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The Intent of Congress – in respect to National Fish Hatcheries

September 29, 2014  By John Nickum

“Whose words are law?” “Whose words are the final words? These seem like really stupid questions when the discussion is about Congressional actions, signed into law by the President. Isn’t the “intent of Congress” the law? The “intent of Congress” is described in each act that is passed and signed by the President. More specific instructions are provided in “report language” that accompanies each Act.

But, what happens if the top administrators in agencies charged with implementing Congressional actions think that they know better than Congress and the President? After all, these administrators and their staff are “professionals” in their respective fields, not elected politicians. Don’t they know what is best for their agency?

Department and agency administrators have some latitude for reprogramming the funds allocated to them from Congressional appropriations. Emergency situations account for most reprogramming actions.

However, administrators sometimes decide to go beyond modest reprogramming and use their appropriated funds to implement personal priorities, rather than the priorities of Congress… even in direct disregard for the specific instructions in the report language.


A Director of the US Fish and Wildlife Service, (my former employer) was somewhat infamous for justifying a major reprogramming with the statement: “We will never have enough money to support my highest priorities; protection and restoration of imperiled (threatened or endangered) plants and animals.” In another situation, one that directly affected my job, funds for planning a new fisheries research facility were reprogrammed by a Regional Director to build a facility for breeding black-footed ferrets. (Yes, I was quite upset.)

These concepts and actions are related directly to actions that took place in the US Congress this past summer. The future of national fish hatcheries, including the DC Booth Historic National Fish Hatchery in Spearfish, South Dakota, has come into play as the Director and his fellow administrators (known as the Directorate) of the US Fish and Wildlife Service (USFWS) have signaled intentions to close several hatcheries, especially hatcheries constructed and operated as mitigation for federal water projects that destroyed sport fisheries.

They also discussed plans to transfer the fish culture archives from Spearfish to the relatively new National Conservation Training Center (NCTC) in West Virginia. NCTC is a fine facility, but has little historic connection to fish, fisheries, and fish culture.

National fish hatcheries are and have always been one of the most popular programs of the USFWS. In addition, they generate jobs and substantial boosts for the economy in the areas where they are located. Dollars spent on producing and stocking fish are multiplied several times over by the boost they provide to local economies… and the nation as a whole.

Congress and individual Members of Congress have initiated actions to prohibit hatchery closures and transfers of functions, such as the archives at DC Booth Historic National Fish Hatchery. The proposed H.R. 5026 Fish Hatchery Protection Act prohibits the closure of national fish hatcheries and/or termination of hatchery programs. It would also require a yearly report on fishery mitigation obligations and would limit spending on endangered species activities to the amount spent in FY 2012.

The limit on endangered species spending appears to be a direct response to the reprogramming of fish hatchery funds in past years when funds allocated for fish hatcheries were used to bolster the funds available for endangered species programs.

Meanwhile, the Senate was also preparing to give the USFWS specific guidance for its fish hatchery activities. The Senate Appropriations Committee’s Interior and Environment Subcommittee released a draft appropriations bill and report for FY 2015 funding to the Department of the Interior that would preclude closures of any hatcheries.

Senator Tim Johnson and his South Dakota congressional colleagues, Senator John Thune, and Representative Kristi Noem requested inclusion of language directing the USFWS to maintain the fisheries archives collection at its current location at DC Booth. Subcommittee Chair Jack Reed and Ranking Member Lisa Murkowski honored this request, and the report accompanying the draft appropriations bill includes language to that effect: “National Fish Hatchery System Operations. – $48,617,000 is recommended for the national fish hatchery system operations, an increase of $2,089,000 above the fiscal year 2014 enacted level. None of the funds may be used to terminate operation or to close any facility. It is recommended that the fisheries archives, including the National Fishery Artifacts and Records Center and the Collection Management Facility, be maintained in its current location.

Such strong and specific language should be sufficient to convince USFWS administrators that they should not continue efforts to close fish hatcheries and transfer functions from their historic locations. The combination of H.R. 5026, the Fish Hatchery Protection Act, the House Appropriation Bill, and the Senate Appropriation language provides a clear statement of Congressional intent.

But, what happens if the USFWS proceeds with plans to close hatcheries and transfer functions in direct contradiction of Congressional intent? The current administrators love a philosophical statement attributed to Rachel Carson: “Conservation is a cause that has no end. There is no point at which we will say our work is finished.” They simply substitute the words “Preservation and restoration of endangered species…” for the word “conservation” and claim that their cause is a higher priority than fish hatcheries and maintaining fisheries archives in their historic location and they need the funds for their priorities.

What will Congress do if their intent and specific directions are flaunted? That remains to be seen. In the past they did nothing. Fish hatcheries are seldom the most controversial issue demanding congressional attention. However, if there is a large public outcry, sufficient to anger individual Members of Congress and force them to take action… Congressional intent will prevail. At this time the National Fish Hatcheries and the fisheries they support have bipartisan support. Flaunting the intent of Congress would seem to be foolhardy. 

— John G. Nickum

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