Impact of court decision unknown in salmon project

Posted: Sunday, January 04, 2004

The impact of Tuesday's decision by the 9th Circuit Court of Appeals to declare a long-running salmon enhancement project in Tustumena Lake illegal under federal law has yet to sink in, but it may be appealed to the U.S. Supreme Court, an official with the nonprofit agency that has conducted the stocking operations since the mid-1990s said Friday.

Though the court said the stocking program that releases 6 million salmon fry into the lake each year likely doesn't harm the environment or diminish the enjoyment of visitors to the Kenai National Wildlife Refuge, the program clearly runs counter the intent of Congress when it passed the Wilderness Act of 1964.

"At this point, we haven't had a chance to fully evaluate the impact of decision," said Gary Fandrei, Cook Inlet Aquaculture Associa-tion's executive director. "Until we do, we probably don't fully understand the repercussions of the decision."

He went on to say he wasn't certain what the appeal procedure was, but said CIAA might be the entity to file such an appeal.

"We haven't made a decision yet," he said.

The CIAA board of directors' executive committee is expected to meet this week to discuss the decision's fallout, followed by a full board meeting Jan. 17, where members likely would "come up with a decision for future plans with respect to this decision and the Tustumena Lake project," Fandrei said.

In ordering a halt to the long-running salmon stocking program, the federal appeals court called it an improper commercial activity inside a wilderness area.

The court overturned two earlier decisions Tuesday, ruling that the project at Tustumena Lake to help commercial fishing is barred inside wilderness areas of the Kenai National Wildlife Refuge.

''There is no exception given for commercial enterprise in wilderness when it has benign purpose and minimally intrusive impact,'' the court ruled.

Hatchery-incubated red salmon make up about 10 percent of the run up the Kasilof River into Alaska's fifth-largest lake. The fish are caught primarily by commercial fishers and by dipnetters and anglers. Eggs from Tustumena Lake also are used to enhance several other runs in Southcentral Alaska.

''It's another nail in our coffin,'' said Paul Shadura, president of the Kenai Peninsula Fishermen's Association, a setnetter group that helps pay for the salmon project. ''This program is extremely important to the commercial fishermen.''

The lawsuit was brought by The Wilderness Society and the Alaska Center for the Environment.

''This goes right to the heart of the Wilderness Act and whether any type of extractive resource activities are going to be allowed in a wilderness area,'' said Allen Smith, Alaska senior policy analyst for The Wilderness Society. ''The court ruled 11-0 that the Wilderness Act had a bright line in it.''

The ruling overturned a 2000 decision by U.S. District Judge James Singleton and a 2-1 9th Circuit decision by a three-judge panel last January supporting the salmon enhancement program.

Both earlier decisions deferred to the administrative decisions of the Kenai National Wildlife Refuge, which allowed the project. The ruling last week says the agency does not have that latitude.

''What's important here is the agencies don't have discretion to fudge around the edges'' of what's permissible in wilderness, said Trustees for Alaska attorney Rebecca Bernard, who argued the case last September.

In their decision Tuesday, the appeals court judges said the enhancement project was unlikely to destroy the area's wilderness values.

''Surely this fish-stocking program, whose antecedents were a state-run research project, is nothing like the building of a McDonald's restaurant or a Wal-Mart store on the shores of Tustumena Lake,'' Judge Ronald Gould wrote.

But, he concluded, the law is absolute.

''The Wilderness Act requires that the lands and waters duly be designated as wilderness must be left untouched, untrammeled and unaltered by commerce,'' he wrote.

The project, which hatches eggs from salmon native to the lake and returns them as fingerlings, was started by the state and later turned over to CIAA.

Federal biologists have long had concerns that the project might introduce disease or disrupt the genetic mix of natural sockeye salmon runs in Tustumena Lake.

A list of 34 regulations was meant to protect the several genetic strains in the lake, said Gary Sonnevil, a field supervisor with the U.S. Fish and Wildlife Ser-vice.

Advocates of the program say it's not a big moneymaker fewer than 100,000 adult salmon return thanks to the stocking, they say. But it can help smooth out production in years when natural runs decline.

''It's a very key element of our programs,'' Fandrei said.



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