Friends of Alaska Nat'l v. Debra Haaland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FRIENDS OF ALASKA NATIONAL No. 20-35721
WILDLIFE REFUGES; THE WILDERNESS
SOCIETY; DEFENDERS OF WILDLIFE; D.C. No.
NATIONAL AUDUBON SOCIETY; 3:19-cv-00216-
WILDERNESS WATCH; CENTER FOR JWS
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.
2 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

FRIENDS OF ALASKA NATIONAL No. 20-35727
WILDLIFE REFUGES; THE WILDERNESS
SOCIETY; DEFENDERS OF WILDLIFE; D.C. No.
NATIONAL AUDUBON SOCIETY; 3:19-cv-00216-
WILDERNESS WATCH; CENTER FOR JWS
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.
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 3

FRIENDS OF ALASKA NATIONAL No. 20-35728
WILDLIFE REFUGES; THE WILDERNESS
SOCIETY; DEFENDERS OF WILDLIFE; D.C. No.
NATIONAL AUDUBON SOCIETY; 3:19-cv-00216-
WILDERNESS WATCH; CENTER FOR JWS
BIOLOGICAL DIVERSITY; NATIONAL
WILDLIFE REFUGE ASSOCIATION;
ALASKA WILDERNESS LEAGUE; OPINION
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.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
4 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 Izembeck
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

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 5

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.” 16 U.S.C. § 3101(d). The panel held that Secretary
Bernhardt exercised that discretion when he found that,
without a road, the economic and social needs of the people
of King Cove would not be adequately met. The panel
further held that the district court’s reading of ANILCA was
contrary to the Supreme Court’s decision in Sturgeon v.
Frost, 139 S. Ct. 1066 (2019). The panel concluded that the
Secretary appropriately weighed the economic and social
needs of Alaskans against the other statutory purposes in
deciding whether to enter the land-exchange agreement.

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
6 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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. 16 U.S.C. § 3164(g). The Secretary did
not follow this process. The panel held that the Secretary
did not have to follow the process because section 3192(h),
the land-exchange provision that he invoked, was not an
“applicable law” for purposes of Title XI. The panel did not
need to consider the alternative argument advanced by the
State of Alaska that the land exchange was exempted from
Title XI by 16 U.S.C. § 3170(b).

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 Izembeck 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.
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 7

COUNSEL

Michael T. Gray (argued), David Gunter, and Davené 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.
8 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

OPINION

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 crow). There is no road between them, and
they are accessible to each other and to the rest of Alaska
only by air or sea.

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.
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 9

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. 16 U.S.C. § 1133(c).

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.” Omnibus Public Land Management Act of 2009,
Pub. L. No. 111-11, §§ 6402(a), 6403(a)(1)(A), 123 Stat.
991, 1178, 1180. The statute instructed the Secretary to study
the environmental impact of a road and to determine whether
an exchange would be in the public interest. Id. § 6402(b)(2),
(d)(1), 123 Stat. at 1178–79. It provided that the authority
for construction of a road would expire in seven years unless
a construction permit had been issued by then. Id. § 6406(a),
123 Stat. at 1182.

In 2013, Secretary Sally Jewell decided not to proceed
with the exchange. The Secretary stated that the exchange
10 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 driving.”
The Secretary also found 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.” Those harms would
occur even if the road were restricted to noncommercial use.

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), Pub. L. No. 96-487, 94 Stat.
2371 (1980), allowing him, “in acquiring lands for the
purposes of [ANILCA],” to exchange lands with Alaska
Native village corporations. 16 U.S.C. § 3192(h)(1). Under
the agreement, King Cove Corporation would transfer to the
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 11

United States certain lands within the Izembek and Alaska
Peninsula National Wildlife Refuges and relinquish its
selection rights to certain other lands within the Izembek
Refuge; in exchange, it would receive a corridor of less than
500 acres through the Izembek Refuge.

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
12 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 alternatives
prepared by the Army Corps of Engineers had “assessed the
viability of non-road alternatives” and revealed them to be
“prohibitively costly and/or insufficiently dependable.” He
concluded that “even if the facts are as stated in the 2013
[decision]; 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 in this instance.”

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 13

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 16 U.S.C. §§ 3161(c), 3164(a). Plaintiffs
had also asserted claims under the National Environmental
Policy Act of 1969, 42 U.S.C. § 4321 et seq., and the
Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.,
but the district court declined to reach those claims.

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.
14 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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. 16 U.S.C. § 3192(h)(1). The government
argues that because the statute refers to “acquiring lands,” it
requires only that the lands acquired in an exchange will
further “the purposes of this Act,” and it does not require
considering the lands that are given up. We need not resolve
that issue because even considering the transaction as a
whole, we think the Secretary’s analysis of the statutory
purposes was correct.

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.”
16 U.S.C. § 3101. One of the enumerated purposes is to
protect environmental resources, id. § 3101(a), (b), and
another is “to provide the opportunity for rural residents
engaged in a subsistence way of life to continue to do so,”
id. § 3101(c). But other purposes are set out in section
3101(d), which states that ANILCA “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”—the purposes the Secretary
invoked here. Id. § 3101(d).

According to the district court, section 3101(d) does not
mean “that one of the purposes of ANILCA is to further the
economic and social needs of Alaska and its people.”
Instead, the court read that provision as “an
acknowledgement that, in passing ANILCA, Congress has
achieved the proper balance between conservation needs and
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 15

economic and social needs.” But to say that Congress struck
a “balance” between two sets of objectives is to say that, to
the extent possible, it sought to achieve both of them. The
Secretary’s land-exchange authority is one way Congress
did that: Providing the Secretary with authority to exchange
lands obviates the need for continued congressional
intervention to maintain the balance struck in ANILCA. It
therefore would make little sense to say that the Secretary
may not use that authority to satisfy the economic and social
needs of Alaskans. To the contrary, by using the word
“adequate,” Congress gave the Secretary discretion to strike
an appropriate balance between environmental interests and
“economic and social needs.” 16 U.S.C. § 3101(d).
Secretary Bernhardt exercised that discretion when he found
that, without a road, the economic and social needs of the
people of King Cove would not be adequately met.

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 16 U.S.C. § 3101(d)). In other words, the Court
said, Congress had “twofold ambitions.” Id. Those are the
ambitions that spurred the Secretary to act here. Balancing
them necessarily required the Secretary to make tradeoffs,
giving greater weight to some considerations and less weight
to others.

The district court relied on our decision in Alaska v.
Federal Subsistence Board, 544 F.3d 1089 (9th Cir. 2008),
16 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 the other
statutory purposes in deciding whether to enter the land-
exchange agreement.

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.” 5 U.S.C. § 706(2)(A). For an
agency’s decision to survive review, “the agency must
examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 17

Lines v. United States, 371 U.S. 156, 168 (1962)). A
“satisfactory explanation” need not be a perfect explanation.
After studying an agency’s decision, a reviewing court will
usually be able to identify ways in which the agency might
have been more precise or more thorough. But as long as the
agency has considered the relevant factors, a court should
not set aside the decision simply because it believes it could
have written a better one. To the contrary, the Supreme Court
has made clear that “a court is not to substitute its judgment
for that of the agency” and must “‘uphold a decision of less
than ideal clarity if the agency’s path may reasonably be
discerned.’” Id. (quoting Bowman Transp. Inc. v. Arkansas-
Best Freight Sys., 419 U.S. 281, 286 (1974)).

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.”
18 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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., 42 U.S.C.
§ 6295(o)(1) (authorizing the Secretary of Energy to make
certain energy-efficiency standards more rigorous but
forbidding her to make them more lenient). But when it does
not do so, then an agency is free to change its approach—the
APA does not require “regulatory agencies [to] establish
rules of conduct to last forever.” State Farm, 463 U.S. at 42
(quoting American Trucking Ass’ns v. Atchison, Topeka, &
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 19

Santa Fe Ry. Co., 387 U.S. 397, 416 (1967)). An agency may
alter course either because of a change in circumstances or
because of a shift in its policy priorities, perhaps due to a
change in presidential administrations, such as the one that
occurred between the tenure of Secretary Jewell and that of
Secretary Zinke—or the one that occurred during the
pendency of this appeal, when Secretary Bernhardt was
succeeded by Secretary Debra Haaland. (The government
informs us that Secretary Haaland is currently conducting a
“review of this matter.”) We have held that an agency may
reprioritize some concerns over others it previously deemed
more important, “even on precisely the same record.”
Organized Vill. of Kake v. USDA, 795 F.3d 956, 968 (9th
Cir. 2015) (en banc); see State Farm, 463 U.S. at 57 (“An
agency’s view of what is in the public interest may change,
either with or without a change in circumstances.” (quoting
Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852
(D.C. Cir. 1970))); accord National Ass’n of Home Builders
v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012).

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
20 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 had
in 2013, “even on precisely the same record.” Organized
Vill. of Kake, 795 F.3d at 968.

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 21

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
22 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

federal ownership promotes environmental values, and that
the uses to which a single-lane gravel road can be put are
inherently limited. He then proceeded to rebalance the
“environmental values” of the exchange against “the
economic and social needs of the Alaska Native people of
King Cove.” He did not determine that the land-acquisition
and road-use limitations would completely offset any
environmental harm—only that the exchange “strikes the
proper balance.” That conclusion did not disturb any
underlying finding of fact.

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.
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 23

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. 16 U.S.C. § 3161(c);
see id. § 3162(4) (defining “transportation or utility
system”). It provides 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.” Id.
§ 3164(a). Those provisions, in turn, require the agency
approving the system to engage in a process of public
consultation and to make “detailed findings supported by
substantial evidence” on various issues. Id. § 3164(g).

The Secretary did not follow that process, but the
government argues that he did not have to do so because
section 3192(h), the land-exchange provision that he
invoked, is not an “applicable law” for purposes of Title XI.
We agree. We therefore need not consider the alternative
argument advanced by the State that the land exchange is
exempted from Title XI by 16 U.S.C. § 3170(b), which
guarantees a right of access to inholdings of state and native
land within conservation system units.

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,
24 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

be established or operated.” 16 U.S.C. § 3162(1). Section
3192(h) is not such a law because it authorizes the Secretary
only “to exchange lands.” Id. § 3192(h)(1). It does not give
him “jurisdiction to grant any authorization” necessary for a
“transportation or utility system.” Id. § 3162(1). To be sure,
once lands are transferred, the recipient might use them to
build a road. That, of course, is the purpose of the transfer at
issue here. But under Title XI, a “transportation or utility
system” includes only systems for which a “portion of the
route of the system will be within any conservation system
unit, national recreation area, or national conservation area.”
Id. § 3162(4)(A). Land transferred out of a conservation
system unit in a land exchange is, by definition, no longer
“within any conservation system unit.” Id.; see also id.
§ 3103(c) (“No lands which . . . are conveyed to the State, to
any Native Corporation, or to any private party shall be
subject to the regulations applicable solely to public lands
within such units.”); Sturgeon, 139 S. Ct. at 1078 (noting that
ANILCA defines “public land” as “(almost all) ‘lands,
waters, and interests therein’ the ‘title to which is in the
United States’” (quoting 16 U.S.C. § 3102(1)–(3))). Nor is
any road later built on such land.

Construing section 3192(h) to be an “applicable law”
would make little sense because it would mean that
essentially all land exchanges would be subject to Title XI.
The statute defines “transportation or utility system” to
include roads, airfields, ditches, pipelines, radio antennas,
telephone systems, and electrical transmission and
distribution systems. 16 U.S.C. § 3162(4)(B). Given the
breadth of that definition, any entity receiving land in an
exchange is likely to wish to install some type of
“transportation or utility system” upon it. Plaintiffs attempt
to resist that conclusion by arguing that Title XI applies only
when the Secretary enters into a land exchange for the
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 25

purpose of enabling the construction of a transportation or
utility system. But nothing in the statute suggests that the
Secretary’s subjective intent is relevant. All that matters is
whether section 3192(h) authorizes construction of a road
within a conservation system unit, and it does not.

Even if section 3192(h) could authorize roads in some
cases, the land-exchange agreement at issue here does not
authorize a road, whether “in whole or in part.” 16 U.S.C.
§ 3164(a). Secretary Bernhardt explained that although the
“land exchange agreement envisions that [King Cove
Corporation] may construct a road, it is not an
‘authorization’ to do so.” Such authorization will require
King Cove Corporation to obtain permits under the Clean
Water Act and other governing laws. See, e.g., 33 U.S.C.
§ 1344. The agreement recognizes that reality by providing
specifications for “[t]he road, if any, constructed on the land”
(emphasis added). Because the agreement was not executed
under an “applicable law” and does not purport to authorize
a “transportation system,” it is not subject to Title XI’s
requirements.

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
26 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

Izembek’s ecological resources,” 1 violates both the
Administrative Procedure Act (APA) and the Alaska
National Interest Lands Conservation Act (ANILCA). Of
course, a change in presidential administrations may result
in a policy shift, Maj. Op. 19, but that observation does not
resolve the questions this particular tectonic shift raises.

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 Congress 2 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

1
This long history is detailed in the district court’s opinion vacating
the 2018 Exchange Agreement. See Friends of Alaska Nat’l Wildlife
Refuges v. Bernhardt, 381 F. Supp. 3d 1127, 1130–33 (D. Alaska 2019).
2
In 2009, Congress tasked DOI with this review of the propriety of
a land exchange for the purpose of constructing a road through Izembek.
Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11,
123 Stat. 991, 1178–83 (2009) (OPLMA).
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 27

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.

3
Nomination Hearing of the Honorable Ryan Zinke To Be the
Secretary of the Interior: Hearing Before the S. Comm. on Energy and
Natural Resources, 115th Cong. 115–16 (2017).
28 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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, 16 U.S.C. § 3192(h),
when in fact the Exchange Agreement fails to advance
ANILCA’s stated purposes, and DOI failed to follow the
procedural requirements set forth in Title XI of 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.
5 U.S.C. § 706(2).

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 29

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
30 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

Bernhardt “disregard[ed] facts and circumstances that
underlay” Secretary Jewell’s decision. Fox, 556 U.S. at 516.
Nor did Secretary Bernhardt provide any information or data
to justify this change in factual finding.

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 31

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

4
According to the 2013 ROD, the 35-year life cycle cost for the road
construction is an estimated $34.2 million. Given that the approximate
yearly maintenance cost is an estimated $670,000, one would multiply
$670,000 by 40 to determine the road’s cost from year 35 to year 75:
$26.8 million. By adding $34.2 million (cost of the road’s first 35 years)
and $26.8 million (cost of the road’s following 40 years), one arrives at
$61 million for the 75-year span.
32 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

emergency evacuations, and understood that the Coast
Guard would need to provide medevacs, but nonetheless
concluded that non-road transportation alternatives were
viable. Secretary Bernhardt failed to provide a reasoned
analysis of how this information justifies his finding that
transportation alternatives must now be discarded in favor of
a road.

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 33

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
34 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

ROD,” then reaching a contrary conclusion. Moreover, it is
difficult to reconcile that statement when in fact his
memorandum “rests upon factual findings that contradict
those which underlay” the 2013 ROD. Id. at 515. While
agencies must be permitted to advance alternative
justifications for policy changes, see Maj. Op. 21, they
should be actual alternative justifications, not merely a
sleight of hand to avoid putting forward reasons adequate to
justify contradictory conclusions.

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
16 U.S.C. § 3192(a), (h). Section 3192(h) specifically
authorizes land exchanges to acquire lands for the purposes
of ANILCA.

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 35

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 16 U.S.C. §§ 3101(b), (c). See
Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1091 (9th
Cir. 2008). Congress enacted ANILCA, first, “to preserve
unrivaled scenic and geological values associated with
natural landscapes,” including Alaska’s unique ecosystems,
wildlife, subsistence resources, natural features, recreational
opportunities, and scientific research sites. See 16 U.S.C.
§ 3101(b). Congress’s second intent and purpose in enacting
ANILCA was “to provide the opportunity for rural residents
engaged in a subsistence way of life to continue to do so.”
Id. § 3101(c). Congress could not have been any more clear
in stating its two purposes in enacting this statute.

The Secretary claims authority to enter into the land
exchange under section 3192(h), which permits land
exchanges in order to “acquire lands for the purposes of
[ANILCA].” Id. § 3192(h). However, the 2019 Exchange
Agreement neither purports to nor furthers either the
preservation or the subsistence purposes of the Act. Id.
§§ 3101(b), (c). Decades of agency deliberations,
memoranda, and litigation attest that a road through Izembek
will irreversibly harm the area’s unique natural resources—
the Secretary’s 2019 memorandum does not dispute this. As
the 2013 ROD stated, the habitat uses on the Izembek
isthmus would be “irreversibly and irretrievably changed by
36 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

the presence of a road.” This “narrow isthmus (~3 miles
wide) of rolling tundra surrounded by sheltered wetlands,
lagoons, and shallow bays . . . contains important, unique
and undisturbed habitats, including the world’s largest
eelgrass beds.” Due to the Izembek Refuge’s unique
placement and combination of habitats, it is “a critical area
for wildlife, especially migratory birds, some of which use
the area exclusively during certain stages of their life history,
as they rest and feed in preparation for long migrations.”
Furthermore, the Refuge is vital to the world’s only
population of non-migratory Tundra Swans, as this
population relies on the area to overwinter. The 2013 ROD
found that the bird species, like the Tundra Swans, that
overwinter there would be “particularly vulnerable” to the
impacts of road construction and operation. The road would
also disrupt a key area in which brown bear mothers
regularly give birth, as well as fracture a uniquely
undisturbed habitat for grizzly bears, caribou, and wolves.
This is just a fragment of the multitude of losses that would
accompany the construction of a road straight through nearly
300,000 acres of Alaskan wilderness.

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
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 37

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 16 U.S.C. § 3101(d)
addressing the “economic and social needs” of the Alaskan
population, but it lifts it entirely out of context.
Subsection 3101(d) does not articulate ANILCA’s purposes,
but instead clarifies that further legislation is unnecessary
because Congress has already struck the balance between
preserving Alaska’s unique resources and satisfying the
needs of Alaska’s people.

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
38 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

this Act . . . to provide the opportunity for rural residents
engaged in a subsistence way of life to continue to do so.”
In these provisions, Congress used the words “intent” and
“purpose” to make clear that preservation and subsistence
were the twin purposes of Alaska’s Conservation Act.

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.

Id. § 3101(d). Unlike subsections (b) and (c), subsection
3101(d) does not purport to enumerate the “intent of
Congress” or the “intent and purpose of this act.” Instead,
subsection (d) acknowledges what Congress has already
done by enacting ANILCA: Congress struck the balance
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 39

between preserving Alaska’s natural resources and
providing for Alaska’s economic and social needs, obviating
the need for future legislation. As the district court found,
subsection 3101(d) does not state that Congress’s purposes
in establishing the conservation units under ANILCA was to
further the economic and social needs of Alaska and its
people. This reading turns ANILCA on its head by taking
what is essentially a conservation measure and turning it into
an economic stimulus.

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
40 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 passing, the
Court describes “Congress’s twofold ambitions” that it
sought to accomplish in light of the history of conflicting
claims to Alaska’s vast natural resources and disputes over
which land could be regulated by the National Park Service
at all. The Court took these overarching goals from
subsection 3101(d):

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
5
In Sturgeon, the Court addressed whether the portion of the Nation
River that runs through the Yukon-Charley National Park qualifies as
public land or non-public land under 16 U.S.C. § 3103(c). Sturgeon, 139
S. Ct. at 1073. The Court concluded that it was a non-public land for the
purposes of ANILCA and thus was not subject to the Park Service’s
regulatory powers under ANILCA. Id. at 1087.
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 41

subsections 3101(b) and 3101(c), which are the “purposes”
to which section 3192(h) refers. To authorize the Secretary
to change the boundaries of the carefully defined
conservation system units for the amorphous reason of
satisfying economic and social needs would defeat the
careful balance Congress struck. Thus, to the extent
Sturgeon has any bearing on this issue—which is
vanishingly slight—it supports our understanding of
subsection 3101(d).

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. 16 U.S.C. § 3161(c).
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 agency complies with Title XI’s
requirements. Id. § 3164(a). Because Secretary Bernhardt
did not meet these extensive and detailed requirements, the
land exchange was not authorized.
42 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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 section 3192(h), the land exchange provision, is not
an “applicable law” for the purposes of Title XI. Maj. Op.
23–25. An “applicable law” is “any law of general
applicability” that provides an agency with 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.” Id. § 3162(1). The
majority asserts that section 3192(h) is not an “applicable
law” under Title XI because it authorizes the agency only to
exchange lands, not to build a road. See id. § 3192(h)(1);
Maj. Op. 24–25.

Here, Secretary Bernhardt argues that section 3192(h)
authorized him to agree to a land exchange for the express
purpose of allowing KCC to build a road. As the district
court stated, the land exchange “is the required first step in
the completion of such a road.” Without section 3192(h)’s
purported authorization, the “transportation . . . system
cannot, in whole or in part be established or operated,” thus
falling squarely within Title XI’s definition of applicable
law. Id. § 3162(1).

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. Id. As the district court said,
Congress’s intent was clear—it enacted Title XI as a “single
comprehensive statutory authority for the approval of”
 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND 43

transportation systems within conservation areas such as
Izembek “to minimize the adverse impacts of sitting
transportation . . . systems within units established or
expanded by [ANILCA]. Id. § 3161. To make Title XI
subject to the exchange provision would undermine that
purpose. The express purpose of the land exchange is to
remove the road corridor from the conservation system so
that a road may be built—that is why Title XI’s requirements
apply. See id. § 3162(1). The 2019 Exchange Agreement
expressly acknowledges that the land exchange “allows for
construction of a road between King Cove and Cold Bay,”
and Secretary Bernhardt’s memorandum lists the “acute
necessity . . . for a road connecting King Cove and Cold
Bay” as the first reason for entering the land exchange. This
appeal demands that we determine whether the removal of
this corridor from the conservation unit via a land exchange
is proper, not whether a road would be permitted after the
land exchange is approved.

Contrary to the majority’s assertion, construing section
3192(h) to be an “applicable law” would not open the door
for Title XI challenges to all section 3192(h) land exchanges.
Maj. Op. 24–25. Title XI applies only to authorizations of
transportation projects, id. § 3162(1), not all land exchanges
are de facto “authorizations,” and not every land exchange
has the express purpose of serving as part of a transportation
system. Thus, an agency considering an ANILCA land
exchange need only comply with Title XI’s procedures if the
stated purpose for the land exchange is to authorize a
transportation system.

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
44 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V. HAALAND

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.” 16 U.S.C. § 3164(a) (emphasis added). By
including the clause “in whole or in part,” Congress clarified
that even partial authorizations of transportation systems
must clear Title XI’s requirements. That is, even though
KCC must still obtain the permits necessary for construction
on the land corridor, the land exchange remains within Title
XI’s ambit as a partial authorization without which permits
are irrelevant. Because the agency failed to follow Title XI’s
requirements, the land exchange should be set aside.

For the foregoing reasons, I respectfully dissent.