any authorization (including but not limited to, any right-of-way, permit, license, lease, or certificate) without which a transportation or utility system cannot, in whole or in part, be established or operated.”
Construing
Even if
REVERSED and REMANDED.
WARDLAW, Circuit Judge, dissenting:
I respectfully dissent. The district court properly concluded that Secretary Bernhardt‘s decision to accede to King Cove‘s wish to build a road through Izembek National Wildlife Refuge, despite DOI‘s “long history of considering the impacts of a road through Izembek and ruling against the road based on the detrimental effects it would have on Izembek‘s ecological resources,”1 violates both the Administrative Procedure Act (APA) and the Alaska National
As recently as 2013, DOI Secretary Jewell published a twenty-page record of decision (2013 ROD) following a lengthy public process, including preparation of a Draft Environmental Impact Statement (EIS), receipt of public comments, preparation of a Final EIS, and numerous public meetings and sessions in Alaska between senior DOI officials, officials from the Bureau of Indian Affairs, and King Cove Residents. The Final EIS demonstrated that “construction of a road through the Izembek National Wildlife Refuge would lead to significant degradation of irreplaceable ecological resources that would not be offset by the protection of other lands to be received under an exchange.” Secretary Jewell decided against the land exchange then authorized by Congress2 because “reasonable and viable transportation alternatives exist to meet the important health and safety needs of the people of King Cove.”
In the aftermath of the 2016 presidential election, the new DOI Secretary, Secretary Zinke, made a public commitment to work on a land exchange with King Cove Corporation (KCC) to facilitate the construction of the road. When asked by Chairman Murkowski about the land exchange at his January 17, 2017, confirmation hearing, Secretary Zinke stated, “You have my absolute commitment that I will restore trust and work with you on [the land exchange] because it is important.”3 Shortly thereafter, on January 22, 2018, Secretary Zinke entered into the 2018 Exchange Agreement, which dictated that the road would be used “primarily for health, safety, and quality of life purposes (including access to and from the Cold Bay Airport) and generally for non-commercial purposes.” Plaintiffs challenged the 2018 Exchange Agreement, and the district court vacated it as an unlawful agency action. The district court found that it “failed to acknowledge the change in DOI policy, provided no reasoned explanation for changing course on DOI‘s prior determinations, and ignored its prior determinations about the road‘s environmental impacts on Izembek.” Friends of Alaska Nat‘l Wildlife Refuge v. Bernhardt, 463 F. Supp. 3d 1011, 1017 (D. Alaska 2020). Indeed, the 2018 Exchange Agreement failed to address or acknowledge the 2013 ROD and its findings. See Friends of Alaska, 381 F. Supp. 3d at 1140.
Thereafter, Secretary Bernhardt entered into the 2019 Exchange Agreement now before us, and set forth his reasons in an accompanying memorandum that did address the 2013 ROD. However, this version of the agreement does not limit use of the road to health and safety purposes, nor does it prohibit commercial uses. And here is where I part company with my colleagues in the majority. Secretary Bernhardt‘s memorandum contradicts key findings of the 2013 ROD. Moreover, the DOI purports to have the authority to enter the 2019 Exchange Agreement under ANILCA,
I.
Secretary Bernhardt failed to adequately justify DOI‘s change of policy under the APA. While an agency is permitted to rebalance the facts before it to reach an alternate policy decision, if its new policy “rests upon factual findings that contradict those which underlay its prior policy,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), the agency must provide a “more substantial justification,” Org. Vill. of Kake v. USDA, 795 F.3d 956, 967 (9th Cir. 2015) (en banc) (quoting Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 106 (2015)). Specifically, “a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox, 556 U.S. at 516. At multiple points, Secretary Bernhardt relied upon contradictory facts while changing the agency‘s land exchange policy, yet he failed to provide sufficiently detailed justifications. Thus, the APA requires that we set aside the 2019 Exchange Agreement for this reason alone.
A.
First, Secretary Bernhardt found that the environmental harms inflicted by the road‘s construction could be adequately mitigated through use restrictions on the road and the substantial benefits of the land exchange‘s proposed additional acreage. This directly contradicts Secretary Jewell‘s factual findings.
In the 2013 ROD, Secretary Jewell rejected the argument that limiting the proposed road‘s use to “health and safety purposes” that were “noncommercial” would sufficiently protect the Izembek‘s ecological virtues. Notwithstanding these use restrictions, Secretary Jewell found that the road‘s destructive impact would “radiate far beyond the footprint of the road corridor,” because the process of constructing and maintaining the road would create a “high potential for increased off-road access.” Thus, Secretary Bernhardt‘s finding that use restrictions would adequately limit the road‘s disruption of the Izembek Wilderness directly contradicts the agency‘s prior factual finding.
The same is true of Secretary Bernhardt‘s finding that the land exchange is justified because it would add acreage to Alaska‘s protected lands. Although the majority is correct that Secretary Bernhardt cast his decision as reweighing the exchange‘s “environmental values” against the Alaskan Native people‘s economic and social needs, he also stated that the land exchange would “enhance[] the purposes of the Refuge” and benefit Alaskan residents by protecting the “scenic, natural, cultural, and environmental values.” But Secretary Jewell rejected the land exchange precisely because there would be “significant degradation of irreplaceable ecological resources that would not be offset by the protection of other lands,” finding the additional acreage non-beneficial because it would “not provide the [same] wildlife diversity,” nor prevent the road from “irreparably and significantly impair[ing] this spectacular Wilderness refuge.” Thus, by basing his decision, at least in part, on a finding that the land exchange would enhance the Refuge and protect environmental values, Secretary Bernhardt “disregard[ed] facts and circumstances that underlay” Secretary Jewell‘s decision. Fox, 556 U.S. at 516. Nor did Secretary Bernhardt
Second, Secretary Bernhardt found that there were not sufficiently viable non-road transportation alternatives to the proposed road, directly contradicting Secretary Jewell‘s finding that hovercraft, landing craft, and ferry were all viable alternatives. Secretary Bernhardt based this finding on a 2015 U.S. Army Corps of Engineers study that evaluated the costs of transportation alternatives and the urgent need for a road. The district court correctly concluded that the 2015 study does not provide the necessary justification for the Secretary‘s conclusion.
Secretary Bernhardt cited to the 2015 study for the proposition that “theoretical alternatives have been consistently found by the King Cove Native people to be infeasible or inadequate to provide for their health and safety.” But he places more weight on the 2015 study than it can bear. As the district court correctly found, this 2015 study merely provided information about the estimated costs of non-road alternatives. Secretary Bernhardt claims that the study “indicates that alternative transportation routes have been subsequently considered and proven to be prohibitively costly and/or insufficiently dependable,” yet he fails to explain why the costs are prohibitive or the dependability inadequate. While empirical data is certainly a start, Secretary Bernhardt is required to provide a reasonable explanation as to how the data supports his change in policy position. He fails to do so.
This lack of explanation is especially troubling here, given that some of the 2015 study‘s data equally supports Secretary Jewell‘s finding that there are viable non-road alternatives. For instance, the 2015 study estimated that one of the marine alternative‘s 75-year life cycle cost amounts to $56.7 million. That amount is less than the estimated life-cycle cost of the road: around $61 million for 75 years of operation.4 As another example, the study states that a marine link would be dependable more than 99% of the year, while the 2013 ROD estimated that a road would be dependable for around 98% of the year. Although these comparable figures suggest that transportation alternatives are just as viable as a road, Secretary Bernhardt‘s memorandum does not explain why he concludes otherwise.
As to the claim that a road is urgently needed, the district court correctly found that Secretary Bernhardt failed to explain why the need for a road is more urgent now than Secretary Jewell understood it to be in 2013. Secretary Bernhardt relied heavily on a 2019 letter from KCC requesting that the agency reconsider the road due to the number of medical evacuations since 2014, a crash at King Cove airport, and a medical emergency. He also cited to testimony about the costs of Coast Guard medical evacuations in King Cove to bolster his finding that the need for a road is so urgent that transportation alternatives are infeasible. However, none of this information involves new issues of urgency that were not already understood and analyzed by Secretary Jewell. Like Secretary Bernhardt, Secretary Jewell listened to King Cove‘s residents’ reasons for requesting a road, considered the potential dangers of emergency evacuations, and understood
Finally, Secretary Bernhardt asserts that his about-face on the land exchange is justified because the 2013 ROD failed to consider the impact of a marine-based transportation route on the “Southwest Alaska Distinct Population Segment of Northern Sea Otters.” But without further reasoning, analysis, or fact-finding, Secretary Bernhardt has failed to explain why this single factor turns the tide against marine-based transportation routes. And, as the district court pointed out, the “prior EIS considered such impacts when assessing the various alternatives.” Secretary Bernhardt again fails to provide a reasoned explanation for his contrary findings. Because “unexplained conflicting findings about the environmental impacts of a proposed agency action violate the APA,” the land exchange cannot stand. Kake, 795 F.3d at 969.
B.
These contradictory factual findings are “beside the point” according to the majority, Maj. Op. 20–21, because Secretary Bernhardt said what apparently have become the magic words for surviving APA review of a change in agency policy: “even assuming all the facts as stated in the 2013 ROD, in the exercise of policy discretion,” he finds the Exchange Agreement consistent with the public interest, a finding directly contrary to Secretary Jewell‘s 2013 decision. But that lets Secretary Bernhardt off far too easily. Certainly, agencies may reach different conclusions “even on precisely the same record,” but Secretary Bernhardt “did not simply rebalance old facts to arrive at the new policy.” Kake, 795 F.3d at 968. As discussed above, the Secretary‘s 2019 memorandum relies upon new factual findings regarding the land exchange‘s environmental impact and the viability of transportation alternatives, with merely a tip of the hat toward any reweighing of the same facts. The panel should judge the Secretary‘s 2019 decision “by the grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
To determine that the Secretary relied on new factual findings rather than on reweighing the same facts in the 2013 ROD, one need only observe the lack of analysis in the Secretary‘s purported “reweighing.” After purportedly assuming the same facts, the Secretary did not engage in any real analysis of how the facts as they were in 2013 prompted the decision he reached, exactly what led him to reweigh them, or the specific factors he was reweighing, aside from his pronouncement that “human life and safety must be the paramount concern.” Such a dearth of analysis indicates one of two fatal flaws under the APA. Either the agency did not “consider[] the relevant factors and articulate[] a rational connection between the facts found and the choices made,” Ctr. for Biological Diversity v. Haaland, 998 F.3d 1061, 1067 (9th Cir. 2021) (quoting Alaska Oil & Gas Ass‘n v. Pritzker, 840 F.3d 671, 675 (9th Cir. 2016)), or the agency simply “disregard[ed] facts and circumstances that underlay or were engendered by the prior policy,” Fox, 556 U.S. at 516.
The majority‘s position allows agencies to evade Fox‘s explanation requirement so easily that it actually eliminates it, as here. Secretary Bernhardt simply elided Fox‘s requirement by “assuming all the facts as stated in the 2013 ROD,” then reaching a
II.
Moreover, the Secretary lacked statutory authority to enter into the Exchange Agreement. It was not authorized under ANILCA because it fails to further ANILCA‘s stated purposes. ANILCA authorizes the Secretary to enter land exchanges that further “the purposes of this Act.” See
The Secretary expressly states that he is not proceeding under the Omnibus Public Land Management Act of 2009 (OPLMA), but is proceeding only under ANILCA—so the land exchange agreement is valid only if it serves the two purposes of the statute. ANILCA emerged from President Carter‘s early commitment to set the conservation of Alaska‘s rich natural resources as a top priority for our nation. He exhorted the 95th Congress to “conserve large unspoiled sections of the American wilderness in Alaska,” stating that “[n]o conservation action [it] could take would have more lasting value than this.” Message from the President of the United States, H.R. Doc. No. 95-160 (1977). Three years later, President Carter signed ANILCA into law on December 2, 1980, setting aside over 104 million acres of Alaskan land for protection. See Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2371 (1980); see also Sturgeon v. Frost, 577 U.S. 424, 431 (2016). Moments before signing ANILCA into law, the President remarked, “With this bill we are acknowledging that Alaska‘s wilderness areas are truly this country‘s crown jewels and that Alaska‘s resources are treasures of another sort.” Remarks on Signing H.R. 39 into Law, 3 Pub. Papers 2756–57 (Dec. 2, 1980).
Congress enacted ANILCA to further two specific ends, which are enshrined in
The Secretary claims authority to enter into the land exchange under
As to ANILCA‘s second, subsistence purpose, the agency attempted to fit the 2019 Exchange Agreement into ANILCA‘s subsistence purpose only after the commencement of this lawsuit—neither the 2019 Exchange Agreement nor Secretary Bernhardt‘s accompanying memorandum justifies the Agreement under ANILCA‘s subsistence purpose. However, we may review an agency‘s action according to its “contemporaneous explanations” only, as we are prohibited from considering the agency‘s “post hoc justifications.” DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020); see also SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). We are thus prohibited from considering the agency‘s new-found subsistence purpose arguments.
Because it is obvious that the land exchange runs counter to ANILCA‘s stated purposes, DOI reads into the statute a third Congressional “purpose” for enacting ANILCA. In the 2019 Memorandum, the Secretary states that the land exchange
serves the purposes of ANILCA by striking the proper and appropriate balance between protecting the national interest in the scenic, natural, cultural, and environmental values of the public lands in Alaska and providing an adequate opportunity for satisfaction of the economic and social needs of the Alaska Native people of King Cove.
This statement invokes the language of
Comparing the plain language of subsection 3101(d) with subsections 3101(b) and 3101(c), it is evident that subsection 3101(d) does not enumerate a third purpose for enacting ANILCA. In subsection 3101(b), Congress expressly states, “It is the intent of Congress in this Act to preserve unrivaled scenic and geological values associated with natural landscapes....” The language of subsection 3101(c) mirrors that of subsection 3101(b). There, Congress expressly states that “[i]t is further the intent and purpose of this Act ... to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.” In these provisions,
Notably, Congress struck a different tone in subsection 3101(d), suggesting it intended that subsection to have a function distinct from that of subsections (b) and (c). Subsection 3101(d) reads:
This Act provides sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska, and at the same time provides adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people; accordingly, the designation and disposition of the public lands in Alaska pursuant to this Act are found to represent a proper balance between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and disposition, and thus Congress believes that the need for future legislation designating new conservation system units, new national conservation areas, or new national recreation areas, has been obviated thereby.
Adopting an “economic and social needs” rationale for agency action not only undermines ANILCA‘s two express purposes, it countermands the entire statutory scheme. As nearly any environmentally destructive project could be billed as furthering economic and social needs, this putative statutory purpose would convert ANILCA from a constraint on over-using Alaska‘s natural resources to a rubber stamp for any land exchange that the current Secretary may desire. Environmentally protective legislation, such as ANILCA, is necessary precisely because it curbs the impulse toward over-use and extraction of our country‘s natural resources for the sake of otherwise worthy purposes. Congress did not act with economic and social goals in enacting ANILCA, and it did not give carte blanche to the agency to depredate Alaska‘s irreplaceable natural wonders under the guise of pursuing the “economic and social needs” of Alaskans.
The majority‘s contrary interpretation of ANILCA‘s purposes rests on a misreading of the Supreme Court‘s opinion in Sturgeon v. Frost, 139 S. Ct. 1066 (2019). Maj. Op. 15. Sturgeon took us through Alaska‘s history from its acquisition from Russia to its statehood and resulting land grants to Alaskans and Alaskan Natives and finally the setting aside of extensive lands for national parks and preserves ultimately accomplished by Congress through ANILCA. See Sturgeon, 139 S. Ct. at 1073–78. The specific dispute in Sturgeon is entirely unrelated to the land exchange provision we interpret here.5 See id. at 1073. In
ANILCA sought to “balance” two goals, often thought conflicting.
16 U.S.C. § 3101(d) . The Act was designed to “provide[] sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska.” Ibid. “[A]nd at the same time,” the Act was framed to “provide[] adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people.” Ibid. So if ... you see some tension within the statute, you are not mistaken: It arises from Congress‘s twofold ambitions.
Id. at 1075. To the extent the Court discussed ANILCA‘s purposes, it spoke to what Congress had already accomplished by enacting ANILCA. The Court did not mention at all the statutory purposes expressly set forth in
subsections 3101(b) and 3101(c), which are the “purposes” to which
Therefore, because the land exchange does not further either of ANILCA‘s two purposes, it cannot be authorized under ANILCA. Given that the Secretary disavowed OPLMA as a source of authority, the ineluctable conclusion is that DOI entered into the 2019 Land Exchange without statutory authority to do so.
III.
Even assuming ANILCA authorized the Exchange Agreement, it would be an approval of a transportation system governed by the procedures set forth in Title XI of ANILCA, and would fall because DOI failed to follow those procedures. In ANILCA Title XI, Congress established “a single comprehensive statutory authority” for approving and disapproving transportation and utility systems through Alaska‘s conservation units and areas.
Title XI prohibits any federal agency action “under applicable law” with respect to approval or disapproval of a transportation system within Alaska‘s conservation units, unless the agency complies with detailed, mandatory procedures. The Secretary did not comply with these procedures, and the majority excuses compliance because it thinks
Here, Secretary Bernhardt argues that
The majority concedes that the purpose of the transfer here is to build a road. Maj. Op. 24. It is not an answer to say that once the land is transferred out of the conservation unit, it will no longer be part of the conservation unit, and thus Title XI is inapplicable.
...
Contrary to the majority‘s assertion, construing
Nor does the fact that KCC must still obtain permits before it may begin the road‘s construction alter the Title XI analysis. Maj. Op. 25. Title XI mandates that “no action by any Federal agency under applicable law with respect to the approval or disapproval of the authorization, in whole or in part, of any transportation or utility system shall have any force or effect unless the provisions of this section are complied with.”
For the foregoing reasons, I respectfully dissent.