Home » Case Summaries » 1997 » Alaska Wildlife Alliance v. Jensen


Alaska Wildlife Alliance v. Jensen



Two environmental groups, the Alaska Wildlife Alliance and American Wildlands, sued the Secretary of the Interior and the National Park Service (Park Service) to halt commercial fishing in Alaska’s Glacier Bay National Park. The groups challenged the Park Service’s conclusion that commercial fishing is prohibited by statute in the wilderness areas of the park, but not in the nonwilderness areas. An association of commercial fishers intervened and challenged both the plaintiffs’ standing and the Park Service’s position that commercial fishing is prohibited in wilderness areas of the park. The Ninth Circuit affirmed the district court, holding that the plaintiffs had standing and that the Park Service was correct in its policy that commercial fishing was banned only in the wilderness areas of the park.

The court first discussed the plaintiffs’ standing to bring this suit, using a three-part test for analyzing standing. An organization may bring an action on behalf of its members if the following requirements are established: (1) the individual members would have standing to sue, (2) the organization’s purpose relates to the interests being vindicated, and (3) the claims asserted do not require the participation of individual members.[1] The intervenors in the suit, the Allied Fishermen of Southeast Alaska (Fishermen) challenged only the first requirement of standing for the environmental plaintiffs. Individual members have standing to sue if they can show the following: (1) an actual or threatened injury that (2) is fairly traceable to the challenged action such that (3) it is likely to be redressed by a favorable decision.[2]

The court found that the plaintiffs were injured because their members had diminished enjoyment of the park due to the noise and trash of the fishing vessels, as well as witnessing sea lions injured by trolling lures. The same facts offered sufficient proof that the injuries were traceable to commercial fishing. The court also indicated that elimination of commercial fishing would redress the plaintiffs’ injuries. Finding that all elements of the test were satisfied, the court held that the plaintiffs had standing.

The court also held that commercial fishing is prohibited in the wilderness areas of the park. The Alaska National Interest Lands Conservation Act (ANILCA),[3] which governs Alaska’s national parks, prohibits commercial enterprises in wilderness areas with a few limited exceptions. The Fishermen argued that two exemptions should allow commercial fishing. First, the Wilderness Act[4] allows motorized vessels in wilderness areas where the use is established. The court found this provision limited only to the use of motorized vessels and inapplicable to the issue of commercial fishing. Second, the Fishermen pointed to a provision in ANILCA mandating the continuation of existing uses of temporary facilities on public lands where the taking of fish and wildlife is permitted.[5] The court deferred to the Park Service’s interpretation that this provision does not mean all existing uses of park resources must be allowed to continue.

The court then turned to the plaintiffs’ challenge to commercial fishing in nonwilderness areas of the park. The majority found nothing in the statutes, legislative history, regulations, or case law expressly prohibiting commercial fishing in the nonwilderness areas of the park.

The Organic Act,[6] which governs all national parks, prevents the Secretary of the Interior from acting contrary to the Act’s purpose of conservation. The plaintiffs argued that allowing commercial fishing violates this statutory directive. The court found no evidence that commercial fishing is at odds with the long-term goal of conservation. It reasoned that the Wilderness Act, for example, has clear language prohibiting commercial activity, and if Congress intended to extend this ban to national parks, it would have done so when amending the Organic Act in 1970 and in 1978.

The court struck down several of the plaintiffs’ arguments made under ANILCA. Because it found that the Organic Act does not prohibit commercial fishing, the court concluded the provision requiring ANILCA to be administered in accordance with the Organic Act added nothing to the argument.

Next, the court held that the provision of ANILCA that prevents restrictions on commercial fishing in certain parts of the park does not constitute an exception to an overall ban. The court interpreted this provision to imply that the Park Service may prohibit fishing elsewhere, but is not required to do so. The plaintiffs argued that such an interpretation made a section of ANILCA superfluous. Section 3202(c) of ANILCA bans the taking of fish and wildlife except that “fishing shall be permitted by the Secretary in accordance with the provisions of [ANILCA] and other applicable state and federal law.”[7] If the Act does not generally prohibit commercial fishing, the plaintiffs argued, then it is unnecessary for the Secretary to be able to allow it in certain situations. The court disagreed, finding the following two purposes in the section 3202(c) exception: (1) to exclude hunting from national parks, and (2) to allow for subsistence fishing otherwise prohibited in ANILCA.

The majority found congressional intent to allow commercial fishing in national parks. Beginning in 1936, agencies were allowed to publish regulations under the Federal Register Act,[8] making statutory prohibitions unnecessary. Because Congress has never expressly prohibited commercial fishing in national parks, the majority found that it intended for the Secretary to regulate commercial fishing. The plaintiffs pointed to a 1978 amendment to the Organic Act as evidence that Congress wanted the Park Service to prohibit commercial fishing. The amendment prohibited the Secretary from authorizing activities “in derogation of the values and purposes” for which the parks were created.[9] However, the court determined that the amendment was established during the expansion of the Redwood National Park and therefore was not aimed at fishing.

The court found nothing in the regulations indicating that the Park Service changed its position for the sake of this dispute. The plaintiffs pointed to a 1983 regulation prohibiting commercial fishing except “where specifically authorized by [federal] statutory law.”[10] The court interpreted this to be a regulatory ban on commercial fishing except where a statute deprives the agency of the power to prohibit commercial fishing.

The court also found no regulation declaring that commercial fishing derogates park values and purposes. The plaintiffs argued that a proposed, but never adopted, regulation that would have phased out commercial fishing as a nonconforming use[11] indicated the Park Service found commercial fishing to be a derogation of park values. The court pointed to the proposal language, which acknowledged that the Park Service would have to find commercial fishing to be a derogation of park values in order to phase it out. Because the proposal did not make a finding on that particular issue, the court concluded that the Park Service was not committed to that stance.

Finally, the court considered whether there was any case law prohibiting commercial fishing in national parks. The court found only cases that upheld the Secretary’s authority to prohibit commercial fishing, but none that required the Secretary to prohibit it.

In a concurring opinion, Circuit Judge Schroeder agreed that no federal statutes prohibit an immediate ban on commercial fishing in the park, but disagreed that congressional intent endorsed agency discretion to permit commercial fishing in the park. The concurrence pointed to the committee report creating Glacier Bay National Park which contained a statement of intent to create a nonconsumptive sanctuary for fish and wildlife.[12]

[1]Fund for Animals v. Lujan, 962 F.2d 1391, 1396 (9th Cir. 1992).

[2]Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

[3]16 U.S.C. §§ 3101-3233 (1994).

[4]16 U.S.C. §§ 1131-1136 (1994).

[5]16 U.S.C. § 3204(a) (1994).

[6]16 U.S.C. §§ 1-4 (1994).

[7]16 U.S.C. § 3202(c)(2) (1994).

[8]Federal Register Act, ch. 417, 49 Stat. 500 (1935) (codified as amended at 16 U.S.C. §§ 1501-1511 (1994)).

[9]16 U.S.C. §§ 1a-1 (1994).

[10]General Regulations for Areas Administered by the National Park Service, 48 Fed. Reg. 30,252, 30,283 (June 30, 1983).

[11]Glacier Bay National Park, Alaska; Fishing Regulations, 56 Fed. Reg. 37,262, 37,263 (Aug. 5, 1991).

[12]S. Rep. No. 96-413, at 137 (1980), reprinted in 1980 U.S.C.C.A.N. 5070, 5081.

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