Senate seeks appeal in fish stocking case

Posted: Thursday, February 26, 2004

A Senate Joint Resolution being considered by the Senate Resources Committee requests the U.S. Department of the Interior and the U.S. Department of Justice to appeal a recent decision by the Ninth Circuit Court of Appeals banning the long-standing practice of salmon stocking in Tustumena Lake because it amounted to a commercial activity.

Commercial activities are not permitted in wilderness areas under the federal Wilderness Act of 1964. Tustumena Lake is within the Kenai National Wildlife Refuge.

SJR 26, sponsored by Sen. Tom Wagoner, R-Kenai, also asks the two federal departments to seek a temporary emergency stay of the court decision to allow some 6 million salmon fry growing at the Trail Lakes Hatchery to be released into the lake as scheduled later this year. Without the stay, there is a chance those fry would have to be destroyed, though hatchery operators are looking for an alternative site for stocking the fish.

In 1998, the program was the target of a lawsuit filed by The Wilderness Society and the Alaska Center for the Environment, which argued that the stocking program, begun in 1993 by the Cook Inlet Aquaculture Association, violated provisions of the Wilderness Act.

The Ninth Circuit justices ruled 11-0 in December that the stocking program, while likely harmless to the environment, did run counter to the intent of Congress that no commercial activities be conducted in wilderness areas. Their ruling overturned a lower-court decision that had upheld the stocking program.

SJR 26, if adopted, would put the Alaska Legislature on record as supporting a stay and an appeal of the decision.

Though the program was not designed to enhance the commercial and other fisheries financially, it had that effect at times. Primarily, the stocking program was meant to smooth out the cyclic ups and downs of returning numbers of mature salmon.

The resolution also points out the importance of the court's decision given the fact that Alaska has more than 50 million acres of

congressionally designated wilderness area more than all the rest of the U.S. combined to which the decision would apply. It could, sponsors said, affect other commercial activities.

The decision of the en banc (full court) panel has broad economic implications throughout Alaska concerning the conduct of any commercially related activities, such as guiding, trapping, customary trade, commercial lodges, ecotourism and other similar operations, within or near a wilderness area that has been traditionally engaged in by Alaskans, the resolution reads.

If efforts are successful at obtaining a stay that would allow stocking this year, it is estimated that of the 6 million fry that would be released into the lake, some 600,000 to 900,000 would survive to the smolt stage and swim to the ocean. Some 60,000 to 120,000 adult salmon could be expected to return to the nets and lines of commercial, sport and subsistence fishers or to spawn in Tustumena Lake. Those fish could average four pounds each, which would represent about $400,000 worth of fish, according to Cook Inlet Aquaculture Executive Director Gary Fandrei.

According to Wagoner's office, out-of-court talks between the two sides that might result in clearance to stock this year to avoid wasting the 6 million fry had not reached an agreement as of Wednesday.

Wagoner said the issue of a stay might have to be settled in court.

SJR 26 remains in draft form in the Senate Resources Committee.

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