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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. Background 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
FWSs permit to CIAA violated the Wilderness Act on the grounds
that the permit offended the Wilderness Acts 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 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
Acts 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 FWSs 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 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 CIAAs 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. Conclusion
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