Fate of Tustumena Lake salmon fry will be left in hands of Alaska judge

Posted: Friday, March 19, 2004

Both sides in a legal dispute over a fisheries enhancement program in Tustumena Lake are applauding a decision by the 9th Circuit Court of Appeals to leave the fate of 6 million salmon fry up to an Alaska District Court judge.

The decision permits the district court to allow the fry, now being raised at the Trail Lakes Hatchery at Moose Pass, to be released into Tustumena Lake this spring.

That had been the destination for the fry before the 9th Circuit ruled in December that the 30-year-old stocking program amounted to a commercial enterprise and violated provisions of the 1964 Wilderness Act.

In a press release Tuesday, Gov. Frank Murkowski hailed the appeals court ruling, saying it provided a glimmer of hope for the case.

"We believe the court came to the entirely wrong conclusion in the Tustumena case," Murkowski said of the 9th Circuit's December decision. "In its original decision, it didn't even allow for the 6 million fry to be released this year."

A spokesperson for the Wilder-ness Society, which, along with the Alaska Center for the Environment, brought suit against the U.S. Fish and Wildlife Service over the stocking program being conducted by Cook Inlet Aquaculture Associ-ation, said the circuit court had made the right move.

"We want to make it clear that the Wilderness Society is pleased with the 9th Circuit's decision because we have been actively seeking a solution that would avoid destroying this year's fry," said Nicole Whittington-Evans. "The 9th Circuit's recent decision leaves all of the options on the table as the district court considers what to do about the fry."

Whittington-Evans said the society had been working with all parties to find a solution.

"All parties are in agreement on one point," she said, "which is that we all want to resolve this issue without destroying the fry."

Although Murkowski had asked Interior Secretary Gale Norton to request a full hearing before the 9th Circuit Court, the Department of Justice, which is handling the case for Interior, instead petitioned only on the issue of the injunction regarding the fate of the fry.

The court granted a rehearing on that issue and amended its order stopping the stocking program to leave a decision about this year's stock of fry up to the district court in Alaska.

The Wilderness Society suit to stop the stocking program failed before the district court and before a three-member panel of the 9th Circuit before finding success in a unanimous decision in December by the full nine-member panel of justices.

State officials have expressed concern that the decision, if left to stand, would broadly expand the definition of "commercial enterprise."

In the press release issued Tuesday, the governor's office said that while the Tustumena program supports commercial and sport fisheries, the only activities that actually take place inside the wilderness area (of which Tustumena Lake is a part) are collecting roe and sperm during spawning season, and releasing the fry in the spring.

Murkowski has asked Attorney General Gregg Renkes to request that the state be allowed to intervene as a defendant in the case for purposes of appeal.

The 9th Circuit Court has not yet addressed the state's motion.

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