SJR 26: Requesting the United States Department of the Interior and the United States Department of Justice to appeal the decision of the United States Court of Appeals for the Ninth Circuit in The Wilderness Society v. United States Fish and Wildlife Service and to seek an emergency stay of the decision pending an appeal of the decision to the United States Supreme Court.
00 SENATE JOINT RESOLUTION NO. 26 01 Requesting the United States Department of the Interior and the United States 02 Department of Justice to appeal the decision of the United States Court of Appeals for 03 the Ninth Circuit in The Wilderness Society v. United States Fish and Wildlife Service 04 and to seek an emergency stay of the decision pending an appeal of the decision to the 05 United States Supreme Court. 06 BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 WHEREAS, on December 30, 2003, the United States Court of Appeals for the Ninth 08 Circuit ruled in The Wilderness Society v. United States Fish and Wildlife Service (Case No. 09 01-35266) that the stocking of hatchery-reared salmon fry into Tustumena Lake violated 10 provisions of the Wilderness Act (16 U.S.C. 1131 - 1136); and 11 WHEREAS the United States District Court for the District of Alaska had ruled in 12 favor of the United States Fish and Wildlife Service and denied a motion for summary 13 judgment on behalf of the plaintiffs; and 14 WHEREAS the United States Court of Appeals for the Ninth Circuit erroneously 15 ruled that the stocking of salmon fry in Tustumena Lake was an impermissible "commercial
01 enterprise" that is prohibited by the Wilderness Act, despite the fact that the commercial 02 harvesting occurs outside the Kenai Wilderness; and 03 WHEREAS the sockeye salmon enhancement program in Tustumena Lake 04 contributes significantly to the lives and activities of the residents of the Kenai Peninsula and 05 the loss of this project would create substantial hardships for the residents of this area and the 06 many nonresident fishermen who participate in fisheries outside the Kenai Wilderness; and 07 WHEREAS the decision is important to Alaskans because Alaska has over 08 50,000,000 acres of Congressionally designated wilderness areas, more than all of the rest of 09 the United States combined; and 10 WHEREAS the decision has broad economic implications throughout Alaska 11 concerning the conduct of any commercially related activities, such as guiding, trapping, 12 customary trade, commercial lodges, eco-tourism, and other similar operations, within or near 13 a wilderness area that have been traditionally engaged in by Alaskans; and 14 WHEREAS the decision by the United States Court of Appeals for the Ninth Circuit 15 could be broadly construed to prohibit other fish and wildlife management and research 16 programs in wilderness areas designed to benefit a wide variety of users, including some that 17 are commercial in nature; and 18 WHEREAS the effects of this decision are not limited to Alaska and will 19 detrimentally affect management of wilderness areas in the other states; and 20 WHEREAS the United States Court of Appeals for the Ninth Circuit did not conclude 21 that the stocking of salmon fry in the wilderness area was inconsistent with wilderness and 22 refuge values or with Congressionally established purposes for the withdrawals; and 23 WHEREAS the United States Fish and Wildlife Service has officially recognized and 24 approved this program since before the Kenai Wilderness was created in 1980; and 25 WHEREAS a one-year emergency stay of the decision of the United States Court of 26 Appeals for the Ninth Circuit is needed to accommodate the release of existing salmon fry this 27 spring; 28 BE IT RESOLVED that the Alaska State Legislature respectfully requests that the 29 Department of the Interior and the United States Department of Justice appeal the decision of 30 the United States Court of Appeals for the Ninth Circuit in The Wilderness Society v. United 31 States Fish and Wildlife Service (Case No. 01-35266) to the United States Supreme Court;
01 and be it 02 FURTHER RESOLVED that the Alaska State Legislature respectfully requests that 03 the United States Department of the Interior and the United States Department of Justice 04 request a temporary emergency stay of the decision of the United States Court of Appeals for 05 the Ninth Circuit to allow the enhancement project to continue this year while the decision is 06 under appeal. 07 COPIES of this resolution shall be sent to the Honorable Gale Norton, United States 08 Secretary of the Interior; the Honorable Theodore B. Olson, Solicitor General, United States 09 Department of Justice; and to the Honorable Ted Stevens and the Honorable Lisa Murkowski, 10 U.S. Senators, and the Honorable Don Young, U.S. Representative, members of the Alaska 11 delegation in Congress.