# Appendix — TVA v. Hill

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1937%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 437 U.S. 153

## 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.....-.........----~--------------- 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 &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 ©! ) 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 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 determinatic= based on [1-67] one juvenile

[Exhibits Nos. 38 and 39 were filed. ]
By Mr. Wacwer:
Q Would it be fair to say, Dr. Etnier, that the TVA biolo-

gsts have cooperated with you in all respects in your research
with regard to the snail darter?

1%

Rae GF GNM, | SEED Sy Se See Ce
air, no.

(¥. To what extent have they not been cooperative?

A. They have cooperated with me to the extent that the or-
ganization allows them to cooperate with me. I have had good

Q. You have?

A. Yes.

Q And have you also cooperated with TVA and with the
biologists in connection with their transplant program in their
effort to save the snail darter?

A. Whenever I have been asked to, yes, I have.

Q Doctor, you have been opposed to the Tellico project since
we ee Se Ganay © Se ae Gate, Bee om See
Q

have expressed opposition to it in court and
otherwise prior to discovery of the snail darter?

. Etnier, during a normal evolution of nature isn’t it

oD >
~

at,
2

af

4]
;
E
=f

e>eorEgeo>

example, how muny times
Little Tennessee River over the last year

Approximately 75 to 80 times.
And made collections of the snail darter and [1-82]

4

“
i
F

erker
3
Fl

also engaged in observations in the Hiwassee

ri

Ps aii! is ii ;
ae iad eit
8 i, i is
ipsa ase E af pzis 35 95523 3
iin $2: a a2 3233 H 44 FEE 3
He Gene bein |
a AT ab ii aunt i: :
ay plies At na Bint ii;
Hi hs HEL sl BUH LE 423 Hail
Ees

th!
5 F%
Ef
lik
ee
F

t

i
if
‘i
fi
i
i

|

[1-89] The Cover If you want to put it in the record I will

I
|
:

knowing the amount of effort involved I couldn't

vies :
Ht
4

opinion as to whether or not the snail darter

ee © Reaa S Ce ee

iivek
|
i

Again I think that would be highly marginal.
ne as

7
And upon what do you base that opinion?

Lack of an analogous substrate in the Hiwassee River
compared to the natural habitct in the Little T. Very low per-
centage of comparable habitat.

Q. You say very low percentage of comparable habitat, spe-
cifically what are you referring to?

A. The type of gravel shell that vou find in the Little T, clean
swept, interspersed with clean swept sand and a great extent of
it, a mile and a half of it at Coytee Springs, for example, and
just a few hundred feet at a couple of places in the Hiwassee.
That I am familiar with.

Q. But yet from your observations of the East [1-90] Ten-
nessee area, is the Hiwassee River the closest area that has any
analogy to Little Tennessee River?

A. It is second best I feel, yes.

Q. Now, Mr. Starnes, have you actually been able to observe
any reproduction activity in the Little Tennessee River?

A. Yes, I have.

Q. And where have you specifically observed that in the Lit-
tle Tennessee?

A. Two hundred yards below the mouth of Coytee Springs.

Q. And when did you specifically observe that?

A. April 17th.

Q. 1976?

A. Yes.

Q. And have you observed that sort of activity on any other
occasion in the year 1975 or 1976?

A. No, I have not.

Q. And on the occasion when you observed it on April 17,
1976, did you actually film that particular activity?

A. Yes, I did.

Q. And you are prepared to present that film for His Honor
yourself?

A. Yes, I am.
{1-91} Mr. Dovemerrr. Your Honor, at this time we would

propose to show a short three minute film, approximately —
The Covrr. All right.

A
Q
A
Q.
A.

147

Mr. Dovorsrry. And Mr. Starnes maybe could stop at points
and explain it to the extent it needs explanation.
I would offer it as an exhibit with this one comment, if I
might, Your Honor.
This is the only copy of this film available and Mr. Starnes
needs it for his doctorate dissertation. Is it possible we could
introduce it as an exhibit with the right to substitute a copy and
withdraw the orginal?
The Covrr. Yes, without objection you may do so.
Get the lights off.

By Mr. DovcHerry.
Q Now what is the approximate depth that these movies
were ?
A. Two and a half feet.
Q If there is a point you indicate that you feel you should
stop it, if you will so indicate.
[The movie was shown, during which the witness made the

ing comments: } ;
[1-92] The Wrrwess. It will be clearer in a minute but this
is the male laying here. This is the female immediately in front

Mr. Doverrerry. If you will speak up.

The Wrrwess. At this speed it is going to take s minute.

The female is here. You see a male moving into position along

He is now immediately behind

She is a lot more worried about me being there than he was.
He was much more intent on what he was doing.

He is lying beside her, a tail wagging movement to get her
attention off of me.

Now he is dropping down on her, con.ing over her left hind-
quarter here. ah

Mr. Doverrerty. That is the female you are pointing to and
the male is to the lower left?

The Wrrwess. Yes. He is back on her right quarter again.
You will see him place his left pectorial—he didn’t do it here,
a crossover maneuver.

They go through the same maneuver again, moving or strok-
ing her with his lert pectoral fin. Crossed back over to the left

was either

Q And what was the situation with regard to the current?
[1-04] A. It was nearly two feet per second which is nearly
the swiftest current in the river at that area.

Q And what was the bottom like with regard to whether it
was clean?

A. You can see it was 75 to 80 percent gravel interspersed with
clean swept sand.

Q. Did it have any silt on it at all?

A. None whatsoever.

Q. Now prior to the female depositing the eggs, is there any
Gueactenatlo motion that Che female euahes wien che dipetits

eear

A. There is usually, at least it has been observed in other
darters, a violent quivering of the body—I don’t know if that
has to do with expelling the eggs from the body or burying the
eggs into the substrate or sweeping aside the sand.

Q And in this particular situation where you were taking
these films, did you observe the femal engage in that motion?

149

A. Two possibilities, yes. The current was very swift and it
was hard to hold on and watch.

Q And the eggs themselves are very small and almost micro-
scopic, is that correct?

A. Not terribly small. A couple or two millimeters in
diameter.

[1-95] Q And is this the type activity that would necessarily
precede the actual depositing of the eggs by the female?

A. Certainly is.

Q Mr. Starnes, in your opinion with regard to your study
of the snail darter and your observation on this particular occa-
sion and your experience in this regard, do you have an opinion
as to whether or not the activity which is demonstrated in the
film is evidence of, first of all, reproductive activity by the snail
darter in the Little Tennessee River?

A. No doubt.

Q I show you a document which is part of your original
deposition, it has not been marked, and ask you if that is a
Xerox copy of your field notes which you made on April 17,

1976
A. It is.
> See Go ihy € Cae Se ae Oe

A. It is.
Mr. Dovenerry. May I introduce that as Exhibit No. 41.
The Covrr. It is received.

A. I do.

Q. And what is that opinion?

A. I feel there is very little habitat suitable for the snail
darter up there.

Q. Upon what do you base that opinion?

150
A. Drastically different substrate conditions and high com-
petition and predation from a large sculpin population and
trout.
Q. In laymen’s terms what is a sculpin?
A. Sculpin, that’s about as layman as you can get. It’s the
small fish which is very common in the upper portion of the

river, not much bigger than a snail darter which is highly pre-
datious on other small fish and will eat a fish as large as itself

Q Is it what is known as a bottom or benthos organism?
A. True.

Q

A.

aii

And resides on the bottom of streams and [1-97] rivers
like the snail darter does?

Mr. Dovonzarrr. I think you may ask him.
CROSS EXAMINATION

By Mr. Wacner:

Q. Where does the snail darter live, Mr. Starnes, in terms of
the river, the bottom of the river, top of the river or where?
A. It is a bottom organism.

Q A bottom organism?

A. Yes.

Q. About how many people have seen a snail darter in its
native habitat?

A. I would say in the neighborhood of less than fifty—thirty
to fifty. I have no idea about people I don’t know.

Q Your research indicates that the snail darter will eat any-
thing eee, Se

A. No.

Q It certainly eats more than snails even in the Little Ten-
nessee River, doesn't it?

A. It does.

Q. And your initial thoughts were it was just a snail eater; is
that right?

[1-98] A. Predominantly, yes.

Q And you've found out now that it doesn’t eat hardly any
snaiis in the summer.

A. In the summer of 1973 that was true. Last summer there
was more snails in the diet.

att

151

Q. And the snail darter population in the Watts Bar Reser-
voir is eating, isn’t it?

A. One of them had eaten, yes, the other had not, apparently.

Q. Now you say that the ones you found were in poor nutri-
tional condition. » Yan's i¢ 0 fact thas imanedictely after epewning
that they do appear to be emaciated?

A. To some degree, yes.

Q And that doesn’t mean at all that they are poor nutrition-
ally but merely they have just spent their eggs?

A. I would like to point out that the female is very gravid and
has not spawned.
Q. Very gravid, what do you mean by that?
A. She was full of eggs.
Q She was full of eggs?
A. And still skinny.

Q. You did observe the snail darter yourself at four miles
below the mouth of the river, did you not?

A. That is true.

Q In how many feet of water?

A. About twelve.

Q. When you were told about a week ago that TVA biologists
had found snail darters in the Chickamauga Reservoir, was your
commer t “You boys hit the jackpot.”?

A. Well, I don’t remember.

3 Did you make some comment that you-all really hit the

ry a I don’t know.

Q OK. So you do think that is an important find, don’t you?

A. If it’s true, yes.

Q. Whai does that mean to you?

A. What does it mean to me?

Q Yes.

A. It doesn’t mean anything until it’s substantiated.

Q If the snail darter was found in the Chickamauga Reser-
voir what does that mean to you?

152

[1-100] If it were found in the Chickamauga Reservoir, then
I would say there was a resident population there.

Q. And you know the area that it was allegedly found in?

A. Only from hearsay.

Q. How far is that from the mouth of the Little Tennessee
River?

A. I believe it’s some eighty-five miles.

Q. Eighty-five miles. Thank you.

Is it your opinion that in completing the Tellico Dam and
Reservoir project that TVA and the biologists are doing every-
think humanly possible to conserve the snail darter?

A. Within the limits of the problem, yes.

Q. The snail darter is an extremely difficult fish to find, is it
not?

A. Reasonably, yes.

Q. OK. We know that it lives there at Coytee Springs, don’t
we. You have been there several times and haven’t been able to
find it, haven’t you?

A. True.

Q. And you have looked how many hours without being able
to find it?

A. Two hours.

Q. So the discovery of one or more species in [1-101] one
area could very well indicate a substantial population?

A. You mean specimen or species?

Q. The discovery of one or more specimens in one area could
mean 4 substantial population in that area?

A. It could or it could not.

Q. Now you were involved in the original research proposal
that was submitted to TVA, were you not, in December of
1973?

A. True. 1973? Well, I was, yes, whenever it was.

Q. And you were involved in the preparation of it?

A. I was.

Q. And you agreed with everything that’s in it?

A. Well, I agree with what was known at that time, yes.

Q. How many different transplant sites does TVA have on
the Hiwassee River?

A. Three to my knowledge.

Q. How many have you been to?

A. All of them.

153

Q All of them?

A. Yes.

Q. In what connection have you been there, just canoeing
over it or——

[1-102] A. Two of them canoeing; one of them I have been to
three times.

Q. You have only examined the substrate then in one of the
locations?

A. I have seen the substrate in all of them. I have very crit-
ically examined only one.

Q. You know, in fact, precisely where the other two trans-
plant sites are but you haven't critically examined the
substrate?

A. Not precisely, no.

Q. Initially you did think that the transplant of the snail
darter to the Hiwassee River was a good idea?

A. Yes, sir.

Q. And you still think it’s a good idea?

A. If the dam is to be , yes.

Q. Do you know TVA biologists Charles Saylor and Gary
Hickman?

A. I do.

Q. Do you consider them to be experts on the snail darter?
A. In terms of exposure, yes.
Q. You trust’ their opinions?

A. I do.

Q. With regard to the snail darter?

A. Well, with regard to anything.

[1-103] Mr. Waanwer. That is all.

Mr. DovucHerty. Very briefly, in connection with the first
exhibit that I introduced through Mr. Starnes, there was an
additional page that should be added to that exhibit describ-
ing the observations, and if I may attach it.

The Court. You may do so.

Mr. Dovenerty. To exhibit 41. We can staple it at recess.

REDIRECT EXAMINATION

154

A. did.

Q I show you a Xerox copy, is that a copy of the notes
that you made in connection with that dissection?
A

Mr. DoucHerty. May we introduce that as exhibit No. 42.
[Exhibit No. 42 was filed. ]

By Mr. DoveHzrtr:

Q Mr. Starnes, in connection with the snail darter, if the
dam is allowed to be completed and the [1-104] transplant
operation in the Hiwassee is not successful, what will become
of the snail darter insofar as you know at this point in time?

Mr. Wacner. We object to this line of redirect examination.
lt was not opened up on cross-examination.

The Court. I’m afraid it was. I will let him answer.

I’m not going to spend much time on it though.

Mr. Dovcuerrtr. This is the only question I want to ask
him.

A. I feel like the reproducing population of the snail darter
will be exterminated.

Q And how long do you think it would be before the snail
darter is extinct?
A. Effectively extinct immediately and in actuality within

By Mr. Wacner:
Q Just like to clarify that last point. That’s with regard
to the Little Tennessee River, mile 17 to .5?
A. The whole Little T. The tailwater wouldn’t be suitable
either.
Q. But it is only with regard to the Little Tennessee River?

A. With regard to the reproducing snail darter population
in total.

it but there are certain portions I need to read in order to make
& proper record and to appraise Your Honor of the situation in

Mr. Dovenerty. Dr. Royal D. Suttkus, S-u-t-t-k-u-s.

The initial examination was by Mr. Wagner.

The Court. Can’t you just tell me what is in the deposition
and I will accept what you say about it without taking the
time to read it; whatever you say about it I will accept.

Mr. DoveHerty. I understand that, Your Honor. There are,
I wish I could in a very succinct way just tell you the points
that are in there.

[1-107] The point is, I would like at least to, as I understand
it, if I don’t read it into the record it doesn’t get into the record.

The Courr. Yes it will. It will be treated, you can file the

whole deposition as part of the record, yes.

252-501 © - Te ~ ti

156

Mr. DoveHerrr. As I understand in terms of the record of
the case that the deposition would not be dealt with beyond
this Court if there were——

The Courr. Your understanding is erroneous. The whole
deposition will be dealt with because I am letting you file the
whole deposition, and it will be treated as evidence, that is, the
part that is relevant to the issues that are involved in this
lawsuit.

Mr. Pepersen. We agree that could be done anyway.

Mr. Dovauerrr. Well, I want to make sure that as far as
the Court is concerned it is appropriate.

The Court. Well, it is appropriete, it is appropriate.

Mr. Dovenerry. I think, Your Honor, if I may, with that
comment from the Court, just read very short parts. I think
that will deal with the issues.

The Court. All right, if you want to do it [1-108] that way.

Mr. Dovenerty. I might add, Your Honor, and I think I
can summarize some of these points, the witness is Dr. Royal
D. Suttkus who resides in New Orleans, Louisiana, and who is
a professor at Tulane University, and is fifty-six years of age.

He has been a professor at Tulane University since the fall
of 1950. He is a professor of biology there and did some of his
training at Michigan State, and then received his further de-
grees in zoology and biology at Cornell University where he
did some study under Dr. Raney.

Now in that connection, the question was asked his onvinion
of Dr. Raney, Dr. Raney was an expert who testified for the
defendant TVA, and Dr. Suttkus was at one time a student of
Dr. Raney, and the question was asked by Mr. Wagner is Dr.
Raney an expert in the field of ichthyology, and the point was
he was commenting on Dr. Raney as an expert, and his answer
was on page 4:

“It depends on what vou're talking about, in reference to
what. You asked the question whether Raney was an exvert. In
the forties and fifties when I was a student there. I would say
that Raney was one of the leading ichthyologists, fresh water
ichtvologist [1-109] in the country, and in recent years I
haven’t been in touch with him that much, but he has not been
active in the society or national society. publications have not
appeared in our journals. His activities are away from what
they used to be.”

157

Mr. Waaner. Go ahead and read the next.

Mr. Dovauerry. I think you have a right to read anything
you want to.

The Court. While he is on that subject you read what you
want to read.

Mr. Wacner [reading]:

“Q. Let me ask you this Doctor. Has Dr. Raney probably
trained as many Ph.D. ichthyologists as any other one person
in the United States?

“A. Yes, I would say so.

“Q. Approximately how many has he trained?

“A.

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1937%3A02. Public record. Not legal advice.