Appendix — TVA v. Hill
Supreme Court brief1978
Ask Donna
What actually matters in this document.
Text
= FF me «
s, *
.
Appendix
> —— —
Gn the Supreme Gourt of the Wnited States
Octroser Term, 1977
No. 76-1701
TENNESSEE VALLEY AUTHORITY, PETITIONER
v.
Hraam G. Huw, Jr, er. av.
OW WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
—
PETITION FOR A WRIT OF CERTIORARI FILED MAY 31, 1977
CERTIORARI GRANTED NOVEMBER 14, 1977
INDEX
Docket Entries—United States District Court for the Eastern District
ND ccnncccnccsscunseesesesaquesenssnessqncosasssscesesse
Exceptions to Pretrial Order on Behalf of Plaintiffs__._.........--~-
TVA's Opposition to Plaintiffs’ Exceptions to Pretrial Order_......-
Designation by Appellants of Transcript for Appeal.................
Order 7-26-76 (Granting Injunction Pending Appeal) ..............
Ua peebesmtpaqeassesssesedsessss
Transcripts :
Dee BO Beeccncccccccssenscscssesssssceesessassnsess
ee 0 GD OR cncenccsecescessscussssssssessusesseussese
Trauscripts—Continued Page
Starnes 1-79 to 1-106...........--..----------- 22 ----oonnoeoe 140
OO 155
Ramsey 1-190 to 1-151_-.....-....------------------+--+-------- 168
Williams 1-152 to 1-188.....-.........----~---------------<--- 181
Boschung 1-189 to 1-199_.......---------------.--------------- 201
42 Fed. Reg. 4868-72 (January 26, 1977) (Proposed Provisions for
Interagency Cooperation) ........-------------—---------------- 207
Transcripts :
Kimmons 1-200 to 1-222..............~.----------------------- 225
Ripley 1-228 to 1-245.........-------------------------------- 238
Fits 1-252 to 1-271........---.------------ 2-20 oe enn nnenee= 254
Saylor 1-272 to 1-298; 2-1 to 2-$1__........------------------- 265
Tesner 9-BB to B-Ob.....cccccceccccccccccceecccccccccseccesee 296
Dr. Raney 2-68 to 2-112_........-.---------------------------=- 313
Dr. Randall 2-115 to 2-148_..........-----------~------------- 341
Ex. 4, 40 Fed. Reg. 47505-06, (Listings, Snail Darter) ......-------- 361
Ex. 5, 40 Fed. Reg. 17764-65, 4-22-75 (Notice on Critical Habitat
APORB) nnn nnn ee nn nnn nnn ne nnn neon nnn nen neo nnn nnnneeeeoee= 368
Ex. 6, Fed. 40 Reg. 44415-16, 9226-75 ( Except Regulations) -.---~---- 373
Ex. 7, 40 Fed. Reg. 58308, 58310, 12-16-75 (Proposed Critical Habitat,
ee 877
Ex. & 40 Fed. Reg. 13926-28, 4-1-76 (Critical Habitat.............-- 33
Ex. 9 Ltr. to Seeber from Plater 10-20-75__..........-...---------- 390
Ex. 10 Ltr. to Reed from Plater 10-20-75__._...........-..--~.~-.-- 391
Ex. 33 Ltr. to Plater from Reed 4-27-76___........-.-----~------<+-- 393
Guidelines to Assist Federal Agencies in Complying with Sec. 7 of
Endangered Species Act 1973_..........-~--~-----------~--+---- 397
Ex. 46 Search for Snail Darter..............--~~-- ------------+----- 410
Deposition of Fitz 76 to 81__.........------~------------------+---- 413
Deposition of Hickman 10 to 51__.....----------------------------- 416
Deposition of Williams 1 to 108__.._.......------- ----------------- 440
Ex. 12 Ltr. to Williams from Miller 9-3-75__..... .---------------- 497
Ex. 64 Tellico Project Construction Status and Funds Obiigation. __-- 4m)
Ex. 66 Kimmons Detailed Cost Breakdown 4-27-76... ........-..--- 500
Ex. 69 Ltr. to Bray from Ripley 3-2~-76__.......--...-...---------- 504
Progress Report through 2-14-76__...........-------------------- 505
Ex. 76 Memo to Chance from Fitz 4-1-75__.....---.....-.---------- 529
Ex. 78 Memo to Jaco from Fits 7-9-75___.........--.-------------- 531
Ex. 81 Ltr. to Skoog from Ripley 8-20-75__..........------------- 534
Ex. 88 Memo to Chance from Fits 10-22-75__......---------------- 585
Ex. 86 Ltr. from Ripley to Williams 12-1-75__........-------------- ABA
Px. 8&8 Ltr. from Ripley to Black 1-22-76 (Consultation Letter) -...... 540
Ex. 9% Ltr. from Berryman to Associate Director 2-2-76_......~.-.- . &®
Ex. 97 Memo to Files from Chance 2-19-76___........-.......~.--.. 551
Ex. 107 Ltr. from Ripley to Henry 4-13-76__._.............-.-.~---- 554
Ex. 108 Memo from Fitz to Files 4~-1-76__.........~...-------+++--- 556
Ex. 113 Described Species of Darters and Related Fishes. ........-.- 557
Supreme Court's Order of November 14, 1977, Granting t .e Petition for
Feb.
Feb.
ES HF FETE FF
&8 FF RE SSES
DOCKET ENTRIES—District Court
Proceedings
Complaint filed.
Motion for an expedited hearing, filed.
Summons issued and handed Marsha! for service.
Order that defendant show cause why the temporary injunction
sought in the complaint should not be granted, February 25,
1976 at 9 :00 a.m., filed. Service by Clerk.
Summons returned served on Aubrey Wagner for TVA on Feb-
Brief of TVA in support of motion to dismiss and in opposition
to motion for injunction, filed.
Brief of plaintiffs in support of motion for temporary injunc-
Tennessee Valley Authority's Proposed Findings of Fact and
Conclusion of Law, filed. Service by TVA.
Trial brief ou. behalf of plaintiffs, filed.
List of witnesses which plaintiffs propose to use ai irial, filed.
Service by counsel.
Exceptions to pretrial order on behalf of plaintiffs, filed. Serv-
ice by counsel.
TVA's objections to plaintiffs’ list of witnesses, filed. Service
by counsel.
(11)
B55553
esecey Bu RE S BB
Bees
F EE EEE
May 25
Iv
TVA's opposition to plaintiffs’ oxceptions to pretrial order,
filed. Service by counsel.
Order modifying and altering the pretrial order, filed. Service
by Clerk.
Findings of fact and conclusions of law on behalf of plaintiffs,
filed.
Order amending pretrial order to add two plaintiffs, filed.
Supplement to trial brief on behalf of plaintiffs, filed. Service
by counsel.
Deposition of Dr. Royal D. Suttkus, filed.
Order of trial without the intervention of a jury. Plaintiff in-
troduced its proof and rested. Defendant introduced its proof
in part. The time of adjournment having arrived, Court ad-
journed until 9:00 a.m. Friday, April 30, 1976, Order Book
73, page 421.
Exhibits 1 through 108.
Deposition of Richard Fitz, filed.
Deposition of Gary David Hickman, filed.
Deposition of Edward C. Raney, filed.
Deposition of Herbert T. Boschung, Jr., filed.
Defendant continued its proof to conclusion and rested. Plain-
tiff offered rebuttal testimony. Argument of counsel. Court
took under advisement, counsel to submit briefs by May 6,
1976, Order Book 73, page 423.
Exhibits 110 through 115, filed.
Post-trial brief on behalf of plaintiff, filed.
Post-trial brief of TVA, filed. Service by TVA.
TVA's Brief in reply to plaintiff's post-trial brief, filed. Service
by counsel.
Reply brief on behalf of plaintiffs, filed. Service by Counsel.
Clerk's copy of Transcript of Proceedings on Plaintiffs’ Motion
for Preliminary Injunction Wednesday, February 25, 1976,
‘led.
Memorandum, R. L. Taylor, D.J., filed. Service by Clerk.
Order denying plaintiffs’ request for a permanent injunction
and dismissing action on the merits entered in Order Book
74, page 32 and filed. Service by Clerk.
Notice of appeal, filed. Certified copy to TVA by Clerk.
Bond for costs on appeal, filea.
Motion for injunction pending appeal from order denying in-
junction, filed. Service by counsel.
Brief in support of motion for injunction pending appeal, filed.
Service by counsel.
Response of TVA to Plaintiff's motion for injunction pending
appeal, filed. Service by TVA.
Affidavit of George H. Kimmons, filed.
Brief on TVA in opposition to injunction pending appeal, filed.
Order denying ~aintiff's motion for an injunction pending ap-
peal, entered in Order Book 74, page 96 and filed. Service by
Clerk.
Sept. 3
eth RHEE HH
SEE BE? axp
Order modifying Order of July 28 from U.S. Court of Appeals,
so as to enjoin, pending appeal, any closure of the dam. filed.
Service by Clerk Hehman.
Transcript of proceedings, Volumes I and II. filed.
Certified record on appeal mailed to Sixth Circuit Court of
Appeals.
DOCKET ENTRIES—Sixth Circuit
Filings— Proceedings
Motion for Injunction Pending Appeal. ( p-7/7)
Brief in Support.
Motion for Expedited Hearing. (p-7/7)
Brief in Support.
Response to motion for injuncticn pending appeal.
Response to motion for expedited hearing.
Order granting motion for injunction pending appeal and di-
recting that the case be set for oral argument in the Octo
ber 1976 session ( Weick, J.) RR-6.
Certified copy of above order issued to the District Court.
Motion of appellees for reconsideration of 7/26 order granting
injunction pending appeal.
Ovder modifying injunction of July 26, 1976 (Weick, J.) SS-1.
Certified copy of above order issued to the District Court.
Certified record (1 vol. pleadings, 3 vols. transcripts, 5 vols.
depositions), filed ; and cause docketed.
Appearance of W. Dougherty for appellants.
Appearance of H. Sanger, C. Wugner, T. Pederson and N.
Della Volpe for appellee.
Appellants’ designation of record for appendix (m-9/10).
Order directing appellants to file their brief and joint appendix
not later than September 24, 1976 and appellee file its brief
not later than October 8, 1976. SS-—T.
Appellee’s designation of record for appendix (p-9/20).
Brief (25) of appellants.
Appendix (10) of appellants Vols. I and II (m-0/24).
Brief (25) of appellee (m-10/8).
Motion of appellants for division of time at oral argument
(m-10/8).
Exhibits Volume (10).
Reply brief (25) of appellants (m-10/11).
Cause argued by W. P. Boon Dougherty and Zygmunt J. B.
Plater for Appellant, by Thomas A. Pedersen for Appellee
and case submitted to the Court (Before: Celebreaze, Peck
and McCree, JJ.). TT-3.
June 6
Nov. 17
Notice of filing petition for certiorari 5/81/77 (Sup. Ct. No. 76-
1701).
Record for certiorari application mailed to Supreme Court.
Letter of Supreme Court requesting transmittal of record to
Supreme Court.
Certified copy of order of Supreme Court granting certiorari
11/14/77.
—— = a SE ee
In the United States District Court for the Eastern District of
Tennessee, Northern Division
Civil Action No. 3-76-48
Hmam G. Hut, Jr., Zyemuntr J. B. Piater anv
Dowatp 8. CoHEN, PLAINTIFFS
Tennesser VALLEY Aurnoarry, DEFENDANT
Complaint for Injunctive Relief
1. The plaintiffs are all citizens and residents of
County, Tennessee. In addition, the plaintiffs use the Little
interfere with the rights of the plaintiffs.
2. The defendant, Tennessee Valley Authority, is a corpora-
tion organized pursuant to Legislative Act of the Congress of
the United States of America, said Act being known as the “Ten-
nessee Valley Authority Act of 1933”, and being designated as
16 U.S.C. § 831 (a-dd) (1933). Said defendant’s principal of-
fice is located in the immediate vicinity of Muscle Shoals,
Alabama, and it also has an office in Knoxville, Knox County,
Tennessee. Pursuant to 16 U.S.C. § 831 (c)(b) said defendant
may sue and be sued in its corporate name.
3. This action is brought seeking the issuance of a temporary
and permanent injunction by this Court to enjoin further con-
struction and implementation of the Tellico Dam and the Tel-
lico Project by the defendant Tennessee Valley Authority,
which actions by said defendant are illegal and in violation of
the Endangered Species Act (16 U.S.C. §§ 1531-1543) (1973).
The purpose and effect of said injunctions will be the preserva-
tion and protection of the fish known as the Snail Darter, sci-
(1)
entifically known as Percina (Imostoma) Tanasi, a designated
endangered species pursuant to said statute, and the preserva-
tion and protection of its habitat which has been deemed a criti-
cal habitat, pursuant to said Endangered Species Act.
4. Jurisdiction for this action is conferred upon this Court by
16 U.S.C. § 1540 (c) and (g) (1973), known also as the En-
dangered Species Act, which provides in pertinent parts as
follows:
5.
lows
16 U.S.C. § 1540(c)
(c) The several district courts of the United States
*** shall have jurisdiction over any actions arisng un-
der this chapter.
16 U.S.C. $1540 (g) (1) and (2)
(g) (1) Except as provided in pargraph (2) of this
subsection any person may commence a civil suit on his
own behalf—
(A) to enjoin any person, including the United States
and any other governmental instrumentality or agency
(to the extent permitted by the eleventh amendment to
the Constitution), who is alleged to be in violation of
any provision of this chapter or regulation issued under
the authority thereof * * *.
The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship
of the parties, to enforce any such provision or regula-
tion, as the case may be * * *.
(2) (A) No action may be commenced under sub-
paragraph (1) (A) of this section—
(i) prior to sixty days after written notice of the vio-
lation has been given to the Secretary, and to any alleged
violator of any such provision or regulation * * *.
(3)(A) Any suit under this subsection may be brought
in the judicial district in which the violation occurs * * *.
16 U.S.C. § 1531 (1973), provides in pertinent parts as fol-
§ 1531. Congressional findings and declaration of pur-
The Congress finds and declares that—
(1) various species of fish, wildlife, and plants in the
United States have been rendered extinct as a conse-
quence of economic growth and development untem-
pered by adequate concern and conservation ;
(2) other species of fish, wildlife, and plants have been
so depleted in numbers that they are ir. danger of or
threatened with extinction;
(3) these species of fish, wildlife, and plants are of
esthetic, ecological, educational, historical, recreational,
and scientific value to the Nation and its people;
(5) (b) The purposes of this chapter are to provide
a means whereby the ecosystems upon which endan-
gered species and threatened specics depend may be
conserved, to provide a program for the conservation
of such endangered species and threatened species, and
to take such steps as may be appropriate to achieve the
purposes of the treaties and conventions set forth in
subsection (a) of this section.
(ec) It is further declared to be the policy of Congress
that all Federal departments and agencies shall seek to
conserve endangered species and threatened species and
shall utilize their authorities in furtherance of the pur-
poses of this chapter.
6. 16 U.S.C. § 1532 (1973), provides in pertinent parts as
follows: ,
§ 1532. Definitions.
(4) The term “endangered species” means any species
which is in danger of extinction throughout all or a
significant portion of its other than a of
Ley he ae
stitute a pest ion u
this chapter would present an overwhelming and over-
riding risk to man.
(5) The term “fish or wildlife” means any member
of the animal kingdom, including without limitation any
mammal, fish, bird (including any migratory, non-
migratory, or endangered bird for which protection is
also afforded by treaty or other international agree-
ment), amphibian, reptile, mollusk, crustacean, arthro-
pod or other invertebrate, and includes any part,
4
product, egg, or offspring thereof, or the dead body or
parts thereof.
(8) The term “person” means an individual, corpora- —
tion, partnership, trust, association, or any other private
entity, or any officer, employee, agent, department, or
instrumentality of the Federal Government, of any
State or political subdivision thereof, or of any foreign
government.
* - * * .
(10) The term “Secretary” means, except as otherwise
herein provided, the Secretary of the Interior or the
Secretary of Commerce as program responsibilities are
vested pursuant to the provisions of Reorganization
Pian Numbered 4 of 1970; except that with respect to
the enforcement of the provisions of this chapter and the
Convention which pertain to the importation or exporta-
tion of terrestrial plants, the term means the Secretary
of Agriculture.
(14) The term “take” means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct * * * .
7. 16 U.S.C. §1533 (1973), provides in pertinent parts as
follows:
§ 1533. Determination of endangered species and threat-
ened species—Generally
(a) (1) The Secretary shall by regulation determine
whether any species is an endangered species or a threat-
ened species because of any of the following factors.
(1) the present or threatened destruction, modi-
fication, or curtailment of its habitat or range * * *.
8. 16 U.S.C. § 1536 (1973), provides as follows:
§ 1536. Interagency cooperation
tered by him and utilize such programs in furtherance
of the purposes of this chapter. All other Federal de-
partments and agencies shall, in consultation with and
L
i!
!
5
i
i
|
i
|
9. 16 U.S.C. § 1538 (1973), provides in pertinent parts as
follows:
(B) take any such species within the United States
or the territorial sea of the United States;
. . ° °
G) violate any regulation pertaining to such species
a wan tomas the aah ened
pursuant to section 1533 of this title and promulgated
by the Secretary pursuant to authority provided by this
chapter
itat for six (6) endangered species, included among which is
the Snail Darter. Said proposed rulemaking dated Novem-
ber 12. 1975. and published in the Federal Register (Volume 40.
No. 242, page 58308) on December 16, 1975, provides as fol-
lows at 58308 and 58310:
Basis ror DererRMINATION
Swarm Darter (Percina (Imostoma) SP.)
r
f
Li
Ht
at
i
i
i
Hf
i
Hit
fig
i
gs
:
2
J
wy
ft
ik
ut
:
7
Bureau of Water Control Planning, August 1965 (map
65-MS-453 K 501).
(b) Pursuant to section 7 of the act, all Federal agen-
cies must take such action as is necessary to insure that
“Critical habitat” for any Endangered or Threatened
species could be the entire habitat or any portion thereof,
if, and only if, any constituent element is necessary to
Tennessee Valley Authority is proceeding at full speed with
utter disregard for said determination to complete the Tellico
Dam and Project, all in violation of 16 U.S.C. §§ 1531-1543
(1973). One of the more blatant and graphic demonstrations
of said violation is the current extensive bull-dozing and clear-
cutting of trees, logs and foliage along the banks of the Little
to 16 USC. § 1540 (g)(2)(A)(i) (1973), gave the requisite
notice of said violation to the Secretary of the Interior and to
the violator, the defendant herein. Tennessee Valley Authority.
The violation has occurred and is occurring in the judicial dis-
trict of this Court.
13. In addition, the construction and implementation of the
Tellico Dam and Tellico Project by the defendant Tennessee
Valley Authori*y will not only jeopardize and destroy the Snail
Darter and its critical habitat, the Little Tennessee River, all
in violation of 16 U.S.C. §§ 1531-1543 (1973), but will also
affect adversely and derogate the quality of human life in the
Little Tennessee River area, and violates the strong purpose
and intent of Congress as enunciated in the Act.
14. Accordingly. the plaintiffs seek an expedited hearing
before this Court as soon as practicable and the issuance by the
Court, following such hearing or hearings, of a temporary and
permanent injunction to enjoin said violation and specifically
enjoining the defendant Tennessee Valley Authority, its agents,
servants, employees and representatives, from any further
work, activity and/or construction related to the Tellico Dam
or Tellico Project or the implementation thereof and requiring
the immediate and permanent cessation of al] work and activity
in any way related to or a part of the Tellico Dam or the Tellico
Project. Irreparable injury and damage will result unless this
Court 80 acts.
WHEREFORE, PLAINTIFFS PRAY:
}. That the Court conduct an expedited hearing or hearings
relative to the issues presented in this Complaint as soon as
practicable.
2. That, upon such expedited hearings, the Court issue a
ee SS eee eee
7. ive etter ated eobetinesh ant tes enim
W. P. Boone Dovenerrty,
Attorney for Plaintiffs, 1200 Hamilton National Bank
Bldg., Knoxville, Tennessee 37902, Tel. No. (615)
546-8030.
Of Counsel :
Bernstein, DovcHerty & SuSsANo.
Motion
The plaintiffs move the Court for an expedited hearing rela-
oS Se 2p. Ge SaaS S Se Sages
This 18th day of February, 1976.
W. P. Boone DovenHerrty,
Attorney for Plaintiffs.
In the United States District Court for the Eastern District of
Tennessee, Northern Division
Civ. 3-76-48
Hiram G. Huu, Jr.. Zyamunt J. B. Puatex anp Donat §S.
CoHEN
v.
TENNESSEE VALLEY AUTHORITY
Order
It is ORDERED that defendant show cause on Wednesday,
February 25, 1976 at the Federal Courthouse, Knoxville, Ten-
nessee, at 9:00 A.M. why the temporary injunction sought in
the complaint should not be granted.
Enter:
[Caption Omitted]
Motion To Dismiss
Defendant Tennessee Valley Authority moves the Court to
dismiss this action on the ground that the Court jurisdic-
tion because plaintiffs have failed to comply with the statutory
notice requirements for invoking the jurisdiction of this Court
under the Endangered Species Act of 1973.
Respectfully submitted,
Hersert 8. Sancer, Jr.,
General Counsel, Tennessee Valley Authority,
Knoxville, Tennessee 37902.
Cuartes A. Waoner III,
Assistant General Counsel.
Tuomas A. PEpeRsen,
Lawkence L. SHEARER,
Attorneys for Defendant.
(11)
Certificate of Service
I certify that the foregoing motion, together with brief in
support of motion to dismiss and in opposition to motion for
injunction, has been served on piaintiffs by hand delivering a
copy thereof to the offices of W. P. Boone Dougherty, Esq,,
Bernstein, Dougherty & Susano, 1200 Hamilton National Bank
Building, Knoxville, Tennessee 37902.
This 23rd day of Feoruary, 1976.
a
Attorney for Defendant.
[Caption Omitted }
[Filed February 26, 1076)
Opinion as Rendered From the Bench
Arguments on each side have been informative and interest-
ing Gnd Giaw ciate eonsieneatien ty eounat® os Ge Sage ane
tactual questions that are involved. nsel only agree on one
thing, and that is the rules to be followed by a trial court in
issuing or denying a temporary injunction,
These rules, which have been stated and discussed by respec-
tive counsel, are as follows:
1. The moving party has raised a substantial question
on the merits of the lawsuit;
Plaintiflo cock » temporary and t injunction to
stop the construction of the ellico Project. This is the third
time the Project has been in litigation in this Court as in-
dicated by counsel during the argument. In the first case, the
plaintiffs contested the building of the dam because of an in-
sufficient statement. The Court heard extensive proof
at that and heard Dr. Etnier testify at length about
In that first case, the Court issued a temporary injunction
which prohibited further work on the dam because of an inade-
quate statement.
As ted by counsel, that case went to the Court of Ap-
peals and was ; thereafter, the TVA amended its im-
The
time the Court heard detailed proof about that impact
|
|
i
(BM i Seen
i Be 247: LEE 7 HEH PCE i =
ane hile iy - Hai pis F
Bese as Hhatatle fi
* Hated iat eae i
ieee tiiiiresl SHG fidbi il i]
HF IPE era Baa
soc gs geist g2iii42ped7 2} shes)
nant alnUe
ie 33414 3324 1345 1337
is Hill RT AL Hi eit
Ban BORE iis lei ii
Hel afl: Tine : al ifn
“Tbh tite Hagligea
le! ij iL Fi adidas HIE
a hy jattifiael alli
TSE 2; Hie lets
eR EE - 3313 Hi die
ili a a
ial Og LU ee ep UE i 4
yi a HE? ipl ju pea Wi
7 At Hil a iy fist 3
’ <i ifs #2: 2 $25 2 +H iis a
i THE Hi le BETH
tu pene UH AT
ara Tuer Hit
ste is 18 34 af: a HEL if fel a5 224
fig 2292 Ts i 224] § seit His; Wee
a bi
ilies 2) ll | GueiEy Gu! jis
: : wc é¢ 3 < SeXy S235
et ie lt AE
> BeeGeEt tele beni) wath
He pelien Hie i baestiyll Ht 3 ;
44 ter Pid i sated 3i2iatii thy
Ha ATee at aTeHEI HE
| Sissqgessseis ccd 33:3
i TEE ete Gea
hodal Hu
F F tlie
HEMET Te
bee ; =i HIE
He eae 1
~ $32) ° gel pe Hta.ds
te i 4 va |
;
$35
: ill fe:
233
iis og
353 2
3 3
s BG i:
—_ 25°55 3
Es go ;
5553955 2.
EES 52835 =
+: =4e¢2
og 2:
£ ith:
523%
SEH ‘
seus
232375"
li
i
ih
i
Ss
Li
r
Me
in
HEE
|
is
}
ds
11. Any other matter of which the Court will take judicial
interest.
2. Act is not applicable to the Tellico project.
3. If applicable, TVA has not violated the Act:
(a) The Act must be construed in a reasonable manner.
(ec) Congress has ratified ) 7
(d) OMB, being informed, has requested appropriations
(speaks for President and all agencies).
4. The Act does not mandate an injunction.
(a) The court has power to grant or deny.
(b) Nowhere does the Act say that the court must grant
an injunction.
5. Aa injunction would be contrary to the public interest :
(a) Congress speaks for the public.
(b) OMB also speaks for the public.
6. TV A’s actions have not been arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with laws.
ISSUES
(1) Will the further implementation of the Tellico Project
quested injunctive relief when that situation is weighed in rela-
ay eG eer
propriating funds to complete the Tellico Project after being
informed of its effect on the Snail Darter?
(6) Was TV A's decision to proceed with construction of the
Parties shal] exchange the names and addresses of witnesses
in writing on or before April 19, 1976, and mark exhibits two
days prior to trial date.
Parties shall submit trial briefs and proposed findings of fact
and conelusions of law at least ten days before trial.
Parties shall have ten days from and after April 12, 1976,
within which to except to any part of this order.
Approved for filing and docketing. oa
United States District Judge.
Darter’s habitat.” Further, on April 1, 1976, the De-
ee Ne my ee et nt
, , Tennessee River between river mile .5 river mile 17
| [Caption Omitted] was critical habitat for the Snail Darter. The further
Exceptions to Pretrial Order on Behalf of Plaintiffs construction and implementation of the Tellico Dam
The plainti and Tellico reservoir by the defendant, Tennessee Val-
Onda, pinintifis present the following exceptions to the Pretrial ley Authority, will jeopardize the existence of the Snail
filed in this cause on April 12, 1976: Darter and will destroy and modify the critical habitat
1. Under the section styled NATURE OF ACTION, the of the Snail Darter in the Little Tennessee River. Fur-
plaintiffs contend that same should be modified and altered to ther, the further construction and implementation of the
read as follows: . nt Tellico Dam and Tellico reservoir by the defendant,
This is an action for injunctive relief pursuant to the Tennessee Valley Authority, is illegal and constitutes
Endangered Species Act (16 U.S.C. §§ 1531-1543 violation of the Endangered Species Act. Such violations
(1973), whereby the plaintiffs are seeking to enjoin by the defendant clearly justifies this Court in the is-
further construction and implementation of the Tellico suance of an injunction enjoining further construction
Dam and Tellico reservoir by the defendant, Tennessee and implemetation of the Tellico Dam and Tellico reser-
Valley Authority, and, more immediately, the current voir and the bull-dozing and clear-cutting above re-
extensive bull-dozing and clear-cutting of trees, logs and ferred to. Irreparable injury and damage will result un-
foliage along the banks of the Little Tennessee River by less the Court issues the requested injunctive relief. The
the defendant, Tennessee Valley Authority, so that the plaintiffs contend that it is not appropriate for the Court
Snail Darter, scientifically known as Percina species pur- to consider in this cause any evidence by the defendant,
suant to said Act, will not be jeopardized and the critical TVA, concerning the costs and expenditures involved
habitat of the Snail Darter in the Little Tennessee River in the Tellico Project nor the percentage of comple-
will not be destroyed or modified. Jurisdiction of this tion of same and submit that, if such is in any way
action is predicated upon 16 U.S.C. §§ 1540 (c), 1540 considered by the Court, it will open completely costs
(g) (1), (2) and (3). and detriments of the Tellico Project and would en-
2. The section styled THEORIES UPON WHICH PLAIN- title the plaintiffs to introduce evidence concerning the
TIFFS EXPECT TO RECOVER should be modified and al- costs, benefits, values, and detriments concerning said
tered so that same will read as follows: Tellico Project.
On August 12, 1973, Dr. David A. Etnier, Assistant 3. Under the section styled THEORIES UPON WHICH DE-
Professor, Department of Zoology, University of Ten- FENDANT EXPECTS TO DEFEAT RECOVERY, the
nessee, and an ichthyologist, discovered a new and dis- court reporter has listed as the first eleven paragraphs under
tinct species of fish designated and known as the Snail same those matters which the defendant was willing to st.pulate
Darter in the Little Tennessee River. On November 10, in this cause. The parties are conferring concerning stipu-
1975, the Secretary of Interior, pursuant to the En- low ud will prepare and present to the Court certain stipu-
dangered species Act, designated the Snail Darter as an lat © assist the Court in the trial of this cause. However,
endangered species and deterniined tha : “The proposed iti» «tly ins, ,ropriate for such proposed stipulations to be
impoundment of water behind the proposed Tellico a part of the &< ial order and, accordingly, the first eleven
Dam would result in total destruction of the Snail (11) paragraphs of the theories of the defendant should be
(24) deleted from the Pretrial Order.
Following paragraph 11 in the Theories of the Defendant
the court reporter has correctly listed the six proposed Theories
of the Defendant, It is appropriate that such remain in the
Pretrial Order.
4. Under the section styled /SSUBS, the plaintiffs contend
that the first two issues under said section should be modified
so that same read as follows:
1, Whether the closure of the Tellico Dam and the
consequent creation of the Tellico reservoir will jeopard-
ize the existence of an endangered species, the Snail
Darter, or destroy or modify the critical habitat of such
endangered species?
2. If so, will such violation of the Endangered Species
Act require the Court to issue an injunction to enforce
the Endangered Species Act?
The plaintiffs submit that it is appropriate for the Court
to consider the existing numbered Issues 3, 4, 5, and 6 under
the present section ISSUES.
The plaintiffs respectfully request that the Court and the
court reporter modify the Pretrial Order filed in this cause on
April 12, 1976, as above presented.
Respectfully submitted,
W. P. Boonr Dovonerry,
Attorney for Plaintiffs
Of Counsel:
W. P. Boone Dovenerry,
Bernstein, Dougherty & Susano,
1200 Hamilton National Bank Bidg.,
Knoxville, Tennessee 37902
[Caption Omitted]
TV A's Opposition to Plaintiffs’ Exceptions to Pretrial
Order
In response and opposition to plaintiffs’ exceptions to the
pretrial order of April 12, 1976, defendant Tennessee Valley
Authority (TVA) states as follows:
1. TVA opposes plaintiffs’ proposed deletion of the first
eleven paragraphs listed under THEORIES UPON WHICH
DEFENDANT EXPECTS TO DEFEAT RECOVERY. The
factual matters contained therein, to which defendant was will-
ing to stipulate, are all relevant to this action and constitute an
integral part of the theories upon which defendant expects to
wn TVA copa plaintiffs’ proposed modification of the
2. TVA opposes plaintiffs’ sec-
ond issue (under the section styled ISSUES) on the ground
that said modification incorrectly presupposes that the activity
under Issue 1 constitutes a violation of the Endangered Spe-
cies Act. TVA would offer no objection to a modification of the
second issue to read as follows:
2. If a0, does such activity constitute a violation of
the Endangered Species Act and, under the cireum-
stances of this case, require the Court to issue an in-
junction?
Respectfully submitted,
Hensert 8S. Sancer, Jr.,
General Counsel,
Tennessee Valley Authority,
Knorville, Tennessee.
Cuarntes A. Waoner III,
Assistant General Counsel.
Tuomas A. Pepersen,
Nremotas A, Detta Voure,
Attorneys for Defendant.
(27)
eee) Oe 8
Js
Certificate of Service
I certify that the foregoing document has been served on
plaintiffs by hand delivering a copy thereof to the offices of
W. P. Boone Dougherty, Esq., Bernstein, Dougherty & Susano,
pan Hamilton National Bank Building, Knoxville, Tennessee
This 28rd day of April, 1976.
Crarntes A. Waonen III,
Attorney for Defendant.
[Caption Omitted }
[Filed April 23, 1976)
It is ORDERED that the pretrial order be modified and al-
tered in the manner set forth in plaintiffs’ exceptions in regard
to 1 and 2 thereof.
It is THER ORDERED that the exception of plaintiffs
to the pretrial order relating to alleged stipulations that were
not agreed to by plaintiffs, but were agreed to by T.V.A. be,
and the same hereby is, denied, as plaintiffs have no right to
complain of matters to which T.V.A. is willing to agree.
The pretrial order is amended so as to add to Issue No. 1
the following:
Whether the closure of the Tellico Dam and the con-
sequent creation of the Tellico reservoir will
the existence of an endangered species, the Snail ,
or destroy or modify the critical habitat of such endan-
gered species?
and add to Issue No. 2 the following:
Or whether a violation of the Endangered Species Act
requires the Court to issue an injunction to enforce the
Endangered Species Act?
Rosert Tarvor,
United States District Judge.
(29)
[Caption Omitted]
Order Amending Pre-Trial Order
Pursuant to Motion of the plaintiffs, and with the approval
of counsel for the defendant, and the approval of the
it is hereby ORDERED by the Court that the Pre-Trial Order
in this cause be modified so as to add thereto the names of two
additional plaintiffs in this cause: The Association of South-
eastern Biologists and Audubon Council of Tennessee, Inc.,
as Council for National Audubon Societies in Tennessee.
ENTER this 28th day of April, 1976.
Rosert Tarior,
US. District Judge.
Approved for entry:
Beanstein, Dovonmary & Susano
By: W. P. Boones Dovonerry
Tennessee Valley Authority
By: Henserr F. Sanomn, Jr.
General Counsel.
(80)
[Caption Omitted]
[Filed May 25, 1976)
banks
the Little Tennessee River and by proceeding with plans
im the river in January 1977.
, plaintiffs contend that TVA has violated §7
of the Act (16 U.S.C, § 1536), which provides as follows:
“INTERAGENCY COOPERATION
“The Secretary [of the Interior) shall review other
retary, after consultation as appropriate with the af-
fected States, to be critical.”
Additionally, plaintiffs allege that TVA is acting in violation
of § 9 of the Act (16 U.S.C. § 1588) which provides, in pertinent
part, as follows:
“PROHIBITED ACT®—GENERALLY
“(a)(1) Except as provided in sections 1535(g) (2)
and 1539 of this title, with respect to any
species of fish or wildlife listed pursuant to section 1533
of this title it is unlawful for any person subject to the
jurisdiction of the United States to—
.
“(B) take any such species within the United States
or the territorial sea of the United States ;"
Section 1532(14) states as follows:
(14) the term “take” means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.
See also § 1582(8),
On February 25, 1976, the Court denied defendant's motion
to dismiss the complaint and denied plaintiffs’ motion for a
preliminary injunction prohibiting further work on the Tellico
Project. Trial on the merits was held April 29 and 30 and at the
conclusion of the evidence and arguments of counsel, both sides
were given ten days to submit post-trial briefs,
Although six issues are set forth in the pre-trial order, the
controlling ones in our judgment are as follows:
(1) Whether closure of the Tellico Dam and consequent
creation of the Tellico reservoir will jeopardize the conunued
existence of the snail darter or destroy or modify the crituwr!
habitat thereof; and
(2) Whether the Endangered Species Act of 1973 re *
= An injunction issue preventung completion of the Te.
ject.
He
it
bel |
if 4
Bit
jit:
reel
PEEP SEE
Hl
re
LE
iy
;
i
i
i
zz5%
test
afi
8s
.
gis
fy
Lf:
Fee
i
,
ES
present or threatened destruction of the snail darter
or ite habitat. See 16 US.C. § 1588%(a)(1)(1); 50 CFR.
§ 17.11(i) (1975) ; 40 Fed. Reg. 47505-47506 (1975). In listing
the snail darter as an endangered species, the Director of the
‘In light of this conclusion, we do not deem it necessary to decide whether
defendant's activities constitute an iliegal “taking” of the species in violation
of § 0 of the Act. See 16 U.S.C. § 1588(a) (1) (B) ; Sierra Clud v. Froehike,
— F. 24 ——, No. 75-1255 (8th Cir. fled April 23, 1973), Slip Opinion at
Fish and Wildlife Service of the Department of the Interior
noted that
In [the area between river miles 4 and 17 of the
Little Tennessee River] the snail darter occurs only in
the swifter portions of shoals over clean gravel substrate
in cool, low-turbidity water. Food of the snail darter is
exclusively
plaints
ment of Interior and TVA that further implementation of the
:
¢
“On April 22, 1975, the Department of Interior published its interpretation
~ habitat” as it relates to § 7 of the Endangered Species Act. 40 Fed.
Reg. 17764-17765. This interpretation states, inter alia, that critical habitat
constituent element is necessary to the normal needs or survival of that
species.”
he tated previously, TVA scientists have sighted 50 or 60
of the snail darters just downstream of the concrete portion of
the dam at river miles .2 to 3. Also, 8 or 10 of the species have
been sighted downstream from the mouth of the Little Tennes-
see River in Watts Bar Reservoir, including sightings at 4 and
10 miles downstream.
A TVA diver made what he termed a positive identification
ot two snail darters in the Crickamauga Reservoir below Watts
Rar Dam and at a point some 85 river miles downstream from
the mouth of the Little Tennessee. No specimens have been
collected from the Chickamauga Reservoir, however, and the
visibility conditions were poor when the sighting was made.’
TVA has searched unsuccessfully in 60 or 70 other water-
courses in Alabama and Tennessee looking for other popula-
tions of snail darters. It has also unsuccessfully searched the
upper reaches of the Little Tennessee River (river miles 18 to
33) in search of the darter. ,
In light of the fact that so few of the species have been found
in places other than the critical habitat area, we conclude that
it is highly probable that closure of the Tellico Dam and the
consequent impoundment of the river behind it will jeopardize
the continued existence of the snail darter. Almost all of the
known population of snail darters will be significantly reduced
if not completely extirnated, either due to the impoundment
itself or the snail darter’s potential loss of reproductive ability
if it is unable to adapt to a new environment.
In a letter dated April 27, 1976 from Assistant Secretary
Reed of the Department of the Interior addressed to Professor
Plater, the following was stated:
If such an action might be expected to result in a
reduction in the number or distribution of [the] species
of suffiuient magnitude to place the species in further
jeopardy, or restrict the potential and reasonable expan-
sion or recovery of that species.
(40 Fed. Reg. 17764-17765
(April 22, 1975)
“Recent assertions that the snail darter exists else-
where than in that portion of the Little Tennessee River
declared to be critical habitat do nothing to change the
“The diver testified that he was at a depth of about 15’ when the sighting
occurred and visibility was 3° to 4’. He further testified that the total time
elapsed during the sighting was about 15 seconds Although the diver was
not a trained ichythylogist, he was familiar with the snail darter’s appearance.
if
if
if
if
:
:
e.
i
E
s*
Ht
i
{
i
ae
HUH
He
Ale
Wie
ue
Biv
Ht
#
i
,
?
REE:
liste
Hula
He
biel
atoll
ribs pred
errrafeeie?
¢
E
|
i
.
i
;
;
i!
consequences of the project had been fully disclosed; ’ and that
TVA was attempting to preserve the darter but that the project
should be completed in any event. Hearings before a Subcomm.
of the House Comm. on Appropriations, 94th Cong., Ist Sess.,
Pt. 7, at 467 (1976); Senate Hearings Before the Comm. on
Appropriations, 94th Cong., Ist Sess., Pt. 4 at 3775-77 (1975).
After being so advised through its committees, Congress ap-
propriated over $29 million for the project through Septem-
ber 1976. The appropriation bill was signed into law by the
President on December 27, 1975—more than a month after the
snail darter was placed on the endangered species list.
In recommending the appropriation, the House Committee
on Appropriations stated as follows:
The Committee directs that the project, for which
an environmental impact statement has been completed
and provided the Committee, should be completed as
promptly as possible for energy supply and flood pro-
tection in the public interest.
(HLR. Rep. No. 94-319, 94th Cong.,
Ist Sess. 76 (1975) )
During the latest congressional appropriation hearings in
March of 1976, the Chairman of the House Committee asked
"Although the final environmental impact statement did not mention the
snail darter by name. it did discuss rare and endangered species of fish that
would be affected by the project. Eleven species of darters were listed and it
was noted that new species of the darter continued to be discovered in
Tennessee at about the rate of one per year. Exhibit 114-B, pp. II-12-2, 3;
Exhibit 114-A, p. I-3-63.
Chairman Wagner to comment on the litigation pending
roa nation with the snail darter. He stated, in part, as
7 that TVA did
We informed both committees last year =
construe the Endangered Species Act as preven
ompletion of the Tellico Project; that we believed the
utilization of human resources and outmigration of
young people.
The entire statement is found in Aearings Before a
Subcomm. of the House Comm. on Appropriations, 4th Cong.,
ment project. It involves, among other things, the construction
of a concrete and earthfill dam which acre
reservoir at fullpool elevation on the lower 33 miles of the
Little Tennessee River, As of March 31, 1976 the main dam,
Environmental Defense Fund v. Tennessee Valley Authority,
339 F. Supp. 806 aff'd 468 F. 2d 1164 (1972); 371 F. Supp.
1004 aff'd 492 F. 2d 466 (1974). The project has continued
main to be spent on the project.
One of plaintiffs’ experts, an agricultural economist, testified
that “only” $30 million of the $78 million expended to date
would fall into the category of non-recoverable obligations.
This witness conceded on cross examination that he had only
visited the project area one time in March 1976 and that he
had spent only four or five hours in preparing his testimony. He
also conceded that his analysis was limited to “ballpark fig-
ures’ —with this we agree.
Although the evidence was conflicting on the recoverability
of certain funds expended on new roads constructed in connec-
tion with the project, we are inclined to agree with defendant
:
|
z
z
:
i
lint
>t f
By
rift
AHF
att
Bvreé
i
f
1
i
t
+f
:
|
3
ih
nA
4
did
+ 3
ap
Sim8 SOT I)
54530 3] sea a hgede fF 7
atte He all 3 aH a The a3 i di
Hi & i =i3ft in; Fs HF Hip if
22 i HE “ i ta 3s aH
Ti i die - ei 2a] *3 ut i!
tr Hl iE ie Bit He it it
oe EEN peu
an iil i chilly Hu
eH HE 2G 3 Ble(ce FH I
: 1 nad ih an ee Hf is :
wits ESE 3.3 te! once ed | f 3}
i 43 t rif feasts iets Sify i
le neditninetat jin |
s2f— =ssix8 : + ETE 2. itis !
He eee
52 23 555 Beis 274% sac e22y 3 P
da Heel
aaah eT a
lico Project and a House Committee's direction to complete
the project “in the public interest” after being informed by
TVA that it did not construe the Endangered Species Act as
preventing the project's completion is persuasive that such an
interpretation of the Act is consistent with congressional in-
tent. Cf. Environmental Defense Fund Inc. v. Corps of En-
gineers, 402 F. 2d 1123, 1140-41 (Sth Cir, 1974); United States
ez rel TVA v. Two Tracts of Land, 456 F. 2d 264, 267 (6th Cir.)
cert. den. 400 U.S. 887 (1972). We are convinced that Congress
years.
Plaintiffs rely on several recent cases dealing with the Endan-
gered Species Act in support of their contention that the Act
should be applied with full force and effect to the Tellico Proj-
ect. The case of United States v. Cappaert, 508 F. 2d 313 (9th
Cir. 1974), cert. granted 422 U.S. 1041 (1975) deals only tan-
gentially with the Act and appears to turn on the in
and effect of a 1952 Presidential Proclamation. 508 F. 2d at 320.
In National Wildlife Federation v. Coleman, 520 F. 2d 359
|
:
|
begin until September 1, 1975, with a target completion date of
May 29, 1978. Additionally, the plaintiffs did not seek a perma-
nent injunction against construction of the highway.
Thus, the Coleman court was faced with a case that was
fundamentally different on its facts from the present case, Con-
struction of the 5.7 mile segment was in its initial stages and
relatively minor alterations to the segment were all that was
necessary to effectuate full compliance with § 7. Additionally,
the Mississippi Sandhili Crane had been on the endangered list
since June 3, 1973 pursuant to a predecessor to the present Act.’
As discussed previously, impoundment of the river is inte-
gral to the entire Tellico Project and it would serve no purpose
to enjoin such action pending review by the Secretary of the
Department of Interior to determine what modifications would
bring the project into compliance with § 7, The Secretary has
made his position clear that the proposed impoundment “would
result in total destruction of the snail darter's habitat.” 40 Fed.
Reg. a 47506."
In Sierra Club v. Froehlke, supra, the court affirmed the dis-
trict court's denial of injunctive relief in an action to halt con-
struction of the Meramec Park Dam and other proposed dams
in the Meramec Basin. T .¢ case dealt primarily with asserted
violations of NEPA and the Endangered Species Act of 1973.
constructing
— bats in the project area.” Froehlke, supra, slip opin-
at
The proof showed that only a very small number of the bats
would be affected out of a total population of some 700,000.
Although the court did not deal directly with the ques-
* Bndangered Species Conservation Act of 1060, Pub. L. 01-185. For a dis
cussion of the background of the present Act, see 2.U. 8. Cong. & Admin. News,
ey 2002 (1978).
* The insuance of a permaneat injunction in this case would have far more
serious ramifications than \n the ordinary case arising under NEPA In
that type of case the defendant agency can often be enjoined from further
construction of a project pending compliance with the requirements of NEPA
which are primarily procedural in nature.
July 1974. wohl prawrr bee feed yond
be completed and operational until June of 1980. Froehlke,
supra, slip opinion at 6-7. Further, the Indiana Bat had
listed as endangered since 1966 under a predecessor to the
present Act."
Counsel for plaintiffs argues fervently that the Court has
only limited discretion in determining whether or not an
tion should issue. It is asserted that the discretion of the
is limited to fashioning a remedy to insure compliance with the
Act, not to excuse a violation thereof. See Hecht Co. v. Bowles
321 U.S, 821 (1044); SEC v, Advance Growth Capital Corp.
470 F. 2d 40 (7th Cir, 1972); Shafer v. United States, 220 F. 2d
124 (5th Cir), cert, den, 361 U.S. 931 (1956), Since Congress
“Bodangered Species Preservation Act of October 15, 1066 (Pub. L. '
“Plaintiffs also argue that the injunction should issue and the question
would thereby be “remanded” to Congress for it to determine if the Tellico
Project should be exempted from the Act. As pointed out previously, we
think that Congress has already made it clear that the project should be com-
pleted If we are mistaken in this conclusion. it is not too late for Congress
to refuse to appropriate the funds to complete the project.
ae
itt
i
zeit
gu!
3
i
#
!
|
ERs
i
rH
:
i
E
TE
ra
y Aerated Defense Fund v. Corps of Engineers, 470
F. 2d 280 (1972) cert. den. 412 U.S. 931 (1973).
[Caption Omitted]
[Filed May 25, 1976]
Order
For the reasons stated in a Memorandum this day passed to
the Clerk, it is ORDERED that the plaintiffs’ request for a
permanent injunction in this action be, and the same hereby
is, denied.
It is further ORDERED that the action be, and the same
hereby 1s, dismissed on the merits.
Enter:
Roserr Tay.or,
United States District Judge.
(48)
By: W. P. Boows Dovererrr,
for Plaintiffs,
Attorney
1200 Hamilton National Bank Building,
(@)
Knorville, Tennessee.
wie
lads |p
Z H in } i
7 ii J i
isi
i
piel ii
f
m to the United Sestee Court of
the condition of this chligntion ooush
ide chal rssneato thei appeal t aes
ateye poets
Donald 8. Cohen
Valley
were entered
tiffs having
[Caption Omitted]
and Susano.
ee a
a
Pat
tiffs and T
the said plain
Order and M
or the Sixth
HEB foe uy
[Caption Omitted }
Motion for Injunction Pending Appeal From Order Denying
Injunction
Upon the complaint and all the briefs and other relevant
material filed by the parties, and all the proceedings in this
action to date, the plaintiffs respectfully move this Court for
an order restraining defendants, pending the hearing and deter-
mining of plaintiffs’ appeal to the United States Court of Ap-
peals for the Sixth Circuit from the judgment of this Court en-
tered May 25, 1976 dismissing the claim herein, from construc-
tion, excavation, tree-cutting and other project activities that
would destroy or alter critical habitat or jeopardize the exist-
ence of the snail darter Percina (lmostoma) tanasi in violation
of the Endangered Species Act; 16 USC 1531 et seq., and for
other further relief as the Court deems just.
W. P. Boone Dovenzarr,
1200 Hamilton Natl. Bank Building,
Knoxville, Tennessee 37902,
Tel. (615) 546-8030,
Attorney for Plaintiffs.
Of Counsel:
Bernstein, Dovoueary & Susano.
(52)
(Caption Omitted]
(Filed June 9, 1976]
esponse of Tennessee Valley Authority to Plaintiffs’
. ection for Injunction Pending Appeal
brief, and in the annexed affidavit of George H. Kimmons
(Exhibit “A” hereto), defendant TVA opposes plaintiffs’ mo-
tion for an injunction to halt further construction of the
Tellico project pending appeal on the following grounds:
1. Plaintiffs have failed to satisfy any of the prerequisites
" ell h an injunction
Mo The balting of construction in this project st this
Tennessee Valley Authorit vy,
Knorville, Tennessee.
Cuaates A. Wacwen III,
Assistant General Counsel.
Tuomas A. Pepansen,
Nicnoias A. Datta Voure,
Attorneys for Defendant.
(53)
[Filed June 9, 1976]
United States District Court for the Eastern District of
Tennessee, Northern Diviion
Civil Action, No. 3-76-48
Hiram G. Huu, Jr., Zyamunt J. B. PLater, Donatp S. Conen,
Tue Avpuson Counc, or Tennessee, INC., AND THE
ASSOCIATION OF SOUTHEASTERN BIOLOGISTS, PLAINTIFFS
v.
TENNESSEE VALLEY AUTHORITY, DEFENDANT
Brief of Tennessee Valley Authority in Opposition to
Injunction Pending Appeal
Plaintiffs, having failed to prove that they were entitled
to 4 preliminary injunction pending trial, and having failed to
prove that they were entitled to an injunction after a trial
on the merits, now seek to obtain the identical relief already
twice denied by asking the Court to grant them an injunction
pending appeal. Their situation is the same as that of the
plaintiffs in Sierra Club v. Lynn, 364 F. Supp. 834 (W.D.
Tex. 1973), in which the court denied plaintiffs’ motion for an
injunction pending appeal saying:
Not only have the plaintiffs failed to demonstrate
that irreparable damage will result if the injunctive
relief is not continued, but this Court does not believe
that the record in this case would support a finding that
there is a strong likelihood that plaintiffs will succeed
in an appeal on the merits. Certainly, it would be the
height of inconsistency for this Court to determine after
& nine day trial that no irreparable damage to the
aquifer will result if the project proceeds, and then en-
join the project because irreparable damage will result
if the project is not halted. An injunction in the present
case would, in practical effect award to plaintiffs the
(54)
identical relief already denied to them on the merits of
the case [at 852]}.’
To the same effect is Environmental Defense Fund, Inc. v.
Froehlke, 368 F. Supp. 231 (W. D. Mo. 1973), aff'd sub nom.
Environmental Defense Fund, Inc. v. Callaway, 497 F. 2d 1340
(8th Cir. 1974), involving the Truman Dam, in which the court
said :
We expressly found and concluded in our memoran-
dum and order of October 18, 1972, that “the public
interest would not be served should we grant to plaintiffs
precisely the form of blanket relief pending appeal
cember 18, 1972 [at 256].
Plaintiffs’ principal argument is that the Sixth Circuit may
nat tle deci ends tao and as a conse-
quence, they would be faced with a mooted issue. We think it
would be inappropriate for this Court to grant an injunction
based on speculation as to when the Sixth Circuit would sched-
ule this case. It must be assumed that the appellate court will
schedule the case as appropriate. Moreover, it is virtually un-
disputed that neither the snail darter nor its habitat will be
affected until the dam is closed in January 1977. The Court
specifically found in its memorandum opinion that:
i of trees and foliage along the banks of the river is
calen'a Gataste Ge cutiiaed tines of the snail
darter because of siltation, the preponderance of the
evidence showed that these operations do not pose a
An injunction pending appeal is an extraordinary remedy
which is granted only upon a clear showing that plaintiff has
met the necessary requirements. The prerequisites for obtain-
‘ Emphasis added herein unless otherwise noted.
ing such an injunction are well stated in Long v. Robinson, 432
F. 2d 977 (4th Cir. 1970):
Briefly stated, a party seeking a stay must show (1)
that he will likely prevail on the merits of the appeal,
These basic prerequisites are well-established law. North
Cent. Truck Lines, Inc. v. United States, 384 F. Supp. 1188,
1190-91 (W.D. Mo. 1974) aff'd. 420 U.S. 901 (1975); Virginia
Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F. 2d
921 (D.C. Cir. 1958); Alpine Lakes Protection Soc’y v. Schlap-
fer, 518 F. 2d 1089 (9th Cir. 1975); Belcher v. Birmingham
Trust Nat’l Bank, 395 F. 2d 685, 686 (5th Cir. 1968); Hamlin
Testing Laboratories, Inv. v. United States Atomic Energy
Comm’n, 337 F. 2d 221, 222 (6th Cir. 1964); Adams v. Walker,
488 F. 2d 1064 (7th Cir. 1973); Environmental Defense Fund,
Inc. v. Froehlke, 348 F. Supp. 338, 366 (W.D. Mo.), application
for injunction pending appeal denied, 409 US. 1072 —_
aff'd 477 F. 2d 1033 (8th Cir. 1973) (Truman Dam);
Club v. Lynn, 360 F. Supp. 844, 852 (W.D. Tex. 1973). _™
generally 7 J. Moore, Federal Practice § 62.05 (2d ed. 1975).
Plaintiffs cannot establish any of these prerequisites.
1. Plaintiffs’ likelihood of success. Since an injunction pend-
ing appeal is an extraordinary remedy, the movant must
make a “strong” showing that he will prevail on the merits
of his appeal. Hamlin Testing Laboratories, Inc. v. United
States Atomic Energy Comm'n, 337 F. 2d 221 (6th Cir.
1964); Adams v. Walker, 488 F. 2d 1064 (7th Cir. 1973);
Belcher v. Birmingham Trust Nat'l Bank, 395 F. 2d 685 (5th
Cir. 1968); Miltenberger v. Chesapeake & O. Ry., 450 F. 2d
971 (4th Cir. 1971); North Cent. Truck Lines, Inc. v. United
States, 384 F. Supp. 1188 (W.D. Mo. 1974), aff'd, 420 US.
901 (1975); Sierra Club V. Lynn, 364 F. Supp. 834 (W.D.
Tex. 1973).
Plaintiffs have failed to state any legal or factual conten-
tions which would justify this Court in entertaining any
serious doubt as to the correctness of its decision in this
case. Their mere unsupported assertion that “ ‘likelihood of suc-
2. meh Ni de. NE aaa
ees aedisitten Wit tee until
3. Harm to defendant. Plaintiffs’ assertion that an injunction
“will not seriously burden the defendants” because TVA is
using its own personnel and equipment “which can be easily
used elsewhere” is utterly false. As shown in the affidavit of
George H. Kimmons, these employees and equipment cannot
be transferred elsewhere; and an injunction for a period of one
m nth would delay closure of the dam by six months and cost
TVA $1,000,000, while an injunction 1 .r a period of four months
would delay closure by one year and cost TVA $6,300,000.
4. The public interest. Plaintiffs argue that “(t]he public
interest would be served not aampered by a ’ because
the publie interest ie theentened lay enquing constrestion which
results in “destruction of existing agricultural, recreational,
historical, touristic features of the Little Tennessee Valley.”
This argument is both baseless and irrelevant. It is baseless
because Congress has decided that it is in the public interest
to construct the project in order to realize the benefits of navi-
gation, flood control, water supply, electric power, recreation,
creation of jobs, ete. It is irrelevant because (1) it has nothing
to do with this action which involves the snail darter and the
Endangered Species Act of 1973; and (2) the impacts on
agricultural, recreational, historical, and touristic features were
the sub ject of the earlier Tellico litigation. After a trial on the
merits in Tellico II, both this Court and the Sixth Circuit
denied plaintiffs’ request for an injunction pending appeal and
held that the Tellico project could go forward.
The following remarks from Truman Dam (368 F. Supp.
231) are approperiate here:
* * * “the public interest would not be served should
we grant to plaintiffs precisely the form of blanket re-
lief pending appeal which we refused to grant them on
the merits” [at 256].
CONCLUSION
For the foregoing reasons, and under all the circumstances
of this case, we respectfully submit that the Court, in the exer-
cise of its sound judicial discretion, should deny plaintiffs’ re-
quest for an injunction pending appeal.
Respectfully submitted,
Hersert S. Sancer, Jr.,
General Counsel,
Tennessee Valley Authority,
Knozville, Tennessee.
Crar.tes A. WacNer III,
Assistant General Counsel.
Tuomas A. PEpEeRsEN,
Nicuo.tas A. DeLita VoLps,
Attorneys for Defendant.
[Caption Omitted]
Arripavit or Georce H. Kimmons
StaTs oF TENNESSEE on
County of Knoz, :
GEORGE H. KIMMONS, being first duly sworn, deposes
and says:
I am 57 years of age and reside at Route 3, Williams Road,
Concord, Tennessee. I am a graduate engineei from the Uni-
versity of Mississippi and have been employed by the Tennes-
see Valley Authority as an engineer since 1941. My present
position is Manager of the Office of Engineering Design and
Construction, in which capacity I have responsibility tor the
design and construction of all projects built by TVA, including
the Tellico project. The matters herein stated are based on my
personal knowledge and are true.
The Tellico project is about 80 percent complete with dam
closure scheduled for January 1977. Work currently in progress
on the project includes placement of fill for the earthfill section
of the dam, installation of spillway gates in the concrete sec-
tion, excavation of the canal which will connect the Tellico
Reservoir with the existing Fort Loudoun Reservoir, reloca-
tion of highways and bridges, reservoir clearing, utility and
cemetery relocations, saddle dam construction, and archaeo-
logical investigations and protection.
The 690 TVA employees engaged in this work consist of 48
engineering and supervisory employees and 642 skilled and un-
skilled craft employees with a total monthly payroll of over
$1 million. In addition, some 41 employees of independent con-
tractors are participating in the work. TVA’s construction
equipment with a value of about $6.5 million is now working
on the project.
The placement of earthfill for the earth dam section is the
most critical remaining work item. Over 1.3 million cubic yards
of fill must be placed before the dam closure in January 1977.
The normal earthmoving season in this region is from the mid-
(58)
252-501 O- Te -5
dle of April until the first of December, but the optimum sea-
son is just now beginning. A one-month work suspension at this
critical time would likely delay closure of the dam by six months
or more. A four-month suspension would cause loss of the com-
plete work season and delay dam closure by about one year.
Inability to place the fill in the 1976 work season would leave
the partially completed earth dam vulnerable to flood damage
with probably loss of considerable fill already in place.
The cost of a one-month suspension of work is estimated at
$1 million; the cost of a four-month work suspension is esti-
mated at $6.3 million. These costs include shutdown costs,
standby costs, work resumption costs, and price escalations.
Work shutdown costs consist of the transfer of supervisory
staff (if possible), termination of craft employees, depreciation
and maintenance of unused contruction equipment, damages
to contractors for demobilization, and the placing of the project
in standby status. Only a few of the supervisors and very little
equipment could be transferred to other projects because all
other projects are adequately equipped and staffed.
Standby costs consist of making provisions for security, loss
from non-use of equipment, and job surveillance.
Work resumption costs consist of transferring supervisory
staff, re-employment of craft workers, job cleanup, replace-
ment of earthfill lost from flooding, loss of productivity during
the re-buildup period, and damages to contractors for
remobilization.
Price escalation consists of the effects of escalating prices
during the period of work suspension. Construction prices are
currently escalating at a rate of 9 to 10 percent per year.
The above costs do not include those which would result to
the public as a consequence of the delay in realizing the bene-
fits of the completed project.
(S) George H. Kimmons.
Grorce H. Krmmons.
Sworn to and subscribed before me this 7th day of June, 1976.
[sean] Awnrra G. Detivs,
Notary Public.
My commission expires: 10/13/78.
reasons i inion filed in
stated in a Memorandum Opinion
PP an dad the 25th day of May, 1976, ewer eyed ys
plaintiffs’ motion for an injunction pending appeal ,
same hereby is, denied.
Enter:
[Caption Omitted ]
Designation by Appellants of Transcript for Appeal
The appellants designate that the entire transcript should
be designated and included as a part of the record on appeal.
This 11th day of June, 1976.
i i ee ee ee ee ee a
Attorney for Appellants.
OF COUNSEL:
W. P. Boons Dovenesrty,
Bernstein, DoucHerty & Susano,
1200 Hamilton National Bank Bldg.
Knozville, Tennessee 37902.
(62)
United States Court of Appeals for the Sixth Circuit
No. 76-8129
Hream G. Hut, Jr., Zyemunt J. B. PLarer, Donwarp 8. Comen,
THE AupuBoN CouNCIL oF TENNESSEE, INC. AND THE ASssO-
CIATION OF SOUTHEASTERN BIOLOGISTS, PLAINTIFFS-APPEL-
LANTS, v. TENNESSEE VALLEY AUTHORITY, DEFENDANT-
APPELLEE
Order
Upon consideration of the appellants’ motion for injunction
pending appeal, it is ORDERED that the motion be and it
hereby is ted.
It is further ORDERED that the appeal herein be assigned
for oral argument in the October, 1976 session of this Court.
Entered by Order of the Court,
Joun P. HeuMan,
Clerk.
By: Grace Keer,
Chief Deputy.
(68)
No. 76-6129
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT. etLbs.
HIRAM G.
- ae HILL, JR., : AUS2 A
Plaintiffs-Appellants
vs
TENNESSEE VALLEY AUTHORITY
Defendant -Appellee
The Motion for Reconsideration of the In junction
Pending Appeal heretofore issued by this Court, was argued
orally by counsel representing both sides, in the Chaebers
of a Judge of this Court, in Akron, Ohio, om July 29, 1976.
In order to allow time for the consideration and
determination of the Motion for Reconsideration, it was
then ordered that the injunction heretofore entered on
July 26, 1976 be stayed uwaril Auguste 4, 1976.
It appears that District Judge Taylor denied «
temporary restraining order and « prelisinary injunction
prayed for by the plaintiffs, and alse denied to plaia-
tiffs an injunction pending appeal. He declined to apply
the Endangered Species Act to the Tellico Das project
because the project had been authorized by Congress in
Wo. 76-8129 - 2
1966 and the Endangered Species Act (16 U.S.C. § L531 et
seq.) did not become effective until December 28, 1973,
which was more than seven years later.
The snail darter was not discovered until August 12,
1973 at approximately River Mile 7 of the Little Tennessee
niver.' It was later designated as an endangered species
and its critical habitet was determined by the United States
Fish and Wildlife Office of the Department of Interior, on
May 3, 1976, at River Miles $5 to 1? of the Little Tennessee
River.
The project is now about eighty per cent (80%) com-
pleted, and millions eof dollars have already been spent on
the estimated total cost of one hundred millien dollars
($100,000 ,000). T.V.A. plans to complete the entire project
in Januery 1977.
The sotion of the plaintiffs was to enjoia T.V.A. from
continuing tree cutting, excavation, ground clearing and
construction in connection with the Tellico Reservoir. This
wes in substance, the same injunctive relief which plaintiffs
sought in the District Court.
1 The snail derter was so named because it is « small tennish-
colored fish which feeds on little snails lying on the
bottom of the river.
Wo. 76-8129 - 3
Judge Taylor found by « preponderance of the evidence
thac the clear cutting of trees and foliage along the banks of
the river does not pose a present threat to the snail darter.
He further found that T.V.A. had made a reasonable effort to
prevent siltation; that che silt load in the river is com-
parable co levels which existed prior to the clear cutting and
bulldozing operations. It would of course, be expected that
T.V.A. would continue with its efforts in this respect without
any order from us. Judge Taylor further found that the
closure of the Tellico Dam in January 1977 and consequent
eteation of the Tellico Reservoir would result in adverse
sodification if net complete destruction of the snail darter's
habitat, and this would lead to the dastruction of the species.
Thus, it is mot the construction project, but the closure of
the dew when completed, which will result in the destruction
of the snail darter.
The District Judge was tepressed by the fact that the
parties had appeared before Appropriation Committees of Congress
to express their views on continuing with the project, and that
Congress hed continued to appropriate funds for the completion
of the project. The effect of all this can be determined
No. 76-8129 - 4
only when the case is heard on its merits.
The District Judge further found that in continuing
further implementation of the project, T.V.A. had acted within
the scope of authority granted to it by Congress and in no
respect did it act on capriciously or other than in
good faith. The Court pointed to sincere efforts made by
T.V.A. to conserve the snail darter, and had consulted with
other governmental agencies. Counsel for T.V.A. at the oral
hearing advised the Court that T.V.A, has already spent
three hundred thousand dollars ($300,000) in its conservation
efforts, which included trying to find a new habitat for the
fish.
It would appear to the Court on reconsideration, that
the injunction pending appeal heretofore granted, was too broad.
It enjoined further construction when the evidence is now
clear that the only conduct which would result in destruction
of the fish is closure of the das. It did not take into
account the probability of damage to the government as the
owner of T.V.A., if construction is delayed during the present
dty season, and the fact that sore than seven hundred sen
would be put owt of work. In the event the injunction
No. 76-8129 - 5
pending appeal be later held to have been improvidencly
granted, the government would have difficulty in recovering
damages because the injunction was issued without bond,
The findings of fact adopted by the District Judge
have not been showa to be unsupported by substantial evidence
or to be clearly erroneous. For the purpose of this Motion,
they are binding on the Court.
IT IS THEREFORE ORDERED that the injunction pending
appeal heretofore entered on July 26, 1976, be and it is
hereby modified so as to enjoin, pending appeal, any closure
aA a
“Unite
of the dam.
No. 76-2116
nn
.
° :
*
See ew
i
i
The Court during oral argument asked several questions
to which TVA believes further responses will materially facil-
itate the Court's consideration of the case. The following are
TVA's complete responses to those questions:
1. Q. The Court's initial question was what is the status
of TVA's transplant program,
A. As @ part of « transplant program already involving an
expenditure of over $300,000, TVA transplanted over 700
enail darters to the Hiwassee River beginning in June
1975. At the trial, TVA presented evidence that the
reproductive development of snail darters in the Hiwassee
River paralleled that of the darters in the Little
Tennessee River; but at thet time, TVA was unable to
offer evidence that reprodtiction had actually occurred
im the Hiwassee River. Judge Taylor found in his May 25,
1976, opinion that “the transplant may or may not be
successful since there is no conclusive proof that the
_ RECEIVED _
OCT 2 0 19/6
OrvISION OF LAW FiLES ~
70
700 snail darters will reproduce in their new environment”
(Opinion at 8). Since that time, beginning in August
1976, TVA biologists have returned to the Hiwassee River
and with limited searching have sighted over a dozen
young-of-the-year (less than one year old) snail darters,
thus indicating that the fish are reproducing in the
Hiwassee. Several young-of-the-year fish have been cap-
tured in the Hiwassee River under a U.S. Fish and Wildlife
Service permit for further scientific study.
This is the strongest possible indication of a successful
transplant; however, it is only fair to note that biol-
ogists generally consider several years of data necessary
before they can form a conclusive judgment on the success bd ,
of a transplant.
The Court asked whether application of the Endangered
Species Act to the Tellico project, due to its advanced
stage of completion, would constitute an impermissible
retroactive application.
TVA contended in the district court and still contends
that due to Tellico's advanced stage of construction at
the time the Act was enacted, at the time the snail ‘
darter was discovered, and at the time the snail darter
was listed as endangered, the application of the Endan
gered Species Act to the Tellico project would be an
impermissible retroactive application not intended by
Congress. The district court did hold that the Endan-
gered Species Act is applicable in the abstract to the
Tellico project; but it also held that because of the
stage of completion and the other circumstances of this ‘
case, it did not apply retroactively to halt Tellico's
completion. Judge Taylor specifically held:
A.
Soe Ssvpstitating gs sepa setamneenenet.ttrst=
project at its advanced stage and directs that
yay proj ae be os 3. nee ag ty Ae 5 poogmete
Cong. bd Sess. 96 C19 1576) j.
Indeed, Judge Weick, in his order modifying the injunction
pending appeal, noted that Judge Taylor “declined to apply
the Endangered Species Act to the Tellico Dam project
because the project had been authorized by Congress,”
over seven years befogs the effective date of the Act.
We believe this holding was entirely proper in this case
and it is TVA's position that the application of the
Endangered Species Act to halt a validly authorized
project begun over seven years before the effective date
of the Act, without any judicial weighing and balancing
and without applying the rule of reason (both of which are
clearly allowed under the cases construing NEPA), would
constitute an impermissible retroactive application not
intended by Congress.
The Court inquired why TVA has not sought « specific
exemption from the Endangered Species Act for the Tellico
project.
No exemption was requested because it was and is TVA's
position that « specific exemption is not required. What
72
TVA did was to give Congress our construction of the Act
as applied to the Tellico situation. As TVA Chairman
Aubrev J. Wapner told Congress at the appropriation
hearings this year:
It is TVA's position that the ultimate decision
to proceed with this project rests with TVA, and
that TVA has acted responsibly, and in good faith
in — ite decision to complete the ject.
We - 14 Ong t ©! < -enec :
ndar ered” ) Ss sie | Act to be retroactive:
© existing projects like teilic<
percent complete at ¢t
ssage and the fish's d
, and which was
50 to 80 complete at the time of the official
list of the enail darter as an endangered species.
7 i licable to Tellico,
: NC. rec specie s ~(
es to take reasonable measures, in consu:
rh the Secretary of the interior, to cons
mdangered or threatened species of fish, wiidii'
r
authorized projects, suc
oF an lang ere<
or destroyed by completion of the project. TVA
certainly does not construe the act as a mandate
to halt an authorized project without regard to
its stare of letion or the fact that $80 million
in public funds has been appropriated by Congress
and invested in a regional development project to
provide flood control, navigation, hydroelettric
power, water supply, and to produce other benefits,
including recreation, fish and wildlife use,
shoreline development, new job opportunities,
industrial development, and to foster —
economic conditions in an area character
by underutilization of human resources and out-
agree ss Sob ntehaske olteai. at 261, App.
Congress ratified and acquiesced in TVA's and Judge
Taylor's interpretation of the Act. See S. Rep. No.
94-960, 94th Cong., 24 Sess. 96 (1976), quoted in TVA's
brief at page 7.
Unlike the Bureau of Reclamation, the Corpse of Engineers.
and other federal agencies, TVA does not obtain special
authorizing legislation for dams and reservoirs before
seeking appropriations to construct them. Sections 4(j)
and 27 of the TVA Act (16 U.S.C. §§ 83lc(j), 8312 (1970))
are general suthorizing legislation for such projects.
A.
73
Section 4(}) provides that TVA
(s}hall have power to construct such dams,
reservoirs, in the Tennessee River and
Section 27 provides that:
All appropriations necessary to carry out the
peovislens of this (Act) are authorized.
The appropriations committees accordingly play a rather
unique role with regard to TVA projects of this type,
since they alone recommend to Congress whether such
projects should or should not be built. It is to these
committees, therefore, that TVA took the Tellico question.
The Court asked whether TVA's appropriations specify the
projects or activities for which given amounts of funds
appropriated to TVA may be used, or whether TVA receives
a lump sum appropriation which it is free to apply among
projects or activities as it sees fit. The Court also
asked whether the General Accounting Office reviews TVA's
expenditures from its appropriations.
As to the first point, TVA receives appropriations in «
lump eum form; but the President's budget, as subsitted
to Congress, breaks down the smount requested by the
President for TVA into specific sums for specific projects
or activities: and the reports of the appropriations
committees sccompanying the appropriations bills as
74
submitted to the House and Senate, respectively, contain
similar breakdowns. TVA is not free to depart in any
substantial degree from the amounts set out in the TVA
reports. It did so once in Fiscal Year 1948 as a result
of a misunderstanding of different actions of the House «
and Senate committees. The Senate committee made its
displeasure very clear during the hearings on the appro-
priations for the following fiscal year, and the Chairman
of the Board, Mr. Gordon Clapp, assured the committee
that it would hever happen again. Printed pages froa
the 1949 Senate committee hearings (pp. 51-54) are
attached.
In order to further clarify this situation, we are
attaching copies of the following:
l. The portion “The Budget of the United States Govern-
ment Fiscal Year 1977, Appendix,” pertaining to TVA
(pp. 796-800). The tables of the Capital Outlay on
page 798 and Application of Appropriations on page 799
specify that $9,700,000 of the total amount requested is
to be committed during Fiscal Year 1977 for Tellico Dam
and Reservoir. (The narrative -tatement on page 797 shows
that of the total commitment of $9,700,000, a total of
$9,550,000 will be expended during Fiscal Year 1977 with
the remaining $150,000 to be expended in the following
fiscal year.)
2. Pertinent pages (cover sheet, 4, 24-28) from the
Tennessee Valley Authority "Budget Program--Justifica-
tion of Programs and Estimates for the Fiscal Yeer Ending
September 39, 1977, supplied by TVA to Congress in support
of the appropriation requested for Tellico contained in
the President's budget.
75
3. Pertinent pages (1, 62-84) from the report of the
House Appropriations Committee, H.R. Rep. No. 94-1223,
94th Cong., 24 Sess. (1976).
4. Pertinent pages (1, 95-96) from the report of the
Senate Appropriations Committee, S. Rep. No. 94-960,
94th Cong.. 24 Sess. (1976).
5. Pertinent pages (1, 11) from the Appropriations Act,
Pub. L. No. 94-355, 90 Stat. 889 (1976).
The General Accounting Office does review and report
directly to Congress on TVA's expenditures. Section 9(b)
of the TVA Act (16 U.S.C. § 831h(b) (1970; Supp. V,
1975)) provides in pertinent part as follows:
The Comptroller General of the United States
shall audit the transactions of the Corporation
at such times as he shall determine, but not
less frequently than once each governmental
fiecal year, with personnel of his selection.
The Government Corporation Control Act ‘31 U.S.C. § 841
(1970)) expressly states the policy applicable to all
wholly owned government corporations, including TVA:
At ts declared to be the policy of the Congress
to bring Government corporations and their trans-
ections and operations under annual scrutiny by
the Congress and provide current financial
‘control thereof.
Thies Act provides « comprehensive scheme for the sub-
miseion of agency budget programs and of annual audits
and reports by the Comptroller General which ere required
to be furniened t® Congress (31 U.S.C. §§ 847-51 (1970;
Supp. V, 1975)).
76
5. Q. The Court asked what precedential effect this decision
would have and whether upholding Judge Taylor's decision
would somehow limit the strength of the Endangered Species
Act for the future. i
A. The precedential effect of this decision is narrow at
best. Judge Taylor was careful to restrict his decision
to the “particular facts and circumstances” of the
Tellico case:
We go no further than to hold that the Act does
mot operate in such « manner as to halt the
completion of this particular project. A far
different situation would be presented if the ’
project were capable of reasonable modifications
. or if the project had not been underway.
for nearly « decade [Opinion at 23).
Judge Taylor's decision could only have precedential
value when all the following factors are present:
(1) Project authorized and begup aeny years before the
effective date of the Act; (2) Species in question dis-
covered many years after the project authorized and }
begun; (3) Species listed as endangered when project
nearly complete: (4) No alternatives eveilable short of
scrapping the project to evoid effect on species; and |
(5) Project being completed under supervision of Congress. |
Respectfully submitted,
CAW: HSS NDV ILB
10-19-76
77
In THE
UNITED STATES COURT OF APPEALS
POR THE SIXTH CIRCUIT
Wo. 76-2116
—
—
fod
.
ee ee ee ee ee ee eee ee ee
Plaintiffs were highly appreciative of the Court's expedited consideration
of this case, and wish, in responding to defendants extension of answers. to
evoiéd any further delay in resolving the Endangered Species Act's conflict with
the Tellico Project.
This response formalizes plaintiffs’ comments contained in « letter to the
clerk filed October 22, 1976. As defendants note, their supplements! answers
are queneus of arguments previously presented in their brief and at the
heoring. Bo new issues are raised, and no new arguments are presented.
Accordingly nothing in defendants’ motion, or this response thereto, necd operate
to delay this Court's resolution of the case.
1. Zxemeplentetion efforts -- Defendants note ongoing transplant efforts.
If « transplant were to prove successful, however, (and TVA admits thet this can
be known for severel years), it would not eliminate the statute's epplicetion
te The Little Tennessee River population of the species. The lattcr would
still be the majority population of the endangered species, and The Little
River would remain the species’ “critical habitat" under the Act.
Act does not provide for transplantation as @ substitute for compliance
ww
= Go com. RECctiven ,
DEC - 6 1876 J
Orvision OF Law pmeS
78
Thus, if the transplent is relevent at ell it is relevant not to judicial
application of the Act, but to future Congressional deliberation whether on
balence to exempt the project or to shift to alternative development uses.
2. Implied cxemption for ongoing projects -- This repeats defendants’
opposition to the principle of applying « statute where substantial agency
actions in conflict with @ statutory purpose remain to be taken at the time «
violation occurs. They thus disagree with this Court's holdings in prior cases,
noted more fully in Plaintiffs’ Brief, page 33.
3. “Implied amendment by appropriation - why didn’t TVA go to Congress
for an amendment." -- This repeats prior arguments. It edds the implication ad
because TVA projects are self-authorized and “appropriations committees . . .
play « rather unique role with regard to TVA . . ." thet appropriation aumitters
can impliedly amend federal statutes to exempt TVA, via legislative history
and without statutory amendment as other agencies would require. This is «
novel argument going beyond prior caselaw, which has always in the past requi
eee suet.
gi et “Spl icS Gmendweuts vie eppropsiacions eacis be “mamifestiy clear trom both
the language of the act and the legislative history.” Reply Brief at page 4.
4. Lump sum appropriations materials. Defendants’ appendix docu-ents are
apparently intended to show Congressional consideration of the Tellico issue.
exhibits, however, ere legislative background documents, not statutory ma-
terial, end the Tellico project is restricted to one-line notations in « mass
f general budget items except for « single peragraph in « Senate appropria-
tions committee report. The one-line notetions make no mention of conflict
ith the Act.
In fact, since TVA appropriations are lump sum grants, and TVA does not
Trequire specific Congressional authorization for their projects, defendants’
s show that Congress has never even considered legislation thet
toned the Tellico project by name. To permit these notations to create
implied amendments of a federal statute would be « major departure from
stablished principles of statutory construct ion.
Defendants note that GAO audits TVA's bookkeeping. GAO has not done @
lic benefit analysis of the Tellico project.
5. Undesirable precedent. Defendants argue that this Court's failure
enforce the Act would not establish undesirable precedent. Defendant's
jusion, however, presumes their arguments. A decision denying an injunc-
tion would stand es precedent for
(a) @ judicial exemption from the Endangered Species Act without
any findings as to unavailab‘lity of alternatives (defendants
5(4); plaintiffs’ brief 28-30)
(>) judicial exemption of an agency based upon its successful delay of
statutory review while construction continued, and
(c) judicially implied amendment based upon some notion of “super-
vision" by appropriations committees outside of stetutory
amendment procedures.
Since the defendants’ supplemental arguments add nothing substantive to
prior arguments, plaintiffs respectfully rest on their briefs previously filed,
and urge that defendents’ sotion and materials not operate so as to delay the
panel's early consideration of this case.
Plaintiffe would heve preferred to have had Congressional review of this
ter two and « half years ago. At this long-delayed stage of proceedings
there appears to be no reason for granting defendants a further delay.
Plaintiffs respectfully cote that under the law as written and as interpreted
by the Courts, an injunction against further construction and closure of the
dam segment of the project should iseve until Congress considers this
complex issue and resolves it in the proper political form.
fully
J. B. Plater
State University Law School
Detroit, MI 48202
Tel. 13-577-23962/
994-3796
W. P. Boone Dougherty
Suite 1200
Hamilton Natioral Bank Building
Knoxville, TX 37902
Attorneys for Plaintiffs-Appellants
RT y
I certify that the foregoing brief was served on defendants-appellees United States Court of Appeals for the Sixth Circuit
by mailing two copies to defendants’ counsel, Mr. Thomas A. Pederson, at
\ No. 76-2116
his place of business, Division of Law, E-19, B-41, Tennessee Valley Authority, !
400 Commerce Ave., Knoxville, Tennessee 37902. , Hrram G. HI, Jr., ZYGMUNT a. B. PLATTER, DoNALD
S. Comen, THe Avupuson Counci, or Tennessee, INc.,
Z AltA, - AND THE ASSOCIATION OF SOUTHEASTERN BIOLOGISTS,
A ey for Plaintiffs - Appellants ; PLAINTIFFS-APPELLANTS
November 18, 1976 | ~
TENNESSEE VALLEY AUTHORITY, DEFENDANTS-APPELLEES
| APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT, NORTHERN
| DIVISION OF TENNESSEE
Decided and Filed January 31, 1977
Before Celebrezze, Peck and McCree, Circuit Judges.
Celebrezze, J., delivered the opinion of the Court, in which
Peck, J., joined. McCree, J., (p. 19) filed a concurring opinion.
Celebrezze, Circuit Judge. For the third time in five years
we are called upon to resolve a dispute between environ-
mentalists and the Tennessee Valley Authority (TVA) over
the legality of the Tellico Dam and Reservoir project. The
issue on appeal in this instance is the propriety of the district
court’s denial of Appellants’ request for a permanent injunc-
tion to prevent TVA from imminently closing the Tellico
Dam. Appellants allege that the resulting reservoir will
flood the only recognized habitat of the snail darter, a rare
protected species of river-dwelling fish, thereby jeopardizing
its continued survival, in violation of §§7 and 9 of the En-
dangered Species Act of 1973.' 16 U.S.C. §1531 et seq.
Tellico was initially proposed by TVA and ultimately ap-
proved by Congress in October, 1966, as a multipurpose, water
*16 U.S.C. §§ 1536 and 1538(a) (1) (B) respectively.
(81)
82
resource and regional economic development project. It was
primarily intended to benefit Blount, | and Monroe
Counties, Tennessee, “an area by under-utiliza-
tion of human resources and outmigration of. young people.”
Hearings before a Subcomm. of the House Comm. on Appropri-
ations, 94th Cong., 2d Sess., at 261.
The engineering focus of the proposal was a concrete and
earthfill dam to be situated near the mouth of the Little Ten-
nessee River. This impoundment would create a navigable
reservoir thirty-three miles long covering an area of 16,000
acres, including 2,100 acres of the existing river bed. Proponents
of the project claimed that it would stimulate new shoreline
industrial development, increase recreational opportunities
and tourism, and augment existing hydro-electric power gen-
erating and flood control capabilities.’ Congress agreed and in
1966 authorized initial Tellico project appropriations. Construc-
tion commenced in March, 1967. Closure of the dam is now
scheduled to be completed in January, 1977.
For the present, the river remains free-flowing and Appellants
seek to preserve it indefinitely in its present state as a natural
resource." TVA counters that it is the express will of the Con-
gress that Tellico “be completed as promptly as possible in the
public interest.” S. Rep. No. 94-960, 94th Cong., 2d Sess. 96
(1976). TVA believes that such 4p unequivocal expression of
congressional intent neutralizes any violation of the Endangered
Species Act which may be involved in the impoundment of the
river. We are therefore asked to balance the survivial of a living
species against the completion of a public works project which
is more than 80% completed and represents a federal invest-
ment of almost ninety million dollars.
In 1971 and again in 1973, environmentalists and affected
landowners petitioned the federal court seeking to forestall con-
struction of the Tellico Dam on the ground that TVA had failed
to comply with requirements of the National Environmental
*The Tellico Dam will have no electrical generators, but will contribute
hydrostatic capacity to the existing TVA system via an 850 foot canal connect-
ing the Tellico Reservoir with the Fort Loudon Reservoir.
* Environmental Defense Fund v. Tennessee Valley Authority, 339 F. Supp.
806, 808 (E.D. Tenn. 1972), summarizes in considerable detail the scenic,
historical, archeological and recreationai attributes of the Little Tennessee
River in its pristine state.
Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. They were
successful in obtaining preliminary injuction which halted
Def
see Valley Authority, 468 F. 2d 1164 (6th Cir. 1972), but the
district court ultimately concluded that TVA’s revised Tellico
environmental impact statement fully complied with NEPA,°
and we affirmed. Environmental Defense Fund v. Tennessee
Valley Authority, 492 F. 2d 466 (6th Cir. 1974).
In August, 1973, a University of Tennessee ichthyologist
discovered a unique and theretofore unknown species of fish,
the snail darter (Percina Imostoma tanasi), thriving in the
Little Tennessee River. This three-inch, tannish, bottom-
dwelling member of the perch family, was found to feed upon
fresh water snails (from whence its name was derived). In
addition to providing the snail darter with a bountiful supply
means whereby the ecosystems upon which en-
dangered species and threatened species depend may be con-
served * * *” 16 U.S.C. § 1531(b). Section 1533 of the Act
empowered the Secretary of the Interior to compile and main-
tain separate «official lists of threatened and endangered
*Td.
* Environmental Defense Fund v. Tennessee Valley Authority, 371 F. Supp.
1004 (E.D. Tenn. 1973).
*TVA searched unsuccessfully for the species in 60 to 70 rivers in Alabama
and Tennessee. Less than 70 specimens have heen sighted downstream from
the location of the Tellico Dam itself and none have heen found above river
mile 18 of the Little Tennessee.
species." Section 1536 unequivocally commits all federal
agencies to:
utilize their authorities in furtherance of the purposes
of [the Act] by * * * taking such action necessary to
insure that actions authorized, funded, or carried out
by them do not jeopardize the continued existence of
such endangered species and threatened species or result
in the destruction or modification of habitat of such
species which is determined by the Secretary * * * to
be critical. (emphasis added).
Section 1540(g)(1)(A) authorizes suits by private citizens
seeking “to enjoin any person, including the United States
and any other governmental instrumentality or agency * * *
who is alleged to be in violation of any provision of [the Act]
or regulation issued under the authority thereof.”
In January, 1975, several persons, including Appellants
Hill and Plater, petitioned the Secretary of the Interior to add
the snail darter to the endangered species list. Section 1533
(ce) (2). As part of the rule making procedure,* TVA was invited
by the Department to comment. On November 10, 1975, over
TVA’s objections, the snail darter was designated as an endan-
gered species primarily because of the threat posed by the Tel-
lico project to destroy the species and its only known habitat.’
50 C.F.R. § 17.11(i) (1975) ; 40 Fed. Reg. 47505-47506 (1975).
As required by § 1540(g)(2)(A)(i), Appellants notified both
the Department of the Interior and TVA on October 20, 1975,
that continued preparations to impound the Little Tennessee
River would violate § 1536.
On February 28, 1976, Appellants brought suit in United
States District Court for the Eastern District of Tennessee
seeking to permanently enjoin completion of the dam. In April,
the United States Fish and Wildlife Service, acting pursuant to
"The snail darter is not one of the species over which the Secretary of
Commerce has “program responsibilities” pursuant to Reorganization Plan
Number 4 of 1970. 16 U.S.C. § 1533(2).
* 16 U.S.C. § 1583(b) and the rule making provisions of the Administrative
Procedure Act, 5 U.S.C. § 553. collectively define the procedures which the
Secretary of the Interior must follow in maintaining the lists of threatened
and endangered species. See 16 U.S.C. § 1533(f) (1).
* See 16 U.S.C. § 1583(a) (1) [factors (1) and (5)).
rule making authority originally granted to the Secretary of
the Interior in § 1536, designated river miles .5 to 17 as the
“eritical habitat” of the snail darter, 41 Fed. Reg. 13026-13928
(1976) ; see 50 CFR. § 17.81 (1976). On April 29th and 30th
a trial was held during which evidence was presented pertain-
ing to whether the scheduled inundation of the Little Tennessee
would jeopardize the species’ continued survival. The Court
also entertained argument on whether permanent injunctive
relief would be appropriate to enforce compliance with the Act
if the evidence made out a prima facie violation of §§ 1536 or
1538(a)(1)(B). In a memorandum opinion and Order dated
May 25, 1976,"' the court concluded:
* * * the preponderance of the evidence demonstrates
that closure of the Tellico Dam in January 1977 and the
consequent creation of the Tellico Reservoir will result
in the adverse modification if not complete destruction,
of the snail darter’s critical habitat.”
However, the Court denied Appellants’ prayer for a permanent
injunction and dismissed the action based upon an analysis of
the equities which it found to be controlling.
Interior at 40 Fed. Reg. 17764-17765 (1975).
™ Hill et al. v. Tennessee Valley Authority, Civil No. 3-76-48 (E.D. Tean.,
Mag 25, 2508) (hereinafter cited as Memorandum Opinion).
Ié at 7-8.
branches of government, as ordained by the constitutional
separation of their enumerated powers, compels us to reverse
the District Court and grant the relief requested. Wilderness
Society v. Morton, 479 F. 2d 842, 892-893 (D.C. Cir. 1973).
Although this legal controversy may well enjoy a modicum
of notoriety because it appears to pit the survival of an obscure
fish against completion of a $100 million reservoir, “the princi-
ples of law controlling [the case] are neither complex nor revo-
lutionary.”” Wilderness Society, supra, at 891. Only three ques-
tions need be addressed:
(1) Does Tellico Dam completion violate the Endan-
gered Species Act?
(2) Assuming a violation, are there adequate grounds
for exempting Tellico from compliance?
(3) If no exemption is justified, is injunction the pro-
per remedy to effectuate the purposes of the Act?
We are satisfied that TVA’s continued preparations to dam
the Little Tennessee violate § 1536 of the Endangered Species
Act. The District Court concluded from the evidence at trial
that “it is highly probable that closure of the Tellico Dam and
the consequent impoundment of the river behind it will jeopar-
dize the continued existence of the snail darter.”” TVA con-
ceded that a significant portion of the designated “critical
habitat” of the snail darter would be altered by conversion of
the free-flowing river to a reservoir. The record supports Ap-
pellants’ claim that the intrinsic envircnmental differences be-
tween river and reservoir bottom will inexorably destroy large
numbers of snail darter eggs as well as inhibit the specie’s
spawning instinct. Therefore, the District Court properly de-
termined that, because so few specimens have been found
outside the critical habitat area, “the known population of snail
darters will be significantly reduced if not completely extir-
pated * * *” by the drastic physical transformations to be
accomplished by closure of the dam.
For reasons not obvious from the record, the District Court’s
opinion does not explicitly conclude that its factual findings
constitute a prima facie violation of § 1536." We rectify this
* Because the district court concluded that closure of the Tellico Dam
would violate Section 7, it did not consider whether the same state of facts
also constituted a violation of Section 9 of the Act. 16 U.S.C. § 1588(a) (1)
(B). See note 14 infra. We need not reach this issue because it does not alter
the outcome of this appeal.
defect now by construing footnote 1 of the memorandum
opinion as conclusive evidence that this was the intent of the
Court.* In determining whether TVA’s creation of the reser-
voir contravenes this section, the District Court appears to have
relied upon an administrative definition of violative conduct by
the Secretary of the Interior. Under this standard, an action
affecting a designated critical habitat is deemed to be an
offense if it, :
* * * might be expected to result in a reduction in the
number or distribution of [the] species of sufficient mag-
nitude to place the species in further jeopardy, or restrict
the potential and reasonable expansion or recovery of
that species.
40 Fed. Reg. 17764-17765 (1975).
Although we are not compelled to follow agency construc-
tions of a regulatory measure, courts have traditionally shown
“great deference to the interpretation given the statute by
ee Udall
v. Tallman, 308 US. 1, 16 (1964). Section 1536 conveys a
final actions of such agencies, even when he is convinced,
after the requisite consultation has ensued, that they violate
the Act, National Wildlife Federation vy. Coleman, 529 F. 2d
359, 371 (5th Cir. 1976); accord, Sierra Club v. Froehlke, 534
F. 2d 1289, 1303 (8th Cir. 1976). However, his compliance
standards may properly influence final judicial review of such
actions, particularly as to technical matters committed by
statute to his special expertise.
We find the Secretary’s interpretation of § 1536 to be both
reasonable and consistent with our reading of the Act’s legisla-
“Tp light of this conclusion [that ‘closure of the Tellico Dam and con-
(citation omitted) Memorandum Opinion at 4 n. 1.
tive history.’ In the absence of conflicting judicial precedents,
we see positive benefit to be gained by impressing his criteria
with a judicial imprimatur. This will expedite the adjudica-
tion of future cases as well as assist the Secretary in achieving
& uniform federal conservation posture with minimal reliance
upon the courts. Applying this test to the District Court’s
findings of fact, we conclude that TVA’s Tellico project opera-
tions violate § 1536."*
TVA concedes the existence of a predictable causal nexus
between the impoundment of the Little Tennessee and the
ultimate depletion of the snail darter population. This admis-
sion alone suffices to bring the affirmative action requirement
of § 1536 into play. On appeal, however, TVA argues that
closure of the Tellico Dam, as the last stage of a ten year
project, falls outside the legitimate perview of the Act if it is
rationally construed. TVA cautions that it would lead to
absurb results if we were to include the terminal phases of
on-going projects among the “actions” of departments and
agencies to be scrutinized for compliance. We find this familiar
line of reasoning unpersuasive and believe that the District
Court erred in adopting it. See Environmental Defense Fund
v. Tennessee Valley Authority, 468 F. 2d at 1177.
To countenance so restrictive a construction of § 1536, in the
absence of positive reinforcement from the Act’s legislative
history, would, in our view, be inimical to achieving ita objec-
tives. We choose instead to give the term “actions” its plain
meaning in the belief that this will best effectuate the will of
the Congress.
The complexity of the ecological sciences suggests that the
detrimental impact of a project upon an endangered species
may not always be clearly perceived before construction is well
underway. In effect, such was the case here. For Congress or the
Secretary of the Interior to be able to make meaningful deci-
sions in furtherance of the purposes of the Act, the opportunity
to choose must be preserved. Once a living species has been erad-
icated, discretion losses its significance. Where a project is on-
* See 2 U.S. Code Cong. 4 Admin. News 1978, 98rd Cong., ist Sess., at
2988-3008.
“The Department of the Interior reached the same conclusion. See letter
by Assistant Secretary Reed. Memorandum Opinion at 10.
89
going and substantial resources have already been expended,
the conflict between national incentives to conserve living
things and the pragmatic momentum to complete the project
.
;
.
i
e
efforts to prevent the wanton destruction of vulnerable species.
If Plaintiff's argument were taken to its logical extreme,
the Act would require a court to halt impoundment of
water behind a fully completed dam if an endangered
species were discovered in the river on the day before
and remanded the case with instructions that an injunction
issue halting activities which might “jeopardize the continued
existence of the Mississippi Sandhill Crane or destroy or modify
critical habitat” in violation of § 1536. Jd. at 375. The injune-
tion is to remain in effect until the Secretary of the Interior
determines that modifications to the project will bring it into
compliance with the Act.
In assessing the potential adverse impact of the highway
upon the Crane’s habitat, the Fifth Circuit concluded that
indirect effects such as accompanying private development
were relevant factors. This broad reading of the protection
afforded by § 1536 is consonant with our view. If injunctive
We reject as inapposite all but one of the NEPA cases
cited by TVA in support of its on-going exemption
by prior to NEPA’
effective date, Tellico was not excused from full compli
ance with environmental impact
on-going activities. 468 F. 2d at 1172. We find Judge Me-
Cree’s expression of the congressional intent behind NEPA
to be an accurate reflection of the pervading spirit of the
upon advanced project construction, see eg., Ragland v.
A er sams a ened | eparhaaaag
Public Works for Water and Power Development Appropria-
tion Bill, 1977, before a Subcomm. of the House Comm. on
Appropriations, 94th Cong., 2d Sess. at 260-262 (1976). Ad-
a ee Se
tion of an eristing statute cannot influence our review because
they lack the force of law. To credit them would be tant-
amount to permitting the legislature to invade a province re-
served to the courts by Aritcle III of the constitution. The
meaning and spirit of the Act are clear on its face. We need not
refer to legislative history to rationalize our independent assess-
ment of its impact. See e.g., United States v. Oregon, 366 US.
“In Sierra Club v. Frochike (the “Indiana Bat” case) the Sth Circuit
implicitly conceded the applicability of the Act to an on-going dam construc-
tion project, but affirmed the district court's finding that the evidence was
insuffimeat to make out a substantive violation of Sections 7 or 9.
252-501 O- %-7
643, 648 (1961); United States v. Jones, No. 76-1189 at 9 (6th
Cir. Sept. 30, 1976). As the District of Columbia Circuit has
said in a similar context:
[I]t is well settled that repeal by implication is dis-
favored, and the doctrine applies with full vigor when,
as here, the subsequent legislation is an appropriations
measure, and when the prior Act is to continue in its
genera! applicabilty, as construed by the courts, but the
claim is made that it is to be subject to a i i
legislative exception. Committee For Nuclear Respon-
sibility, Inc. v. Seaborg, 463 F. 2d 783, 785 (D.C. Cir.
1971) (footnotes omitted ).
If the separation of powers doctrine is to retain its vitality,
Congress must be free to appropriate funds for public works
projects with the expectation that resulting executive action
will pass judicial muster. See Environmental Defense Fund,
Inc., v. Froehlke, 473 F. 2d 346, 455 (8th Cir. 1972). Conversely,
courts must defend their prerogative to apply the law as they
find it “to require the Executive to abide by the limitations pre-
scribed by the legislature.” Wilderness Society v. Morton, supra
at 892. Judge Skelly Wright, in commenting upon the impera-
tive nature of this division of labor, has observed that:
The scrupulous vindication of that principle of law, im-
plicit in our form of government . . . and its basic
checks and balances looms more important in the abid-
ing public interest than the embarkation on any imme-
diate or specific project, however desirable in and of
itself, in contravention of that principle. /d.
Congress recognized the danger of bypassing plenary consid-
eration of proposed modification to existing laws by adding
amendments to appropriations bills. As the Eighth Circuit
notes in Environmental Defense Fund v. Froehlke, House
Rule XXI is specific in providing that “no appropriation shall
be reported in any general appropriation bill, *° * * Nor shall
any provision in any such bill or amendment thereto changing
existing law be in order, * * *” 473 F. 2d 346, 354 (emphasis
added ).
TVA directs us to our own decision in United States ez
rel. TVA v. Two Tracts of Land, 456 F. 2d 264 (6th Cir.
1972), as evidence of our reliance upon congressional spend-
ing decisions as indicia of legislative approval of the ap-
scientific value to the Nation and its people” of vulnerable
species of fish, wildlife and: plants. 16 U.S.C. § 1581(3);
see United States v. Jones, supra, at 21. We are fully in ac-
cord with the 4th Circuit’s view, in West Virginia Division
of Izaak Walton League of America, Inc. v. Butz, that:
Economic exigencies * * * do not grant courts a license
to rewrite a statute no matter how desirable the purpose
“The land was acquired for the Land Between the Lakes Project author-
_ ized by the President under authority conveyed by 16 U.S.C. § 881u (1964).
* See ¢.g., Rep. 94-960, 94th Cong., 2d Sess. 96 (1976).
4
or result might be * * * [T]he appropriate forum to
resolve this complex and controversial issue is not the
court’s but the congress. 522 F. 2d 945, 955 (4th Cir.
1976).
With no cause to exempt the Tellico project from strict
compliance with the Act, we find that the District Court abused
its discretion in refusing to permanently enjoin all further
actions by TVA which may detrimentally alter the critical
habitat of the snail darter. We cannot accept TVA’s conten-
tion that, even if Tellico completion is technically in violation
of the law, halting further construction pending intervention
by Congress or additional rule making by the Secretary of
the Interior constitutes an inequitable remedy.
TVA claims to have done everything possible to save the
snail darter, short of abandoning work on the dam. That
alternative is deemed by TVA to be innately unreasonable.
We do not agree. It is conceivable that the welfare of an en-
dangered species may weigh more heavily upon the public con-
science, as expressed by the final will of Congress, than the
writeoff of those millions of dollars already expended for Tellico
in excess of its present salvagable value.
We recognize that TVA has completed an experimental
transplant of some 700 snail darter specimens from the Little
Tennessee to the Hiwassee River which is of similar physical
character. While we share the hope that conclusive evidence,
not yet available, will confirm that the displaced population
is thriving and reproducing, even if that evidence were prop-
erly before us, it would not alter our decision to enjoin further
Tellico Dam construction. It is not the courts but the Secretary
of the Interior who bears the responsibility for maintaining
the endangered species list and the designating the critical
habitats of listed species. The fact that both of these deter-
minations are accomplished by rule-making rather than by
adjudication confirms the public importance of the issues at
stake. Nowhere in the Act are courts authorized to override
the Secretary by arbitrarily “reading” species out of the en-
dangered list or by redefirffng the boundaries of existing
critical habitats on a case-by-case basis. The standard of judi-
cial review of such rule-making, defined in Section 706 of the
Administrative Procedures Act, as interpreted in Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971),
is restrictive.” It does not permit substitution of judgment.
TVA will have to petition the Secretary if it wishes to attempt
to blunt the impact of the Act by curative rule-making. So long
as the snail darter remains on the endangered list and its critical
habitat comprises miles .5 through 17 of the Little Tennessee
River, we have no recourse but to enjoin creation of the
reservoir.
Although we must reverse the district court's decision, we
are sympathetic to its analysis of the equitable factors present
here which would normally militate against granting injunctive
relief. TVA has not acted in bad faith. Its efforts to preserve
the snail darter appear to be reasonable.
As we have already demonstrated, only Congress or the
Secretary of the Interior can properly exempt Tellico from
compliance with the Act. The separation of powers doctrine is
too fundamental a thread in our constitutional fabric for us to
be tempted to preempt Congressional action in the name of
equity or expediency.
The district court abused its discretion when it refused to
enjoin a clear vivlation of federal law. As the Supreme Court
has said in Hecht v. Bowles, 321 U.S. 321, 331 (1944); where
the national policy objectives of a statute have been frustrated,
“* * * the standards of the public interest, not the requirements
of private litigation, measure the propriety and need for in-
- junetive relief * * *” Accord, Securities & Exchange Commis-
sion v. Advance Growth Capital Corp., 470 F. 2d 40, 53 (7th
Cir. 1972).
Therefore, we reverse the district court’s order of dismissal
and remand the cause with instructions that a permanent
injunction issue halting all activities incident to the Tellico
Project which may destroy or modify the critical habitat of
the snail darter. This injunction shal] remain in effect until
Congress, by appropriate legislation, exempts Tellico from
compliance with the Act, or the snail darter has been deleted
from the list of endangered species or its critical habitat ma-
teriaily redefined.
"For an apt analysis of the appropriate scope of review of discretionary
agency action, see Sierra Club v. Froehike, supra, at 1304-1305. Here we
have applied the Overton Park standard to find that, although TVA has acted
within the scope of its authority, its decision to complete the Tellico Dam at
the expense of the snail darter is “not in accordance with law.” /d.
United States Court of Appeals for the Sixth Circuit
No. 76-2116
Hiram G. Hit, Jr., Zyemunt J. B. PLater, Donarp S. Conen,
Tue Avupuson Counci, or Tennesser, INc., anp THE
ASSOCIATION OF SOUTHEASTERN BIOLOGISTS, PLAINTIFFS-
APPELLANTS
v.
TENNESSEE VALLEY AUTHORITY, DEFENDANTS-APPELLEES
Before Celebrezze, Peck and McCree, Circuit Judges.
Judgment
APPEAL from the United States District Court for the East-
ern District of Tennessee.
THIS CAUSE came on to be heard on the record from the
United States District Court for the Eastern District of Ten-
nessee and was argued by counsel.
ON CONSIDERATION WHEREOF, It is now here ordered
and adjudged by this Court that the judgment of the said
District Court in this cause be and the same is hereby reversed
and the cause remanded for further proceedings.
It is further ordered that Plaintiffs-Appellants recover from
Defendants-Appellees the costs on appeal, as itemized below,
and that execution therefor issue out of said District Court if
necessary.
Entered by order of the court.
Joun P. Hex,
Clerk.
A True Copy.
Attest:
DaR Lene Koenie,
Deputy Clerk.
Issued as Mandate: March 3, 1977.
Costs: To be recovered by appellants.
fee
United States District Court for the Eastern District of
Tennessee Northern Division
Filed February 24, 1977
[No. 3-76-48]
Hrraam G. Huu, Jr.. Zromunt J. B. Pratex, Donan &.
Conen, THE AupuBon Councit or Tennessee, INC., AND
THE ASSOCIATION OF SOUTHEASTERN BIOLOGISTS, PLAIN-
TIFFS
v.
TENNESSEE VALLEY AUTHORITY, DEFENDANT
Order
Upon application of the plaintiffs, it appearing to the
Court that the Sixth Circuit Court of Appeals, on Janu-
ary 31, 1977, filed an opinion in the above action with in-
structions “that a permanent injunction issue halting all
activities incident to the Tellico Project which may destroy
or modify the critical habitat of the snail darter,” and the
parties having agreed upon the form of this order,
It is ORDERED by the Court Pursuant to the Order
of the Sixth Circuit that defendant Tennessee Valley Au-
thority be, and it hereby is, permanently enjoined from
the following:
1. Closing the dam and consequently creating the reservoir.
2. Engaging in any further work or activity on the dam
structure or the Tellico project which may destroy or modify
the critical habitat of the snail darter. Defendant is per-
mitted to do the following:
A. Dam Area
(1) Provide continuous cleaning of debris from sluices.
(2) Condition canal plug for long-term service.
(3) Stabilize canal slopes with grassing.
(4) Complete manholes for protection on dam instrumenta-
tion.
(98)
(5) Periodically test and operate spillway gates machinery.
(6) Set up barricades and signs, as appropriate, for public
safety.
(7) Seeding of upstream slope of dam and reseeding down-
stream slopes.
(8) Seed saddle dam areas.
(9) Complete spillway gates and machinery painting.
(10) Complete landscaping and site improvements in dam
reservation area.
B. Roads and Reservoir
(1) Complete cleanup and burning, and other disposition
of cut timber, debris and trash in reservoir basin, provided
such is done in # manner so as to minimize siltation and adverse
effects upon the Little Tennessee River, the snail darter, or its
(2) Complete work and open Tellico canal bridge to traffic
— t canal plug and temporary canal plug shall both
remain ).
(3) Protect all highway embankments with rip-rap and
grass.
(4) Complete all highway guardrails and signs.
(5) Complete all road projects, provided the work is per-
formed so as to minimize siltation and adverse effects upon
the Little Tennessee River, the snail darter, or its habitat.
(6) Repair and/or repave segments of original roadways or
highways where traffic must continue until new roads are
(7) Provide maintenance to keep detour roads and partially
completed roads in use.
(8) Provide for erosion control where necessary in reservoir
to prevent siltation.
(9) Erect warning signs and/or barricades to protect public
in case low-level reservoir roads are inadvertently flooded.
(10) Rebuild Highway 72 at Clear Prong Creek and project
1101 for continued use.
(11) Continue work on Tellico Parkway and access road
with bridge below the dam.
(12) Remove abandoned bridges and culverts where removal
is necessary for public safety, provided such is done in a manner
to minimize siltation and adverse effects upon the Little Ten-
nessee River, the snail darter, or its habitat.
100
C. Other Activities
(1) Modify TASS Water Treatment Plant temporary intake
for long-term use.
(2) Complete protection at all historic locations and com-
plete restoration of Fort Loudon, Blockhouse, and Chota.
(3) Complete new electrical substation for Loudon Utilities
near Vonore.
Approved for entry.
Approved for entry:
W. P. Boone DovcHerry,
Attorney for all of the Plaintiffs, Hiram G. Hill, Jr.,
Zygmunt J. B. Plater, Donald S. Cohen, The
Audubon Council of Tennessee, Inc., and The
Association of Southeastern Biologists.
Hersert 8. Sancer, Jr.,
General Counsel, Tennessee Valley Authority,
Knorville, Tennessee, Attorney for Defendant.
TRANSCRIPT
[1-9] Mr. Dovenerry: Exhibit 31 is a photograph of a
darter which has already been seen by the defendant and
marked by the Clerk.
[Exhibit No. 31 was filed. }
Mr. DovcnHerty. Your Honor, I would like to offer at this
time Mr. Plater, one of the plaintiffs, very briefly, and then we
can gec to the meat of the coconut.
The Covrr. All right.
ZYGMUNT J. B. PLATER, a plaintiff, called as a witness
by and in his own behalf, after having been first duly sworn,
was examined and testified as follows:
Rosert L. Taywor, Judge.
DIRECT EXAMINATION
By Mr. DovucHEatyr:
Q. Please state your full name for the Court?
A. My name is Zygmunt Plater.
And you reside in Knox County, Tennessee?
A. I do.
Q. You are one of the plaintiffs in this case?
A. lam.
101 .
Q. You are involved in this action on your own behalf and
PERSONS Se SEY S ane eer Se See
of Law
[1-10] A. That is correct.
Q. But you are a professor of law at the University of Ten-
nessee College of Law?
A. Yes, I am.
Q. In connection with the involvement that you have in this
particular action, on April 22, 1976 did you go to Washington,
D.C. and deliver to Mr. Nathaniel Reed, Secretary for Fish
and Wildlife, Department of Interior, a letter asking him for
certain information?
A. Yes, I did.
Q. I show you a copy of that letter which has been hereto-
fore marked by the Clerk and ask you if that is the letter, a
copy of it, which you delivered to Mr. Reed?
A. Yes, this is a copy of the letter I delivered to Secretary
Q April 22, 1976, Mr. Plater?
A. Yes.
Mr. DovcHertry. May we introduce that letter as Exhibit
No. 32?
The Court. Yes.
[Exhibit No. 32 was filed. }
By Mr. Dovexearrtr:
Q. In that letter, Mr. Plater, you were essentially asking the
Department of Interior for certain comments in connection
with their involvement in this matter as far [1-11] as the
endangered species and the snail darter?
A. Yes, sir, I was.
Mr. Dovenerry. And I think, Your Honor, just for purposes
of simplicity we will refer to the fish involved in this matter
as the snail darter, but I think for the record it is technically
known as Percina imostoma tanasi, and there may be some
reference to that, but we will try and refer to it as the snail
darter.
The Court. That will be better, I think.
By Mr. DoveHearrtyr:
Q. Mr. James D. Williams is here prepared to testify as a
witness, is he not?
102
A. Yes, he is. :
Q. And he is an ichthyologist with the Department of the
Interior, the Office of Endangered Species?
A. Yes, he is.
Q. And yesterday afternoon, April 28, 1976, did he deliver to
you Mr. Reed, and specifically hand deliver that letter to you,
a response to your letter of April 22, 1976?
A. Yes, sir. He delivered to me a certified copy, certified by
the Department of Interior.
Q. I show you a document, Mr. Plater, that has not been
marked by the Clerk as we only received it [1-12] yesterday
afternoon, and I understand, may it please the Court, that
TVA the defendant received a copy by telefax, frankly, before
we did, so they have a copy of it.
Mr. Dovcuerry. May we offer that as Exhibit No. 337
Mr. Pepersen. Your Honor, we would want to object to that
letter. It was received here on the eve of trial and had no oppor-
tunity whatever to depose the author of the letter. We haven’t
had a chance whatever to make any inquiry with respect to this
matter.
The Covrrt. It will be received subject to your objection.
Mr. Pepersen. Thank you.
{Exhibit No. 33 was filed. }
Mr. DovcHerty. I might add, Your Honor, that Mr. Wil-
liams is with the Department of the Interior and is prepared to
testify that he hand delivered it and saw it actually executed in
his office and involved somewhat in its preparation.
By Mr. DovcHerty:
Q. You have read the letter, have you not, Mr. Plater?
A. Yes, I have.
Q. Would you mind giving it to the Marshal so he [1-13]
can give to His Honor.
A. [Witness complies with request of counsel. )
The Courr. You may proceed. Go right ahead.
Mr. Dovengaty. Other than the two documents, the April
22nd letter written by Mr. Plater and receipt of the letter from
the Department of the Interior signed by Mr. Nathaniel Reed,
which Your Honor has in front of you, which I understand is
marked Exhibit No. 33, that is the only series of items that I
would ask to introduce throwgh Mr. Plater and I turn him over
for cross-examination at this point.
DAVID A. ETNIER, called as » witness by and on behalf of
the plaintiffs, after having been first duly sworn, was examined
and testified as follows:
By Mr. Dovenerrty:
Q. Please state your full name for the record?
A. David A. Etnier.
[1-14] Q Where do you reside?
A. 1405 Whitower Road in west Knoxville.
Q. How long have you been a resident of Knox County,
Tennessee?
A. Approximately eleven years.
Q. Your present occupation or profession is what?
A. I am associate professor of zoology at the University of
And how long have you been at the University of
The Wrrness. No. He was around at that time but I don’t
know if he was actively teaching and I wasn't taking courses
in those areas.
[1-15] By Mr. Dovenerrr:
Q. You are what is known as an ichthyologist?
A. Yes. I guess that is correct.
Q. In laymen’s terms that is what we call a fish expert, is
that a fair statement?
A. Yes, that is fair.
Q And you consider yourself an expert in the field of ich-
thyology?
A. If I have any expertise at all it would be in that area, yes.
Q. In addition to your work in the classroom, you have also
engaged in considerable field experience with regard to the field
of ichthyology?
A. That is true, yes.
Q And for us laymen would you tell us what taxonomy is?
A. Taxonomy is the study of the, well, essentially the classi-
fication of fishes. The differentiation between closely related
species, attempting to determine the bounds of different species,
how variable they might be, [1-16] what their characters are.
SS ey ee
atics
A. Yes.
Q. And would you relate for us in layman's terms what
+
36
z?
:
H
:
(1-18) By Mr. DovcHearyr:
Q And could you give me the approximate number?
A. Well, all of my other descriptive work has been in the
of aq the study of aquatic insects. I
specialize in one group the Trichoptera or caddis fly.
six
:
tk
|
106
Within fishes, I am currently working on the descriptions of,
actively working on descriptions of three or four other species.
Q. And one of those, I believe, is another undescribed darter :
is that right?
A. Two of them are undescribed darters; yes.
Q And where is one of them located with regard to an area
other than the Little Tennessee River?
A. One of them occurs in the Duck and Buffalo Rivers and
formerly occurred in the Elk, we believe.
Q Is that in Middle or West Tennessee?
A. Middle Tennessee. The other one occurs in the Conasauga
River which is part of the upper Coosa River [1-19] system
south of Cleveland, Tennessee.
Q That would be between here and Chattanooga, approxi-
mately?
A. Yes.
Q What professional societies are you, briefly, a member of?
A. Well, the American Society of Ichthyologists and Herpe-
tologists. I am also a member of the Tennessee Academy of Sci-
field of darters?
men
A.
Q Now the snail darter you specifically discovered on Au-
gust 12, 1973; is that not correct?
A
Q
mile
A.
’ In the Little Tennessee River at what we know as river
7 in an area called Coytee Springs?
Q. And that is C-o-y-t-e-e, for the record. And on the occa-
sion when you discovered this particular fish [1-20] what were
you looking for?
A. I was involved with surveying the fish species in general
of the lower part of the river. It had never been collected.
Q. And how were you doing that collecting, seining?
107
A. No. We were swimming through the water with face
masks and snorkels.
Q. And were there other people with you?
A. Yes, Robert Stiles, from Sanford University was with
me.
Q. I believe Sanford University is in Alabama; is that right?
A. It’s in Birmingham.
Q Ard when you were able to collect this particular species
of fish and hold it in your hand, did you upon examining it
ascertain that it was possibly something new?
A. As soon as I picked it out of the water I realized it was
something in East Tennessee.
Q. Now the snail darter is part of what family of fish?
A. It belongs to the family Percidae.
yc *~ peat beaceemmatmemedl
A. Yes.
[1-21] And the general designation is Percina, is that not
correct?
A. Yes.
Q. Now what further subclassifications would there be going
from the perch family, or Percina, as far as looking at this
particular area of fish species?
A. Okay. Within the genus Percina there are six or seven
ee Seen eae cae on Cee
mn AA AR Oey Coe
genus imostoma.
Q. So when we refer to the name Percina imostoma tanasia,
the Percina means essentially the perch family or Percina
A. Pereins
genus, yes.
Q And imostoma means the subgenus within the family
Percidae or Percina, and the name tanasi, is what you gave this
particular fish, is that right?
A. That’s correct.
Q At the time of your initial discovery of this fish did you
subsequently engage in a comparison of this fish with another
species within the subgenus imostoma?
A. Yes, I did.
Q And for the record is a Percina ouachitae, Percina shu-
mardi and an undescribed darter that you and Mr. [1-22]
Williams are involved in describing, the Conasauga?
252-501 O- 78-8
108
. And are there any others within the subgenus imostoma?
. That is the subgen
Q. What particular specie in the subgenus imostoma does
the snail darter most closely resemble?
A. Well, within the subgenus imostoma there are five species
of saddle back—pardon me, four species of saddle back darters,
ones with the distinct dorsal saddle, and the snail darter is one
of these four.
Of the four species of saddle back imostoma, the snail darter
is most closely related to the Percina uranidea, a specie that
is now restricted to two river systems in the Ozarks. The White
River system in Arkansas and a little bit of Missouri, and the
Saline River system in southern Arkansas.
Q. In your experience with these darters and particularly the
snail darter as you have observed it, what is the nature of the
habitat for this particular species?
A. The only habitat that I have ever associated [1-23] them
with is a rather large stream to a river type habitat with swift
current flowing over generally rather fine gravel substrate pos-
sibly interspersed with boulders and with some sand. But gen-
eraly clean gravel substrate in a large to medium size river.
Q. And does the Little Tennessee River fit that description?
A. Yes, it does.
Q. Do the two rivers in Arkansas where the Percina uranidea
is found have that habitat also?
A. Apparently so. The only time I have surveyed these rivers
they were flooding very badly, but the indication I get from my
colleagues is that they are very similar and it appeared to me
that they were similar. _
Q. What evidence do you have, if any, that any of the species
that we call darters, within the subgenus imostoma, in any way
live or reside in reservoirs or impounded areas?
A. The only evidence I have is that the most divergent mem-
ber of the subgenus, this is the one that is not a saddle back
darter, the Percina shumardi, does live in limpid type habitat,
109
that is, still water type habitat in parts of this range. It lives in
Lake of the Woods in Minnesota, which is a still water habitat.
I have collected specimens in Tennessee in [1-24] the Ten-
nessee River below Pickwick Dam, which is non-flowing habi-
tat during some times of the year and a flowing water habitat at
other times of the year.
But the saddle back members of the subgenus show no tol-
erance whatever to reservoirs in my experience.
Q. Is the shumardi a saddle back member?
A. No, it is not. It’s quite different.
Q. The saddle back members are essenually the ouachitae
Percina, ouachitae and the snail darter
A. Yes, and the undescribed one from the Conasauga.
Q. Morphologically, and first of all in laymen’s terms, what
ah
A. By j
Q. When you say you are going to describe something
?
A. Oh, this is a measurement of, well, I guess morphologically i
differencee can be broken up into two or three different
There are meristic characters which are things that are
countable, such as the number of fin rays, the number of scales.
There are morphometric characters which are measurable char-
acters, such.es the size of the eye, the length of the fins, the
width of the body, and there are pigmentation characters that
may be chromatic or [1-25] non-chromatic, that is, bright
color or just the distribution of dark pigments on the body.
Q. Comparing the snail darter to the Percina ouachitae and
differences?
A. There are distinct morphological differences, yes.
Q. And just briefly for the record what arc they?
A. The distinction between Percins tanasi and Percina
ouachitae involves for the, the most oby ous for sight identifi-
cation is the position of the fourth dorsal saddle, which is con-
sistently anterior to the caudle fin in ouachitae and consistently
touches the caudle fin base in uranidea and tanasi. ’
Q. In laymen’s terms could you tell us what you are talking
about?
110
A. The caudle fin is the tail fin, of course, and the saddles
are——
Q. That is just the rear end of the fish, in simple terms?
A. Yes. The saddles are dark pigment bands that go across
back of the fish, and in all of the saddle backs there are four
well-developed dark dorsal saddles.
In Pereina uranidea and Pereina tanasi, the [1-26] fourth
saddle extends all the way back to the base of the tail fin.
Q. Using Exhibits 12 and 31, the drawing and the photo-
graph, would you just briefly for His Honor show him what
you are referring to as far as the—Your Honor, may I approach
the witness?
The Courr, Yes. Mr. Pedersen, if you want to see it too, you
can come up.
eames Referring to as far as the saddles and vari-
ous
A. The saddles are the dark marks, Those are here, and one
here that is hard to see, and this fourth saddle comes in con-
Q: In the drawing, which is Exhibit No. 12, I believe, I
seer ote Ge Gases Gown & 0 mute end the other a
f
A. Yes, They are very distinct as adults, and this is unique
for the subgenus imostoma. The males, the adult males, the
anal fin gets extremely elongated. It may [1-27] be essentially
twice as long as the anal fin of the female, and during the
breeding season, which is in the winter and early spring, the
anal fin and some of the other fins on the side of the body and
side of the head get covered with small hard tubercles.
Q. I have to ask you what is a tubercle?
A. It is a clacareous secretion from, a little bony secretion
from the skin that is used apparently for tactile stimulation
of the female during spawning.
Q. Now in this particular exhibit, Exhibit 12, which is the
male and which is the female?
A. The male is on the top. See the anal fin extending a way
back and extremely enlarged.
tional work on it since then.
Q. And I show you a document which is a scientific paper
dealing with the classification and designation of the snail
darter as a species.
A. Yes.
Mr. Dovenerty. May we introduce that as Exhibit No. 35?
The Court. Received.
[EXHIBIT NO. 35 was filed.)
By Mr. Dovemerry:
Q. This is a publication which was published in the Proceed-
ings of the Biological Society of Washington; is that not
A Corveet
A. .
Q. And I believe you consulted with a number of people in-
cluding the Smithsonian Institution as far as your research and
determining to make sure that in your mind it was
a legitimate new and distinct species?
A. A number of people from the Smithsonian or the U.S.
National Museum are aroong the referees or the people who
read the paper to check for its scientific merit and content.
Q. Was this paper reviewed by a number of people in the
scientific communtiy?
AY four or five people.
11-90) "had to the 2 chavesteriatio procedure fer dealing
with new classifications of species?
A. Most of the better journals are refereed, yes, before a
can be accepted it must be read and by a mem-
paper
ber of the scientific community, experts in field.
Q. This was done in this particular instance?
A. Yes, this was done in this particular instance.
112
Q. Now I believe you have a graduate student named Wayne
Starnes, do you not?
A. That's true.
Q. Who is involved in a rather systematic and detailed study
of the snail darter?
A. Yes. He's involved in studying the life history of the
snail darter, the food habits, its reproduction behavior, its rate
of growth, that sort of thing.
Q. And how long has that study been going on’
A. It has been going on essentially since the winter and spring
of 1974.
Q. And how was this study initiated? Was there some sort of
grant or funding involved?
A. Yes. In the fall of 1973, and this was now three months
before the passage of the Endangered Species Act, Wayne
Starnes and I went out to TVA with the personal conviction, of
course, that the snail darter was going to [1-30] become extinct
as soon as Tellico Reservoir was impounded.
We had already exhausted our last legal recourse when the
NEPA cast lost, the National Environmental Policy case, chal-
lenging TVA on the ——
Q. Environmental impact statement?
A. [continuing]. Environmental impact statement.
Q. All right.
4. So our only goal, well, I guess there were two goals in-
volved. One goal was to try to learn as much about the snail
darter as we could before it became extinct.
The other goal was to try to get some financial aid for a grad-
uate student who was not really very well off financially.
Q. And that was Wayne Starnes?
A. That was Wayne Starnes, yee.
Q. And subsequently did TVA enter into a contract with the
University of Tennessee and Mr. Starnes was ultimately the
a of this grant through the University of Tennessee?
A. Yes.
Q. Since that time has he engaged in a rather detailed and
extensive study of the life history of the snail darter?
A. Yes, he has.
Q. And have you and he worked closely during his [1-31]
period of time that he has been involved in this study of the life
history of the snail darter?
113
lab facilities are next door to each
the same facility.
Sees te dns eaiaday wit tdenen 0 dilly
rit
18)
Z
is the importance of the sandy gravel sub-
we talk about substrate we are talking about
bottom, are we not?
importance of that along with the cur-
the snail darter?
, darters, at least the iess advanced onces, are fish
rather high requirement for oxygen. They have high
=
ef
rE
E>20>i
¢ieke
i
2F
likely that they need water to be flowing so that they are con-
wy ~> 4 a hua aecaatecadosns
Q. Is there characteristically a smal] or large amount of dis-
in reservoirs ta?
A ede eemamdy coltdda tn thaseegeed, bat typ
cally during the summer months, late summer months, the
114
lower levels of reservoir, the bottom layer of water may become
virtually devoid of oxygen.
Q. And if that were the case in your opinion would the snail
darter be able to survive in that situation of reservoir or
impoundment?
[1-33] A. No, it would not,
Q. What is the characteristic situation that you have been
able to observe in comparing, say, the Little Tennessee River
area with water impoundment of reservoirs in the areas such
as Fort Loudoun or the Watts Bar reservoir with regard
to siltation as far as the bottom and whether this varies with
seasonal fluctuations?
Tennessee River
The water continues to be
Q. And when we refer to turbidity, we are essentially
— about silt or mud in the water?
A. Yes.
Q. Clouding it up, is that not correct?
A. Correct.
Q. From the study that you and Wayne Starnes have
been involved in with the snail darter and the life history
studies that have been made specifically with regard to the
snail darter, what is the life expectancy of a snail darter?
[1-34] A. Three to four years. Four years would be about
maximum,
Q. And what is probably the most essential factor that is af-
fected as far as, say, the snail darter is concerned, in connection
with its habitat, food, reproduction or whatever other category
we are talking about?
A. lam sorry, do you want to try that again.
Q. Let me get it to you this way .
_ In connection with the snail darter and its habitat, if there
is anything which would moderate or change the habitat, such
as the slack water and no current, or silt on the what
would that affect primarily as far as the snail darter being able
to live and survive in the particular area?
A. It would very definitely be most noticeable in the repro-
ductive success.
Q. And is that not probably one of the most key areas as far
as the habitat area for a particular fish or species?
A. Certainly, certainly.
Q. Is it fair to state that frequently species of fish are found
in maybe other areas where they do not reproduce?
A. Very definitely.
Q. I believe you observed yesterday with me a [1-35] film
taken by Mr. Starnes, a short three to four minute film, that
was taken of certain snail darters that he observed on April 17,
1970 in the Little Tennessee River just below Coytee Springs.
A
Q. In your observations of that film—Your Honor, I intend
the film, it is very short, to connect it up with Mr.
Starnes in a moment—in connection with that film what did
you observe with regard to the activities shown on that film as
to whether or not you all have any definitive evidence of repro-
duction activity with regard to the snail darter in the Little
Tennessee River?
A. Well, this particular film is a courtship sequence, as Mr.
Dougherty says about three minutes long, which will show a
A. Well, last year at about the same time Mr. Starnes
made the film we collected adult males and [1-36] females in
the same seine haul that were very obviously ready to spawn
and probably in the act of spawning when we caught them
Q. That was a year ago in March of 1975 or——
A. April.
Q. April of 1975
A. Yes.
Q. Very briefly, Dr. Etnier, what is physically shown or
116
A. Well, in the female specimen any light pressure, actually
just handling the fish, holding it in your hand, is sufficient to
cause mature eggs to flow from the animal, and this is typical
of the male too. Any slight pressure, well, sometimes just hold-
ing the fish if they are extremely high will result in milt flow-
ing from the male.
Q. And when you say milt, m-i-l-t, is the word you used?
A. Yes.
Q. In your opinion is the mere evidence of milt in males
or eggs in females evidence of any reproductive activity or suc-
cessful reproduction?
A. It's no evidence of reproduction success certainly.
Q. And what would you require as an ichthyologist [1-37]
to evidence some reproduction success, other than what we
have mentioned?
A. Production of another generation of fishes.
Q. Basically another young snail darter?
A. Yes.
Q. And I believe the young snail darters are technically re-
ferred to as juveniles; is that correct?
A. Yes.
Q. Or subadults?
A. Yes.
Q. And that would take, that would be the nomenclature you
used before they are one year old?
A. Before they are one year old they are typically called year-
lings, and between their first and second years if they don’t
reach adulthood they are—I am sorry, young of the year within
the first year and yearlings on the second year.
Q. Now, Dr. Etnier, you have examined the plans of the TVA
in connection with the proposed closure of the Tellico Dam and
creation of the Tellico Reservoir in the Little Tennessee River
area?
Q. And in that connection what is your knowledge with re-
gard to the approximate depth of the area at Coytee Springs,
for example, after the reservoir is created as [1-38] opposed to
what it is now?
A. As I recall the reservoir will increase the depth of the Coy-
tee Springs area by forty or fifty feet, something like that.
118
Q. And Tellico Dam and Watts Bar.
A. Yes.
[1-40] Q In connection with the estimated population of
snail darters in the Little Tennessee River, have you and Mr.
Starnes made any estimates of the number of snail darters that
presently reside in the Little Tennessee River?
A. Yes. We have some crude estimates that are probably
reasonably close, but the ones that we have been using of late
is approximately ten thousand plus or minus five thousand
individuals, and if we have made an error it is apt to be a con-
servative error. The population may be larger than that.
Q. If some experts or individuals involved in this matter, for
example. had estimated the population of the snail darter in
the Little Tennessee River may be two or three times ten
thousand. would that surprise you?
A. It wouldn't surprise me. I would like to see the data on
which this was based. It would not surprise me.
Q. Would you feel before such determination could be made
there should have to be some scientific data to support that?
A. Yes, definitely.
Q. Now, Dr. Etnier, in your opinion does the mere finding
of subadults or young snail darters in an area mean that a
population of snail darters would be permanently established
in that area?
[1-41] A. Certainly not.
Q. And why is that the case?
A. Well, for instance, at this very minute we could perhaps
go over to Wayne Starnes’ apartment and find subadult snail
darters in his aquariur’ This is not a reproducing population.
Once a fish has hatched and is capable of feeding, it no
longer has as precise requirement, physical requirements, and
it can live in essentially any sort of aquatic habitat where there
is sufficient oxygen and sufficient food. Substrate no longer
becomes so important.
Q In connection with the snail darter what essentially are
the food requisites?
A. In the Little Tennessee River its diet consists of about
90 percent smal! snails and limpets.
y ¢-~ceebeeeeneees:
. Yes.
119
And just for us laymen, what is a limpet?
2 a teasteoumh hasbesceeted ; okay?
Q. Otherwise it’s a snail that is twisted?
A. Yes.
Q Now, have you made a study of the bottom organisms
which are sometimes called benthos organisms, is that not
correct?
[t-42] A. Correct.
Q On the Little Tennessee River and some of the reservoir
areas, such as Watts Bar and Fort Loudoun?
A. Yes. I have observed the bottom organisms anyway, to
correct?
A. Fauna is animals. Oe
Q Now with regard to assuming just for the purpose of dis-
cussion, that the Tellico area were i the Little Ten-
nessee River, in your opinion what would be the effect upon
i
He
He
ty
Fe
iri
Hi
+7
pirt
HW
ae
iit
:
|
5
121
_
| Te baaPey 3 i
a a
adel Witig Wa
ARH rte Wis
H ey Hue iat i
HHH HE en ifeds iit
al tatlidiy Ti ley
ELH ui HT
colicky WAHEL <oy-o}g Hrs tiady
Hpi BET
Hale AAU le
iff} He HE : li i; i a Hil i L 3
i Healey
TAT iy i a itil; i 1
ayia isa 23 Heri a)
fist Ha hd {i He Wi
THT sae Hi
He I HE Aer Te ae
a baa a
122
[1-47] A. Well, they were certainly living there at the time
they were seen. There's no evidence there is reproduction.
Q. And reproduction would be an essential element in a con-
tinuous population of the snail darter?
A. Yes, it would. ,
Q. When two of those eight specimens were collected and
delivered to Wayne Starnes by the TVA crew, what did those
specimens evidence with regard to their appearance with re-
gard to robust health or nutritional deficiency?
A. I haven’t examined them closely myself but Wayne indi-
cated that they appeared to be in somewhat poorer cendition
than specimens from the Little Tennessee River.
Q. And assuming that to be the case, what would that possi-
bly communicate to you as an ichthyologist?
A. Possibly that the habitat is not, allows them to exist but
does not allow them to prosper.
Q. And we are referring to the Watts Bar area below the
Little Tennessee River?
A. Yes.
Q. In your opinion what are the probabilities that certain
of the snail darters in the Little Tennessee River might go
down into Watts Bar?
A. This is almost a certainty. This is typical [1-48] of
darters, especially river darters of the genus Percina. During
the wintertime a substantial portion of the population drifts
downstream to deeper water areas.
Q. When does a snail darter in terms of your all’s research
and study engage in reproductive activity or spawning?
A. Well, we believe that reproduction is possible as early as
January but that the bulk of the reproductive activity falls
somewhere around mid-April, in that area.
Q. Now in connection with your conversations with TVA
concerning the study of the life of the snail darter and the sub-
sequent grant that was given by TVA to the University of Ten-
nessee which Wayne Starnes was involved in, what discussions
were had with vou and Mr. Starnes and TVA in connection with
a transplant and why did you even attempt to discuss that sub-
ject with them?
A. Well, originally we considered the possibility of moving
the snail darters to another habitat. At least we wanted the re-
search of Wayne Starnes to consider that possibility.
As I mentioned before there was no Endangered Species Act
and the snail darter was destined to become extinct unless there
Mr. Doverzrry. Your Honor, just for the record, I think
from a technical legal point of view it would be our position
that not be pertinent under the
5
!
|
ment did you and Mr. Starnes have with regard to any effort
to transplant the snail darter?
A. In our preliminarv talks with representatives from the
TVA Wayne and I had considered some possible alternate sites
many that looked like
+hev offered real possibilities but earlier I had been at least
- .@ of the fact that there is some similarity between the
hic organisms, the small bottom animals of the lower
» wassee l » ry and the lower Little Tennessee River.
Other riv.r systems that are relatively unaltered in East
Tennessee and Middle Tennessee seem to be less
252-601 O- 18-8
darter could handle, especially when it wae just getting
lished
Q. What evidence have you observed in the scientific com-
munity or have you learned of with regard to any successful
transplants of darters?
A. There are very few successful ones that I know about.
I know about several that have been unsuccessful.
Q. And I believe at a recent meeting of the [1-51] As
sociation of Southeastern Biologists this past weekend, a
A. I think that a couple of the TVA biologists were pres-
ent; this is essentially correct.
Q. I believe that darter was called the water cress darter?
A. Yes.
Q. It is true that some sporting fish and commercial fish
have —_ successfully transplanted?
A. Yea.
Q. But from your knowledge and information and experi-
ence there have been no darters that have been successfully
transplanted ?
A. I believe there was a successful transplant of the log
perch, one of the log perches into California waters.
The log perch is the most tolerent of all the darters that
tolerates reservoirs, and moreover there are no darters with
which it could compete in California. There are no darters in
that area.
Q. In the Hiwaasee River are there other darters that the
snail darter would have to compete with?
[1-52] A. Yes, In the lower river there are perhaps seven or
eight species of other species of darters.
Q. Could you mention just a few, very briefly?
A. Yes. The sharp head darter, the banded darter, the gilt
darter, Tennessee snubnose darter, the speckled darter. Those
would be the most common ones.
125
Q. In terms of the studies that you and Mr. Starnes have
been engaged in and based upon your experience as an ichthyol-
ogist, do you have an opinion as to whether or not the
transplant in the Hiwassee River by TVA will be successful,
and also considering the evidence thus far with regard to the
A. I think there is some possibility but, well, perhaps I could
put this in an understandable framework.
If I were a betting man I would want extremely good odds
success of the transplant. I think it has a chance
Q. And at this point has there been any definitive evidence
that the transplant is successful?
A. Nothing that I am aware of.
Q. And is it not a fact that, I believe, as late as yesterday
nine specimens of the snail darters were observed in the Hi-
Sans SEU Sh @ CURES Gas eG Cay ERE ne
tion
A. I have heard this, whether it is true or not [1-53] I don't
Q. Now, Dr. Etnier, I think I am almost through with Dr.
Etnier, Your Honor, a few more questions—in connection with
the Hiwassee River, are there other members of the perch fam-
ily in the Hiwassee River?
A. There are, in the entire family, there would be about ten
or twelve species that would either live in or move through the
lower part of the river.
126
A. There would only be one or perhaps two other perches
that might spawn that early—well, perhaps [1-54] three.
The sauger is an early spawner, and surely it uses the lower
Hiwassee as a spawning area.
I suspect that there may be occasionally walleye that spawn
in the lower Hiwassee River although I am not aware of any
specimen.
And two other darters begin spawning just about the
snail darter is reaching maximum spawning condi-
the first of April the Tennessee snubnose darter and
speckled darter wi'] both be spawning and the snail darter is
still spawning by the mi of April, or the 20th of April.
is .
of
Now if one of these eggs, and we talk about the larval
nderstand it, I guess it would be an egg that has a
it, a well-developed [1-55] embryo that
f
ular aspect or evidence that denotes, for example,
the Percid egg from some other egg?
Well, I am not fishes but the larvae
127
A. Different families. Some of them live in the Hiwaasee
River.
Q And is one of them called the Percoidea?
A. Yes. This is the family name for a common white bass or
stripe that the fisherman will recognize.
Q And is that fish located in the Hiwassee River?
[1-56] A. It is abundant in Watts Bar Reservoir and I sus-
e>Ee>
P25
atl
tet
Lf
‘.
|
Gf
li!
i
Hit
as
itp
Mr. Dovoemerry. Mav I make one comment, I think it is
clear that that matter was not mentioned in the previous
NEPA trial before Your Honor.
The Covurr. Well, I don't think it is important enough to dis-
cuss it. Go ahead, go ahead. Cross-examine him.
By Mr. Waoner:
Q. Now then, before this particular fish was listed as an en-
dangered species, you went to the TVA with the proposal to
research it, is that correct?
A. TVA sponsored the research of Wayne Starnes, [1-58]
yes.
2 Een ee ae aa
A. Yea.
Q. I think you submitted an initial proposal to TVA in
December 1973, did you not?
A. I don’t recall the date.
Q. I would like to hand you a copy of that proposal of re-
search and ask you if you can identify it.
A. It looks very much like a copy from my typewriter, yes.
I haven't seen it for a long time.
Mr. Waawer. All right.
Mark that as an exhibit to his testimony, please.
[Exhibit No. 36 was filed. }
By Mr. Waoner.
Q. Now it is my understanding that TVA did sponsor this
research and pay for it?
A. Yes.
Q. And they did it before the fish was listed as endangered or
any action was taken on the status of the fish?
A. They did it before there was an Endangered Species Act,
essentially. Yes, it had not, certainly not been listed since it
couldn't have been.
[1-59] Q. Before there was an Endangered Species Act and
OR aaa
. Yes.
Q. And at the time you made this proposal I think you had
had substantial experience on fishes, and so forth, in the
Hiwassee River?
A
Q. And shortly after that you published a paper dealing with
fish and fauna, and so forth, in the Hiwassee River?
A. It had been published previous to that time, I think. I am
;
{
i]
:
iE
i
is
4;
H
i
i
E
:
:
jib
it
epee
rest!
(ite
re
il
certs
ze
f
HE
3
E
:
:
efalill
ip itl
u Hf
if
iE ib
# i
a
L: ie
Fe>
IP
Ff
;
|
=
i
130
into the ae So ee be a successful (1-61)
t to date
A. Definitely not. I see no—I have no reason to believe
that.
Q. Have you followed the sexual progress of the snail
darter in the Hiwassee River?
A. Sexual progression of the snail darter in Wayne
Starnes’ aquarium is perhaps parallel. They reach sexual ma-
turity when they get large enough to reach sexual maturity.
Q. Doctor, I don’t think you answered my question. Have
you followed the sexual progression ?
A. Yes, I am aware of the reports of the biologists who
have been studying the situation, yes.
Q. Have you been there yourself and observed them?
A. I have been there several times but I haven't seen any
snail darters.
Q. Now then, we talked a moment ago or you talked on
direct examination that you had heard that snail darters in
the Hiwassee River, nine snail darters were observed yester-
day and appeared to be in an emaciated condition; is that
correct?
A. I overheard that, yes.
Q. Who did you hear that from?
A. I don’t recall the source.
[1-62] Q. Doctor, isn’t it a fact that darters immediately
after spawning have the appearance of being in an emaciated
condition?
A. In fact, if they are adults they probably will not live very
much longer after their third or fourth year spawning act. This
would not be unusual, very definitely.
Q. So the answer to my question is yes, after spawn)" «ev
do appear to be in an emaciated condition?
A. They very likely would, yes.
Q. So that could be soine indication that those nine fish that
were seined had just completed spawning?
A. It’s possible.
Q. Doctor, how many different species of darters are there
in the Tennessee River system?
A. I would say approximately forty or forty-five in the Ten-
nessee system.
Q. How many in the State of Tennessee?
A. It can be extremely difficult, yes.
Q And with respect to the, I think it’s the [1-63] stargaze
darter, isn’t it, over in Arkansas?
Yes.
Q With respect to the stargaze darter as opposed to the snail
~~ + ee cetera
"t think that’s quite fair, no. The difference involves
a number of measurable dif-
ain
+)
i
F
if
ii
4
H
fl
1
F
z
:
-
z
He
Pek:
ine
Hi
‘ i
HE
att
i
:
|
identity when living with close relatives.
Q. Doctor, how many new species of darters have [ 1-64) been
discovered and/or classified in the last five years?
A. I would say the number would be somewhere between
eight and ten, something like that, or eight to twelve, in the
last five years.
Q. So new species of darters are being discovered and classi-
fied most every year?
A. Yes, I would say the rate would be to the point of about
one a year, something like that.
Q Now inasfar as different species of animals, isn't it a fact
that there are over, in the neighborhood of 20,000 new species
of animals discovered each year?
. I wouldn't even know if it was close. It doesn’t seem par-
ticularly out of line but I have no way of knowing.
But there are substantial numbers of new species of ani-
are being discovered and classified each year?
[1-65] There are two snail darters and two other species of
darters, and if you would——
A. What is the fluid that these are in, is it water?
Q. I have no idea. No, I think it’s a preservative of some type.
A. Alcohol?
Q. I will pull it out for you.
rounded nature of the pectoral fin on this one. It’s slightly
This tiny specimen is in the same species group, which spe-
cies it is I don’t know. I would have to look at it under a scope.
I would like to be able to count the fin rays and have access to
some measurements.
Q. Let's make sure we have them right, Doctor. You say this
darter is a stargazing darter?
[1-66] I don’t say that it is but it might well be. It appears to
look more like a stargazing darter than a snail darter, but it
could be either one.
Q It could be either one?
A. Yea.
Q There is very little difference then?
A. Very little difference that can see on juvenile i
viduals without dlasesting csape, yen. ~
; Q I would like to ask you to put this darter that you have
identified as a probable stargazing darter into the vial and mark
that as an exhibit to your testimony.
The Courr. He doesn’t do that. Do you want to do it?
Mr. Waewer. Yes, Your Honor.
The Covrr. All right. Mark it then.
[EXHIBIT No. 37 was filed. }
By Mr. Wacwer:
Q This appears to be a snail darter then?
As a matter of fact, even with a scope | might not be able to
make a positive determin
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.