Wilderness Society and the Alaska Center for the Environment (collectively Wilderness Society) challenged an action of the United States Fish and Wildlife Service (FWS) permitting an enhancement project for sockeye salmon (Oncorhyncus nerka) to continue within a national refuge and wilderness area under the Wilderness Act and the National Wildlife Refuge System Administration Act (Refuge Act). The district court granted summary judgment for FWS on all counts. Wilderness Society appealed and the Ninth Circuit affirmed.
Since 1974, Tustumena Lake in Alaska has been part of a sockeye salmon research project in which salmon eggs were gathered, incubated at a hatchery, and released as fry into lake tributaries. Upon the passage of the Alaska National Interest Lands Conservation Act (ANILCA) in 1980, Tustumena Lake became part of the Kenai National Wildlife Refuge (Refuge) and the Kenai Wilderness. Pursuant to ANILCA, FWS issued a Final Comprehensive Conservation Plan (Plan), environmental impact statement, and Wilderness Review in 1985. The Plan outlined the problem of off-refuge harvest of salmon and included a management effort to continue the stocking of salmon fry in the lake in addition to allowing natural spawning to dominate salmon production in most of the refuge. In 1992-1993, the research project was elevated to a "commercial enhancement project" under contract with the Cook Inlet Aquaculture Association (CIAA), a private nonprofit group dedicated to protection and rehabilitation of salmon and salmon habitat. CIAA and FWS conducted an environmental assessment (EA), and FWS created a Fishery Management Plan for the Refuge, discussing the project and indicating that whether the project should be allowed to continue was to be determined under the guidelines of the National Environmental Policy Act (NEPA). After releasing a finding of no significant impact, FWS issued a special use permit to CIAA in 1997. Wilderness Society sued for injunctive and declaratory relief, arguing that allowing the project violated the Wilderness Act, ANILCA, the Refuge Act, NEPA, and the Administrative Procedure Act. On appeal, Wilderness Society limited its challenge of the project to violations of the Wilderness Act and the Refuge Act.
Prior to considering the substantive claims, the Ninth Circuit considered the preliminary question of the deference due to FWS's decision to authorize the project. The Ninth Circuit applied the standard set out in United States v. Mead. In Mead, the court set forth the test to determine whether to give an agency the high level of deference required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., commonly known as Chevron deference. Applying that test to FWS, the Ninth Circuit found that it owed Chevron deference to FWS's action approving the project, based on four considerations. First, Congress clearly gave FWS authority to manage and issue regulations for the Kenai Wilderness. Next, the public had opportunity to comment on the EA, and this notice and comment procedure indicates Chevron deference is due. The permit was also consistent with the overall Final Plan, which FWS had specific authority to promulgate and would be given Chevron deference. Finally, FWS followed the formal procedures of NEPA, indicating careful analysis and decision making. Despite the court's determination to use Chevron deference, it indicated it would arrive at the same conclusions using the less deferential Skidmore v. Swift & Co. standard. After determining the deference issue, the Ninth Circuit then considered the substantive arguments by applying the Chevron test, evaluating 1) whether the statute was ambiguous, and 2) if so, whether the agency's interpretation of the statute was reasonable.
Wilderness Society claimed that the project violated the Wilderness Act because it failed to preserve the natural condition of the wilderness. The Ninth Circuit examined the language of the Wilderness Act concerning preservation of the natural environment and found both the undefined level of human activity allowed in a wilderness refuge and the inclusion of the mandate to "manage," in addition to "protect," the natural condition constituted ambiguities in the statute about how natural a given area must remain. Based on this unclear language, the Ninth Circuit evaluated the reasonableness of FWS's interpretation that the project was permissible. Persuaded by the Plan's inclusion of the project, and reasoning that, due to commercial fishing outside the wilderness, the natural ecosystem grew dependent on the supplemented fish population, the Ninth Circuit determined that allowing the project to continue was reasonable and affirmed the holding of the district court.
Wilderness Society also argued that the project constituted a "commercial enterprise" expressly prohibited under the Wilderness Act. Applying the Chevron analysis, the Ninth Circuit again found ambiguity in the statute. The court identified two ambiguities in the applicable provision of the Wilderness Act. First, the statute left open the question of whether the location of the commercial part of an activity was relevant to categorizing the entire activity as a commercial enterprise. Second, the statute was unclear as to whether the term "commercial enterprise" itself referred to the appearance or the function of an activity. Given this lack of clarity, the Ninth Circuit decided that FWS's interpretation was reasonable and affirmed the district court in dismissing the claim.
Finally, Wilderness Society challenged the project as a violation of the Refuge Act, arguing that FWS's action was not compatible with the purpose of the Refuge. The plaintiffs contended that artificial stocking of the salmon population conflicted with the purpose of conserving the fish and wildlife habitat in its natural condition. Again applying the Chevron test, the Ninth Circuit found the Refuge Act unclear because the term "natural diversity" was ambiguous and other stated purposes for the Refuge included the protection and restoration of threatened species. In light of that ambiguity, the court evaluated the reasonableness of FWS's action as a use compatible with the Refuge's purposes.
The Ninth Circuit determined that the purposes of ANILCA related to the evaluation of reasonableness because the Refuge Act specifically provided that conflicts must be resolved in favor of ANILCA. The Ninth Circuit referred to three separate provisions of ANILCA which allow enhancement of fish populations. Based on these provisions, the court determined that Congress intended to give FWS the authority to consider stock enhancement as a possible compatible use within the Refuge and affirmed the decision of the district court.
On all counts, the Ninth Circuit found that FWS acted within its authority to grant the project a permit based on the ambiguity of the statutes involved and the delegation of authority from Congress. Therefore, the Ninth Circuit affirmed the decision of the district court to grant summary judgment for FWS.
In dissent, Judge Fletcher took issue with the majority's basic evaluation of the ambiguity of the Wilderness Act and Refuge Act. Looking at the stated objectives of both statutes and ANILCA as applied to the Kenai Refuge, Fletcher concluded that congressional intent was clear and thus no deference was due to FWS's interpretation deviating from that intent.
Concerning the Wilderness Act, Judge Fletcher disagreed that the language was ambiguous. Relying on the tools of construction that require statutory language to be considered as a whole, she denounced the majority's finding that words such as "natural condition," "permanent," and "commercial" were ambiguous. Judge Fletcher maintained that within the context of the statutes the terms are easily understood. Based on the plain meaning of the statutes, Judge Fletcher found that they could not include activities such as the "annual, ongoing alteration of the natural ecological balance" caused by the artificial removal and incubation of salmon eggs for the purpose of a commercial fishery.
Judge Fletcher also disagreed with the majority that ANILCA provisions allowing enhancement type activities had any bearing on FWS's approval of the project. Fletcher pointed out that Congress listed exceptions to the general purpose to preserve natural conditions. Because activities like the project were not part of that list, and because exceptions not among others enumerated are usually assumed to be purposefully excluded by Congress, Judge Fletcher found that ANILCA does not support the project. Furthermore, she found that the general mandates of ANILCA do not overrule specific preservation purposes in the Wilderness Act.
Finally, Judge Fletcher argued that the majority misapplied the ambiguity analysis because it looked at the phrases or words in isolation, rather than as applied to the action by FWS. Finding nothing in the record showing that the stocking of salmon related to the natural salmon population, Judge Fletcher dissented.
 See Alaska National Interest Lands Conservation Act § 304(e), 94 Stat. at 2394 (permitting enhancement and rehabilitation of fish stock); 16 U.S.C. § 3203(b) (establishing the goal of maintaining optimum yields of wilderness resources); id. § 3101(b) (providing for maintenance of population size of wildlife).
 Wilderness Soc. v. United States Fish and Wildlife Serv., 316 F.3d 913, 934 (9th Cir. 2003) (Fletcher, J., dissenting), vacated & reh'g en banc granted, __ F.3d __, 2003 WL 21948745 (9th Cir. 2003).