SR 4: Requesting the United States Congress to amend the federal Wilderness Act to authorize fishery enhancement programs and similar activities in wilderness areas.
00 SENATE RESOLUTION NO. 4 01 Requesting the United States Congress to amend the federal Wilderness Act to authorize 02 fishery enhancement programs and similar activities in wilderness areas. 03 BE IT RESOLVED BY THE SENATE: 04 WHEREAS The Wilderness Society and the Alaska Center for the Environment 05 brought suit against the U.S. Fish and Wildlife Service in federal court to challenge the 06 legality of the long standing sockeye salmon enhancement program in Tustumena Lake, 07 which is located within the Kenai Wilderness, under provisions of the federal Wilderness Act 08 (16 U.S.C. 1131 - 1136); and 09 WHEREAS the U.S. Fish and Wildlife Service has officially recognized and 10 approved the sockeye salmon enhancement program in Tustumena Lake since before the 11 Kenai Wilderness was created in 1980; and 12 WHEREAS the United States District Court for the District of Alaska ruled against 13 The Wilderness Society and in favor of maintaining the sockeye salmon enhancement 14 program in Tustumena Lake; and 15 WHEREAS a three-judge panel of the United States Court of Appeals for the Ninth 16 Circuit also found that, despite the assertions of The Wilderness Society, the stocking of
01 sockeye salmon fry in Tustumena Lake was consistent with the Wilderness Act and the 02 Alaska National Interest Lands Conservation Act; and 03 WHEREAS, on December 30, 2003, an en banc panel of the United States Court of 04 Appeals for the Ninth Circuit ruled in The Wilderness Society v. United States Fish and 05 Wildlife Service (Case No. 01-35266) that the stocking of hatchery-reared salmon fry into 06 Tustumena Lake was an impermissible "commercial enterprise" that is prohibited by the 07 Wilderness Act; and 08 WHEREAS loss of the sockeye salmon enhancement program in Tustumena Lake 09 would result in a significantly reduced harvest of sockeye salmon in Cook Inlet and the 10 Kasilof River; 100,000 adult fish, totaling 400,000 pounds of harvestable salmon would be 11 lost to subsistence, sport, and commercial fisheries; and 12 WHEREAS the lawsuit brought by The Wilderness Society is important to Alaska 13 because it takes away the ability of the state to enhance fisheries in National Refuge 14 Wilderness areas in Alaska; and 15 WHEREAS Alaska has more than 98 percent of the nation's designated National 16 Wildlife Refuge Wilderness areas and over 50,000,000 acres of Congressionally designated 17 wilderness areas, more than all of the rest of the United States combined; and 18 WHEREAS the effects of the lawsuit brought by The Wilderness Society are not 19 limited to Alaska and will detrimentally affect management of wilderness areas in the other 20 states; and 21 WHEREAS the lawsuit brought by The Wilderness Society has broad economic 22 implications throughout Alaska and the nation concerning the conduct of any commercially 23 related activities, such as guiding, trapping, customary trade, commercial lodges, eco-tourism, 24 and other similar operations, within or near wilderness areas; and 25 WHEREAS the decision of the en banc panel of the United States Court of Appeals 26 for the Ninth Circuit could be broadly construed to prohibit other fish and wildlife 27 management and research programs in wilderness areas designed to benefit a wide variety of 28 users, including some that are commercial in nature; and 29 WHEREAS the en banc panel of the United States Court of Appeals for the Ninth 30 Circuit did not find that the stocking of salmon fry in the wilderness area was inconsistent 31 with wilderness or refuge values or with Congressionally established purposes for the 32 withdrawals; and
01 WHEREAS the en banc panel of the United States Court of Appeals for the Ninth 02 Circuit found that the Tustumena Lake enhancement project is a commercial enterprise, even 03 though it lacks the traditional hallmarks of a commercial enterprise; and 04 WHEREAS the decision of the en banc panel of the United States Court of Appeals 05 for the Ninth Circuit relied upon an exceptionally broad definition of "commercial enterprise" 06 as the term is used in the Wilderness Act and almost entirely ignores the Alaska National 07 Interest Lands Conservation Act, which has long been interpreted to permit enhancement and 08 rehabilitation projects in wilderness areas; and 09 WHEREAS the court's decision steps beyond what Congress intended when it 10 prohibited commercial enterprises in wilderness areas; and 11 WHEREAS the U.S. Fish and Wildlife Service should have the discretion to permit 12 fishery enhancement programs in wildlife refuges and refuge wilderness areas if the activity is 13 consistent with the wilderness and refuge values; and 14 WHEREAS the Department of Justice has determined that a further appeal of the 15 decision of the United States Court of Appeals of the Ninth Circuit would not be appropriate 16 under the rules of the United States Supreme Court; and 17 WHEREAS the only remaining opportunity to cure the adverse result of the lawsuit 18 brought by The Wilderness Society is to amend the Wilderness Act to clarify that fishery 19 enhancement projects in wilderness areas are not commercial enterprises; and 20 WHEREAS the Congress can amend the Wilderness Act to prevent noncommercial 21 activities such as the sockeye salmon enhancement program in Tustumena Lake from being 22 treated as a commercial enterprise and to avoid untoward consequences of the lawsuit brought 23 by The Wilderness Society throughout the nation; 24 BE IT RESOLVED that the Alaska State Senate respectfully requests the Congress to 25 amend the Wilderness Act (16 U.S.C. 1131 - 1136) to exclude noncommercial activities such 26 as the sockeye salmon enhancement program in Tustumena Lake from being considered to be 27 commercial enterprises under provisions of the Act. 28 COPIES of this resolution shall be sent to the Honorable Gale Norton, United States 29 Secretary of the Interior; the Honorable Steve Williams, Director, Fish and Wildlife Service, 30 U.S. Department of the Interior; the Honorable J. Dennis Hastert, Speaker of the U.S. House 31 of Representatives; the Honorable Ted Stevens, President Pro Tempore of the U.S. Senate and 32 member of the Alaska delegation in Congress; the Honorable Pete V. Domenici, Chairman,
01 U.S. Senate Committee on Energy and Natural Resources; the Honorable James M. Inhofe, 02 Chairman, U.S. Senate Committee on Environment and Public Works; the Honorable Richard 03 W. Pombo, Chairman, U.S. House of Representatives Committee on Resources; and to the 04 Honorable Lisa Murkowski, U.S. Senator, and the Honorable Don Young, U.S. 05 Representative, members of the Alaska delegation in Congress.