Former President Jimmy Carter yesterday filed an unusual legal brief ripping a federal appeals court’s “deeply mistaken” ruling upholding a Trump-era land exchange that paves the way for a road to be built through Alaska’s Izembek National Wildlife Refuge.
Carter filed his “friend of the court” brief in support of a petition last month by a coalition of conservation groups requesting a rehearing of that decision by a larger set of 9th U.S. Circuit Court of Appeals judges (E&E News PM, April 29).
In his brief, Carter argued the 9th Circuit’s 2-1 decision in March undermines the Alaska National Interest Lands Conservation Act (ANILCA), approved by Congress and signed into law by Carter in 1980. It established 104 million acres of “conservation system units” in the state, such as wilderness areas and wildlife refuges including Izembek, as well as expanded national parks and forestlands across the Last Frontier.
Carter characterized the 9th Circuit’s decision that upheld former Interior Secretary David Bernhardt’s 2019 land exchange agreement with an Alaska Native corporation for parcels inside Izembek to build a 12-mile gravel road as “deeply mistaken” and “dangerous” (E&E News PM, March 16).
Bernhardt argued, among other things, that the land exchange balances the conservation goals of the law with the needs of the King Cove, Alaska, community, which has long argued the road is needed to connect the residents there to an all-weather airport in nearby Cold Bay that can transport them to hospitals in Anchorage.
But the 39th president of the United States dismissed that argument, writing in his brief yesterday that the 9th Circuit’s split decision demonstrated “a grave misunderstanding of the fundamentals” of ANILCA, which he wrote was designed to protect “the unrivaled and inestimably important values” of Izembek and millions of acres of other wilderness, national parks and forests, while “striking an ‘adequate’ balance between conservation and utilization.”
It was not, he wrote, “licensing future Interior and Agriculture Secretaries to trade away lands with irreplaceable ecological and subsistence values for economic benefits. The statute was instead describing the end-state that Congress’s enactments had achieved, where 104 million acres of national interest land were permanently protected for conservation and subsistence purposes, while comparably large swaths of territory were left to State and private control and the pursuit of economic benefits.”
He added: “This brings me to the principal reason for filing this brief. The understanding adopted by the panel majority here is not only deeply mistaken, it is also dangerous. The decision upheld the building of a road on congressionally designated Wilderness land through a drastic reinterpretation of the foundations of the statute. The secretarial powers the decision recognized would apply equally to National Parks, National Forests, National Wildlife Refuges, as well as Wilderness Areas and other conservation lands, and to all manner of development and extractive activities, not just road building.”
In a separate statement accompanying his brief, Carter wrote that the 9th Circuit’s decision “is overbroad” and would allow the Interior secretary at any time “to undo Congressionally designated Wilderness and other conservation lands. Unless reversed, it would open tens of millions of acres of public lands for adverse development.”
He added: “I am asking the 9th Circuit to review the decision and to defend the unrivaled wilderness in the national public lands of Alaska.”
Ex-Interior officials weigh in
Also yesterday, Bruce Babbitt, former Interior secretary during the Clinton administration, and John Leshy, the Interior solicitor during that same period, submitted a separate amicus brief in support of rehearing that echoed many of Carter’s arguments.
They wrote that the 9th Circuit’s earlier ruling misinterpreted portions of ANILCA as authorizing “the Secretary to trade away lands for development.”
“Left uncorrected, the panel majority interpretation empowers the Secretary to shred these protections by creating new non-federal inholdings that can be developed for commercial purposes without any further action by Congress. The stakes are high: ANILCA governs more than 104 million acres in Alaska,” they wrote.
“The threat to these lands is not hypothetical. History shows that they are prime targets for commercial exploitation,” they concluded.
The legal briefs written by Carter, Babbitt and Leshy are the latest developments in the ongoing court battle over the controversial land exchange that could ultimately advance a potential road through the Izembek refuge.
Two federal district judges in Alaska have overturned decisions by former Interior Secretary Ryan Zinke, and later Bernhardt, to enter into land exchange agreements with King Cove. Both secretaries argued that ANILCA authorized them to make the land exchange because the deal balances conservation goals with the economic welfare of rural Alaskans.
Proponents of the road say it is needed to connect the residents of King Cove to an all-weather airport in nearby Cold Bay that can transport them to hospitals in Anchorage. Residents must sometimes rely on emergency assistance from the Coast Guard.
They got a boost last month when Interior Secretary Deb Haaland visited the King Cove community to listen to its concerns. Community representatives later termed Haaland’s visit a success (Greenwire, April 22).
But opponents have argued that building a road through the refuge would threaten 98 percent of Pacific black brants and nearly all the world’s emperor geese, which depend on Izembek’s eelgrass beds to nest, rest and feed. They also worried about the potential to set a legal precedent — acknowledged by Carter in his brief — by agreeing to build a new public road through a key wildlife refuge.
‘Tectonic shift’
The 2-1 ruling by the 9th Circuit — led by Judge Eric Miller and joined by Judge Bridget Bade, both of whom were appointed by former President Donald Trump — could have far-reaching impacts.
Judge Kim McLane Wardlaw, a Clinton appointee who cast the lone vote against the land exchange, wrote in her dissenting opinion that Bernhardt’s land swap agreement represented a “tectonic shift” from the Interior Department’s Obama-era decision that a road “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.”
Thus, the land swap may have violated the Administrative Procedure Act, which governs federal rulemaking, Wardlaw wrote.
That argument was made in a third amicus brief filed last week by 25 natural resources and administrative law professors.
In it, they argue that Bernhardt’s reasoning that the land swap is “‘rebalancing’ environmental and socioeconomic values” is a point that a fuller panel of 9th Circuit judges needs to review.
“A panel of this court accepted his claim at face value, a decision that exempts the Secretary’s determination from review” under the Administrative Procedure Act, and thus “circumvents the procedures prescribed by Congress” in ANILCA, they said.
“As the dissent characterizes the majority opinion, it creates ‘magic words’ that would allow any agency to reverse itself without explanation. Allowing this kind of exemption raises a question of exceptional importance concerning millions of acres of federal public lands in Alaska,” they wrote.
Rehearing of the 2-1 ruling on this issue, they wrote, “is necessary to ensure consistency under Supreme Court and Ninth Circuit precedent regarding agency reversals and to hold agencies accountable to the procedural requirements set forth by Congress.”
