March 17, 2004
"We were certainly happy to receive the news that the Ninth Circuit has given the district court the discretion to grant a reprieve to the six million fry," Murkowski said. "We believe the court came to the entirely wrong conclusion in the Tustumena case. In its original decision, it didn't even allow for the six million fry currently at Trail Lakes Hatchery to be released this year.
"We asked the Secretary of the Interior to recommend to the Department of Justice to appeal the decision to a full panel of the Ninth Circuit. Although the Department of Justice did not follow that tract, I am grateful that the fish have a new lease on life. In the meantime, I directed my attorney general to see if the state could intervene as a defendant to have the court reexamine the merits of the case."
At a meeting in her office in Washington, D.C., Murkowski personally asked Secretary of the Interior Gale Norton to request a full rehearing before the Ninth Circuit. The Department of Justice, which is handling the case for the Department of the Interior, instead petitioned the court only on the issue of the injunction, which put the destiny of the six million fry in peril. The court granted this rehearing and issued an amended order and opinion. The federal district court now has the discretion to fashion the injunction to accommodate this year's batch of fry only.
The State of Alaska is not a party to the original lawsuit because the previous administration chose not to join as a defendant. In the lawsuit, the Wilderness Society and the Alaska Center for the Environment sued the U.S. Fish and Wildlife Service over the fisheries enhancement program USF&WS has permitted at Tustumena Lake for about 30 years, alleging it was a "commercial enterprise" in a designated Wilderness area. The state is concerned that the decision broadly expands what can be defined as a "commercial enterprise." While the Tustumena program supports commercial and sport fisheries, the only activities that actually take place inside the Wilderness area are collecting roe and sperm during spawning season, and releasing the fry in the spring.
Murkowski asked Attorney General Gregg Renkes to request that the state be allowed to intervene as a defendant for purposes of appeal. The Ninth Circuit has not yet addressed the state's motion.
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