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Wilderness Society v. United States Fish and Wildlife Service (9th Cir. 2007)



Wilderness Society and the Alaska Center for the Environment (collectively Wilderness Society) appealed a district court’s decision granting summary judgment in favor of the United States Fish and Wildlife Service (FWS). Wilderness Society challenged FWS’s grant of a permit to the Cook Inlet Aquaculture Association (CIAA) to conduct a sockeye salmon (Oncorhyncus nerka) enhancement project in the Kenai National Wildlife Refuge in Alaska, arguing that the enhancement project permit violated the Wilderness Act[1] and the National Wildlife Refuge Administration Act of 1966 (Refuge Act).[2] A panel of the Ninth Circuit affirmed the district court’s decision in 2002.[3] Upon rehearing en banc, the Ninth Circuit reversed the district court’s ruling, set aside the FWS permit, and enjoined the operation of the enhancement project. Because the court granted relief on the basis of the Wilderness Act, the court did not address Wilderness Society’s claim under the Refuge Act.

The Alaska Department of Fish and Game (ADFG) began conducting salmon research projects in 1974 in Tustumena Lake. ADFG incubated sockeye salmon eggs in a hatchery and released the resulting fry into Tustumena Lake. In 1980, Congress passed the Alaska National Interest Lands Conservation Act (ANILCA),[4] and formed the Kenai National Wildlife Refuge and the Kenai Wilderness, both of which include Tustumena Lake. After passage of ANILCA, FWS notified ADFG that special permits would be required for ongoing projects, including the salmon enhancement project, conducted in the Kenai Refuge. FWS and ADFG entered an understanding in 1985 allowing ADFG to obtain an annual special use permit to continue the salmon enhancement project, in order to study disease in the fish and the effect of stocking salmon on the fish native to Tustumena Lake. The agencies agreed that they would decide by 1993 whether to end the research project or to elevate it to the status of a commercial fishing operation. The project became an operational enhancement project, and the ADFG contracted with CIAA, a nonprofit corporation that represents commercial fishermen and engages in salmon enhancement, to staff and run the hatchery and the program. Because the project potentially violated the Wilderness Act and ANILCA, FWS recommended evaluation of the project under the National Environmental Policy Act.[5] Accordingly, in August 1997, CIAA and FWS released a draft environmental assessment (EA) and a mitigated finding of no significant impact.

In the same month, the Kenai Refuge Manager addressed possible legal problems with the enhancement project as it related to the Wilderness Act in a Wilderness Act consistency review. The Manager questioned whether the project could be reconciled with the Wilderness Act’s mandate to preserve wilderness and its prohibition on commercial enterprises in wilderness areas. The Manager dismissed these concerns and decided that as long as the project did not significantly conflict with the goals of the Wilderness Act, the project was not required to contribute to achieving the Act’s purposes. In a compatibility determination, the Manager stated that the project did not support the refuge’s goals, but was not incompatible with them. FWS subsequently issued a special use permit to CIAA for the project. Wilderness Society brought this challenge against the issuance of that permit.

The Ninth Circuit first determined what level of deference should be accorded the FWS decision to allow the enhancement project. The court decided that the decision should get Skidmore deference, from Skidmore v. Swift & Co.,[6] as endorsed by United States v. Mead Corporation (Mead),[7] rather than the broader Chevron deference, from Chevron, U.S.A., Inc. v. Natural Resources Defense Council (Chevron).[8] Under Chevron, if the “intent of Congress is clear, that is the end of the matter,” and the agency must effectuate that intent.[9] If, however, the statute is unclear or silent as to the issue in question, the court must defer to the agency’s decision as long as the decision is a reasonable construction of the statute. Chevron, however, was decided in a case of notice-and-comment rulemaking. Mead is used to determine what other kinds of agency decisions get Chevron deference. In Mead, the Supreme Court explained that a decision deserves Chevron deference when the agency has the statutory ability to make rules with the force of law, and the agency decision in question was made pursuant to that authority. An agency decision that does not meet that standard deserves the deference set forth in Skidmore v. Swift & Co., or Skidmore deference, which is less deferential to the agency’s decision than Chevron deference. The court considers how thorough the agency’s consideration of the matter was, how valid its reasoning was, and whether it is consistent with prior and later decisions to determine the persuasiveness of the agency’s position. The Ninth Circuit adopted an analysis using these principles whereby it would use the first step of the Chevron test to determine whether Congress’s intent in both the Wilderness Act and Refuge Act was clear and whether the enhancement project undermined congressional intent. If the court found that the statutes were ambiguous, it would give the FWS decision Chevron deference if its interpretation had the “force of law.”[10] If the interpretation did not have the force of law, it would give the decision Skidmore deference.

The court first analyzed whether the Wilderness Act’s statement that “there shall be no commercial enterprise . . . within any wilderness area”[11] was clear and whether the enhancement project violated that prohibition. The Wilderness Act does not define the term “commercial enterprise,” so the court considered the common sense meaning of the term and determined “that a commercial enterprise is a project or undertaking of or relating to commerce.”[12] The court also considered the Wilderness Act’s mandate to preserve the wilderness and exclude commerce from the wilderness, and found that the enhancement project did not develop the goals of the Wilderness Act. In addition, the court considered the statutory structure of the Wilderness Act and found that its ban on commercial enterprises within wilderness areas showed Congress’s desire to keep commercial enterprises out unless specific exceptions apply. The Ninth Circuit concluded that Congress clearly did not want a commercial enterprise in wilderness areas, regardless of its form or its minimal intrusion.

Once the court decided Congress’s intent to prohibit commercial enterprises was clear, it addressed the question of whether the enhancement project was a commercial enterprise. While the district court focused on the fact that CIAA was a nonprofit organization and that the enhancement project would have a limited impact on the wilderness to make its decision, the Ninth Circuit considered the purpose and effect of the project, relying on the District Court for the District of Columbia’s rationale in Sierra Club v. Lyng[13] to guide its analysis. In Lyng, the United States Forest Service (USFS) planned to control pine beetles in wilderness areas by cutting trees and spraying chemicals. Although the Wilderness Act allows the Secretary of Agriculture to take measures to control insects,[14] the district court found that the true purpose of the program was to safeguard commercial timber interests and, in light of this purpose, required the Secretary to justify the beetle program in accordance with the Wilderness Act’s goals. In Wilderness Society v. United States Fish and Wildlife Service,[15] the Ninth Circuit decided that the purpose of the enhancement project was to “advance commercial interests of Cook Inlet fishermen by swelling the salmon runs from which they will eventually make their catch.”[16] The court relied on a memorandum from the Kenai Refuge Manager and a FWS briefing statement to support the conclusion that the primary purpose of the enhancement project was to benefit commercial fishing, with incidental benefits for sporting and recreation. Therefore, the enhancement project was an impermissible commercial enterprise.

Having determined that the purpose and effect of the enhancement project was commercial, the Ninth Circuit rejected other FWS arguments that the district court had accepted. First, the fact that CIAA was a nonprofit did not control because its activities were supported by the fishing industry, and the court recognized that nonprofit organizations can carry out commercial activities. Second, the state of Alaska’s prior involvement with the enhancement project was irrelevant because the state regulation of an industry does not strip its commercial nature. Third, the fact that the benefit of the enhancement project would be outside the Kenai Wilderness did not change the outcome because essential parts of the project would occur within the wilderness area. Finally, the court discounted any tradeoffs Congress made in enacting the Wilderness Act by assuming that those tradeoffs would have been incorporated into the Act to give effect to them. The Ninth Circuit concluded the enhancement project was a commercial enterprise within the bounds of the wilderness area and violated the Wilderness Act.

Moreover, the Ninth Circuit found that, even assuming that the exclusion of commercial enterprises in the Wilderness Act was ambiguous, it would have reached the same conclusion. The court held that the agency’s decision to issue a permit was not “the exercise of a congressionally delegated legislative function” and accordingly not entitled to Chevron deference.[17] The court discussed the underlying documents related to this decision–the environmental assessment, mitigated finding of no significant impact, wilderness act consistency review, and compatibility determination–and found that two of the documents contained legal analysis, but none addressed general principles of law. The documents used to make the permit decision were not intended to have the force of law. Therefore, per Mead, the court applied Skidmore deference to the permit decision. Assuming arguendo that the ban on commercial enterprise was ambiguous, the Ninth Circuit found that the FWS permit contradicts a clear statutory mandate by allowing a project with the primary purpose to assist economic enterprise. In addition, the documents used by FWS to make its decision failed to thoroughly analyze whether the project was a commercial enterprise. The court considered the factors in Skidmore and found that the FWS position in this case was not persuasive; its decision was not valid or reflective of special agency knowledge, and was not based on a thorough analysis. Because the court was not persuaded by the agency’s analysis, it held that the enhancement project would be impermissible even if the term “commercial enterprise” were ambiguous, granted the Wilderness Society’s motion for summary judgment, set aside the FWS permit, and remanded to the district court to determine the scope of the injunction with discretion to create a resolution as to the current year’s stock of sockeye salmon fry.


[1] 16 U.S.C. §§ 1131-1136 (2000).

[2] 16 U.S.C. §§ 668dd-668ee (2000).

[3] Wilderness Soc’y v. United States Fish & Wildlife Serv., 316 F.3d 913 (9th Cir. 2003), vacated by 340 F.3d 768 (9th Cir. 2003)

[4] 16 U.S.C. §§ 3101-3233 (2000).

[5] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[6] 323 U.S. 134 (1944).

[7] 533 U.S. 218 (2001).

[8] 467 U.S. 837 (1984).

[9] Id. at 842-43.

[10] Wilderness Soc’y v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) (en banc), amended by 360 F.3d 1374 (9th Cir. 2004) (en banc).

[11] 16 U.S.C. § 1133(c) (2000).

[12] Wilderness Soc’y, 353 F.3d at 1061.

[13] 662 F. Supp. 40 (D.D.C. 1987).

[14] 16 U.S.C. § 1133(d)(1) (2000).

[15] 353 F.3d 913 (9th Cir. 2003).

[16] Wilderness Soc’y, 353 F.3d at 1064.

[17] Id. at 1067.

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