Who Remembers the Snail Darter?Or the
Crazed Rabbit that attacked Jimmy Carter's fishing boat in the 70's?
Friday April 18 was the 30th
anniversary of the argument in the United States Supreme Court in the
legendary snail darter case. UT Law School hosted a symposium: TVA vs.
Hill: A 30 year Retrospective on the Legendary Snail Darter Case
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
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
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
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
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 extant 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, we 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 are, 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, 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."
And so 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
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
But they knew- and know that it was a
righteous fight. And somehow they had strnght 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.
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
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.