The Alaska Senate has passed and sent a resolution to the Alaska House requesting the U.S. Depart-ment of the Interior and the U.S. Department of Justice to appeal a decision by the 9th Circuit Court of Appeals that has banned salmon stocking in Tustumena Lake.
Senate Joint Resolution 26 also requests the federal agencies seek an emergency stay of the order to allow some 6 million fry being raised at the Trail Lakes Hatchery in Moose Pass to be released into the lake later this year.
The Senate passed the resolution, sponsored by Sen. Tom Wagoner, R-Kenai, by a 16-0 margin. Four members of the body were absent.
"It's got good bipartisan support," Wagoner said Monday afternoon. "People realize the ramifications this decision could mean if it isn't overturned."
The 9th Circuit ruling handed down in December resulted from a lawsuit filed in 1998 by the Wilderness Society and the Alaska Center for the Environment, who argued that the 30-year-old stocking program, which first begun in 1974 and which has been operated by the Cook Inlet Aquaculture Association since 1993, violated provisions of the 1964 Wilderness Act.
The full 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.
The decision, however, overturned rulings in favor of the program that had been handed down earlier, first by an Alaska Superior Court judge and then by a three-judge panel of the 9th Circuit, before being taken up by the full circuit court.
"All the reviews (of the program) by (Alaska government) departments and moose range people, the hearings, a superior court judge and a three-judge panel found in favor of Cook Inlet Aquaculture Asso-ciation," Wagoner said. "I guess if you want to win you just keep appealing until you find someone to agree with you.
"How many appeals can you allow on this?" he said. "When it comes to matters of life and death, that's fine, but for something on this level to be given the attention we have had to give in continuous court cases seems ludicrous to me."
The resolution was read on the House floor Monday morning and assigned to the House Resources Committee for further hearings. No hearing dates have been set.
Wagoner predicted it would pass the House, and said he would urge House members to consider the measure before a scheduled trip to Washington, D.C., for an energy conference March 10.
Wagoner said delegates would be meeting with Interior Secretary Gale Norton, who is the featured speaker at the conference, and would relay to her how important they feel reversing the 9th Circuit decision is to Alaska.
"This goes way beyond the 6 million fish in the hatchery," he said. "They need to look hard to see what else could be affected over the long term."
The court decision could, say resolution supporters, affect other commercial activities.
"The decision of the en banc (full court) panel has broad economic implications throughout Alaska concerning the conduct of any commercially related activities, such as guiding, trapping, customary trade, commercial lodges, eco-tourism, and other similar operations, within or near a wilderness area that have traditionally engaged in by Alaskans," the resolution reads.
Nicole Whittington-Evans, assistant regional director of the Wilderness Society's Anchorage office disagreed with Wagoner's assessment of the possible scope of the decision.
"We feel there are some inaccuracies with the Senate resolution," she said Monday. "They pertain to concerns over other state fish and wildlife management and research programs, which are designed to monitor and manager resources for all Alaskans, which will not be affected by the decision.
"And, the decision also will not affect outfitting and guiding activities in designated wilderness because these are governed by different provisions of the Wilderness Act that are not addressed in the 9th Circuit's decision," she said.
Whittington-Evans called the court's action "a good decision for the wilderness and wild salmon."
She said the Wilderness Society disagrees with the state's request to appeal the decision to the U.S. Supreme Court.
"However, we understand the concern over the salmon fry at the CIAA hatchery, and we are actively pursuing a solution for those fry," she said. "We are looking at a variety of options that could include other places and Tustumena Lake."
