For over a decade, federal policymakers have debated whether a single 18.9-mile gravel road should be built through the Izembek National Wildlife Refuge, one of the world’s most ecologically significant coastal lagoons.[1] The proposed King Cove/Cold Bay road has been in flux through four presidential administrations, producing a rare administrative saga that tests the limits of statutory interpretation and inter-administrative consistency.[2] With the recent filing of Native Village of Hooper Bay v. Burgum, Alaska Native communities now challenge the road’s latest approval, arguing that the Department of the Interior’s 2025 land exchange, which would enable the road’s construction, violates the Alaska National Interest Lands Conservation Act (ANILCA), among other administrative laws.[3]

At the center of the dispute will be ANILCA’s explicit statutory purpose “to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.”[4] Congress elevated subsistence to a statutory priority unique among federal public-lands laws, recognizing that rural Alaska Native communities depend on traditional harvests for cultural, economic, and literal survival.[5] Title VIII requires that federal actions on public lands “cause the least adverse impact possible” on subsistence users,[6] and § 810 imposes mandatory procedures whenever a proposed action may “significantly restrict” subsistence uses.[7] Where such harm is possible, agencies must examine impacts, evaluate alternatives, hold hearings in affected communities, and minimize harm.[8]

The history of the Izembek dispute is extensive. In 2013, the Obama Administration concluded that constructing the road would cause “irreversible damage” to Izembek’s eelgrass beds, which support nearly the entire world’s population of Pacific black brant and emperor geese.[9] The Trump Administration reversed course in 2018, approving a land exchange; the Ninth Circuit later invalidated that approval for failing to properly justify reversing the decision of the previous administration.[10] In 2019, Secretary Bernhardt signed a second nearly identical land swap agreement, which was challenged by environmental groups and yet again rejected by the district court.[11] In March 2022, the Ninth Circuit reversed, finding no violation of the APA or ANILCA, then vacated the opinion to rehear consolidated cases en banc.[12] A year later, Secretary Haaland withdrew the land exchange and successfully moved for dismissal of the consolidated case, arguing mootness.[13] Her withdrawal decision cited serious procedural flaws, including failure to consider the effects of the exchange on subsistence uses.[14] In November 2024, the Department of the Interior published a draft supplemental environmental impact statement (SEIS), selecting an alternative land swap and road plan, but this alternative was rejected in Secretary Burgum’s October 2025 Final Decision Document.[15]

The Burgum Administration’s 2025 approval marks the fourth contradictory federal position in twelve years. The Final Decision Document’s subsistence analysis, contained largely in Section 5.3, is notably narrower than prior evaluations. The Secretary frames subsistence impacts almost exclusively through testimony from King Cove residents (particularly the mayor and his wife) whose statements emphasize the need for reliable emergency medical transportation.[16] Secretary Burgum’s purported interpretation of ANILCA’s purpose is to balance subsistence interests with the economic and social needs of the State of Alaska and its people.[17]

The Native Village complaint alleges that Secretary Burgum’s decision explicitly dismisses broader impacts of the Izembek road on waterfowl populations that feed Indigenous communities hundreds of miles away.[18] In his decision, Burgum asserts that discussion of impacts to geographically distant Yukon-Kuskokwim Delta Communities may not even be required under § 810.[19] Although the 2024 Draft SEIS found that the project “may significantly restrict” subsistence uses of migratory birds in the Yukon-Kuskokwim Delta, Secretary Burgum’s 2025 preliminary analysis rejects these findings as “overly broad.”[20]

Secretary Burgum points out that communities opposing the land exchange, such as the Village of Hooper Bay, are “450 air miles from King Cove/Cold Bay.”[21] This geographic framing sharply contrasts with the ecological and cultural realities described in the complaint. Migratory geese harvested by Yup’ik communities in Hooper Bay and nearby Chevak and Paimiut rely on Izembek’s eelgrass lagoons as a critical fall staging area.[22] The location of human communities is irrelevant: harm to geese at Izembek translates into reduced availability across Western Alaska. The Interior’s own analysis acknowledges that disturbances to eelgrass habitats can have “population-level effects” on Pacific black brant, yet the Secretary’s final decision does not meaningfully engage with these scientific conclusions.[23]

The Secretary’s reliance on the low percentage of migratory birds in overall subsistence diets in the region overlooks the seasonal importance of geese, and ultimately leads to the conclusion that no significant restriction to subsistence uses would result. The Interior’s findings indicate that those with higher reliance on the species would experience only cultural impacts as a result of population declines.[24] Statistics indicating that the two species are 4% of these communities’ average migratory bird harvest underplay the importance of these fattier and more nutritious birds in preparing for and recovering from long winters.[25]

ANILCA’s core purpose of providing stable protections for subsistence ways of life is clear, and the indications in its language are numerous.[26] Secretary Burgum’s decision risks cementing a precedent that federal agencies may treat subsistence rights as geographically limited. With the Trump Administration’s demonstrated commitment to developing America’s wilderness, especially in Alaska, the court’s resolution in Native Village will shape not only the future of Izembek, but the meaning of subsistence protection in Alaska for years to come.[27]

 

[1] Izembek National Wildlife Refuge Factsheet, Defenders of Wildlife, https://www.defenders.org/sites/default/files/publications/izembek-national-wildlife-refuge-factsheet.pdf (last visited Nov. 13, 2025).

[2] The Izembek Refuge Road, Harvard Environmental & Energy Law Program, https://eelp.law.harvard.edu/tracker/the-izembek-refuge-road/ (last updated Jan. 20, 2025).

[3] Complaint at 1-4, Native Village of Hooper Bay v. Burgum, No. 3:25-cv-00316 (D. Alaska Nov. 12, 2025) [hereinafter Complaint].

[4] 16 U.S.C. § 3101(c).

[5] Complaint, supra note 3 at 15, Native Village of Hooper Bay v. Burgum.

[6] 16 U.S.C. § 3120.

[7] 16 U.S.C. § 3120(a).

[8] Id.

[9] Press Release, U.S. Dep’t of the Interior, Secretary Jewell Issues Decision on Izembek National Wildlife Refuge Land Exchange and Road Proposal (Dec. 23, 2013), https://www.doi.gov/pressreleases/secretary-jewell-issues-decision-on-izembek-national-wildlife-refuge-land-exchange-and-road-proposal.

[10] Friends of Alaska, et al. v. Bernhardt, et al., No 3:18-cv-00029-SLG (D. Alaska Mar. 29, 2019).

[11] Harvard Environmental & Energy Law Program, supra note 2.

[12] Id.

[13] Order of Dismissal at 3, Friends of Alaska Nat’l Wildlife Refuges, et al. v. Haaland et al., No. 20-35721 (9th Cir).

[14] U.S. Dep’t of the Interior, Draft Supplemental Environmental Impact Statement for a Potential Land Exchange Involving Izembek National Wildlife Refuge Lands, 89 FR 90306 (Nov. 15 2024), https://www.federalregister.gov/documents/2024/11/15/2024-26563/notice-of-availability-draft-supplemental-environmental-impact-statement-for-a-potential-land.

[15] U.S. Dep’t of the Interior, Final Decision Document: Izembek National Wildlife Refuge Land Exchange, 31 (Oct. 21, 2025), https://www.fws.gov/sites/default/files/documents/2025-10/final_decisiondocument_izembek_signed_10212025_508.pdf  [hereinafter Final Decision Document].

[16] Id. at 27.

[17] Id. at 39; see Sturgeon v. Frost, 587 U.S. 28, 36, (2019).

[18] Complaint, supra note 3, at 46.

[19] Final Decision Document, supra note 14, at 45.

[20] Id.

[21] Final Decision Document, supra note 14, at 42.

[22] Complaint, supra note 3, at 27.

[23] Final Decision Document, supra note 14, at 59.

[24] Id. at 64.

[25]Final Decision Document, supra note 14, at 64; Complaint, supra note 3, at 13.

[26] Complaint, supra note 3, at 39-41.

[27] The White House, Unleashing Alaska’s Extraordinary Resource Potential (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/unleashing-alaskas-extraordinary-resource-potential/.