FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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.

No. 20-35721

D.C. No.

3:19-cv-00216-

JWS
2 FRIENDS OF ALASKA NAT’L WILDLIFE REFUGES V.HAALAND

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 NAT’L WILDLIFE REFUGES V.HAALAND 3

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
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/IntervenorDefendants-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-DefendantAppellant 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 landexchange 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 landexchange 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. ArkansasBest 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 nowdefunct 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 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 

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 lifecycle 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.