Biden DOJ Defends Bernhardt Decision on King Cove: What Makes Something a “Political” Decision?

Interior Secretary Deb Haaland, left, is honored at an assembly at the King Cove School. (Marc Lester / ADN)

Saturday I posted about a controversy between Tribal people and a ski area on federal lands.  I’d like to place that story in conversation with another story, the King Cove controversy.  We don’t hear much about it, because it’s about a Fish and Wildlife Service (US DOI) administered area, and we usually talk about the FS and BLM.  But it has many familiar issues.  Native Alaskans in the village want a road to access a hospital.  Some national ENGO’s don’t want the road.

So we often talk about “political” decisions and decisions being “corrupted”.  I’d like to delve into this further.  As a person who has worked on numerous controversial EISs and rulemakings, I think it’s safe to say that there are a number of reasonable options that could be chosen.  What makes something “political”? Obviously there are numerous levels of internal and well as external politics. I think to agency people it might mean “a decision that I don’t agree with that favors interests I don’t like.” But then I think perhaps it’s about politics in the sense of “rewarding your friends and/or punishing your enemies,”   perhaps beyond what is a reasonable approach toward your stated aims.  For example, I think if the Admin’s stated goal is decarbonization, then shutting down US production on federal lands seems like more punishing oil and gas companies, or assuaging NRDC or ??, more than a rational policy call.  Others may disagree.  I would call that a political decision in that sense.  Do you agree or disagree or do you have a different definition?

So let’s look at the King Cove cases, which looks like Native Alaskans who need the road vs. (some) national ENGO’s.  The Admin appears to be picking a side by defending the decision (pro-road). Is this political? Was Sally Jewell’s decision not to political (assuaging ENGO supporters)?  Was Bernhardt’s political? Are they all political?

An interesting aspect of this case is that  he same argument (the federal property rights trump other considerations) seems to be made by these groups for Native people as for any local people.

Does this sound familiar?From an Anchorage Daily News story on Secretary Haaland’s visit.

Others complained to Haaland that outsiders can access Izembek to hunt and fish, and that much of the opposition to the road comes from conservation groups based on Alaska’s road system or in the Lower 48.

“Those folks live there,” said Skoey Vergen, chief executive of Aleut Corp., the Native corporation for the King Cove region. “These folks live here.”

Those dissenting groups were not present Wednesday in King Cove. But they’re still examining last month’s court ruling approving the Trump-era land exchange, and an appeal is an option, said David Raskin, president of Friends of Alaska Wildlife Refuges.

“This refuge is not owned by the people of King Cove. It is a great, valued possession of the people of the United States,” Raskin said in a phone interview Thursday. “And to have a small community like that reap horrible damage on one of the jewels of the refuge system would be a travesty, and a terrible blow to the American people.”

It appears that 11 miles of the road between King Cove and Cold Bay have not been built and that is what this decision is about. People from King Cove want a road to the hospital in Cold Bay.

Would we say that if the road goes through it is politics, or if the road doesn’t go, through it’s politics.  Do we feel more sympathy for the native Alaskans, or for far away people with environmental concerns.  If the Biden Admin were to give in to them, would that be undue political influence.

What groups, might we ask, are concerned about this road (desired by local Native Alaskans) to the extent that they are litigating it? Well, plaintiffs include The Wilderness Society; Defenders of Wildlife; National Audubon Society; Wilderness Watch; Center for Biological Diversity; National Wildlife Refuge Association; Alaska Wilderness League; and Sierra Club (collectively “Plaintiffs”). Many of these are powerful friends of the Obama/Biden Administrations.  Perhaps why Sally Jewell made her decision (political influence?).

And how did our friends at the New York Times cover the Jimmy Carter angle?  “The legal battle over the gravel route could gut an environmental law that the 39th president called one of his highest achievements.”

They are arguing the precedent of course, not the actual road.


Another interesting angle is how political decisions get validated or invalidated by the courts.

I got hopelessly confused over the legal questions involved.  At first it sounded a little like that Sec. Jewell made a decision from an EIS, and Sec. Bernhart couldn’t make a different decision off the same EIS by weighing things differently.  Then the judges became frustrated at having their time potentially wasted because conceivably Sec. Haaland could make a new decision (with a new EIS?) .

But then there’s this explanation in the Anchorage Daily News article.

Trump’s administration was good to King Cove. After a federal judge invalidated a land exchange aimed at authorizing the road, Trump’s Interior Department redid the plan and tried it again. A different judge rejected it a second time, in 2020. But last month, a federal appeals panel reversed that decision and said the land exchange could proceed,..

In the NYT article:

The exchange was authorized by Congress during the Obama administration, but was rejected by Sally Jewell, then the interior secretary, after a review found it would cause irreversible damage to the refuge and its wildlife.

If Congress asks the Admin to do something, it can just decide not to?  Hopefully someone knowledgeable can explain.

Judge Kim McLane Wardlaw, a Clinton appointee, disagreed with her two colleagues, writing in a dissenting opinion that Bernhardt never explained the reasoning for this policy shift from Jewell and that she would have found that the land swap violated the Administrative Procedure Act and other federal laws.

DOJ argues in its brief that Bernhardt’s explanation placing public welfare over other concerns “sufficiently explained the change in policy,” in compliance with the Administrative Procedure Act, and that no other documentation was needed.

I thought that it was interesting that of three judges two thought (and DOJ thinks) that it was adequately explained, and one thought not.  That’s why to us observers, it sometimes seems like when we go to court the decisions are more or less random.  If I were redesigning the system, the judge would have to explain what they thought would be an adequate explanation. Otherwise it’s like “bring me a rock”; decisions can’t be improved without constructive feedback.


Here’s one from E&E News, part of a long interesting article from 08/08/2022, if you are interested in more background.


15 thoughts on “Biden DOJ Defends Bernhardt Decision on King Cove: What Makes Something a “Political” Decision?”

  1. Here’s a summary of the relevant statutory provision governing the Izembek land exchange:

    o March 30, 2009 In the Omnibus Public Land Management Act of 2009, Congress directs the Secretary of the Interior to evaluate whether a land exchange to facilitate construction of a road across the Izembek Refuge, connecting King Cove and Cold Bay, is in the public interest. Congress also mandates an Environmental Impact Statement.

    o Dec. 23, 2013 Secretary of the Interior Jewell issues a decision declining the proposed land exchange.

    Quoted from

    That post is worth a click – it has a fairly detailed timeline of events.

    It’s not unusual for courts to be confronted with a new administration’s reversal of a prior administration’s decision. Courts seem to vary on the extent to which they want to see that the agency based its reversal on new information as opposed to adopting the line that elections have consequences and no further justification is necessary. That’s just my impression though – I’m not well enough versed in this area to know whether these types of decisions can be easily reconciled.

    • Rich J. Seems like you know a lot of stuff. Thank you.

      So Congress told Interior to evaluate..that makes sense. It does seem (from the going to court and observing angle) that there is wide variance on how much justification is needed. I wish TSW could afford a law student to investigate this. I do remember the 10th Circuit appeals judges saying the “elections have consequences” in the Roadless Rule appeal. I also think the fact that three judges did not agree on exactly the same case is telling.

  2. The USFWS has condemned and taken thousands of acres of farmland in Oregon’s Willamette Valley as wintering ground for the waterfowl of that same refuge. Finley, Baskett Slough, Ankeny, Sauvie Island, and Woodland in WA state across from Sauvie Island. There are roads surrounding and through each refuge for the benefit of wildlife “watchers.” You can tell the security needs of those geese: none in town, and 200 feet in farm fields and refuges with auto traffic and walking trails. Ten thousand or more migrating geese now winter in downtown Salem, Oregon, at the State Fair grounds, every non buildable wetland, Chemeketa C.C. campus, various public school grounds, city parks, land surrounding the state penitentiary buildings, and on State office building campus grounds, empty lots, edge of town farm fields, the airport. You can see neck bands put on molting geese in AK in summer. Cacklers, Aleutians, Vancouver, Dusky, Common, a few Specs here and there, and the ubiquitous year around Moffitti sub species. Sometimes strays from the coastal refuges that are winter home to Simidi Island Aleutians. You can “slip and slide” all winter on goose poop. Which, by the way, carries 9 times as much E. coli as cattle flop. 300,000 or more AK geese winter within 30 miles of my house. I live on the flyway between Basket Slough and Ankeny refuges. My rig has the fine gizzard ground grass goose poo on it from their arrival Oct 1 to April 25 when they leave.

    So Grizz and Moose are common as house mouse in Anchorage. Brown bear and what ever else near King Cove. Bears hibernate. Moose wander. Caribou wander thousands of miles, Geese and ducks fly in with spring and fly out with fall. And, the road can have gates at both ends and be used sparingly. I think it is a climate issue. No sun in winter for solar. Wind will freeze up. So cold reduces battery life by half. Air is weather permitting and therein lies the need for the road: isolation. Remote villages in AK are native. Oil and fishing have greatly increased mobility for natives as money can buy fuel. Permitted local traffic with groceries, building material, fuel, access to medical, emergency help close and ensured. Only a freaking idiot purist or Ms Cruella would deny the local, native, there for eons, the same amenities as the ENGOs have in their D.C. Lobby headquarters: limo service. close by medical. Central American house cleaners. Mexican cooks. Full military security protection unless not in a favored party. Caterers. A tax forgiven. Interior Sec Haaland needs to champion the road. The sovereign can’t be an ass all the time. If the Feds are insecure and will deny medical care to Native Americans to preserve a wrong result, do tell us that. We need to know. Elections are soon.

  3. I just happened to see these two other examples of “public” opinion being expressed. But what, if anything, will the money/politics say?

    The local counties don’t like the Black Hills National Forest Plan revision assessment:

    There is “overwhelming public opposition” to the Southside Timber Sale on the Nantahala-Pisgah National Forest:

  4. Fascinating. This case clearly shows that for all their endless land acknowledgements and virtue signaling about indigenous rights, the major environmental groups (particularly those with ‘wilderness’ in their names) are perfectly happy to kick the natives to the curb whenever their interests aren’t perfectly aligned. What does it matter if more Indians die as long as they get to keep their aesthetically intact wilderness? And of course we wouldn’t want modern conveniences like roads and hospitals tarnishing the whole “noble savage” image now would we?

    I always figured environmental groups’ advocacy of indigenous co-management of federal lands and the burgeoning “land back” movement was merely an alliance of convenience that would only last as long as the Indians are useful puppets. Kinda sad to be proven right.

  5. It’s not as simple as “elections have consequences.” Here’s the legal test that both sides agree applied here:
    “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.”

    The dissent goes into a lot of detail about the prior findings that have been contradicted and not explained, and the majority does not respond directly to that. Sometimes it does seem to me that when a court likes an outcome, they don’t want to look as closely at whether the explanation is adequate.

    I would say this agency decision is clearly “political” because Bernhardt stated that he would reach the same (changed) decision “even assuming all the facts as stated” by Secretary Jewell.

    • Jon, I would argue that you could say the opposite equally well, when a court doesn’t like an outcome, they look very very critically at whether the explanation is adequate. So by tossing a clear question of trade-offs, where some win and some lose, people (judges) allow their personal predilections to influence the outcome which is necessarily gray and fuzzy. It seems to me that trade-offs are more properly determined by politics in this case than by random judges’ predilections (which could go either way, depending on..random selection of judges, their histories with various groups, and so on.)

      • I think we’re also talking about the principle of judicial deference here. There are supposedly judge-made “rules” for how much to defer to what agencies say, and how closely to look at their explanations. If followed conscientiously by judges, this should take some of the randomness out of judicial review of agency actions. It was interesting to me that this was not mentioned by either side in this opinion.

  6. I get why Sharon’s skeptical of arguments characterizing different decisions as “political” or not.

    However, unlike a lot of public lands legal controversies, this wasn’t just a case about metaphysical hair-splitting under the APA. Congress actually did its job here. Congress designated Izembek as wilderness, and Congress wrote detailed requirements into ANILCA for building “transportation systems” like roads. Since everyone agreed the purpose of the land exchange was to build a road, and the land exchange didn’t satisfy the ANILCA requirements for “transportation systems,” that should have settled the question.

    Lots of folks say that Congress punts too much to administrative agencies. Congress didn’t do that here, so it’s really frustrating to me that the Ninth Circuit panel failed to enforce the law Congress wrote. If the executive branch wanted to build a road, it should have followed the “transportation system” rules in ANICLA. It shouldn’t be able to get around ANILCA with cute little tricks like selling the land to a third party so they can build the road.

    • thanks for the background. Do you think the need for a road was not known at the time of ANILCA or it was intentionally traded away?

      • I don’t know if King Cove was on anyone’s radar when they drafted ANILCA. Disclaimer, I’m a lawyer but not an environmental lawyer, so definitely not an expert here…


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