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