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As a young law professor at the University of Tennessee, the author and a student took a celebrated case to the Supreme Court. Their story begins with a river
In the 1970s, a dam project called the Tellico, in a rural corner of eastern Tennessee, captured the nation’s attention when a motley collection of farmers, trout fishermen, Cherokee Indians, history buffs, and conservationists tried to stop it, claiming that it would destroy the only known habitat of a small, brown, bottom-dwelling species of perch. As reported in the national press, what came to be known as the “snail darter” controversy (a nod to Percina Imostoma tanasi’s common name) was a quixotic face-off between a two-inch fish of no known value and a hydroelectric dam: an example of environmental extremism and governmental protections gone haywire.
But there is an alternative version of the events that I witnessed—more troubling and complex—turning on the unchecked ambitions of a federal agency, on the ways in which democratic processes can be bent to injustice, and on a press corps that was largely asleep at the wheel. In this telling, what was at stake was not only the government-sanctioned extinction of an animal species—the proximate cause of the dispute that still defines it in the memories of Americans who followed the headlines at the time—but also, more important, of a pristine river and a pastoral way of life with deep historical roots.
This less familiar version of the story might begin in 1964, when white cars with federal license plates appeared on the back roads of southeastern Tennessee, stopping at one farm after another along the Little Tennessee River. The cars bore the insignia of the Tennessee Valley Authority (TVA). “We’re buying your land for a new reservoir project,” appraisers working for the TVA told the farmers.
One of the most lauded creations of the New Deal, the TVA was and is a federally owned nonprofit corporation, endowed with the policymaking authority of a government agency and the market-driven incentives of a business. Established in 1933, the TVA’s jurisdiction covered most of Tennessee and portions of Alabama, Mississippi, Kentucky, Georgia, North Carolina, and Virginia. The corporation’s mission was to serve this region as an engine of economic development, primarily through rural electrification. By the 1960s the TVA had become the dominant political power in the southeastern United States, with 30,000 judges, mayors, state and local political leaders, newspaper editors, labor and business leaders, and power distributors enrolled in its booster club, the Citizens for TVA. The cheap electricity supplied by the TVA’s hydroelectric and coal-fired plants had substantially changed Appalachian society, helping to pull much of the population, especially in small towns, out of poverty.
Unlike other federal agencies, the TVA was exempt from more than a dozen federal statutes—notably, from restrictions on land condemnation, the taking of private property by government for public use. Alone among government agencies, TVA was not hampered by juries in deciding the terms of compensation for the acreage it appropriated. Bypassing Congress’s standing committees, the agency could obtain money for its projects directly from congressional appropriations committees, the source of pork-barrel support for legislators’ pet projects.
Notwithstanding its political clout, the TVA in the early 1960s was suffering from internal malaise. Although the Eisenhower administration’s mandate had been to shrink and privatize the agency, federal appointees sent down to Tennessee had done the opposite, broadly extending the agency’s regional footprint. The older generation of leaders—chief among them the agency’s board chairman, Aubrey Joseph Wagner—had built a gigantic corporation of electricity-producing plants. Now the corporation’s brightest young engineers and planners, surmising that the agency’s mission had shifted from growth to maintenance, were pursuing careers elsewhere.
Looking to rekindle the agency’s spirit and dynamism, Wagner cast his eye on the last flowing water in eastern Tennessee that TVA had not already dammed—at the juncture of the Big and Little Tennessee rivers. The Tellico Dam would have no generators and would actually be quite small; with uncharacteristic candor, Wagner once told a reporter that “any power or flood control benefit would be insignificant.” What’s more, internal TVA cost accounting showed that the dam would lose 40 to 50 cents for every dollar spent. So why build the dam? Wagner and his staff came up with two reasons.
First, they hypothesized that use of the reservoir for boating and fishing would generate more than $1 million a year. They ignored or purged economists at the TVA who objected that it was wrong to count as a net benefit recreation diverted from existing reservoirs, and equally wrong to ignore the potential economic benefit of developing tourism for recreation on the flowing river.
Second, harking back to the agency’s economic development role during the Depression, Wagner and his staff conjectured that building a model industrial city of 50,000 people on the banks of a Tellico reservoir would create 25,000 jobs. The city would be built on the land then occupied by more than 300 family farms. At first the agency found a likely partner in this undertaking. The Boeing Company, facing stiff competition in its airplane markets, was looking for new lines of business and agreed to join with TVA to design the town and lobby Congress for the $800 million that TVA thought would be needed to build it.
Why site an industrial city on a backwater in the Smokies? Anticipating the question, Wagner’s protégé, Mike Foster, came up with the “Foster Hypothesis,” which asserted that industry would inevitably come to any site where three modes of transportation were available: rail, highway, and barge channel. The Tellico Dam project was adjacent to a railroad line and two interstate highways. To justify the model city, which in turn justified the dam, a barge channel would be dug.
Dissident agency economists as well as the Army Corps of Engineers pointed out the absence of any evidence for the validity of Foster’s claims. They, too, were brushed aside.
The project, having been named, took on a life of its own, fed by bureaucratic momentum. Thus TVA proceeded to condemn and clear 60 square miles of private land, almost two-thirds of which would be for uses other than the reservoir itself—primarily the model town. The more than 300 farming families would be forced to abandon some of the richest agricultural soils in the nation so that the agency could press development claims for its hypothetical city. The agricultural economies of the valley and small surrounding towns would be eliminated.
To keep the scale of these farmland condemnations as invisible as possible, Wagner decreed that no publicly released TVA map of the project would fully show the 23,600 acres that would be put to non-reservoir uses.
The communities displaced by the Tellico Dam project had been farming the valley since the 1830s, when federal armies evicted the Cherokee from the region. Many families were of the same Scotch-Irish stock as Davy Crockett and Daniel Boone. Sam Houston grew up near the river and lived for a while there with the Cherokee. As pioneers, these families had moved south and westward, following the chain of the Appalachian Mountains to stay ahead of the town-building pressures coming from the east. When they saw the rich soils and fish-filled waters of the Little Tennessee Valley, some decided to settle there and push on no more.
What would be submerged by the reservoir would also be a tragic loss. The 33-mile undammed stretch of the Little Tennessee (or Little T, as the locals called it) was an ecological treasure, preserving a barely known cross section of hundreds of forms of life that had evolved in and along the river over the course of 200 million years. An article in Field & Stream magazine had described the river with awe: cool and clear, shallow but wide and majestic in its flow, the biggest and finest trout water east of Montana. The fish fed on mayflies and caddisflies, which hatched in the current and fluttered up through the mist like a snowfall in reverse. Burial mounds and other archaeological sites bore traces of 10,000-year-old settlements and centuries-old Cherokee communities. Traditional medicine men—the descendants of Sequoyah—still came to the Little Tennessee’s banks to gather herbs.
Once the dam and its earthen dikes were operational, walling off the main channel of the river, the waters of the Little T would slowly back up 33 miles, all the way to the Smokies. The result would be a serpentine impoundment, murky with algae and averaging less than 20 feet in depth. Mud and water would drown the rich meadowlands along both banks of the old river, flooding all the ancestral Native American town sites except the burial ground at Settacoo, which would become eroded mudflats. The Little T would no longer be a river, but something less.
When TVA appraisers started knocking on farmhouse doors in 1964, they began a long, bitter battle between the giant federal utility and the farmers—a group convinced from the start that TVA’s small dam was an irrational mistake. Seeking evidence to back up their intuition, the farmers dug into the details of TVA’s project, eventually with help from the Environmental Defense Fund, which was founded in 1967. The deeper the farmers and defense fund staff went, the more flawed the agency’s plans appeared. The project made no economic sense, they discovered: Alternative development designs—agriculture, tourism, recreational resources, and an industrial park—could foster far more economic benefits than a dam, while keeping landowners on their farms and the river flowing.
“If people looked at this project,” a frustrated Nell McCall, one of the farm owners, said at a community meeting, “they’d see it’s nuthin’ but a crooked land grab.”
The farmers and their allies, however, found it virtually impossible to get the press or anyone in power to listen. They tried fighting the land condemnations, carpooling to Washington, D.C., to testify against the project before Congressional committees and writing letters to the Knoxville Journal and other local newspapers. Because TVA initially refused to produce a required environmental impact statement, they won a temporary injunction in federal court in 1972 halting the project, but when the corporation reversed its position and submitted an impact statement the following year, the injunction was lifted and TVA’s bulldozing proceeded. Again and again, TVA, with support from friends in Washington, thwarted the efforts of the citizens—in the courts, in Congressional committees, and in the offices of federal agencies. Demoralized, the local dam fighters saw their ranks grow thinner by the year.
Then, in 1974, a small fish swam into the controversy.
That fall, Hiram Hill, Jr. (known as Hank), a student of mine at the University of Tennessee College of Law, was searching for a topic for the term paper I had assigned in my environmental law course. Shaggy-haired, built inside and out like one of those cherry bombs sold surreptitiously at stands on the highway south of the river, and raised at the base of Lookout Mountain, near Chattanooga, Hank was bright and pugnacious. One afternoon he came to my office with a question. That past summer, he said, he had often socialized with a raucous bunch of graduate students who were studying fish biology under an eminent and equally feisty UT scientist, ichthyologist David Etnier. Hank’s friends told him about a discovery that Etnier and his doctoral student Bob Stiles had made on the second Sunday of August 1973. They were wading along the shoals near Coytee Spring, on the Little T, when Etnier, wearing an underwater face-mask, peered between some cobblestones and grabbed a dappled, tan-colored, two-inch fish. Etnier called out to Stiles to come over and look. “Here’s a darter that’s never before been identified,” he said. “They probably lived in other stretches of big river around here, but they’ll all have been killed off now by the dams. We’ll have to see, but this little fish looks like she’s going to be a new endangered species.”
Back in the lab, Etnier confirmed that the fish he’d caught belonged to a previously unknown species of perch. Because the fish liked to feed on tiny river snails, Etnier and his students started calling their find a snail darter. After more study, they determined that the fish had a three-year life- span and estimated that the population in the Little T—and nowhere else—was 25,000.
Hank described to me what his fish biologist friends had found. “The Endangered Species Act had some teeth added to it last year,” he said, “so an endangered fish might be able to block Tellico Dam. Do you think that’s enough for a 10-page paper?”
I said yes, I thought it was.
President Richard Nixon had signed the Endangered Species Act of 1973 into law the year before, on December 28th. Hank was right: His research showed that the bill offered a new approach to building a case against the dam, in effect extending protection of endangered species to the ecological habitat on which species depend.
Hank’s research on the Endangered Species Act’s legislative history unearthed evidence in the Congressional Record and committee reports that most legislators assumed they were voting to protect eagles, whooping cranes, and such, but a few had said more than once that the law should prohibit the harming of any species and be strictly enforced against federal agencies. The more Hank and I mulled over the Endangered Species Act, the clearer it became to us that killing off the darter would be a violation of that law.
Given the spirit of the times, an idea like that couldn’t remain just an academic notion, dispatched in a law school term paper. My mentor, Joe Sax, the nation’s preeminent environmental law professor, then teaching at the University of Michigan, had visited UT recently and urged students to put their ideas to work. If a chance arises to put the law and your legal analysis into action on something important, he had said, you go for it.
By late September, Hank and I, along with a couple of bemused volunteers from several UT departments and the law school, decided that we had the law and scientific facts necessary for a legal campaign to stop the destruction of the darter and its river. Nevertheless, we worried about how to proceed, wondering what prospects for legal victory could be expected of a student with a shaky grade point average and an untenured freshman law professor. The best course, we reasoned, would be to give all the evidence we had to the Department of the Interior, and let the department enforce the law against the TVA. To back us up, we would need a national environmental group with money and legal staff that could jump in if necessary and bring the case to court.
The Department of the Interior declined to move on the issue, so for several weeks we sent out pleas to national organizations to take on this mission. Although the Environmental Defense Fund had paid for and staffed the farmers’ earlier environmental impact litigation, that group said it had no more time or resources to give. The National Wildlife Federation also reviewed our legal and biological arguments and concluded that the chances of winning such a case were slim.
The battle for the fish and the river, we realized, would have to be a local production.
Hank and I took our case to the remaining members of the Association for the Preservation of the Little T—the group that had been fighting the dam since the 1960s. Hank was a native Tennessean, but he was studying at a university that many regarded as left-wing. In my Earth shoes and turtleneck, I could be pigeonholed as the Northern academic carpetbagger that I was. Even so, about two dozen people were gathered in the small log blockhouse of the old fort above the river, most of them farmers. Over a potluck dinner, we explained our idea to sue the TVA under the Endangered Species Act. The group reacted with raised eyebrows.
“That’s it?” Nell McCall’s husband, Asa, asked us skeptically. “All these years talking about the land and the river, and now it comes down to a bitty fish?”
Tubby Hammontree, another farmer, said ruefully, “It’s gotten so most people in this area think of any of us farmers still staying on the land as an embarrassment. They look down at their feet and shuffle, and they say, ‘So much is gone already, why not just take TVA’s money and let them get on with it?’”
Jean Ritchey said, “Nothing is simple when you’re dealing with TVA. And I don’t trust those other agencies either. They’re all political, ever’one of them.” She shook her finger for emphasis as she talked. Beside her, her husband, Ben, and their three grown daughters nodded in agreement. They lived on a little plateau, back from the river, in a typical eastern Tennessee single-story clapboard farmhouse with a sway-roof porch, farming 120 acres. The TVA planned to flood only two or three of those acres but was set on taking them all.
And then there was the two-inch fish. “Isn’t everyone going to say it’s ridiculous, using a little fish like this against the dam?” someone asked.
No one that night talked about saving the fish for its own sake, as a fragile creature of God or an ecological rarity deserving protection. No one in that group would have stepped up for more years of painful effort if the Tellico project had made economic sense and the fish alone had been at stake.
What united them, in the end, was their attachment to the land, their love of the river, and their anger at TVA. And so, after much hesitant discussion about the wisdom and consequences of using the legal argument that Hank and I had proposed, the farmers, battle-worn after a dozen years of fighting, decided nevertheless to launch one final push to block the dam and its real estate development project.
The suit was not to be Tellico Farmers v. TVA, though. “Don’t get us wrong,” Alfred Davis, one of the farmers, said. “We’ll back you hard. We’ll travel to Nashville and all the way to Washington to help you make the case. We’ve done that before and we’ll do it again. You can count on us. But people around here will say it’s wrong for us to be suing TVA again ourselves—getting a second bite at the apple.” Thus the lawsuit we would launch into the federal court system would be Hiram Hill, Zygmunt Plater, and Donald Cohen [another volunteer from the University of Tennessee Law School] v. TVA.
We began by petitioning the U.S. Fish and Wildlife Service within the Department of the Interior to add the snail darter to its list of endangered species—a necessary step for our claim that the Endangered Species Act was being violated. This was accomplished on October 9, 1975, after much internecine wrangling, pitting Interior department staff against their own higher-level administrators; against Ray Blanton, the governor of Tennessee; and against members of Congress in both houses and on both sides of the aisle, notably Howard Baker, the Republican Senate minority leader representing Tennessee, and John Stennis, a Democrat and the senior senator from Mississippi. Stennis chaired the Committee on Armed Services, whose purview included the Army Corps of Engineers. He worried about the snail darter’s status creating a precedent, with the Endangered Species Act seen as a potential threat to the Army Corps of Engineers’ Tennessee-Tombigbee Waterway, a multibillion-dollar public works project, the biggest in the Corps’ 200-year history.
Ultimately, the snail darter was able to trump these powerful opponents because of a tactical error by TVA. Biologists for the corporation began capturing snail darters and transplanting them to other rivers, thinking that if they could show the fish surviving elsewhere, the species couldn’t be considered endangered. The TVA was taking the position that it had no duty even to discuss the matter with Interior and could do whatever it wanted with darters from the Little T. Hearing this infuriated Interior officials, who promptly moved the snail darter to the endangered species list.
Getting the endangered species designation opened the door once again to the federal court system. In 1976, Donald Cohen, Hank, and I, along with a few UT student volunteers, launched our suit for an injunction against TVA before the only federal judge in the Eastern District of Tennessee, Robert Love Taylor—a judge whom TVA appraisers once described as “our own.” Losing there, we took our case to a panel of three judges serving the federal appeals court in Cincinnati—finally moving out of TVA’s backyard—and in 1977 won a unanimous victory.
At last, the issue claimed the attention of the national press, though not on its merits. “Little fish blocks big dam” made good copy, and that was as far as most print and television journalists were willing to take the story. Walter Cronkite called the case “frivolous” on the CBS Evening News. “Everybody, and I mean everybody, is making fun of your fish,” a conservation lobbyist told me.
The TVA, for its part, appealed the Cincinnati judges’ decision to the Supreme Court. I argued our case before the Court on April 18, 1978.
That June, the Court ruled six to three in the matter of Tennessee Valley Authority v. Hill et al. to halt construction of the dam—most surprisingly, with the conservative Chief Justice Warren Burger writing the opinion for the majority.
Reacting to the decision and the ensuing media hullabaloo, Congress amended the Endangered Species Act in November 1978 to create what quickly became known as the “God Committee.” The eight-member Cabinet-level team (including the secretaries of Agriculture, Interior, Army, and Transportation) was empowered to override endangered species protections wherever a formal economic analysis showed that human necessities outweighed the value of species preservation. It decided the snail darter’s case in January 1979, holding unanimously that the dam had never made economic sense. The media virtually ignored the verdict.
In the popular rendition of this story, the use of the Endangered Species Act to try to stop the dam was an act of hypocrisy: The claimants didn’t really care about the fish; they were just using it as a technicality. At least in part, the charge is easy to counter: The claimants had no choice other than the snail darter. To resist a destructive, uneconomic project, they had to use the only practical tool available—much as the FBI nabbed Al Capone for tax evasion because it couldn’t get charges of murder or racketeering to stick. There’s also the flip answer: “What good is a law if you can’t use it?”
Filing a lawsuit is about the only way a citizen without money or power can compel any kind of official process against a wrong. You pay the filing fee (at the federal court in Knoxville it was then $15), and at least that gets you an official hearing. The judge has to listen as you lay out the legal “cause of action” that you think is violated, and the critical facts that fit it. In the case of the snail darter, the legal formula consisted of the prohibitions found in Section Seven of the Endangered Species Act, which describes the special obligation that federal agencies have to protect species and their habitats. You get a hearing, and if the judge finds that the facts fit the law, you’re supposed to win.
In the end, though, the courts did not have the last word, and neither did the God Committee. Congress did. In 1979, Tennessee’s Senator Baker and other legislators friendly to the TVA quietly inserted a rider in a federal spending bill exempting the Tellico Dam from the Endangered Species Act. For that and other reasons, President Jimmy Carter threatened to veto the bill, but ultimately he did not—perhaps, it is said, because he feared popular ridicule for allowing an insignificant fish to thwart the will of a revered federal agency. And so, just a few months after President Carter signed the spending bill into law, the dam’s gates came down, turning the Little Tennessee into a shallow lake. In the years since then, right-wing pundits have invoked the misbegotten story of a trivial fish versus a huge hydro dam as an icon of environmental extremism, using it to attack environmental protections and progressive regulation generally.
Here’s what has happened in the years since the Little Tennessee River was impounded:
The holdout farm owners, including Nell McCall—who was moved out by marshals on November 13, 1979—saw their homes and barns bulldozed and burned.
The snail darter became extinct in its natural habitat in the Little Tennessee when the river became a reservoir. All the individual darters that could be netted (primarily juveniles blocked below the dam structure in their life-cycle migration) were transplanted under Department of Interior supervision, most to the Hiwassee and Holston rivers, where they appear to have prospered, although both rivers are themselves somewhat at risk because of upstream chemical manufacturing activity and in summertime have low levels of flow and oxygen, so that TVA has to install micro-bubbling oxygenation pipes in the river beds to prevent darter mortality. A small remnant population was discovered in Chickamauga Creek, near Chattanooga. In 1984 the Fish and Wildlife Service upgraded the darter’s legal status to “threatened” from “endangered.” The fish still lives under the protections of the Endangered Species Act.
When Boeing pulled out of the model city project in 1975, TVA ceased work on the plan, while continuing to tout the jobs it would allegedly create. In 1980, the TVA transferred major sectors of project land to a Tennessee land development agency with ties to local politicians. After two embarrassing years without any activity, in 1982 TVA proposed to use large portions of the valley for regional toxic waste disposal. The corporation quickly abandoned the plan in response to public outcry. In 1984 major portions of the project area were transferred directly to real estate developers, including Cooper Communities, a second-home development firm. Now much of the shore around the reservoir is lined with expensive vacation and retirement homes. A dozen businesses, including three boat builders, have located in an industrial park, at a site where the citizens’ alternative plans had also called for industrial use.
Warmed by impoundment, the waters of Tellico Reservoir have been choked by widespread algae growth and invasive Eurasian water milfoil and hydrilla. The reservoir’s bottom sediments have accumulated toxic pollutants from upstream hydroelectric generators. Barge freight traffic is nonexistent. Flood control benefits and electric power generation have been minimal. Belatedly acknowledging that the Tellico Dam could not survive a maximum probable flood, as citizens had previously argued to no effect, in 2011 TVA installed extensive sand works to keep the insufficiently designed dam and levees from failing under the strain of high water.
Despite the fears of some environmentalists during the snail darter battles that the Endangered Species Act would suffer from a political backlash, the law doesn’t appear to have been weakened by the case. Paradoxically, it may have been made more credible as a result of the extreme test put to it by the snail darter case and the injunction upheld by the Supreme Court. Developers continue to take the law and its stringent requirements seriously.
Last spring, the Obama administration announced that it would conduct a strategic review of TVA with an eye to selling the corporation as part of a plan to trim the national debt. “Reducing or eliminating the federal government’s role in programs such as TVA, which have achieved their original objectives and no longer require federal participation, can help put the nation on a sustainable fiscal path,” according to the administration’s 2014 budget proposal.
David Etnier, who discovered the snail darter, is now an emeritus professor of ecology and evolutionary biology at the University of Tennessee. His book, The Fishes of Tennessee, coauthored with Wayne Starnes, was published in 1993.
Hank Hill practices law in Chattanooga. Specializing in criminal defense, he “handles all charges ranging from DUIs to capital murder,” according to his website. In the early 1980s he sued to block demolition of an old railroad bridge in Chattanooga so that it could become what it is today, a flower-bedecked pedestrian bridge.
Silos still jut up here and there from the shallow waters of the Tellico Reservoir.
Zygmunt J. B. Plater is a professor at Boston College Law School, where he teaches courses on property and environmental law. He is the author of The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River (2013), from which this article is drawn and adapted by permission of Yale University Press (copyright © 2013 by Zygmunt J. B. Plater).