Learn more now on The Wide Open Episode 02: Hell or High Water.
It’s 1974. The year after the Endangered Species Act passed. And, in Knoxville, Tennessee, a law student named Hank Hill feels lost in a sea of suits
Hank Hill: They all wore coats and ties back then. I didn't. I came to school the first day in red, white, and blue bell bottoms.
Hank grew up in Tennessee, but he had a bit of a rebel streak. One of his professors - who you’ll meet in a bit - told me he’d skip class to go pick psychedelic mushrooms out of cowpies.
In law school, Hank is grappling with this essay he has coming up in one of his classes. And one night, he’s venting about it with a buddy over some beers.
Hank Hill: I was gonna do a term paper in environmental law on the First Amendment, impact of nuclear power proliferation. And this friend of mine said, what in the hell are you talking about? Why would you do that?
There was a big movement afoot to save a local river — the Little Tennessee — from a dam that was being proposed. Hank loved that river, and the dam would leave a big muddy lake in its place. He didn’t want the thing built.
Hank’s buddy just so happened to have a professor who’d recently made a discovery while surveying the river: this itty bitty fish. It was in the perch family, a fish called a darter. If you scooped it up in a net, you’d probably mistake it for any other two-inch minnow you could pull out of near any other lake in the country. But this little darter had a few little strips of darkness on its back, like saddles. And that professor was convinced this place–about to be changed forever by the dam was the only place in the world it lived.
Hank Hill: It used to be everywhere until TVA dammed every single river except the last 30 miles of the little Tennessee.
And the same year that biologist stumbled across that darter, this little-known law got passed: the Endangered Species Act. So Hank gets those beers with his buddy, and then he gets to wondering — could the ESA work to stop the dam?
Hank Hill: Oh my god — this fits!
The battle that Hank’s little idea for his term paper would start would set off a cascade that starts in this little stretch of river and winds up in the highest court in the country — and beyond.
This is The Wide Open. I’m Nick Mott. The Endangered Species Act has become one of the most contentious pieces of legislation on the books. And battles on both sides over the survival of grizzlies, wolves, even fish are largely waged in the judicial system. This time, the Endangered Species Act goes to court: a legal saga sets the stage for the endangered species conflicts we have today.
Tellico Dam
TVA Video: This is the Tennessee Valley… cradled by the ranges of the Unaka, the Iron, the Blue Ridge, the Great Smokies, the ranges of the Great Southern Appalachian Highlands. In 40,000 square miles, it spreads over portions of seven states.
This is a promotional video for the Tennessee Valley Authority, or TVA—they’re a government agency who proposed that dam on the Little Tennessee River. The Tennessee River system in its natural state, the video says, was unruly and unpredictable. It needed to be tamed. And by the 1930s —
TVA Video: A great depression had descended upon the people of the Tennessee Valley, as it also descended upon the nation.
So as part of the great public works programs that spanned the country as part of the New Deal, TVA sprang into being. The agency, focused mostly on generating power, would bring jobs, wealth, and electricity to the region. And the primary way it would do that was building dams.
TVA Video: For the first time in history, a single federal agency has been given responsibility for developing all the natural resources of a region with a unified purpose
Fast forward a couple decades. By the end of the 1950s, TVA didn’t have much left that it could dam. They’d put in nearly 70 along the Tennessee River system. All that was left free-flowing, in its natural state, was those thirty miles of the Little T. And that stretch of river meant a lot to a lot of people.
The ancestral homes of the Cherokee nation were on the banks of the river, along with hundreds of archaeological sites in the area. Tribal leaders had been born, and were still buried there.
It was an area of immense natural beauty. For anglers, it held the best trout fishing east of the Mississippi. And that abundant water and fertile soil made life possible for hundreds of farmers. Like Carolyn Ritchey and her family.
Carolyn Ritchey: It was 119 acres on a small plateau about a quarter of a mile from Jackson Bend in the Little Tennessee River.
Her family ran a small herd of beef cattle, had a little tobacco patch, grew corn, oats, wheat, alfalfa, even got into soybeans.
Carolyn Ritchey: We liked our way of life. We didn't know anything else. We probably were what some people would call poor, but we didn't know it.
Carolyn remembers one morning, back in first grade. Her family was gathered around the breakfast table, her mom reading the paper, gossiping back and forth with her father about the news. And that particular morning, she remembers a headline that would shape her life for nearly the next two decades.
Carolyn Ritchey: it was 1961 and it was on the first front page of the Knoxville News Sentinel
The article said TVA wanted to build one more dam, the Tellico Dam. It would be a massive project, on that last stretch of free-flowing water on the Little T that would change the lives of Carolyn and hundreds of her neighbors.
Carolyn Ritchey: This project took, eventually, we found out 38,000 acres, 16,000 was gonna be a reservoir. That's 22,000 extra acres beyond the reservoir.
The Tellico Dam would force nearly 350 families off their land. And Carolyn’s family lived in that sprawling area that TVA wanted to raze. The dam wouldn’t generate any electricity itself, though a small bit of water would get sent to another dam that did. Instead, it would create a reservoir. And around it, TVA would contract with developers to build a city that could attract industry to the area.
Carolyn Ritchey: It's gonna be residential, recreation, and industrial. So they're gonna take our land for nothing and resell it for mega bucks, and that's gonna be part of the benefit cost ratio.
From the beginning, Carolyn’s family decided to fight.
Carolyn Ritchey: They were gonna take my community. They were gonna ruin where I lived, and they were gonna dam the little Tennessee river and ruin everything I knew. And I didn't like that one iota of a bit.
And fight they did. In the years that followed, appraisers came to the door. She says they were mean men. Trained to be bullies. And her folks told them, only marginally more politely, to eff right off.
Their first line of defense was the legal system. Banding together with other farmers fighting the project, they managed to get a 16-month stop order on the dam using the National Environmental Policy Act. They claimed TVA hadn’t analyzed what damming the river would mean for the ecosystem. But TVA coughed up the right environmental paperwork, and got the okay to proceed.
Work resumed on the dam in 1973, the same year a piece of legislation called the Endangered Species Act quietly made its way through Congress. And a University of Tennessee biology professor found a little fish in the Little T that didn’t exist anywhere else in the world.
It’s also the same year that rebellious law student Hank Hill’s professor, Zyg Plater, started at the University of Tennessee.
Today, Zyg’s freshly retired from more than 40 years teaching law at Boston College. His career put him on the frontlines of some of the biggest environmental disasters of the last several decades, like the Exxon-Valdez and Deepwater Horizon oil spills. But back then, he was not long out of law school — actually not even that much older than Hank — and he was entranced by this new field: environmental law.
Zyg grew up on a mountaintop in Pennsylvania. His dad was a Polish diplomat.
Zyg Plater: My father had this feeling that land and forests and rivers were eternal. And humans had to adjust to that, instead of conquering it.
When he was young, he’d fallen in love with fishing a little stream at the bottom of that hill where he’d grown up. But Philadelphia started dumping some of its waste outside the city. Toxins seeped into that little stretch of water he’d come to love.
Zyg Plater: It just wiped out the stream. It just, everything in it was killed. All you have to do is lose once, and it's gone. You have to keep on winning.
When Zyg moved to Tennessee, he’d heard about the beauty and world-class trout fishing on the Little T. But to him, the Tellico Dam was the equivalent of a toxic waste dump, about to be released. It would change the ecosystem there forever. Here’s Hank Hill, his student, again.
Hank Hill: He had chosen to never fish the Little T. And Zyg’s the ultimate fly fisherman.
Zyg didn’t want to risk falling in love with the clear waters of the Little T, just to lose them to the dam. But then, Hank came to Zyg with this idea about his paper
Zyg Plater: He said, you know, I've been thinking about this paper. Do you think the fact that the Tellico Dam may violate the Endangered Species Act is enough for 10 pages?
Hardly anybody understood the power of ESA at the time. So Zyg read the law. And when he did, he had a flash of inspiration. Unlike other environmental laws, the ESA had teeth. If that little fish — the snail darter — gets listed under the Endangered Species Act, they could sue. And they could stop the work in its tracks. So in that conversation with Hank, Zyg suddenly realizes the potential here. The idea — it had legs that could go way beyond a term paper. Zyg tells him, "yes, I think it's enough for 10 pages".
Hank’s idea showed Zyg that the river wasn’t done for. Not yet. At the end of that conversation, Hank remembers,
Hank Hill: He said, come on, get your fishing rod. Let's go fishing. We went, we fished a Little T that day.
Zyg Plater: Once I had hope, then started fishing it a lot.
Along with the fishing, the two started planning.
The idea was: the ESA allows citizens — regular folks, like you and me — to petition the government to get species listed. And also to sue the government when it’s not enforcing the law.
But before Zyg and Hank could do any of that, they needed to get those farmers that had already spent over a decade fighting the dam on board. Hank arranged a meeting with an organization called the Association for the Preservation of the Little T. Zyg, an intellectual from up north, stood out like a goldfish among trout. Even his clothes were out of place.
Carolyn Richtey: I'd never seen anybody quite like him. He wore penny loafers and he wore turtlenecks. I'd never seen a man wear a turtleneck.
Zyg Plater: I mean I was a northerner. was wearing, God help me, Birkenstocks with a turtleneck. But Hank, he was genuine Tennessee.
And that — Hank’s authenticity — was their saving grace. The farmers were on board. The goal was to save the river. But the means focused on just one of its inhabitants: the snail darter. They took a hat and passed it around the room. They raised enough money to file a lawsuit.
Carolyn Richtey: This little fish, we all rallied behind that little thing thinking, ‘oh, please let it be something that's gonna turn into something that's gonna be something big,’ it was all we had left to hang on to because they were gonna have this dam come hell or high water.
In October 1975, the snail darter made the endangered species list. Zyg and Hank filed their lawsuit. Hank was still in law school, but he was listed as lead plaintiff. Zyg was just as new. When he ventured into the District Court in Knoxville appearing before a judge that was, in his mind, in the pocket of TVA, it was the first time he’d argued in an actual courtroom.
In that first step of the snail darter’s long journey, the fish — and along with it Zyg and Hank and Carolyn and the other farmers — lost. But, that’s what they expected to happen.
As they waited for the higher court to decide whether to take up the case, TVA sent construction into overdrive. Zyg calls this a ‘sunk cost’ strategy: The farther along the project is — the more money spent, the more trees felled and earth moved — the sillier the fish will look in comparison.
Carolyn Richtey: It was humiliating, devastating, heart wrenching. They denuded everything and they either burned it or buried it. It was like living in a war zone and your own country was the one that was warring against you, your own political people, your own government. It was horrendous.
But as construction crews worked away, razing the earth, opponents of the dam walked along the banks of the Little T, planting willows. In their minds, bringing it back to life.
The battle for the Little T was just beginning.
The Supreme Court
It’s 1976, and Zyg, Hank, and the gang are hanging on for dear life to a legal roller coaster that would bounce them back and forth from courtroom to DC to tv cameras for the next two years. Zyg, in particular is ricocheting across the country — He’s been fired from his job at the University of Tennessee because of his snail darter activism —
Zyg Plater: It’s as close to a nervous breakdown as you could get. I couldn’t even fish for trout.
But he’s found another professor gig, this one in Detroit. He and Hank and the rest of the legal team are raising money by selling ‘save the snail darter’ t-shirts.
Their appeal’s been accepted. And a panel of three federal judges in downtown Cincinnati is hearing Zyg and Hank’s case, with the fate of the river, Cherokee history, and dozens of farmers like Carolyn on the line.
And now, he’d moved the case away from TVA’s turf. This time, Zyg’s optimistic. TVA’s arguing that the dam is almost done, and that the law was never meant for something like a silly fish to stop such a massive project. Zyg said their lawyer’s argument was essentially —
Zyg Plater: He said, “your honor this is a ridiculous case.”
To Zyg, the language of the ESA is clear. As he’s making his argument — that the dam will destroy the only known habitat of the snail darter and ensure its extinction — he notices something promising. A judge is diligently scribbling away on a pad of paper. He’s taking notes; he’s taking the fish seriously.
A couple months later, the decision comes out. Zyg’s won — all three judges have decided in favor of the snail darter. And he also gets a tip from one of the court’s clerks. That judge who seemed so engaged wasn’t actually taking notes. Instead, he was writing a limerick. Zyg, of course, still has it more or less memorized.
Zyg Plater: “Sing ho to the lowly snail darter. The fish that would not be a martyr. He effed over that dam in the waters he swam. Can you think of a fish any smarter?” And I was happy with that,
TVA appeals. Suddenly, the snail darter’s threat to the dam is poised to be the first endangered species case to go all the way to the Supreme Court. Zyg was getting backlash not just from industry, but from environmentalists who would otherwise be allies. He remembers a colleague in one group telling him —
Zyg Plater: This is going to bring all kinds of hell fire down on us. And furthermore, it's going to hurt the Endangered Species Act. We want a bald eagle, right? Or a whooping crane. And that's true.
The law, so new, was making a splash over a tiny fish. So suddenly, it’s not just the river on the line for Zyg. If he fails, it could poison the future of the entire law, of the ESA.
You know, everybody was thinking we want to have a photogenic endangered species for the first case that goes all the way up.
The case — little fish versus big dam — looked absurd to outsiders. And he gets accused of using the darter itself as a tool not to stop extinction, but to stop a dam.
Zyg Plater: People ask us if we're hypocrites. You know, what we really care about is just this river valley. We don't care about the snail darter.
This is from an interview back in those snail darter days. Zyg’s clean-shaven, tall and skinny, with bushy hair and a blue polo shirt.
Zyg Plater: The snail darter, as best we can understand, used to live throughout the eastern river system of Tennessee. That is to say, it lived throughout all these rivers. And one, by one, by one, by one, as these rivers were destroyed, so was the snail darter. The fact that that fish lives here and only here in this river is like a biological warning flag.
For Zyg, the darter IS a tool. But it’s the only one left in the shed. He looks at it like this: he used the Endangered Species Act to stop a dam in the same way the government ended up putting away the gangster Al Capone on his taxes, rather than murder or theft or bribery.
News Clip: The Supreme Court has agreed to hear what has become a classic example of the conflict between environment and development.
One April day in 1978, Zyg finds himself arguing the first court case of his life in front of the highest court in the country, with the future of hundreds of families and the river he loves at stake. He needed all the luck he could get. Zyg had served in the Peace Corps in Ethiopia. And whenever he was gonna go on a particularly hard hike, he’d wear this bright pair of green, polyester boxer shorts.
Zyg Plater: I found the lime green boxer shorts and I was wearing those. Plus I was wearing a snail darter t-shirt under my white shirt. I think I'd even reversed it. So it didn't shine through. I tell you, being superstitious is not a sign of silliness, I think. It's sometimes part of what helps you gird your loins. And in this case, my, my loins were lime green polyester girded
To me, Zyg’s superstition makes sense. Zyg’s entire courtroom experience was arguing this case; just getting here, to the highest court in the country. And the US Attorney General was arguing for TVA. In terms of power, resources, and experience, Zyg was outmatched.
And the proceedings start:
Supreme Court: We'll hear arguments first this morning in Tennessee Valley Authority against, uh, Hiram J. Hill.
Zyg Plater: The mood of the courtroom made a difference and the mood in the courtroom was, Oh God, these guys shouldn't be here. Why did they bring this case?
A big part of TVA’s argument throughout has been — this project is more than 90 percent done. There’s a big structure spanning the river. They just need to drop some gates to sever the connection. They’ve already spent 100 million dollars on the thing. The Endangered Species Act shouldn’t be used to stop a project that’s already nearing completion.
And the Attorney General — a Georgian with a booming Foghorn Leghorn voice named Griffin Bell — also tries to highlight the absurdity of the whole affair. He’s brought a snail darter in a jar to the courtroom, and he holds it up for all to see.
Griffin Bell: I have in my hand a darter, a snail darter. It was exhibit seven in the case, uh, when it was tried. And, uh, we brought that with us so that you could see. It's a three inch. This is supposed to be a full grown. A snail daughter, about three inches in length.
Judge: Is it alive?
Griffin Bell: I've been wondering
This makes Zyg nervous. Argument’s aside, Zyg says it’s a bad omen your opponent gets that kind of laugh in court. And this is part of the same strategy Zyg’s opponents have been using since the start. They want the darter to look tiny. Ridiculous.
Zyg Plater: Twice, there was this big laugh against the little fish. And, you know, when you're on your feet and arguing a case, to have the courtroom laugh at your opponent is gold.
Zyg gets up to deliver his part of the arguments.
Justice: What purpose, uh, is served, uh, if any, by these little darters? Are they, are they, uh, are they used for food?
Zyg Plater: No, Your Honor. Um, For fertilizer? When Congress passed the law, it made it clear that the purpose of the act was to prohibit the extinction of species for a variety of reasons. One of them is where there was a food value and a direct economic value. Others for scientific study and a philosophical question that indeed a species should not be eliminated.
So Zyg’s saying that we might avoid extinction for economic, or philosophical reasons. But his argument for saving the snail darter is something different. It is the proverbial canary in the coal mine. Its demise shows the havoc we’ve wrought on a watershed.
Zyg Plater: it is highly sensitive to clean, clear, cool flowing river waters. And after 68 dams through the TVA river system, 68 of them, one after another, The range of the snail darter has apparently been destroyed one by one until this last 33 river miles is the last place on Earth where the species, and human beings as well, have the qualities of the habitat.
Justice: It's the last place that's been discovered, I take it.
Zyg Plater: Your Honor, TVA has looked everywhere for snail darters.
Zyg Plater: Maybe the turning point in the case was when I got a laugh.
Zyg argues that the language of the Endangered Species Act is clear. The government can’t take an action that jeopardizes a protected species. The facts are on his side: lower court judges had agreed that the Tellico Dam would obliterate the only known habitat of the snail darter. If it closes its gates, all signs point to extinction.
The meat of his argument is all about the separation of powers. The court should enforce the law. If this seems like a ridiculous case — which, by the way, it’s not, he says — it’s not for the court to decide. That should go to Congress.
The arguments wrap up.
Zyg Plater: I haven't slept for two days. But I also feel this joy of optimism. Hank has just heard that he's passed the Tennessee Bar. And so that's great. And so the students are jumping around. We whooped ‘em. We got ‘em.
He goes outside and there are the flashing bulbs of the press, and the mood is celebratory. But he still needs to wait for the decision. And a couple months later, it arrives.
On a 6 to 3 vote, the Supreme Court decides in favor of the snail darter. Because of this little fish, dam construction has to stop, even though it’s about 90 percent done. Chief Justice Warren Burger read the decision.
Warren Burger: In our view, the Congress has, wisely or not, decreed that the endangered species have priority over even a multi million dollar dam.
This case that started with a barroom conversation, and funded by t-shirt sales, has prevailed against the power of the federal government.
News Clip: Today, in what may be the Supreme Court's strongest endorsement yet for environmental protection, the snail darter prevailed.
They’ve taken the case to the highest court in the country and — at least for now — stopped the dam.
Supreme Court: Our Constitution vests all such responsibilities in the political branches. And the matter is now in the hands of Congress
Justice Lewis Powell read the dissenting opinion. It was powerful.
Lewis Powell: The court's decision casts a long shadow over the continued operation of even the most important projects. Projects serving vital needs of society as well as national defense. If continued operation endangers the survival or the critical habitat of a newly discovered species of water spider or cockroach, operation of the project could be brought to a halt.
News Clip: A three inch fish defeated a 70 foot high dam in the Supreme Court today. And unless Congress changes the law, the almost finished multimillion dollar Tennessee Valley Authority project will stand idle because of today's 6-3 court ruling.
Nick Mott: So you win in the Supreme Court, and do you recognize immediately that the battle's not over?
Zyg Plater: Oh, totally. Oh, absolutely
Zyg Plater: You don't get anywhere by compromising, you keep on fighting and so I figured, you know, I fought the fight, but I'm going to, I'm going to keep on fighting, right?
Congress
Zyg’s won in the Supreme Court, but now the battle for the Little T turns from the courts to Congress. He knows there’s an assault on the fish — and maybe even the Endangered Species Act — coming. To get ahead of it, he’ll have to win over both legislators and the people who vote for them. TVA, with deep connections in Washington and deeper pockets, was already a step ahead.
Caroline Richtey: The politicians and the powers within TVA, they went to Washington and their constituents were told it was stagnant and we were backward, meaning dumb, and that we needed to be fixed…And we didn't need fixing.
Zyg learned the ins and outs of DC from fledgling green groups who’d roosted in the attic of a fast food joint for its cheap rent. He used code names to get information from agency insiders. My favorite is Daral Stein — an anagram of snail darter. He’d learned how to handle the reins of DC politics with skill. But getting the public on his side was another story.
TVA’s message was clear and easy to understand: build the dam. It’s already almost done, and it will bring progress, jobs, and development. Zyg’s message is much harder to understand. Even though he’s won in the country’s highest court, the national media’s relationship with the case has stayed more or less the same.
News report: It was the little fish versus the big dam builders…The snail darter is a fish less than two inches long. You wouldn't think that a fish this small could beat City Hall, much less a colossus as big as the Tennessee Valley Authority…The snail darter doesn't grow any bigger than a minnow, and that's a good thing, because it's already powerful enough to torpedo the 190 million Tellico Dam project in Tennessee.
To Zyg, the Tellico Dam was a clear example of pork barrel politics — spending for spending’s sake. All along, he’d argued that the dam didn’t make economic sense; there were alternatives that could preserve the river and the farmland and generate more for the economy than the dam ever would. Things like, a non-intrusive industrial area and an interpretive trail that could draw tourists from nearby Great Smoky Mountains National park to the area’s natural beauty. But the press never grappled with that in a meaningful way. Here’s Zyg venting at the time.
Zyg Plater: It's a shame the way the story has always been covered. Little fish, big dam, David and Goliath, that's the whole story. At least in the Bible with David and Goliath they talked about the battleground. Here you've got a valley that is not discussed in the press reports and it's at the heart of the snail darter's survival and it's at the heart of what the citizens have been fighting for for all these years.
So as Zyg battles for the public and politicians, the congressional wheels get to turning. First, Congress amends the Endangered Species Act. The bill is championed by Tennessee’s congressional delegation, and it creates a committee that can exempt projects from the Endangered Species Act. It gets dubbed ‘the God Squad”:
Nick Mott: So, the God Squad is, agency leaders get together and they decide if it's okay to let a species go extinct. If the benefits to society outweigh the downsides of extinction.
Zyg Plater: the heads of these agencies have been made into a new statutory body with the power to change federal law based on their vote, but they have to do it in person. So it is a formal proceeding like a court with a stenographer taking notes at the whole thing. Evidence is being brought in by the economists.
Its extinction boiled down to bureaucracy.
In January of 1979, the God Squad meets. On the agenda: a whooping crane case, and, the snail darter. Zyg and some of the farmers whose land is on the line,pack into a room at the Department of Interior in DC. Instead of the language of the law, like Zyg debated in court, at issue are facts and figures. Representatives of the Department of the Interior, Department of Agriculture, the EPA, and the Army analyze the minutiae of the economics of the project. And one of the government bigwigs in the room — the chair of the Council of Economic Advisors — says —
Zyg Plater: if you look at this project, it's 95 percent finished, and if you take the total benefits of this project. For the final 5%, it still doesn't make economic sense. And the whole room breaks out into laughter because everybody knows that this is a pile of crap. And so the chairman goes around, does anybody have another opinion? No, they take a vote unanimously. This project is not worth completing. The river alternative is better.
Nick Mott: And even though, to clarify too, it's not worth completing and it only has, what, 5 percent of the whole project to go —
Zyg Plater: Only 5 percent of the budget story, if it appears, is like on page 22 and it says the fish wins again, basically. The fish wins again.
News Clip: The Endangered Species Committee today barred the Tennessee Valley Authority from completing the dam, which is almost finished, because it might doom the species.
Zyg Plater: What is, excuse me, the drama of this is that for 19 years, the farmers have been fighting, saying that this project made no sense. And now finally an unprecedented, unique, extraordinary presidential level, economic interrogation has said, they're right. The project will destroy more than it would ever create. And the farmers finally have won their land back. Except that if America doesn't know, then the pork barrel can keep on rolling.
Now, you might think this is the end of the story for the snail darter. It’s won in the Supreme Court, and now it’s won in this special economic analysis created by Congress, too.
But — Tennessee’s Congressmen weren’t finished with the fish yet. There’s one name in particular to keep in mind here: Howard Baker. He’s from Tennessee, and he’s Senate Minority Leader, with ambitions of running for president.
Howard Baker: This two inch fish, which surely kept the lowest profile of all of God's creatures until a few years ago, has since become the bane of my existence and the nemesis of what I had fondly hoped would be my golden years.
Baker was often called the great conciliator. He worked to cross party lines and make deals. His stepmother once said, “He’s like the Tennessee River. He flows right down the middle.”
Howard Baker: I've been locked in mortal combat with the lowly snail darter for what now seems like an eternity. And I'm embarrassed to say that I've taken a sound thrashing so far.
Baker had voted for the ESA back in ‘73. Back then, most of the talk was about majestic, charismatic animals – eagles, wolves, and whales. Not cold, slimy stuff like the snail darter. And locally in Tennessee, polls showed the public was firmly on the side of the dam.
Baker helps craft another bill. This called out the Tellico Dam in particular. It said despite the Endangered Species Act — and any other federal law it might be breaking for that matter — the dam will be built. That bill doesn’t get passed. But like a ghost, its spirit lives on. The idea gets tacked on to this much larger spending bill. And it gets ping-ponged back and forth, between the House and the Senate. Until, eventually, the fate of the fish and the river and the farmers comes down to this one final hearing in a Senate committee.
Zyg Plater: We beat it twice in the Senate and twice in the House. And then the third time it goes up again
Nick Mott: So this is like a line in a huge appropriations or basically a budget bill, right?
Zyg Plater: Billions and billions of dollars.
Nick Mott: So, and this is just one line saying the dam can go ahead.
Zyg Plater: Yeah. Just one line. It's called a rider and it's stuck onto this Christmas tree so that we can't stop it. There will be people who want this law to go through because it's going to bring all kinds of money down to their congressional districts.
By Zyg’s telling, As Senators cast their votes, there’s this clock ticking down. And with about ten seconds to go, it becomes clear that Zyg has won yet again, just by a hair. But then, Howard Baker asks for a time out, just before the buzzer. A three-minute break. It’s like a March Madness game, but for a budget bill.
Zyg Plater: With the clock stopped, we’d won.
Baker walks over to another Senator who’d voted for the darter, puts his hand on his shoulder and whispers something in his ear. This Senator changes his vote. And so do four others. Time runs out.
Zyg, Hank, and Carolyn had taken this case from a passed-around hat in a meeting of farmers to the highest levels of government. They’d won in the courts and for so long, they’d held off the legislature. But all it took was this one loss.
Zyg Plater: And that was the vote that killed the river.
President Jimmy Carter signed the bill. The dam, the law said, would be built.
Here’s Hank Hill in a news report back then.
Hank Hill: It's sort of like saving a very close friend from a raging fire, only to have them run over by the fire truck after you pull them out.
In the video he’s wearing a suit and tie. By now, Hank’s finished law school and he’s learned how to fit in, at least a little bit, with the legal establishment. But today, reflecting on the long battle for the snail darter there’s still that little bit of rebel in him.
Hank Hill: I would not change anything except that I might have kicked Howard Baker in the balls, make him sit down that day. But probably not 'cause I've gone to prison for that. So probably, I don't think I'd change anything.
At that moment, with the fate of the river sealed by Congress and the president, Zyg still had hope. He saw one more legal mechanism that might save the valley; and it would involve leaving the snail darter behind. He worked with the Cherokee tribe and together, they filed one more lawsuit. This one argued that the Little T is crucial to the tribe’s first amendment rights to freedom of religion.
Not many Cherokee remained in the area. Tribal members had been removed in the 1800s, forced to march the so-called “trail of tears,” a grueling journey to Oklahoma in which more than 4,000 died. But lead plaintiffs were descendants of tribal leaders, who claimed the area was vital to continue to gather medicine, and that their culture originated from there,
Dan McCoy, tribal chairman of the Eastern Band of the Cherokee at the time, talked with a reporter about the case back then.
Reporter: Why did the tribe wait so long to file a lawsuit?
Dan McCoy: Well, you know, as you know, the Endangered Species Act that came into play to stop the dam at one time, we felt here at Cherokee that this was gonna go through and would halt it, but evidently we've lost that battle, you know, indirectly.
One way to look at this last hail mary is cynical: this lawsuit, after the loss in Congress is yet more proof that the snail darter itself was never all that important. Like the fish, the tribes, in this view, were just another tool. If anything, it shows the real goal here was to stop the dam and save the valley.
But to be clear, tribal members had been involved in protests against the dam since the late ‘60s. It’s hard to overstate the historic and cultural importance of the area to the Cherokee.
More than a decade earlier, University of Tennessee archaeologists, at the invitation of TVA, began hurriedly excavating sacred sites along the river — trying to get at graves and artifacts before the flood water could. The remains of more than a thousand Native people were dug up, most of them relocated to a University of Tennessee basement. Department of the Interior officials had written that the archaeological remains there couldn’t be matched by any other area of that size in the country.
In a news report from back then, a reporter’s talking with a tribal member, but ID him by name. Which maybe says something about the press’s relationship with tribes in those days
What would Jimmy Carter do if we went down to peanut country and started flooding some of his ancestors’ graves? We'd be put in jail. And probably for life. We can't even die in peace. They dig us up 200 years later to see what killed us.
While that case was in the courts, after years of protesting, flying to and from DC, and pushing to stop the dam, demolition began on Carolyn Ritchey’s home in mid-November, 1979. That same day —
Carolyn Richtey: Mama happens to go by our house because we still go by, it's still home. And she goes by and lo and behold, they're tearing it down. She flies on up to the house where we're staying at, gets some Instamatic cameras 'cause it's, that's all we had some little Kodak drop in the thing and go. And so she stood there. I don't know how she kept her hands steady. And we have snapshot, snapshot, snapshot of them tearing our things down. Everything she had ever fought for and written letters for, she took pictures of it.
Some reporters back then talked with her family about it.
Not long after Carolyn Ritchey’s home was demolished, the dam closed its gates, cutting off the flow of the river, along with the cold, clean, moving water the snail darter needed to survive.
News Clip: As 11:25 this morning, the state of Tennessee has a new lake, the Tellico Lake
Zyg still had hopes the damage could be mitigated through the Cherokee lawsuit. The gates to the dam could be lifted again. The flooding could be stopped.
Cherokee Member: It may be the last time that we'll be able to see our sacred Cherokee village sites and burial grounds. And, uh, this area, our elders have always told us, Ha na di ga da la na ha een. This is where we began.
The Cherokees lost the case.
Zyg Plater: This was truly the end.
Nick Mott: How did that feel?
Zyg Plater: I mean, terrible. I mean, I knew that the farmers had been right for 19 years. I knew that I'd been right for the last six years. I knew that there were so many good people who were hoping that the law and the facts and that common sense would prevail in American democracy.
It may feel like the tribes got short shrift here. And that’s because they did. The story of the tribes’ relationship with the Little Tennessee River became but a footnote to the drama of the little fish and the dam. Most of the tribal members involved in this case have since passed on. One person who was involved did get back to us — but was in too poor of health for an interview.
Big picture, the idea that the dam could threaten a three-inch fish garnered the attention of a nation and stopped a more than 100-million-dollar dam for more than half a decade. The idea that a dam could threaten a human culture quietly died in the courts.
Tellico is still the last dam built by TVA.
This is a commercial for what’s there today, a planned community for retirees. Three golf courses, a yacht club, a country club, small industrial parks. About 7,300 people live there, on the banks of Tellico Lake. That’s far short of the bustling city of 30,000 TVA originally thought would develop there. But people do go there to boat and paddleboard, fish for bass and catfish. But of course, there aren’t any more snail darters there.
There’s also a museum commemorating the birthplace of Sequoyah, a Cherokee leader. The historic Cherokee towns of Chota and Tanasi — the ancestral homes of the Cherokee people — are underwater. There are memorials on the shore of the lake, near where the sites once existed.
Today, Carolyn still goes back to what used to be the river every now and then. In a way, it’s still home to her. She harvests the daffodils — she calls them easter flowers — that bloom on what used to be her family’s property. There are still old grain silos exposed above the water.
Carolyn Richtey: It still pulls me.
Carolyn Richtey: I can see where the barns were and where I stood on a little limestone outcrop. And we used to dry my feet in the spring when I first go barefoot and the sun was out and the rock was warm, but my feet were wet from the dew and I'd pitter patter and make footprints all over it. And that rocks the only thing that's recognizable that's still there. So yeah, I go back, I'll always go back as long as I'm dragging myself up there.
In 2022, more than 40 years after the Tellico Dam closed its gates, one more twist developed in the snail darter story.
News Clip: Whether on land, air, in the water, animals help shape our identity. And now, one of those special creatures is celebrating. A huge milestone.
The snail darter never went extinct. In fact, the government declared its population had grown enough that it had recovered. It didn’t need federal protections anymore.
News Clip: The snail darter fish is no longer considered endangered
Back in the 70s, TVA frantically tried to relocate the fish to other rivers after it was discovered. Those days in court and the legislature, it was too soon to tell if any of it would work. But… it did. And small populations were later discovered outside the Little T, too. Today, it persists in small populations on other rivers — not the Little T— in part because TVA has to continue to oxygenate the water and open a dam’s floodgates at certain times of the year to clean the silty river bottoms.
So the fish lived. But the hope it symbolized for Zyg and Carolyn and many more… perished.
Zyg Plater: I still wake up in the night thinking of things I could have done, or if I'm still back there in my mind, things I can do to save the river.
Carolyn Richtey: We lost everything. I don't think unless you have a connection to the land, you can ever truly understand the loss, what that means.
The fish lives on in other ways, too. This moment showed all sides the power Endangered Species Act could wield. For the first time — but far from the last — the Endangered Species Act became a way to achieve goals far grander than putting a stop to extinction.
Next time on The Wide Open, a team of activists uses the power of the ESA to make a splash much larger than one little fish in one river.