A Retrospective on the Snail Darter and the Little Tennessee River Valley

(11:00PM EST – promoted by Nightprowlkitty)

Who Remembers the Snail Darter case?

Or the Crazed Rabbit that attacked Jimmy Carter’s fishing boat in the 70’s?

This is the tale of the tragic flooding of the Valley of the Little Tennessee River, the heroic folks who fought the TVA action, the creative lawyers and law students who won the precedent setting supreme court decision, the brave settlers whose farms were taken and the stoic Native Americans whose homeland it was before – and the roles of the snail darter and the crazed rabbit.  And how it all comes down to – you guessed it – politics.

I meant to write this a couple weeks ago, but got distracted by my own environmental activism, Sierra Club monthly and quarterly meetings, showing William McDonough’s great film the Next Industrial Revolution, Earth Day events, lobbying in the state legislature for an increase in the coal severance tax, and an on-site with some other activists and OSM of a mountaintop removal site.  

I originally thought I might tie this up with a message about activism to effect change.  Don’t know that I’ll make it to that point, as I am certainly demoralized recently about my own local efforts. And am ready to take a break in my garden for the summer.  Maybe that’s change enough . . .

But the story of the snail darter case is a great one . . .

Friday April 18 was the 30th anniversary of the argument in the United States Supreme Court in the legendary snail darter case.  Wikipedia has a good article that gives a detailed background here.  

UT Law School hosted a symposium: TVA vs. Hill: A 30 year Retrospective on the Legendary Snail Darter Case.  You can read about it here.  Be sure to read the article by Professor Zygmunt Plater linked there and  here.

There were panels throughout the afternoon with lot’s of the major participants.  It was great.  The most enjoyable CLE credits I’ve ever earned.

The Timeline handed out at the symposium started with the tectonic uplift creating the Smoky Mountains and the Little Tennessee River in 200,000,000 BC, through the Woodland Indian habitations 15,000 years ago, the white settlers in the 1700’s, the creation of TVA in the 1930’s and proliferation of dams over the next two decades to the announcement of the Plan for the Tellico dam in 1959.

The plan was not for hydro-electric production, as many people now imagine – but for another TVA recreation lake and landside development.  A $120 million project, for the purchase of 38,000 acres, less than half of which was to be flooded.  The land was condemned for resale at a profit to pay off the cost of the project.  25,000 of those acres were prime agricultural farm land.  More than 300 family farms condemned – for an algae-laden lake.  ( I remember swimming in TVA lakes as a teenager.  I always came out covered a thin slimy green film.)

Folks living in the valley began to be approached by TVA  about selling their farms.  A few stalwart families held out and joined with some conservationists to begin the fight against the dam.  One of the panelists said that of her 160 acre farm eventually lost to TVA, only 3 acres were actually flooded.  The rest was for shore line economic development.

In 1970, the National Environmental Policy Act (NEPA) became law.  The Environmental Defense Fund and Association for the Preservation of the Little T filed a NEPA suit and obtained an injunction stopping work on the dam until TVA completed an EIS.   The EIS was completed in 1972 and failed to adequately address alternatives.  In May 1973 the injunction was lifted and work resumed on the dam.

On August 12, 1973 Dr. David Etnier discovered a new species of fish, the snail darter at Coytee Springs on the Little T.  On December 28, 1973 the Endangered Species Act (ESA) was signed into law.

In October 1974, law student Hank Hill proposed a term paper to his professor Zygmunt Plater: Tellico as a violation of the ESA.

Both Hank and Zyg were fly fishermen.  Hank grew up loving to fish the Little T.  Zyg had had not the heart to fish it during his years in Knoxville, knowing the river and valley were set for destruction.  But Hank’s theory gave him hope and at the retrospective symposium, they both recounted a great day fishing and reconnointering the river.  They had hope they could save it. And they almost did.

In 1975 the snail darter was put on the endangered list with a critical habitat designation, thanks to the efforts of the citizens involved and over TVA objections

They filed the ESA case in the Eastern District of Tennessee in 1976.  The district judge promptly dismissed it, but in 1977, the Sixth Circuit Court of Appeals in Cincinnati reversed the district court and enjoined further construction.  TVA applied for certiorari to the US. Supreme Court and the court granted cert.

Zyg Plater remembered the key point in the argument April 18, 1978: a question by chief Justice Burger, good Republican that he was and hardly the one to figure in as the saviour of the lowly snail darter. Burger was concerned that the project had already been started and a considerable sum of public money spent.   Professor Plater used language from one of Burger’s own opinions to remind the chief justice that he had said  in Rondeau v Mosinee Paper v. Corp. that the courts have the “full panoply” of equity powers to enforce the laws of Congress.

Burger’s opinion came out June 15.  TVA vs Hill, 1978 United States Supreme Court, 437 U.S. 153, the landmark decision on the Endangered Species Act.:

“It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of extant species would require the permanent halting of a virtually completed dam for which congress has expended more than $100 million . . .

One would be hard pressed to find a statutory provision whose terms were any plainer than those of §7 of the Endangered Species Act.  Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence’ of an endangered species or result in the destruction of modification of the species. This language admits of no exception.  Accepting the Secretary’s determination, as we must, it is clear that TVA’s proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species. . .

Having determined that there is an irreconcilable conflict between the operation of the Tellico Dam and the explicit provisions of  §7 of the Endangered Species Act, w must now consider what remedy, if any, is appropriate.  It is correct, of course, that a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of the law. [But] once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them . . . We agree with the court of Appeals that in our constitution system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with’common sense and the public weal.’  Our Constitution vests such responsibilities in the political branches.  Affirmed.”

437 U.S. 153

It could not have been a better decision!  So what happened that the dam was eventually completed and the Little T Valley destroyed?

As plaintiffs Hill and Plater relayed at the symposium, it all came down to politics in the end. The Tennessee Congressional delegation, including freshman representative Gore, had never gotten behind those Tennessee citizens fighting the dam.  From the Plater TBA article:

The Darter Icon in the Press and Politics. Ultimately the pork-barrel coalition in Congress, with a rider pushed onto an appropriations bill by Rep. John Duncan and Sen. Baker, overturned the ESA’s protections for the darter,[18] and President Jimmy Carter retreated from his promised veto of the bill (which also had prohibited economic analysis of water projects by the president’s water resources council). After 200 million years, the river ended on Dec. 29, 1979.

The critical failure in the darter’s final defense probably lay with the inability of the citizens to bring public recognition to the dramatic real economic merits of the darter’s case and the dysfunctional economic demerits of TVA’s dam. Before the rider vote, every Member of Congress was given a personal letter from Secretary of Interior Cecil Andrus, chair of the economic review ordered by Congress that had unanimously decided against the dam. But although every member knew of the Tellico Dam’s economics, they also knew that the American public did not know, so the pork barrel was free to roll. And the president was told by his political liaison, Frank Moore, that he could not withstand the ridicule a veto would receive from the press and public opinion that viewed the snail darter as an economically irrational, environmentally extreme technicality.

And so it was. With Sen. Baker’s assistance the congressional pork barrel was able to roll, and even the president of the United States was dissuaded from asserting the economic merits by the media mockery of the case.

Despite the law and despite the economic record, in other words, the darter’s last major natural population and its river were ultimately lost because their national political opponents were successful in framing the case in the public eye as an icon of foolishness, the caricature that still continues in press commentary and political discourse today

Now you know the role of the crazed rabbit in this sad saga.  Professor Plater told us that, incredibly, then President Jimmy Carter, on the night after he decided he could not veto, called him, the professor plaintiff, to apologize.  They had counted on his veto.  He knew it was the right thing to do.  But he told Zyg Plater that the subcommittee chair just would not let him do it.  The President of the United States.  A man we now know to have much courage, much honesty and truthfulness in his post presidency.  But he had been subjected to ridicule already by the media earlier (I think) that summer, and certainly portrayed as weak by the media throughout his presidency that he just did not have – or his advisors did not think he had- the political capitol to do what he knew was right.

So we see the media’s role even in the 70’s was to thwart justice and the truth. It’s gotten much worse since then.  And now we really don’t have many courts that respect the Constitutional separation of powers, and not the majority on our Supreme Court.

What does this portend for the future?  How do we have the “umph” to fight for what we know is right for our country – and for the planet and all the species on it?  In the face of a ridiculing media – and nowadays a complacent public, greedy corporations, and an evil adminstration and spineless corrupt government?

When I left the UT symposium that day three weeks ago, I was kind of jazzed. It had been a thrilling day.  The lawyers, activists, the folks who had lost their farms were all inspiring.  They all said if given the choice they would do it all over again.  Though with some forknowledge about trying to work the politics better.

But they knew – and know – that it was a righteous fight.  And somehow they had strength there that day, in the retrospective gathering, declaring their will to fight again if need be.  And TVA’s plans for the valley have never really materialized.  There was no great economic boom, no great industrial park.  There was no need for another recreational lake. (As I’m writing this, I just got off the phone with a friend who is a fishermen, who grew up in Chattanooga.  I asked him about whether he had ever fished the Little T.  He said just once, but immediately said it was one of the great troutfishing streams in the southeast, crystal clear waters, that his father had worked for TVA and had always thought the flooding of the Little T was a mistake.)

At the symposium, I had the honor to sit for much of the day next to one of the panelists who had come down to represent the Cherokee heritage part of the story. Except for the time on the panel when he was telling his story, he was pretty silent throughout, almost stoic.   The flooding also took Chota, the old capitol of the Cherokee, as well as Tuskegee, the birthplace of Sequoyah.

As Sygmunt Plater says, from the UT snail darter website:

That wasn’t exactly the end, because enviros are such bad losers, they keep on trying. The Cherokee Indians had been working with our coalition right along, so then they filed a constitutional lawsuit against the dam based on violation of Native American religious rights (Congress can’t amend away constitutional claims). But the Cherokees’ appeal came up one vote short in the 6th circuit, the Supreme Court denied our petition for certiorari, and the river finally died. David Scates tells a sad story, of watching as the water came up. There was a budding rosebush at the edge of the river as the impoundment backed up, and as the sunlight filtered down through the two feet of cold clear water that had drowned it, for the last time its flowers blossomed, staying there for a few days, under water. He told us, ‘I cried, seeing the blossoms open under the water as it came up.'”

A clear glass vase, filled with fresh water and a smallish fish over what look to be miniature farm silos, and a lovely red rosebud on top were the symbol for the retrospective.  It was a fitting symbol for lovely day.  I can’t help thinking that with the reversal of dams out west as a prototype, maybe someday those ancient Cherokee and Native American sites will once again see the light of day.