## Facts

- Tustumena Lake lies within the Kenai National Wildlife Refuge and within a designated wilderness area (the Kenai Wilderness) in Alaska.
- Alaska’s fish agency and a nonprofit aquaculture association (funded substantially by the commercial salmon industry and hatchery production) operated a program to increase sockeye salmon returns for downstream commercial harvests.
- The program caught adult sockeye outside the wilderness, reared eggs/fry at a hatchery facility, and released about six million hatchery-reared fry annually into Tustumena Lake inside the wilderness.
- In 1997, the U.S. Fish and Wildlife Service issued a permit authorizing the fry releases into the wilderness portion of the refuge.
- Conservation organizations sued, alleging the permit violated the Wilderness Act’s bar on “commercial enterprise” in wilderness and violated refuge-law compatibility requirements.
- The district court entered judgment for the agency, reasoning the activity was not a commercial enterprise because the operator was a nonprofit, the activity was regulated, impacts were described as benign, and harvest occurred outside the wilderness.
- After a panel decision, the Ninth Circuit reheard the case en banc and later issued an amended opinion modifying only the remedy discussion.

## Issues

1. Whether a salmon enhancement program that stocks hatchery-reared fry into a designated wilderness area to increase commercial harvests is a prohibited “commercial enterprise” under § 4(c) of the Wilderness Act.
2. Whether authorizing fish stocking to advance commercial objectives is inconsistent with the Wilderness Act’s requirements to preserve wilderness “natural conditions” and “wilderness character.”
3. Whether the Refuge Act’s compatibility framework can justify the authorization where the Wilderness Act applies and contains an express prohibition.

## Decision

- The Ninth Circuit (en banc) reversed the judgment for the agency and held the enhancement project constituted a prohibited “commercial enterprise” in wilderness under the Wilderness Act.
- The court held the permit therefore violated the Wilderness Act and plaintiffs were entitled to final judgment enjoining operation of the project.
- The amended opinion clarified that, on remand, the district court retained discretion over the scope and timing of immediate injunctive relief, including the ability (on an adequate showing) to address only the then-existing annual batch of fry already in rearing.

## Legal Principles

- The Wilderness Act’s categorical prohibition on “commercial enterprise” in designated wilderness applies according to the activity’s economic purpose and practical operation, not the operator’s nonprofit form or regulatory setting.
- A program can be a wilderness-area “commercial enterprise” even if the ultimate commercial harvest occurs outside the wilderness, where the wilderness activity is part of an integrated effort to increase commercial yield.
- Wilderness Act mandates to preserve “natural conditions” and “wilderness character” bar purposeful biological manipulation inside wilderness to serve commercial goals.
- An agency’s general management discretion and refuge compatibility findings cannot override an express Wilderness Act prohibition within designated wilderness lands.
- Equitable factors may inform the form and timing of injunctive relief on remand, but they do not permit continued authorization of a statutorily barred wilderness use.

## Conclusion

The Ninth Circuit held that stocking hatchery-reared sockeye fry into a designated wilderness area to increase commercial salmon harvests is a prohibited “commercial enterprise” under the Wilderness Act, invalidating the federal permit and requiring injunctive relief, with the district court retaining discretion over the immediate remedy’s scope and timing.


The Wilderness Society v. U.S. Fish & Wildlife Serv., 353 F.3d 1051 (9th Cir. 2003) (en banc), amended in part, 360 F.3d 1374 (9th Cir. 2004)