The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River


Even today, thirty years after the legal battles to save the endangered snail darter, the little fish that blocked completion of a TVA dam is still invoked as an icon of leftist extremism and governmental foolishness. In this eye-opening book, the lawyer who with his students fought and won the Supreme Court case—known officially as Tennessee Valley Authority v. Hill—tells the hidden story behind one of the nation’s most significant environmental law battles.

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The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River

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Even today, thirty years after the legal battles to save the endangered snail darter, the little fish that blocked completion of a TVA dam is still invoked as an icon of leftist extremism and governmental foolishness. In this eye-opening book, the lawyer who with his students fought and won the Supreme Court case—known officially as Tennessee Valley Authority v. Hill—tells the hidden story behind one of the nation’s most significant environmental law battles.

The realities of the darter’s case, Plater asserts, have been consistently mischaracterized in politics and the media. This book offers a detailed account of the six-year crusade against a pork-barrel project that made no economic sense and was flawed from the start. In reality TVA’s project was designed for recreation and real estate development. And at the heart of the little group fighting the project in the courts and Congress were family farmers trying to save their homes and farms, most of which were to be resold in a corporate land development scheme. Plater’s gripping tale of citizens navigating the tangled corridors of national power stimulates important questions about our nation’s governance, and at last sets the snail darter’s record straight.

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Editorial Reviews

Dan Rather

"The Snail Darter and the Dam is an inspiring and informative American story of regular people fighting powerful special interests.  It's about how the public interest lost out to big money and its political allies--and failures by the local and national press to report the story fairly, accurately, and in proper context."—Dan Rather, Anchor and Managing Editor of AXS TV
Hon. Justice John Paul Stevens [retired]

"TVA v. Hill is one of my favorite cases. This eminently readable account of the full history of the case is even more interesting than the story told in Warren Burger’s opinion for the Court (or my memory of the oral argument and the shifting positions of the Justices in my book, Five Chiefs). The author’s account of how President Carter rejected the “God Committee’s” verdict about the darter is especially so."—Hon. Justice John Paul Stevens, Supreme Court of the United States [retired]
Jonathan Harr

"The inside story of a long and fascinating battle—legal, political, environmental, and personal— that became an icon of its era and remains instructive even today. It’s a blueprint for community action, and—sadly—a still-current roadmap of the way in which Washington works. The legal maneuverings are laid out with wonderful lucidity, but even more the book is by turn compassionate, angry, and intensely humane, and well worth reading.”—Jonathan Harr, author of A Civil Action
Edward O. Wilson

“The story of the snail darter and the TVA is the Thermopylae in the history of America’s conservation movement, and this book by Zygmunt Plater deserves to be the classic telling of it.”—Edward O. Wilson, Harvard University
“. . . as compelling history of a controversy that shed light on the policy process and is fascinating in its own right.”—Choice
Chapter 16 - Clay Risen

“Plater . . . does a deft job of weaving together the legal framework and context for his fight against TVA, which he ended up winning before the Supreme Court in the landmark case TVA v. Hill. He employs a strict first-person, present-tense perspective that gives the book an engaging, memoiristic tone. [He] provides a wealth of detail that makes for compelling reading, and he has a knack for bringing drama to even the most technical court proceedings."—Clay Risen, Chapter 16

Watch Professor Zygmunt Plater's presentation at the Animal Law Review Symposium at the Lewis & Clark Law School.

“. . . as compelling history of a controversy that shed light on the policy process and is fascinating in its own right.”—Choice

Watch Professor Zygmunt Plater's presentation at the Animal Law Review Symposium at the Lewis & Clark Law School.
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Product Details

  • ISBN-13: 9780300173246
  • Publisher: Yale University Press
  • Publication date: 6/18/2013
  • Pages: 392
  • Sales rank: 1,149,806
  • Product dimensions: 6.30 (w) x 9.30 (h) x 1.20 (d)

Meet the Author

Zygmunt J. B. Plater is professor of law and director of the Land & Environmental Law Program at Boston College Law School. He lives in Newton Highlands, MA.
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Read an Excerpt

The Snail Darter and the Dam

How Pork-Barrel Politics Endangered a Little Fish and Killed a River

By Zygmunt J. B. Plater


Copyright © 2013 Yale University
All rights reserved.
ISBN: 978-0-300-17324-6



Of Time, a River, and the Tennessee Valley Authority

200,000,000 BCE–1973

Two hundred million years ago sharp volcanic thrusts drove a long line of jagged mountains upward from the flatlands that would later become the eastern United States. Slowly over the following millennia the rains and winds softened and smoothed the heights until the Appalachians had become a great deal smaller and gentler than the Rockies, their younger relatives to the west. Though it didn't yet have a name, a good fraction of the water that shaped and drained the southern part of the mountains over that span of two hundred million years flowed westward in crevices and streams that joined together to form the Little Tennessee River.

The Little Tennessee arises in a small spring in the saddle of a north-facing ridge in the Appalachian mountains of northern Georgia, then trickles north and westward, gathering other streams as it flows through the twisting leafy green canyons of the Smoky Mountains of North Carolina and Tennessee. The Cherokee called these Enemy Mountains because beyond them from the east came other tribes' raiding parties and white invaders. Through a notch at the southern end of the Smokies, the river poured out of the mountains into the rolling lands west of the Appalachians. In 1540 the Spanish explorer Hernando de Soto, coming west from the Carolinas on his trail of discovery, had traveled along the Little T and talked with elders in a half-dozen Cherokee villages, but, finding no gold after a few days, he went south. The Little T, coming out of the hills that by 1935 had become the Great Smoky Mountains National Park, flowed another five hours through the broad rolling landscape of America's colonial frontier to a big junction pool, where it joined the sluggish water of the Big Tennessee River on its muddy way westward to the Mississippi.

But the Little T ran clear and cool, and was filled with life. As it picked up the flow of Chief Abraham's creek in the mountains, its currents, already filled with oxygen, had taken in rich limestone water that over thousands of years had made the river a bountiful place for fish and fishermen. When twentieth century fishermen walked across the meadowlands to the river, they passed Native American mounds and ancient town sites still studded with broken potsherds, flint arrowheads, and spear points that would glisten in freshly plowed fields after a rain. In the old days, the Cherokee would hunt up in the mountains, but it was down along the banks of the Little T that they built their towns, where the river flowed through gently rolling countryside with fertile topsoil many feet deep, and the water teemed with trout.

The river flowed past the town site of Settaco, where more than a hundred warriors had built their homes and planted cornfields in 1762 when Lieutenant Henry Timberlake, a colonial British officer, first mapped the region. Across the river was Tlanumai, the cave from which, according to local folklore, two giant vultures had ruled the valley until a wise old medicine man drove them away. Farther along was Chota, described by an early white trader, James Adair, as the Cherokee's "Jerusalem and most sacred city of refuge," where God first made the Cherokee Cherokee, and where their strongest medicine was gathered. Cherokee medicine has diff erent sources. It grows, or is dug from within the earth, or is dipped from flowing water, or is called from the air. Downstream from Chota, ten miles out from the mountains came Tennassee, the town that gave its name to the river and the state, and Toqua, with the valley's largest ceremonial mound.

In 1775 William Bartram, a young Quaker naturalist from Philadelphia, wrote upon crossing this Cherokee homeland on his 2,500-mile odyssey through the southeastern territories:

"Perceiving the bottom or bed of the river to be level and evenly covered with pebbles, I ventured to cross over, however I was obliged to swim two or three yards at the deepest channel of it, and landed safely on the banks of a fine meadow, ... turned out my steed to graze, and then advanced into the strawberry plains to regale on the fragrant, delicious fruit, thereafter riding past several Cherokee towns, each centered on a council house, "[with a] very large dome or rotunda, situated on top of an ancient artificial mound, ... and on every side appeared little plantations of Corn, Beans, &c, divided from each other by narrow strips or borders of grass.... I ventured to ride through their lots, being careful to do no injury."

Several hundred yards farther downstream stood colonial Fort Loudoun, perched on a hill overlooking Toskegee town, where the great leader Sequoyah was born, and the pool where the small Tellico River joined the Little Tennessee. The fort was built by the British, the South Carolina militia, and the western "Overhill" Cherokees in the 1750s and anchored the line of western forts defending against the French and their Ohio valley tribal allies. Lieutenant Timberlake stayed at the little fort during his mapping missions for the crown in the 1760s. The Cherokee, protected by the fort and their British allies, farmed, fished, and flourished in their bright meadowlands along the flowing river.

The Little T valley remained the heart of the Cherokee confederation until the early 1800s, when migrations of colonial settlers spilled over the Appalachians from Pennsylvania, Virginia, and the Carolinas and out onto the westward plateaus of Kentucky and Tennessee. The assault begun by malicious South Carolinians—who gave the Cherokee nation blankets infected with smallpox—was finished for the Cherokee by a surging tide of white settlers. First a series of treaties pushed many of them southward out of the Little T valley, and then came the mass westward "removal" engineered by Andrew Jackson and his protégé Martin Van Buren. Defying a Supreme Court decision in favor of the Native Americans, in 1838 they sent the army to drag the Cherokee from their green fields and down a Trail of Tears to the arid desolation of Oklahoma. Only a small number of the Overhill Cherokee were able to escape removal, hiding in the rugged mountains and later settling in a small Cherokee community on the North Carolina side of the Smokies.

It's little wonder that trout fishermen in the late twentieth century would fall silent as they hiked across ancient fields past burial mounds and waded into the river's cool currents. There was no place like it.

Upriver, in the narrow canyons adjoining the national park, the federal government coordinated a chain of six hydroelectric dams on the Little T. Outside the Smokies, the Little T meandered thirty-three miles through gently rolling flatlands, then joined the Big Tennessee River, where it met a long chain of impoundments damming all of the Big Tennessee and many of its tributaries—2,500 linear miles of river now completely backed up behind dams. But here, released from its upstream mountain valley impoundments, the last undammed stretch of the Little T flowed more than a hundred yards wide through farmlands for thirty-three miles—clear, mostly knee-or waist-deep, murmuring as its blue-green waters flowed swiftly over shoals and around gentle curves, sliding along the meadows' undercut banks. A soft fog usually lay low on the waters in early morning, the river's rippling surface resonating with the subtle splashes of fish rising unseen, as trout fed on hundreds and thousands of mayflies and caddis flies hatching in the water currents and fluttering up through the mist like a snowfall in reverse.

The Little T was an ecological treasure, preserving a barely known cross-section of hundreds of forms of life that had evolved here over two hundred million years, with traces of the humans who had lived in and around its richness for ten thousand years. Even in the 1970s Ammoneta Sequoyah and his brother Lloyd, Sequoyah's great-great-great-grandsons, both traditional medicine men in their seventies, would come here from Cherokee, North Carolina, to gather herbs surreptitiously on the riverbanks of the white farms that had taken over their tribe's homeland. In one broad stretch of river near Toqua, now called Howard's Bluff , wading fishermen in the 1970s could look down through the clear water to discover they'd been traversing an ancient Native American fish trap: a long vee of rocks and ancient waterlogged timbers still rested in the riverbed facing upstream, where Cherokee women had once stood beating the water to scare fish toward spearmen waiting at the narrow end.

Rafters floating down the river through a late summer day past old Fort Loudoun would feel the cool of the water on their knees while the heat of the sun hovered overhead. Islands provided history-laden pullouts where canoes could be landed for picnics and cloud-gazing. In many stretches along the riverbank, glades of willow, birch, and cottonwood trees lay deep, where Cherokees once lurked in early mornings waiting for deer and elk to come to water. Down on Rose Island the archaeologists were sifting through ancient layers of human lives long gone.

At day's end, sunset backlit the rolling grain fields on the western bank of the river, punctuated by scattered barns and silos, along with the steep sides of the great burial mound at Toqua, whose shadow still stretched toward the river. Lights winked on in the windows of farmhouses in hollows across fields along the river—the homesteads of more than three hundred farm families. Some had lived here, farming the valley's rich, dark soils, since federal armies evicted the Cherokee in the 1830s. Many families were of the same Scotch-Irish stock as Davy Crockett and Daniel Boone, and Sam Houston, who grew up near the river and lived for a while there with the Cherokee. As pioneers, these families had moved south and westward, following the Appalachian mountains, as they tried to stay ahead of the town-building pressures coming from the east. When they saw the rich soils and fish-filled waters of the Little Tennessee Valley, some decided to settle here and push on no more.

Sixteen miles downstream from Great Island and old Fort Loudoun, past the broad shoals at the Coytee Spring and hundreds more acres of rich farmlands, stood an isolated slab of concrete placed there in 1968. It bridged a small side channel beside a mile-wide pasture on Bussell's Island just above the Little T's junction with the Big Tennessee. The unfinished dam wasn't very big, spanning scarcely a hundred feet. Kids could throw pebbles over it. It had stood there awkwardly for a half-dozen years, perched on concrete legs over the channel, unconnected to anything in the broad valley—but the Tennessee Valley Authority called it Tellico Dam. If and when the agency was allowed to build earthen dikes out across the pastures beside it, walling off the main channel of the river, the waters of the Little T would slowly back up thirty-three miles, all the way to the mountains. The Little T would form a narrow, meandering impoundment, murky with algae and averaging less than twenty feet in depth. A layer of mud and water would drown the rich meadowlands along both banks of the Little T, flooding all the Native American town sites except the burial ground at Settacoo, which would be awash. The Little T would no longer be a river, but something less.

A few miles upstream from the dam's cement skeleton, in the shallow riffles of the shoals at Coytee Spring, the little secret that might make a surprising difference darted furtively among cobblestones and gravel down on the river's floor.

The Tennessee Valley Authority initially focused on big projects. Created in 1933 to pull the Appalachian region out of two centuries of economic backwardness further deepened by the Great Depression, TVA was given authority over all or part of seven Southern states by President Franklin Delano Roosevelt's New Deal, as a "federal corporation clothed with the power of government but possessed of the flexibility and initiative of private enterprise." A phalanx of young social engineers came down from the North to this national backwater, planning unprecedented governmental development initiatives and spending unprecedented amounts of federal dollars to revitalize the vast territory assigned to them. David Lilienthal, one of TVA's early leaders, liked to describe the agency's programs as "democracy on the march."

TVA's two major development missions were to manufacture fertilizer to boost agriculture, and electricity to boost everything else. The young progressives were less entranced by the former goal, which got parceled off to Muscle Shoals, Alabama, so they focused instead upon electric power. Operations were based in Knoxville, Tennessee, which soon became a garden city at the edge of the Smokies.

A catalog of the region's sixty-nine potential dam sites was put together in 1934, and the first, Norris Dam, went on line in 1936, followed quickly by two dozen more hydro dams along the Big Tennessee River and its tributaries. During World War II much of the hydropower was dedicated to defense necessities, such as processing aircraft aluminum and nuclear materials. War needs quickly outstripped hydro capacity, so in the 1950s, with all the favorable hydro sites built, TVA shifted to coal-fired plants for the bulk of its power output; in the 1960s it began adding a half-dozen nuclear reactors.

By the early 1970s hydro provided less than 10 percent of TVA's electric capacity, although the big, roaring dams of the early days remained the agency's emblematic image. Along the way, the availability of cheap electricity substantially changed Appalachian society, helping to pull much of the population, especially in small towns, into the twentieth century.

During the New Deal, conservative Republicans focused their political wrath against the "socialistic experiment." They needn't have worried so much: soon enough TVA's young iconoclasts were transformed by the Appalachian Eden into utility company executives, and they became the core of the region's political establishment and social elite. They didn't move back North, and they no longer represented anything approaching socialism. To a man, federal appointees sent down to Tennessee in the early Eisenhower years with marching orders to shrink and privatize the agency did the opposite, broadly extending the agency's regional footprint. The leadership grew more stolid, backing away from earlier innovative planning and human development agendas and focusing on selling electricity.

In 1959 a congressional act converted TVA into an autonomous government entity that, unlike other federal agencies, could authorize most of its energy initiatives itself, funding them with power revenues without federal oversight. TVA was exempted from more than a dozen federal statutes, notably an exemption from federal land condemnation restrictions. Alone among government agencies TVA didn't have to go before juries to establish payment for taking private lands for its self-authorized projects. Condemnation compensation was set by TVA's own employees. When extra funds were necessary, TVA did not need to go to Congress's standing committees. It could get them in a shortcut process from the congressional appropriations committees, the home of what was traditionally known as the pork barrel for its generous funding of legislators' pet projects.

TVA preferred to be seen as having grassroots populist support. It organized and funded, among others, Citizens for TVA (CTVA), a regional civic association dedicated to backing the agency's programs. CTVA enrolled more than thirty thousand judges, mayors, state and local political leaders, newspaper editors, labor and business leaders, and power distributors. The federal agency became America's largest utility company, woven deeply into the economies and politics of its region. During Barry Goldwater's 1964 presidential campaign, when he repeated the old conservative mantra that TVA should be dismantled, business-oriented Republicans around the region howled in protest, and he quickly changed his tune.

Chairman Aubrey Joseph Wagner, called "Red" for his auburn hair, came down to TVA from Wisconsin in 1934 to take a job as a junior assistant engineer. Only twenty-two, he started working his way up through the power structure, focusing on every detail of the agency's operations and cultivating powerful friendships that helped him rise through the agency's internal politics. By 1954 Wagner was general manager and had made himself and his trusted associates the agency's controlling force. By 1962 he was already being referred to as "Mr. TVA," and his dominance became official: he was appointed chairman of the TVA board, from which pinnacle he exercised unchallengeable authority about everything TVA did.

Excerpted from The Snail Darter and the Dam by Zygmunt J. B. Plater. Copyright © 2013 by Yale University. Excerpted by permission of Yale UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents


Preface....................     xi     

INTRODUCTION: God Is Speaking, by Committee....................     1     

ONE. Of Time, a River, and the Tennessee Valley Authority..................     6     

TWO. At the Old Fort: The Start of a Small Crusade for a Little Fish.......     31     

THREE. Pushing the Snail Darter onto the Endangered Species List...........     56     

FOUR. Trial and Tribulation in TVA's Home Court....................     88     

FIVE. An Appeal for Justice as Bulldozers Roll....................     112     

SIX. The Snail Darter Goes to Washington....................     120     

SEVEN. Endangered, on the Banks of the Potomac....................     160     

EIGHT. The Snail Darter Gets Its Congressional Hearings....................     188     

NINE. The Highest Court?....................     211     

TEN. Another Trial and Vindication, in the God Tribunal....................     270     

ELEVEN. 140 Days of a Slow-Ticking Clock, Ending in 42 Seconds.............     290     

TWELVE. A Phone Call from Air Force One....................     324     

EPILOGUE: A Few Years Later, on the CBS Evening News....................     342     

Notes....................     353     

Index....................     361     

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