Alaska Wildlife Alliance v. Jensen

108 F.3d 1065, 1997 WL 94068
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 6, 1997
DocketNos. 95-35151, 95-35188
StatusPublished
Cited by27 cases

This text of 108 F.3d 1065 (Alaska Wildlife Alliance v. Jensen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1997 WL 94068 (9th Cir. 1997).

Opinions

OPINION

EUGENE A WRIGHT, Circuit Judge.

We must decide the extent to which federal statutes restrict commercial fishing in Alaska’s Glacier Bay National Park (the Park). We hold that plaintiffs Alaska Wildlife' Alliance and American Wildlands have standing to challenge commercial fishing in the Park’s waters. We further hold that commercial fishing is statutorily prohibited in the Park’s designated wilderness areas, but not in its non-wilderness areas.

[1068]*1068I

Plaintiffs sued the Secretary of the Interi- or and officials of the National Park Service, claiming that commercial fishing in the Park violates certain federal statutes.1 Plaintiffs interpret the Organic Act,2 which created the national park system, and the Alaska National Interest Lands Conservation Act3 (“AN-ILCA”) to prohibit commercial fishing throughout the Park. The Park Service concedes that commercial fishing is prohibited by statute in the Park’s wilderness areas.4 It maintains, however, that the statutes give it discretion to permit commercial fishing in non-wilderness areas. The Allied Fishermen of Southeast Alaska (the Fishermen), an association of commercial fishers, intervened to defend its interests. It argues that plaintiffs lack standing and that commercial fishing is permitted throughout the Park.

The district court concluded that plaintiffs have standing and that commercial fishing is statutorily prohibited only in wilderness areas of the Park. Plaintiffs appeal the determination that commercial fishing is permitted in non-wilderness areas of the Park.- The Fishermen cross-appeal the court’s findings that appellants have standing and that federal law prohibits commercial fishing in the Park’s wilderness areas. We have jurisdiction -under 28 U.S.C. § 1291 and we affirm.

II

A. Standing

We review de novo whether a party has standing. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1395 (9th Cir.1992). An organization may bring an action on behalf of its members if: (1) the individual members would have standing to sue; (2) the organization’s purpose relates to the interests being vindicated; and (3) the claims asserted do not require the participation of individual members. Id. The Fishermen challenge only plaintiffs’ ability to meet the first requirement of organizational standing. The individual members have standing if they can demonstrate (1) an actual or threatened injury that (2) is fairly traceable to the challenged action such that (3) it is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

The individual members of the plaintiff organizations would have standing. First, they have shown injury. The experiences recounted in their affidavits demonstrate aesthetic and recreational harm that will support standing.5 See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365-66, 31 L.Ed.2d 636 (1972); Fund for Animals, 962 F.2d at 1396. Affiants P.L. Brown and Kin Behrens wrote that the noise, trash and wakes of vessels in the Park have diminished their enjoyment. Brown described seeing “sea lions in the bay with huge trolling lures hanging from their mouths.” Karen Jettmar, a former back country ranger in the Park, expressed concern over the vessels’ displacement of whales from preferred feeding areas and described how she now plans her visits to the Park to avoid the fishermen’s presence. And Wayne Hall wrote that the wake from vessels in the bay endangered kayakers.

Next, plaintiffs offer sufficient proof that their injuries are traceable to commercial fishing. At the summary judgment stage, factual allegations in support of standing are taken as true. Lujan, 504 U.S. at 561, 112 S.Ct. at 2136-37. Plaintiffs need only plead faets that, taken as true, would [1069]*1069show that commercial fishing caused their injuries. We find their affidavits about injuries sufficient.

Finally, their injuries are likely to be redressed by a favorable ruling. The Fishermen argue that plaintiffs cannot meet this requirement because they challenge agency regulation of a third party. See Lujan, 504 U.S. at 568-70, 112 S.Ct. at 2140-42 (discussing difficulty of proving redressability when the plaintiffs relief depends upon a third party’s reaction to agency action). This case does not present the problems that the Fishermen identify. A finding in plaintiffs’ favor, that commercial fishing is statutorily prohibited in Glacier Bay, would result in the elimination of commercial fishing in the relevant areas. This would redress plaintiffs’ claimed injuries.

B. Commercial Fishing in Glacier Bay Wilderness

We review questions of statutory interpretation de novo, but will defer to the agency’s interpretation unless it contravenes the express language of the statute or clear congressional intent. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); Conlan v. United States Dept. of Labor, 76 F.3d 271, 274 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996).

ANILCA designates roughly 2.77 million acres of the Park as “wilderness” to be administered under the Wilderness Act, 16 U.S.C. § 1131 et seq, unless otherwise provided by ANILCA. Greater protections apply to wilderness areas than to ordinary park lands. In pertinent part, the Wilderness Act bans commercial enterprise from wilderness areas: “Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise ... within any wilderness area designated by this chapter_” 16 U.S.C. § 1133(e). The court held that this provision bans commercial fishing in Glacier Bay’s wilderness areas, and the Park Service agrees with this interpretation.

The Fishermen argue that two provisions exempt commercial fishing from the Wilderness Act’s ban on commercial activity. The first is a section of the Wilderness Act that allows motorized vessels in wilderness areas “where these uses have already become established.” 16 U.S.C. §' 1133(d)(1). This provision is of no use to the Fishermen. Their use of motorboats is not at issue; it is fishing for profit that the Wilderness Act prohibits. This they may not do, whether from motorized vessels or otherwise.

Next, the Fishermen cite a section of AN-ILCA that provides:

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Bluebook (online)
108 F.3d 1065, 1997 WL 94068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alaska-wildlife-alliance-v-jensen-ca9-1997.