Court ruling leaves 6 million fish fry in limbo

9th Circuit upholds rule that no commercial activities be conducted in wilderness areas

Posted: Monday, February 02, 2004

KENAI - Six million salmon fry swim now in a kind of limbo at the Trail Lakes Hatchery in Moose Pass since the 9th U.S. Circuit Court of Appeals banned their release into Tustumena Lake.

The fry represent a potential return of 100,000 salmon, averaging four pounds apiece, if eventually released to grow in the wild.

The ruling last month, in a lawsuit filed in 1998 by The Wilderness Society and the Alaska Center for the Environment, overturned lower court decisions that had upheld the program run by Cook Inlet Aquaculture Association, which has stocked the lake with juvenile salmon since 1997.

The plaintiffs had argued that the stocking program, started in 1993 by the aquaculture organization under a contract with the Alaska Department of Fish and Game, violated provisions of the 1964 Wilderness Act.

The 9th Circuit agreed, ruling 11-0 that the stocking program, while likely harmless to the environment, did run counter to the intent of Congress that no commercial activities be conducted in wilderness areas.

Robin West, manager of the Kenai National Wildlife Refuge where Tustumena Lake is located, said the Department of the Interior is considering an appeal to the U.S. Supreme Court.

In the meantime, Cook Inlet Aquaculture Association has a growing problem, said director Gary Fandrei.

"The ruling enjoining the project leaves us in question about what we would do with the 6 million fish we have in the hatchery," he said. "We have had no guidance from the U.S. Fish and Wildlife Service as to whether or not we are going to be able to stock those fish. We have had no direction from Fish and Game as to what we can do with those fish."

In the past, he said, the state has directed the association to kill any surplus fry. That would be costly and environmentally problematic.

The association has spent between $125,000 and $150,000 on the young salmon.

Of 6 million fry released into the lake, 600,000 to 900,000 would survive to the smolt stage and swim to the ocean. Some 60,000 to 120,000 adult salmon could then be expected to return - to the nets and lines of commercial, sport and subsistence fishers or to spawn in Tustumena Lake.

"You'd be looking at a 4-pound average," Fandrei said, which would represent roughly $400,000 worth of fish.

But the program wasn't designed to add income to commercial fisheries, Fandrei said. It was meant to smooth out periodic dips in the numbers of fish returning from the sea.

Return rates are cyclic, he said. When runs are big, CIAA's stocking program has little effect. When runs are small, however, the added fish enhance the chances for fishermen, he said.

If the association has no choice but to kill the fish, a couple of bottles of bleach will do it. Essentially, it's just a matter of chlorinating the water, Fandrei said.

Once the fish are killed, the association would have as much as two tons of remains to get rid of.

Dead fish have been buried in landfills, and small amounts have been burned at the hatchery, but the hatchery's incinerator is too small to handle 6 million dead fry, he said.

Fandrei said he hopes it doesn't come to that. Perhaps the fish could be released into other Cook Inlet lakes, he said, suggesting Ursus, Bruin, Chenik and the upper and lower Paint lakes as possible choices.

Another alternative would be to keep the fish and raise them until they are smolt, which would take another 14 months. However, that would still mean transferring the fry to the Tutka Bay hatchery at Kachemak Bay.

The Trail Lakes Hatchery doesn't have the room, Fandrei said. For permitting purposes, some decision is needed by the middle of February as to where the fish might go.

If, by chance, a decision were reached allowing release into Tustumena, the hatchery would have until June.

The Interior Department contends that the 9th Circuit erred by not giving some deference to the administrative decision of the refuge regarding the stocking, West said. Additionally, the 9th Circuit, in an attempt to clear up some ambiguity used a definition of commercial enterprise not seen before.

West also said provisions of the Alaska National Interest Lands Conservation Act didn't appear to have received any attention in the court's review. He said that though nothing is written down specifically, it was Interior's opinion that the intent was to permit such noncommercial stocking programs.

"In a nutshell, the court focused directly on the Wilderness Act without any tempering by ANILCA," West said.

Allen Smith, Alaska senior policy analyst for The Wilderness Society, said recently that the issues went to the heart of the Wilderness Act and whether any type of extractive resource activities would be allowed in a wilderness area.

"The court ruled 11-0 that the Wilderness Act had a bright red line in it," he said.

Rebecca Bernard, attorney for Trustees for Alaska who argued the case for the plaintiffs, said the ruling meant agencies "don't have discretion to fudge around the edges."

Ninth Circuit Judge Ronald Gould wrote that under the act, areas designated wilderness "must be left untouched, untrammeled and unaltered by commerce."

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