The Wilderness Society and the Alaska Center for the Environment v. United States Fish and Wildlife Service, an Agency of the United States

316 F.3d 913, 2003 Cal. Daily Op. Serv. 309, 2003 Daily Journal DAR 385, 2003 U.S. App. LEXIS 389, 2003 WL 102996
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 13, 2003
Docket01-35266
StatusPublished
Cited by10 cases

This text of 316 F.3d 913 (The Wilderness Society and the Alaska Center for the Environment v. United States Fish and Wildlife Service, an Agency of the United States) 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
The Wilderness Society and the Alaska Center for the Environment v. United States Fish and Wildlife Service, an Agency of the United States, 316 F.3d 913, 2003 Cal. Daily Op. Serv. 309, 2003 Daily Journal DAR 385, 2003 U.S. App. LEXIS 389, 2003 WL 102996 (9th Cir. 2003).

Opinions

GRABER, Circuit Judge.

Plaintiffs, The Wilderness Society and the Alaska Center for the Environment, challenge a decision by Defendant United States Fish and Wildlife Service (the Service) to permit a sockeye salmon enhancement project (the Project) at Tustumena Lake. Tustumena Lake is located in Alaska, within a designated wilderness area in the Kenai National Wildlife Refuge. Plaintiffs argue that the Project violates the Wilderness Act, 16 U.S.C. §§ 1131-1136, because it contravenes that Act’s requirement to preserve the “natural condition” and “wilderness character” of the area, and because it constitutes an impermissible “commercial enterprise” within a wilderness area. Plaintiffs also allege that the Project violates the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee (the Refuge Act), because it is not “compatible” with the purposes of the Refuge Act.

The district court denied Plaintiffs’ motion for summary judgment and entered judgment in favor of Defendant. We have jurisdiction pursuant to 28 U.S.C. § 1331. We affirm.

BACKGROUND

A. Legal Framework

In 1941, President Franklin D. Roosevelt issued an Executive Order that designated 2 million acres on the Kenai Peninsula, including Tustumena Lake, as the Kenai National Moose Range. As the name suggests, the original purpose of the Range was to protect the breeding grounds of the giant Kenai Moose. Exec. Order No. 8979, 6 Fed. Reg. 6471 (Dec. 16, 1941).

In 1964, Congress passed the Wilderness Act, which was intended to designate certain federal lands as “wilderness” areas and to require the “preservation and protection” of those lands “in their natural condition.” 16 U.S.C. § 1131(a). In 1966, Congress passed the Refuge Act. Congress stated several reasons for enacting the Refuge Act; among them was “the purpose of consolidating the authorities relating to the various categories of areas that are administered ... for the conservation of fish and wildlife.” 16 U.S.C. § 668dd(a)(l). All areas that had been designated for wildlife protection were consolidated into the “National Wildlife Refuge System.” Id.

In 1980, Congress passed the Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96^87 (Dec. 2, 1980), 94 Stat. 2371 (codified as 16 U.S.C. §§ 3101-3233 and scattered sections of the U.S.C.). ANILCA controls the management of refuge lands in Alaska, superseding any conflicting provisions of the Refuge Act. Pub. L. No. 105-57, § 9(b) (Oct. 9, 1997), 111 Stat. 1260. Congress enacted ANILCA intending, among other things, to protect and manage fish and wildlife in a manner that permits those Alaska resi[917]*917dents who are “engaged in a subsistence way of life to continue to do so.” 16 U.S.C. § 3101(c). ANILCA added nearly a quarter of a million acres to the Kenai National Moose Range and renamed it the Kenai National Wildlife Refuge (the Refuge). ANILCA also designated 1.35 million acres of the Refuge as the Kenai Wilderness. ANILCA §§ 302(4)(a), 702(7); 16 U.S.C. § 1132 (notes).

B. The Project

Tustumena Lake is located in the Kenai Wilderness portion of the Refuge. Tus-tumena Lake is the fifth largest freshwater lake in Alaska, measuring about 40 kilometers by 8 kilometers. The lake is fed both by clear-water streams and by glacial creeks originating in the Harding Icefield. The lake’s outlet is the Kasilof River, which in turn drains into the Cook Inlet and hence into the Gulf of Alaska. The Kasilof River watershed supports several species of fish, including sockeye salmon.

For at least one hundred years, intense commercial fishing has occurred in the Cook Inlet. Before Alaska became a state, salmon were fished using stationary traps, which were placed to intercept the salmon as they returned to their birthplaces to spawn. The traps were left open for up to five days at a time. Today, commercial fishing fleets still intercept and harvest salmon, as the salmon return to Tustume-na Lake (and elsewhere) from the ocean via the Kasilof River and other creeks and streams.

Beginning in 1974, the Alaska Department of Fish and Game (the Alaska Department) collected sockeye salmon eggs annually at Tustumena Lake as part of a state-funded research project. The eggs were incubated at the Crooked Creek Hatchery,1 and the resulting salmon fry were later released. Beginning in 1975, the fry were returned to tributaries of Tustumena Lake, as well as to other sites. Between 1976 and 1987, the number of fry released annually at Tustumena Lake varied between 400,000 and 17 million. Each year after 1987 the number of fry released there has remained at about 6 million.2 Until 1980, the Project was conducted without a special use permit, or other kind of permit, from the Service.

In 1980, after ANILCA designated the Refuge and the Kenai Wilderness, the Service’s Refuge Manager notified the Alaska Department that special use permits would be required from then on for projects in the wilderness area. The federal and state agencies negotiated an agreement to continue allowing the Tustumena Lake salmon enhancement program as a research project, subject to annual approval.

In January 1985, as required by ANIL-CA, the Service issued a Final Comprehensive Conservation Plan, Environmental Impact Statement, and Wilderness Review (Final Plan) for the Refuge. Kenai National Wildlife Refuge Final Comprehensive Conservation Plan (Jan. 1985); see ANILCA § 304(g). Approved after an opportunity for public notice and comment, the Final Plan identified as a “significant problem” the off-Refuge commercial and recreational harvest of adult salmon:

[T]his heavy commercial harvest significantly reduces the number of salmon entering rivers to spawn decreasing sport-fishing opportunities both on and off the refuge. Furthermore, the re-[918]*918dueed run sizes can affect other species and aquatic habitat quality in several ways. Fewer living adult salmon are available to predators such as brown bear and eagles. Fewer carcasses are available to scavengers and decomposing organisms that recycle nutrients and maintain the fertility of aquatic habitats. Also, because fewer eggs are laid and fewer fry are hatched, the food supply of a variety of fish, birds, and mammals that feed on salmon fry is reduced.
In addition, commercial fishery management greatly tempers the fluctuations in run sizes that would occur naturally due to variations in spawning and hatching success and survival in freshwater nursery areas and the ocean. It is not clear whether this impact is significant. All of these impacts warrant increased study and assessment of long term effects.

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316 F.3d 913, 2003 Cal. Daily Op. Serv. 309, 2003 Daily Journal DAR 385, 2003 U.S. App. LEXIS 389, 2003 WL 102996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-wilderness-society-and-the-alaska-center-for-the-environment-v-united-ca9-2003.