Sea Grant Law Center

Stocking Project Deemed “Commercial Enterprise”

Wilderness Society

U.S. Fish & Wildlife Service, 353 F.3d 1051 (9th Cir. 2003).

Luke Miller, 2L1

Salmon are creatures of habit, especially when it comes to spawning. Up the same creek or river they swim until they reach the spot where their own life began. Humans are habitual as well. We wait at the mouth of the river where we have watched the salmon leave their spawning grounds for the open ocean and proceed to scoop them out of the water for subsequent sale. In order to perpetuate this human habit in one particular spot off the Alaskan coast, a group of commercial fishermen joined together and took over a salmon-stocking project once used to study fish stocks in the wild, and proceeded to turn research into a commercial activity. For years, the number of fish returning to the ocean remained unnaturally high providing an adequate harvest for regional fishermen because researchers were collecting the eggs of returning salmon, hatching the eggs in captivity and releasing half-grown salmon back into the wild. This was a fairly well designed project except for one detail - the development of the salmon to adulthood required the resources of the Kenai National Wildlife Refuge in Alaska.

Kenai National Wildlife Refuge has a deep-rooted past. In 1941, Franklin D. Roosevelt set aside roughly two million acres of Alaska’s Kenai Peninsula as the Kenai National Moose Range. In 1980, Congress passed the Alaska National Interest Lands Conservation Act (ANILCA), which updated the name of the Kenai Moose Range to the Kenai National Wildlife Refuge; expanded the Refuge’s territory; and designated 1.35 million acres of the Refuge, including Tustumena Lake, as national wilderness under the 1964 Wilderness Act.

In 1974, the Alaska Department of Fish and Game (Department) had initiated a research project at Tustumena Lake, which involved the release of sockeye salmon fry into the Lake. The project operated without permits issued by the Fish and Wildlife Service (FWS) as the project started before the designation of Tustumena Lake as a national wilderness. When ANILCA was passed, the Kenai Refuge Manager informed the Department that a permit would be required to continue. Because the purpose of the project was to study the effects of stocking on native fish and on the incidence of disease, the FWS issued the Department special permits on a yearly basis. In 1992, the Department requested that the stocking project be upgraded to an enhancement project for the primary benefit of the Cook Inlet fishing industry. The enhancement project was contracted out to the Cook Inlet Aquaculture Association (CIAA) due to a curtailing state budget. The CIAA continue to use the project to provide commercial fishermen with a steady supply of salmon.

Once CIAA was in control, the Wilderness Society questioned the purpose of the enhancement project especially since it utilized lake resources of the Kenai National Wildlife Refuge. The Wilderness Society filed suit claiming that the FWS’s permit to CIAA violated the Wilderness Act on the grounds that the permit offended the Wilderness Act’s mandate to preserve “natural conditions” that are part of the wilderness character of the area and that the enhancement project was an impermissible “commercial enterprise” within a designated wilderness area. The district court entered summary judgment for the FWS, “finding that the Enhancement Project [was] not a ‘commercial enterprise’ that Congress prohibited within the designated wilderness.”2

Are Commercial Enterprises Prohibited?
In reviewing an agency action, the court must conduct a two-step analysis. First and foremost, if congressional intent has been manifested through the plain meaning of an act or statute, that intent should be enforced without question. If Congress’ intent is clear, the agency must give effect to the stated intent of Congress. If Congressional intent is not clear, then the court must consider whether the agency’s action is based upon a permissible interpretation of the statute.

The Court began its analysis with the Wilderness Act. Section 4(c) states that, “there shall be no commercial enterprise . . . within any wilderness area.”3 Because commercial enterprise is not defined in the Act, the court examined other sections of the Act to determine Congressional intent. Wilderness is partially defined as “an area where the earth and its community of life are untrammeled by man.”4 Also, the Wilderness Act’s declaration of policy includes the goal of “protection of these areas” and “preservation of their wilderness character.”5 The Ninth Circuit found this language unambiguous enough to find clear congressional intent to preclude commercial enterprises in designated wilderness areas, regardless of the form of commercial activity. Thus, the FWS’s decision regarding the enhancement project was not entitled to deference as it failed to give effect to the plain meaning of the statute.

Is the Enhancement Project a Commercial Enterprise?
The Ninth Circuit next examined whether the enhancement project was truly a commercial activity that should be banned under the Wilderness Act. To determine whether an activity is a “commercial enterprise,” courts examine both its purpose and effect.6 The CIAA and the FWS claimed the enhancement project was not a commercial enterprise because it was run by a non-profit organization and had previously been run and regulated by the State of Alaska itself. The court points out, however, that the non-profit CIAA is funded by for-profit organizations that directly benefit from the CIAA’s fish stocking activities. Furthermore, prior state control of the project is irrelevant because state control was based on research activities, not the maintenance of fish supplies for commercial fishermen.

The court cited several documents in support of this conclusion, such as a report by the Kenai Refuge Manager explicitly stating the primary purpose of the enhancement activity as the increasing of salmon stock available to the commercial fishery. Then there was a FWS briefing statement that noted the CIAA’s cost-recovery harvest should be considered a commercial fishing operation. The Ninth Circuit, noting that the commercial fishermen receive an additional $1.5 million in revenue from the project-produced fish, reached the conclusion that the purpose and effect of the enhancement project was commercial and prohibited it from the Refuge.

The Wilderness Society was entitled to summary judgment. The enhancement project’s permit was revoked and continued operations were prohibited.

1. Luke is a second-year law student at the University of Mississippi School of Law.
2. Wilderness Society v. U.S. Fish & Wildlife Service, 353 F.3d 1051, 1055 (9th Cir. 2003).
3. 16 U.S.C. § 1133(c) (2003).
4. Id. at § 1133(c).
5. Id. at § 1133(a).
6. See Sierra Club v. Lyng, 662 F.Supp. 40, 42-43 (D.D.C. 1987).


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