U.S. should appeal Tustumena decision to nation's highest court

Posted: Thursday, February 19, 2004

A recent 9th Circuit Court of Appeals decision demonstrates once again how misguided and misinformed the 9th Circuit is.

In The Wilderness Society v. U.S. Fish and Wildlife Service, the court broadly and impermissibly interpreted the "no commercial enterprise" clause of the 1964 Wilderness Act to preclude fish stocking in Tustumena Lake by the Alaska Department of Fish and Game, an activity that predates designation of the areas as wilderness. The court reasoned that because some of the stocked salmon fry would grow up to be caught outside the wilderness area by commercial fishermen, it was a prohibited commercial activity.

The absurd reasoning goes something like this: An activity outside the wilderness (commercial fishing) is deemed to be "within" it, and a non-commercial activity (fish stocking by the state) is held to be "commercial."

The adverse implications of this decision reach far beyond Tustumena Lake. This action threatens to halt any customary trade in subsistence areas under Alaska National Interest Lands Conservation Act, or ANILCA, guiding, wilderness lodge activities, ecotourism operations and other fish stocking programs, despite the clear exception under the act for "activities which are proper for realizing ... wilderness purposes."

It is critical that the United States appeal this decision to the U.S. Supreme Court. The high court has regularly and routinely overruled the judicial activists in San Francisco and needs to be afforded the chance to do so again and restore sanity to interpretation of 1964 Wilderness Act.

Sen. Gene Therriault

Senate, District F


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