Courtroom déjà vu: Protecting Izembek Refuge again

We argued in court this month again to stop a bogus land swap deal that would trade away Wilderness in Izembek National Wildlife Refuge to make way for a road. The land trade runs counter to the intent of the Refuge and would degrade and harm wetlands, animal habitat and wildlife.

Protecting Izembek means going to court to stop an illegal land swap aimed at allowing a commercial road.
Attorney Bridget Psarianos argued in the Ninth Circuit on Aug. 4, 2021.

We already successfully argued in U.S. District Court two times to protect Izembek.

The Interior Department appealed the August 2020 District Court ruling in our favor and yesterday’s argument addressed that appeal. We reiterated that the Secretary of the Interior can’t override Congress when it comes to putting a road through a Wilderness that Congress itself designated. We also argued that the Secretary can’t give away lands in a Refuge when it violates the very reason that Refuge was created – to protect important lands, waters, and animals, and to conserve our wild places for future generations.

We also pointed out that the Trump administrations’ about-face on this issue after decades of Interior refusing a road was an improper reversal in policy.

The same laws were broken again

The attempt to put a road in Izembek goes back decades. It has been pushed as a road to provide access from King Cove to the Cold Bay airport for medical transportation to Anchorage, but it would ultimately benefit commercial fishing interests. These commercial interests were central to efforts to push for the road from the beginning and dominant in political pressure on pushing for a land swap. The latest land swap deal puts no restrictions on the road’s use and clearly aims at allowing commercial access.

The proposed road would stretch across a narrow and delicate isthmus with wetlands vital to birds and other animals, and would undermine the Wildlife Refuge System itself.

Birdlife depends on the eelgrass in Izembek Lagoon, just one reason protecting Izembek from a road means going to court again.  Here, Steller's eiders feed in Izembek Lagoon with Isanotski Volcano in the background.
Steller’s eiders in Izembek Lagoon. Photo by Jeff Wasley, USGS.

In the prior lawsuit and most recent one filed on behalf of nine clients, we successfully argued that Trump-era attempts to use corrupt land trades to allow a road on protected refuge land were illegal. In June 2020, a federal judge agreed that the Interior Department cannot use the land exchange provision of the Alaska National Interest Lands Conservation Act to gut a National Wildlife Refuge and congressionally designated Wilderness Area. The defendants appealed this to the Ninth Circuit. The court also vacated a prior, almost identical land swap deal in March 2019, which didn’t get appealed.

Same as the old boss

During the oral argument, we argued against the Biden administration, which claimed that the Trump administration’s dodgy land deal is legally defensible. It’s not.

The judges had specific and forceful questions about whether the federal government was going to continue to uphold the land exchange in light of Secretary Haaland’s upcoming visit to King Cove in September.

When it was our turn to present, we explained that former Secretary Bernhardt’s land swap deal  is illegally trying to do an end-run around getting Congressional approval to allow a road through a Wilderness and Refuge, and that the current administration is carrying forward that go-around. We further reiterated that this exchange should be void because it violated ANILCA.

Protecting Izembek means protecting vital wetlands like Izembek Lagoon.
Clouds and color from the setting sun reflect in the calm water of Izembek Lagoon. Photo by Lisa Hupp, USFWS.

Interior’s latest land trade deal with King Cove Corporation not only violates the law, but also fails to justify or explain in any reasonable way how it can ignore its own prior analysis showing that a road would cause significant harm to the ecological integrity of Izembek.

Repeatedly crafting land deals that break the law in order to suit commercial interests disregards public process and transparency, and the established on-the-ground consequences to public lands, water, and animals in Izembek. 

The Ninth Circuit requested additional briefing in the case to determine whether to stay the case pending review of the land trade decision by Secretary Haaland. We will continue fighting to protect Izembek and the National Wildlife Refuge System in court and to hold agencies and industry accountable to the laws intended to sustain the health of public lands and the living communities that depend on them.


Trustees represents nine clients in the lawsuit: Friends of Alaska National Wildlife Refuges, Alaska Wilderness League, the Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, the National Wildlife Refuge Association, Sierra Club, The Wilderness Society, and Wilderness Watch.