Historical Background of the Mitchell Act (Public Law ) By Irene Martin September, 2010

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1 Historical Background of the Mitchell Act (Public Law ) By Irene Martin September, 2010 The Mitchell Act (Public Law ) was passed by Congress on May 11, 1938, a year after passage of the Bonneville Project Act in 1937, which authorized building of Bonneville Dam for the purpose of improving navigation on the Columbia River, as well as for production and sale of electricity. News accounts during the months leading up to passage of the Mitchell Act recorded the contemporary understanding of the purpose of the Act. Astorian Budget, Mar. 11, 1938 p. 1. Status of the congressional bill to appropriate $500,000 for construction of fish culture stations on the Columbia River claimed the attention of Oregon, Washington and Idaho fish and game bodies meeting here today. The Columbia River Salmon Conservation Association is named in the article as lobbying for the bill in Congress. Astorian Budget, April 14, 1938, p. 1. Columbia River salmon and what should be done to conserve them and save the fishing industry from destruction occupied the time of the house committee on merchant marine and fisheries today. Astorian Budget, April 21, 1938, p. 1. When the bill ran into budget challenges, the Astorian Budget reported that proponents of the bill were able to convince budget director Donald Bell, that the Columbia river bill was worthy in that the situation here is of an emergency nature and that the government, by its construction of Bonneville dam, has contributed to the situation which makes the bill necessary. Astorian Budget, April 26, 1938, p. 1. The newspaper reported that the measure was scheduled for a vote. The bill authorizes appropriations in the sum of $500,000 for establishment of hatcheries on the tributaries of the Columbia and for other fish conservation measures. Its intention is to compensate for the damage to Columbia fisheries by the building of Bonneville and Grand Coulee Dams. The Congressional Record for the House Hearing of Senate Bill 2307, the authorizing legislation for the Mitchell Act, May 2, 1938, also provides the context and understanding for the legislation in the following excerpt: Mr. Bland....the situation is that an emergency has developed by reason of conditions, not only because of the construction of the Bonneville Dam, but also because of the construction of irrigation plants and reclamation projects, and all that sort of thing, so that there was brought before the committee maps showing a large area that was affected and we had to take the matter as a practical proposition, a condition that was confronting us, threatening the fisheries of the Northwest, and we had to meet it the best way we could Mr. Rich. Then the gentleman will admit that the statements made that the Bonneville Dam and the Grand Coulee Dam were not going to interfere with the salmon fisheries in the Columbia River were not correct, and the gentleman also admits that a 1

2 mistake was made by building those dams because it will ruin the salmon industry in the Columbia River. Mr. Bland. I do not know that I would go so far in my admission. I admit there is serious danger of ruining the salmon fisheries there, and they are being damaged 1 These accounts and numerous others of a similar nature reveal both the environmental setting the Mitchell Act developed in, the era of construction of large mainstem dams, and its understood purpose, to conserve Columbia River salmon runs and compensate for damage being done to fisheries that depended upon the runs that were being affected by the environmental changes occurring due to development in the Columbia Basin. According to the Northwest Power and Conservation Council s website, the Mitchell Act is intended to mitigate the impacts to fish from water diversions, dams on the mainstem of the Columbia River, pollution and logging. Primarily, though, the mitigation is accomplished through fish hatcheries and the installation of juvenile fish diversion screens at irrigation water withdrawals. 2 The same website notes that the initial appropriation of funding for purposes of the act was $500,000. These funds came from payments received by the federal government between from leases with commercial fishing interests on the lower Columbia River for seining grounds on Sand Island and Peacock Spit, among others, in the lower Columbia estuary. The Council s website states: Through the authorization, Congress intended to invest money received by the government for the use of fishing grounds in efforts to rebuild and conserve the fish runs. The Act recognized that anadromous fish populations were in a serious decline, and that the decline was caused by impacts on spawning and rearing habitat from deforestation, pollution, hydroelectric dams and diversion of water for irrigation. Continuing concerns regarding development of the Columbia Basin surfaced frequently in fisheries agencies following passage of the Act. The Oregon Fish Commission s top scientist, Dr. Willis Rich, noted prior to the end of World War II that Several federal agencies are planning extensive engineering developments for the Columbia Basin that will involve numerous large dams and water diversions. This program will undoubtedly be initiated early in the post-war period as part of a nation-wide make-work program designed to prevent unemployment during the reconversion from war-time to peace-time economy. These developments will seriously affect the salmon resources of the Columbia River and, conceivably, may so reduce them as to destroy the commercial fishery. It is of obvious importance to the State to see that adequate consideration is given to the salmon resources and that every reasonable effort is made to provide for their maintenance. 3 Hugh Mitchell, Director of the Dept. of Fish Culture for the Oregon Fish Commission, stated that Because of the great dams already constructed in the Columbia River or its tributaries and the very large number of proposed dams in the Columbia and its tributaries, it is generally agreed by scientists and all others concerned that the hope of maintaining and supporting the salmon runs in the Columbia River Basin will rest largely upon artificial means of production. 4 Richard Neuberger, at the time a member of the Oregon legislature and a writer, wrote an article for the Saturday Evening Post, published Sept. 13, 1941, describing the 2

3 experimental nature of attempts to save fish runs on the on the Columbia. Excerpts indicate issues being faced: Last year, up a labyrinth of ladders and stairways and chutes at Bonneville, 391,595 ascending Chinooks were counted. Is this number large or small? Who knows? The biologists do not. They have no basis of comparison; never before have the fish in a vast stream been counted at all the Federal Government has begun a prodigious experiment to determine if salmon whose forebears have spawned in the Columbia s last, lingering reaches can be schooled to consummate their lives at least 500 miles downstream [below Grand Coulee Dam]. Frank A. Banks, chief engineer at Grand Coulee, calls the scheme Uncle Sam s Fish College Will this idea work Will [the salmon] continue on to Grand Coulee, over the route their ancestors traveled, and perish buffeting its cement ramparts? Or will they wind off toward their new habitats? The article goes on to describe the various features of development of the Northwest that were inimical to salmon, the efforts of biologists and others to try to find a way to preserve at least some part of the salmon resource, and the experimental, even speculative nature of many of these attempts. 5 The original Act was amended on several occasions subsequent to its original passage. In 1946 it was amended to, among other things, authorize the Secretary of the Interior to conduct investigations and surveys regarding conservation of the Columbia s fisheries resources. In 1947, the Secretary of the Interior issued The Columbia River, A Comprehensive Report on the Development of the Water Resources of the Columbia River Basin for Irrigation, Power Production and Other Beneficial Uses in Idaho, Montana, Nevada, Oregon, Utah, Washington and Wyoming. 6 The following quotation from this document outlines in stark terms just exactly the circumstances under which the Mitchell Act hatcheries were born: Construction of potential main stream dams will convert the Columbia and Lower Snake Rivers into a series of lakes. This, together with construction of additional dams on tributaries will create anadromous fish problems of such magnitude that, despite remedial measures growing from investigations listed above, runs to upper waters of the basin may be seriously depleted or even eliminated in entirety. Losses of such runs would be particularly serious because of the superior quality of the salmon migrating to and spawning in headwater streams and lakes. In the event that upper-river runs should be permanently reduced to small volume or eliminated, maintenance of the runs of anadromous fish in the Columbia River would depend principally or exclusively upon the tributaries of the lower river. Compensating increases of runs into those lower tributaries would require years to develop. Since some of the mainstem dams are now scheduled for early construction, immediate steps should be taken to carry out the proposal for the development of lower-river fishery resources. The development of the fisheries of the lower river is not proposed as a complete solution to the problem of fish maintenance in the Columbia, and in no sense is a substitute for maintaining the high-valued fish populations which spawn in the upper river. The proposal is in the nature of insurance to protect the fishery resources if, at some unpredictable time, fish-protective devices fail in their purpose 7 3

4 The same document also proposed a detailed study and economic evaluation of the basin s fisheries, including commercial, sport, Indian fisheries and the offshore troll fishery extending from southeastern Alaska to northern California. 8 A special edition of The Bumble Bee in April of 1947 listed a coalition comprising the Oregon Fish Commission, Washington Dept. of Fisheries, Idaho Fish and Game Commission, Columbia River Salmon and Tuna Packers Ass n., International Fishermen and Allied Workers of America, Washington Legislative Fisheries Interim Committee, Oregon Legislative Fisheries Interim Committee, Izaak Walton League of America, Oregon Division, Oregon Game Commission, Washington Dept. of Game, Columbia River Fishermen s Protective Union, Northwest Federation of Indians, Indian Tribal Council, Washington States Sports Council, Oregon Wild Life Federation and Mid-Columbia Fisheries Association, formed to pressure for consideration of the fishery resource in the face of continued development of the Columbia Basin, and for compensation for damage to the fishery resource. In 1949 the U.S. Dept. of the Interior issued a special study, A Survey of the Columbia River and Its Tributaries with Special Reference to the Management of its Fishery Resources. 9 The Lower Columbia River Fishery Development Program became the vehicle for implementing the recommendations from the survey. Planning Reports were developed for a number of lower Columbia streams, including the Grays River and the Elochoman, which recommended hatchery facilities be developed and other fish enhancement efforts, such as controlling logging activities and pollution, be implemented. In summation, the State will continue to manage in so far as possible the various factors as they effect (sic) the fish life produced by these streams to gain the maximum public benefit in perpetuity (emphasis added). 10 The Planning Reports presented numbers regarding both the present and projected production of these facilities, along with costs and benefits resulting from increased production and harvest in various fisheries. 11 It is quite clear from the documents cited that a major goal of the Mitchell Act from its inception was to develop production facilities that would mitigate the damage to the environment created by numerous activities, including logging, development, irrigation, gravel-mining, hydro-electric facilities, etc., and provide fish for harvest, specifically mentioning recreational, tribal and commercial harvest, both off-shore and inriver. It is also quite clear from the location of most of the hatcheries below Bonneville Dam that the environmental consequences of development of the upper Columbia, including fish passage, unscreened irrigation ditches and loss of mainstem spawning habitat were recognized at that time as major obstacles to healthy fish runs. It is also quite clear from numerous documents of the time that the Lower Columbia Development Program was recognized as not sufficient to replace what was being lost. The Bumble Bee, the house organ of the Columbia River Packers Association, expressed the view of the affected fishing industry: The industry feels that the results of this proposed program should be considered only moderate reparation for the damage already done to the resource by government built dams which have cut off thousands of miles of good salmon spawning area and destroyed many races of salmon which were once abundant in the river The 4

5 Lower River Plan will be of great help and assistance in curtailing the losses occasioned by dams, but it cannot suffice to save the salmon resource as we know it today, if the great upriver spawning areas are lost through blockade or submersion in deep water. 12 Further, as described by Michael Blumm and Lorraine Bodi, This [the Lower Columbia Development Plan], unfortunately, produced unfair distributional consequences, as upper basin fishers, including Indian tribes and Idahoans, bore the brunt of the dam-related losses with little or no compensation for many years. 13 In 1951 the Oregon Fish Commission produced a document, The Indian Dip Net Fishery at Celilo Falls on the Columbia River, which evaluated the tribal subsistence and commercial fisheries in that locale, recognizing that The Dalles Dam, when built, will eradicate the entire Indian fishery at Celilo Falls. 14 A fuller description of what occurred in tribal fisheries due to development of the Columbia Basin may be found in Cain Allen s article, Replacing Salmon, Columbia River Indian Fishing Rights and the Geography of Fisheries Mitigation. 15 In 1956 Congress ordered that a program similar to the Lower Columbia River Fishery Development Program be extended above McNary Dam, as well as below it, and Idaho was included in 1957, at which time the word Lower was eliminated. As the Secretary of the Interior s 1947 document stated, the Mitchell Act funded hatcheries as a form of insurance to protect fisheries resources in case of further damage due to the failure of fish-protective devices. As was clear in the Planning Documents cited above, this public benefit was expected to continue in perpetuity. Those public benefits, according to the various sources cited above, included tribal, commercial and recreational fisheries, both in-basin and coastal. The early Mitchell-Act-funded hatchery programs were successful in turning around some of the dramatic declines in a number of native fish populations that were being experienced in the 1940s and 1950s. This is certainly the case with LCR coho, LCR tule fall Chinook, and LCR spring Chinook, among others. In 1957 the Big Creek Hatchery in Oregon was refurbished under the Mitchell Act, raising fall Chinook, coho, steelhead and cutthroat trout. According to its Operations Plan for 2010, Big Creek Hatchery programs are harvest programs, used to mitigate for fishing and harvest opportunities lost due to habitat loss and migration blockage resulting from the Columbia Basin hydropower system. 16 In 1952, on Washington s Elochoman River, where splash dams and significant logging activity had extensively affected the watershed, native stocks of fall chinook, once abundant, had been reduced to extreme lows, with coho also at low ebb. The Elochoman Hatchery, built in 1954 with Mitchell Act funds, in its first year of operation had only 13 fall Chinook salmon which were checked at the racks in the lower river. All of these were males and no eggs were taken. By 1976 fall Chinook returns were 2,643; coho were up to 11,872 fish. Another Mitchell Act hatchery, the Washougal, completed in 1958 was put in place because the Washougal was one of the first streams to have its salmon runs depleted by man-made obstruction, with power dams put in the river in early days [it was] designed to rebuild the denuded runs of fall Chinook and coho salmon in the Washougal River and adjacent areas. 17 It should be noted that many of the gene pools from which it is hoped to rebuild naturally spawning ESA-listed 5

6 populations of Columbia River salmon such as LCR coho and tule fall Chinook, reside in these same Mitchell Act hatcheries today. In 2005 a document entitled Mitchell Act Hatchery Funding was issued by the Idaho, Washington and Oregon Fish and Wildlife departments, U.S. Fish and Wildlife Service, and the Yakama, Nez Perce, Umatilla, Colville and Shoshone-Bannock tribes. The document outlined the scope of the Mitchell Act since the years of its inception and stated: The program is a valuable resource in the protection of natural and hatchery produced fish. However, funding for the entire Mitchell Act program has not been sufficient to maintain the basic service level; maintenance of facilities has been deferred, facilities have been closed, facilities have shifted to non-mitchell Act production and funding, funds have not been available for needed monitoring or assessment, construction of needed screens or fishways has not occurred, federally required mass marking programs, ESA related evaluation programs and the ability to respond to biological or social needs has not been possible. 18 The agencies stated that A regional proposal is being advanced that uses the most recent scientific advice to manage Mitchell Act fish hatcheries in a genetically friendly, recovery oriented and sustainable manner. 19 They warned that This must be accomplished without abandoning the federal responsibility to mitigate for populations depressed due to development since the latter part of the 19 th century. The programs developed for the individual hatcheries will depend upon their locations, water supplies, facilities designs, rearing conditions, and other factors relating to their capabilities. Some people refer to this as hatchery reform, it may be better expressed as, Program assessment, improvement and alignment to address current needs and expectations of the program. 20 The agencies provided a list of different hatcheries and programs funded by the Mitchell Act at that time. In 2010, the National Marine Fisheries Service issued a Draft Environmental Impact Statement pursuant to NEPA to assess the environmental impacts associated with NOAA proceeding to develop a NMFS policy direction that will 1) guide NMFS distribution of Mitchell Act funds and 2) inform NMFS future review of individual Columbia River basin hatchery programs under the Endangered Species Act. 21 While the agency includes a discussion in the Executive Summary, entitled What is the relationship between the ESA and the National Environmental Policy Act (NEPA)? no corresponding discussion regarding the relationship between NEPA and the Mitchell Act is in evidence. The Mitchell Act s original intent and purpose was that of addressing an environmental injustice by establishing a means for conservation of salmon coupled with mitigation for fisheries affected by development of the Columbia basin. The DEIS does not discuss this history or intent, nor even say much about the Mitchell Act and how it is implemented, except in regard to the Endangered Species Act. The DEIS also does not say much about the continuing environmental pressures occurring in the Columbia basin due to the ongoing development that was initiated in the 1930s and resulted in the passage of the Mitchell Act at that time. The circumstances that resulted in passage of the Mitchell Act have not gone away, and neither have the fisheries that depended upon the successful implementation of the Act. Indeed, it could be argued that the same circumstances that 6

7 resulted in passage of the Mitchell Act also contributed to the listings, in the late 20 th and early 21 st centuries, of a number of Columbia River salmon species under the Endangered Species Act. Notes 1. Congressional Record, 83 rd Congress, House of Representatives, May 2, 1938, p accessed Sept. 6, Oregon Fish Commission. Biennial Report of the Fish Commission of the State of Oregon. Salem, OR: State Printing Dept., 1945, p Ibid., p Neuberger, Richard. The Great Salmon Mystery. The Saturday Evening Post, Sept. 13, U.S. Secretary of the Interior. The Columbia River, A Comprehensive Report on the Development of the Water Resources of the Columbia River Basin for Irrigation, Power Production and Other Beneficial Uses in Idaho, Montana, Nevada, Oregon, Utah, Washington and Wyoming. Washington, DC: U.S. Dept. of the Interior, Feb Ibid., p Ibid., p Bryant, Floyd. A Survey of the Columbia River and Its Tributaries with Special Reference to the Management of its Fishery Resources: Washington Streams from the Mouth of the Columbia River to and including the Klickitat River (Area I). Washington, DC: U.S. Dept of the Interior, 1949, Special Scientific Report No Washington Dept. of Fisheries, U.S. Fish and Wildlife Service. Lower Columbia River Fisheries Development Program Planning Reports, Grays River Area and Elokomin Area. Olympia, WA: August Grays River Report, p See pp of the Grays River Planning Report, ibid. 12. The Bumble Bee, vol. 4, no. 8, Nov. 1949, p. 2. In April 1947, CRPA devoted an entire issue of The Bumble Bee to the issue of dams and fish. 13. Cone, Joseph and Sandy Ridlington. The Northwest Salmon Crisis, A Documentary History, Corvallis, OR: Oregon State University Press, 1996, p

8 14. Schoning, Robert, T.R. Merrell, Jr., and D.R. Johnson. The Indian Dip Net Fishery at Celilo Falls on the Columbia River. Portland, OR: Oregon Fish Commission, Nov. 1951, p. 32. Contribution No Allen, Cain. Replacing Salmon: Columbia River Indian Fishing Rights and the Geography of Fisheries Mitigation. Oregon Historical Quarterly, vol. 104, no. 2, Summer 2003, pp Oregon Dept. of Fish and Wildlife, Big Creek Hatchery Operations Plan, 2010, p. 3. See also Columbia Basin Anadromous Propagation Hatchery Information, on the Columbia Basin Research website, accessed 9/21/ Washington Dept. of Fisheries, Salmon and Salmon Hatcheries, Olympia, WA: Washington Dept. of Fisheries, Oct. 1978, pp. 37, 38, Idaho Dept. of Fish and Game, Oregon Dept. of Fish and Wildlife, Washington Dept. of Fish and Wildlife, U.S. Dept. of Fish and Wildlife, Confederated tribes and Bands of the Yakama Nation, Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Shoshone-Bannock Tribes of Fort Hall, Confederated Tribes of the Colville Reservation. Mitchell Act Hatchery Funding, A Proposal for a Multi-Year Regional Approach to Management and Funding of Actions Authorized under Public Law , Mitchell Act. June 20, 2005, p Ibid., p Ibid., p National Marine Fisheries Service. Draft Environmental Impact Statement to inform Columbia River Basin Hatchery Operations and the Funding of Mitchell Act Hatchery Programs. Silver Spring, MD: U.S. Dept. of Commerce, NMFS Northwest Region, Cover letter from Paul Doremus. Irene Martin, P.O. Box 83, Skamokawa, Wa ; imartin@iinet.com 8

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