September 2000 Letter to Members
CGWA Members:
Changes have been happening at the Three Mile Canyon windsurfing site. Many of you have asked what was going on, and we wanted you to know that the CGWA has been working with the US Army Corps of Engineers to maintain a windsurfing site at that location. We had waited a few weeks so that we could give you an informed answer with correct details. However, the Corps has not yet prepared a statement but should be sending one soon. We didn't want to keep postponing sending you information so very briefly ...access will be just east of the existing boat ramp, and an access road will be improved that travels south and west of the property to give you access at the west end as well.
At our request, the Corps has sent us a bit of the history of "in-lieu" sites which should help us all have a better understanding of what an "in-lieu" site is and how they came about. It's quite lengthy and was re-typed from a faxed transmission.
Diane Barkhimer, Executive Director
In-Lieu Sites
Author: US Army Corps of Engineers
The 1939 Agreement
An agreement was negotiated with the Indian Tribes for inundation of their accustomed fishing sites in 1939 and approved in 1940 by the Secretary of War. The agreement called for the Government to acquire more than 400 acres of land at six described sites to serve as "in-lieu" fishing sites. The Corps was to make certain improvements thereon, and thereafter turn the sites over to BIA (Bureau of Indian Affairs), to be administered for the permanent use and enjoyment of the Indian Tribes.
Section 2 of the 1945 River and Harbor Act was the Congressional implementation of the agreement. Congress authorized the Secretary of War " ...to acquire lands and provide facilities...to replace Indian fishing grounds submerged or destroyed as a result of the construction of Bonneville Dam...". Funds not exceeding $50,000 were authorized to be expended for this purpose. This amount proved inadequate for acquisition and was subsequently raised by Congress in 1955, to $185,000. However, the Act did not specify the number, location, or size of the sites to be acquired.
Because of disagreements among the various parties to the agreement of 1939, not all the sites outlined in the agreement were acquired, and some sites were substituted. In all, five tracts, totaling 40 acres, were purchased for the use and benefit of the Native Americans. The decisions concerning acquisition of the sixth site and disposition of the balance of the funds for improvement of the sites authorized by the1945 River and Harbor Act were approved by the Umatilla, Warm Springs, Yakama and Nez Perce governing bodies.
The 1972 Agreement
Based on the original authorization for construction of Bonneville Dam, in the late 1960's and early 1970's the BPA and the Corps began studies to enlarge the capacity of the existing Bonneville power-generating capability. This was accomplished by raising the water levels behind the dam to generate additional power at peak loads to help meet the Pacific Northwest Power requirements. This proposal was the subject of a lawsuit, Confederated Tribes of the Umatilla Indian Reservation v. Callaway, in the U.S. District Court in Oregon. At issue was the effect of change in the levels of the Bonneville pool on certain in-lieu sites, and on salmonoid fish migration.
A settlement to Confederated Tribes of the Umatilla Indian Reservation v. Callaway was reached in 1972 between the Executive Branch of the Federal Government and the Indian Tribes. The Executive Branch agreed to try to obtain additional authority from Congress to acquire additional in-lieu sites for the Tribes for fishing sites lost in the Bonneville, The Dalles, and John Day Pools, and to improve the facilities at the existing in-lieu sites in the Bonneville Pool. In the 1972 agreement, the original authorization in 1945 was limited to the Bonneville Pool.
The District Court Decision on the Confederated Tribes case recognized that the federal agencies had no authority to acquire additional in-lieu fishing sites. The decision noted that the agencies were recommending to the Office of Management and Budget legislation for the acquisition of additional in-lieu fishing sites in the lower Columbia River and for construction of improvements on the existing sites. Such facilities would include access roads, boat ramps, sanitary, fish cleaning, curing, and other ancillary facilities with electrical service and landscaping.
In order to fulfill the settlement which was negotiated in 1972, the Corps had constructed the additional improvements to the in-lieu fishing sites. In addition, proposed legislation was submitted to Congress in 1974 under the signature of the Secretary of the Army, Howard H. Callaway, to authorize acquisition of additional in-lieu sites at Bonneville, The Dalles, the John Day Dams. Such legislation, however, was never enacted. In summary, the Corps did not have authority to acquire in-lieu sites under the 1945 river and Harbor Act, as amended.
Senate Hearing
In the 1970's and 1980's, the pressures on existing treaty fishing sites began to increase in response to improving fish runs on the Columbia River. Also, public use on the river was on the rise and competition for the limited available river access was increasing as the Columbia River Gorge became more popular for windsurfing, fishing and general recreation. National attention was focused on the Columbia River Gorge as the Columbia River Gorge National Scenic Area legislation passed and was signed into law. Further, a recent lawsuit in the U.S. District Court of Oregon (October 1987, David Sohappy, et. al. versus Donald Hodel, et. al.) highlighted issues pertaining to tribal requests for additional lands to replace those submerged by the construction of Bonneville Dam and the issue of regulation of use at the existing in-lieu fishing sites. This well publicized case and other attention focused on the Columbia River helped heighten Congressional interest in these issues.
During 1987 and 1988, the four Tribes identified sites on the Columbia River suitable for additional fishing access and support. During this same period, the Secretary was called to appear before the United States Senate Select Committee on Indian Affairs where the Corps testified that transfer of additional lands to the four Tribes for fishing access could not be accomplished without Congressional authorization. The Senate Select Committee on Indian Affairs staff then drafted legislation to authorize the transfer of a portion of the lands previously identified by the four Tribes to the Secretary of the Interior for administration as Treaty Fishing Access Sites. Congress directed the Secretary of the Army to administer the new law upon its passage.
Project Authority
Public Law (P.L.) 100-581 was signed into law by the President on November 1, 1988. This law provides the construction authority for the United States to satisfy its commitment to the four Tribes whose usual and accustomed fishing access sites were inundated by dam construction on the Columbia River. P.L. 100-581 directs the Secretary to undertake a wide range of facility improvements, land transfers, and acquisitions in support of the Columbia River Treaty fishing activity.
It is the intent of P.L. 100-581 that the newly identified Treaty fishing access sites be improved and subsequently transferred to BIA for use by the four Tribes. The law referenced 23 Treaty fishing access sites, marked on maps, along the Columbia River for development and transfer to the Department of Interior. Two of the sites named in the legislation, the North Dalles and Maryhill sites, are not managed by the Federal Government, and are not subject to P.L. 100-581. The lands to be transferred are federally managed or will be subsequently acquired on the Bonneville pool.
In addition to developing and transferring the 21 federal sites, the law directs the Secretary to identify, acquire from willing sellers at a cost not to exceed $32 million, and develop additional acquisition sites on the Bonneville pool for Treaty fishing use. The legislation specifies that improvements be provided such as, but not limited to, boat ramps, boat docks, sanitary and camping facilities at all newly identified sites.
Along with development of new access sites, P.L. 100-581 directs the Secretary to make improvements at the five existing in-lieu fishing sites. These sites were developed by the Corps in the 1950's and transferred to BIA. Because an adequate number of fishing access sites was not provided to the four Tribes, the in-lieu sites have deteriorated from overuse and are in need of rehabilitation.
P.L. 100-581 directs the Secretary of Army to treat the costs of implementing improvements on all sites as project costs of the Columbia River projects. The costs shall be allocated to the respective purposes of those projects in accordance with existing law applicable to allocation of the project costs.
P.L. 100-581 provides the Department of Interior the right to accept any federally managed lands that may be declared excess and offered for lease or sale along the Columbia River adjacent to the Bonneville, The Dalles or John Day pools. The law authorized the Secretary to provide up to 360 acres of shore lands along the Bonneville, The Dalles and/or John Day pools for transfer.