House agrees to ask feds to appeal Tustumena ruling

Posted: Thursday, March 11, 2004

The Alaska House or Representatives approved a measure late Wednesday afternoon asking the federal Department of Interior to challenge a recent decision of the 9th Circuit Court of Appeal that effectively bans a long-running salmon-stocking program in Lake Tustumena.

Senate Joint Resolution 26, which passed the Senate Feb. 27, requests the U.S. Department of the Interior and the U.S. Department of Justice to seek an emergency stay of the 9th Circuit's order so that 6 million salmon fry being raised at the Trail Lakes Hatchery in Moose Pass can be released into the lake later this year, rather than potentially having to be destroyed.

The resolution also asks the federal agencies to challenge the decision at the U.S. Supreme Court and have it overturned.

The 9th Circuit ruling handed down in December resulted from a 1998 lawsuit filed by the Wilderness Society and the Alaska Center for the Environment, who argued that the 30-year-old stocking program, which first begun in 1974 and which has been operated by the Cook Inlet Aquaculture Association since 1993, violated provisions of the 1964 Wilderness Act.

The full 9th Circuit agreed, ruling 11-0 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.

Not everyone in the House supported the Senate resolution.

Rep. Bruce Weyhrauch, R-Juneau, opposed it arguing that the measure abrogates the state's responsibility to litigate on behalf of its citizens by asking the Department of the Interior to do that job.

"The state should be a party to this case, it should have litigated aggressively this case, and should pursue this case whether the Interior department does or not," he said.

The state of Alaska should defend its fishers, its fisheries and the opportunity of its citizens to fish in state waters, and not rely on the Department of the Interior, he added.

"We never should abrogate our responsibility as citizens to the federal government," he said. "This is a prime example of what's wrong when we delegate authority to some federal agency to look out for our interests. This is the wrong resolution, the wrong message and the wrong substance to send back to Washington, D.C. by any representative of this state."

Rep. Max Gruenberg, D-Anchorage, argued that because the state had not been a party in the suit, it was too late to intervene on behalf of fishers because the only place further litigation can occur is before the U.S. Supreme Court.

"You cannot intervene before the U.S. Supreme Court," he said, adding that the resolution takes the only step left open to Alaska, and that is to ask the Department of Interior, which is a party in the case, to appeal the 9th Circuit Court's decision.

Weyhrauch countered, saying that if the state doesn't try to intervene it will never know if it could.

"If it doesn't intervene now, when?" he asked. "I know that not to try is to fail."

He said the state had failed in the case since its outset.

Rep. Paul Seaton, R-Homer, said the Tustumena project is important, providing salmon for commercial, sport, subsistence and dipnet fisheries.

"I'm fully in agreement with my colleague from Juneau that the state should have done something different earlier, and hopefully we will in the future," he said before encouraging the body to vote in favor of the resolution.

House members voted 24 to 6 in favor of the resolution.

Sen. Tom Wagoner, R-Kenai, sponsored the measure.

"People realize the ramification this decision could mean if it isn't overturned," he told the Peninsula Clarion earlier this month.

Wagoner is scheduled to travel to Washington, D.C., for an energy conference this week and has hoped to carry the resolution with him and present it to Interior Secretary Gale Norton, who is the featured speaker at the conference. He said he would try to convey how Alaska views the 9th Circuit decision.

"This goes way beyond the 6 million fish in the hatchery," he told the Clarion. "They need to look hard to see what else could be affected over the long term," he added, referring to possible impacts on other commercial activities associated with the national wilderness areas.

Nicole Whittington-Evans, assistant regional director of the Wilderness Society's Anchorage office said the resolution included "some inaccuracies" and disputed concerns that the court ruling might affect activities such as outfitting and guiding businesses.

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