Segment from The Departed

Darter vs. Dam

Lawyer Zygmunt Plater tells Brian about arguing the “snail darter” case before the Supreme Court, the Endangered Species Act, and the impact of his case.

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**This transcript comes from an earlier broadcast of this episode. There may be slight differences in content with the audio version above**

PETER: This is BackStory– the show where we look at the past to understand the America of today. I’m Peter Onuf.

ED: I’m Ed Ayers.

BRIAN: And I’m Brian Balogh. On today’s show we’re talking about the history of American thinking about extinction. And we’re going to turn, now Ed, to a story from your backyard, down in Tennessee. It’s the snail darter controversy.

ED: Yeah, I know this story. Everybody does down in Tennessee. It’s the story of the little fish that got in the way of the Tennessee Valley Authority trying to build a big hydroelectric dam that would benefit so many people, right?

BRIAN: That’s kind of right. You are right about the way the story played out in the media, and frankly, still does play out in the media. But that dam was never intended for hydro-power. It was actually dreamed up as the first step in creating a lake and freeing up land for an office park and planned community for the Boeing Corporation.

ED: I have to admit, that’s not the way I’d heard it, Brian.

BRIAN: The story began in the mid ’60s when the TVA secured federal funds to dam up the last free flowing section of the Little Tennessee River. But before long, Boeing pulled out of the project. The farmers in the 40 square miles that we’re going to be condemned managed to delay the dam for a few years. But in the early ’70s, the TVA started building that dam. By 1973 it was 95% complete. But at that point, those farmers stumbled upon a last ditch strategy for shutting down the whole thing. They would take advantage of the brand new Endangered Species Act that had just been passed by Congress.

WALTER CRONKITE: For an energy hungry country, the news from a federal appeals court today could be described as bad for environmentalists.

BRIAN: This is Walter Cronkite, in January of 1977, reporting on the first case to test the new Endangered Species Act.

WALTER CRONKITE: The reason the hydroelectric dam threatens an endangered species– a three inch fish called the snail darter. A member of the perch family, it’s found only in a 17 mile stretch of the river that’s to be part of the Tellico Reservoir.

BRIAN: The following year the case, Tennessee Valley Authority v. Hiram Hill, made its way to the Supreme Court. Hiram Hill was a law student who had heard about the fish. And his professor was the one who got the snail darter listed as an endangered species. And eventually, that professor argued the case in court. His name Zygmunt Plater.

ZYGMUNT PLATER: At one point, Justice Palo leaned and said, Mr. Plater, what purpose is served? Are they good for bait? Can you eat them? And I was able to say, no, your Honor, you can’t eat it, you can’t use it for bait. But at trial Exhibit 12 is a lithograph which shows the little fish highly adapted to clean, cool, clear, flowing river water, which has been destroyed everywhere else in the region by the pork barrel development. And the interesting thing is when I said, Exhibit 12 at trial, the clerk of the United States Supreme Court jumped up, and he went out and handed each member of the court a picture of this beautiful little fish looking out with little brown eyes. I said, wow–

BRIAN: Suitable for framing, no doubt.

ZYGMUNT PLATER: Exactly– and I figured that was good for at least one vote. And we won six to three.

BRIAN: And was the key issue whether the snail darter faced extinction? Was that word thrown around a lot?

ZYGMUNT PLATER: Well often when you look at endangered species cases, you’re looking at a case of a canary in the coal mine. That that little species is, typically, in a habitat that has been rendered rarer and rarer. This little fish, for instance, probably in the millions used to live throughout the eastern half of Tennessee. But one by one by one by one its populations have been destroyed by some of those 67 dams that had already been built.

BRIAN: Right.

ZYGMUNT PLATER: Only 25,000 of these little things were left in the little Tennessee River– that was their prime habitat. They were vivid indicators that every other place where this fish lived had been destroyed for humans. I guess the point is the extinction of this little fish would mark the extinction of a remarkable public resource. And it was only through the accident of the Endangered Species Act being passed, and my student Hiram Hill hearing about this little fish, that we were be able to take it up to the Supreme Court and, ultimately, to the God Committee, which–

BRIAN: Time out, time out– what is a God Committee

ZYGMUNT PLATER: I’d argued, in the Supreme Court, that Congress should, finally, sit down and look at the merits on both sides. TVA’s saying that there was going to be this city, which never would happen. And the farmers saying, the true value is to have us on our farms, this prime soil, and have tourism and recreational fishing up through this 33 miles into the park.

All right– the Congress set up a high level committee– really quite extraordinary. Seven members of the President’s cabinet listened for two or three hours, and then unanimously said, this project was never worth building. The farmers were right.

The trouble was, that didn’t make it into the media. Little fish stops dam– that’s in front of– front page, above the fold. Economic analysis shows that the media story has been wrong from the beginning. It either wasn’t covered in the AP wire, or it was page 24 in the Times, and page 12 in the Post. And it was extraordinarily frustrating.

Stupid little fish– extreme environmentalists blocking human project– hydroelectricity– in fact, you get the idea today, still in Congress, in the last several months the snail darter is used as an example. Not only of the foolishness of the Endangered Species Act, but it’s used to undercut environmental regulation, generally. And even is being used as an example of government over-regulation in general.

BRIAN: I see your point, but I want to ask you whether your side didn’t have its own uses of the threat of extinction? If that didn’t help mobilize support? Didn’t extinction do some work for your side, as well?

ZYGMUNT PLATER: Oh, absolutely– the threat of extinction to this little fish was, essentially, a shadow representation of the economic merits and the community merits of the farming and the fishing community, on that little stretch of remaining river. But it turned out that in the legal system then, and today, citizens had no way to raise the direct merits of these the challengeable projects.

BRIAN: So Zyg– symbolism aside, and the conservative reaction aside, you were popping champagne corks, right?

ZYGMUNT PLATER: Well we always had an eye on the politics. Because we had won in the Supreme Court. We’d won now, unanimously, in the God Committee.

But America did not know that we had been making common sense. And that allowed the pork barrel to do what they did. Late one evening, with an empty House chamber, they sneaked a rider on to a multi-billion dollar appropriations bill which overrode all federal law and ordered that the dam be completed right away– irrespective of the economics.

BRIAN: And did they build the dam?

ZYGMUNT PLATER: So for two years, nothing happened. And then TVA started giving away the farmer’s lands to development companies, so that now McMansions line the lake. The land was condemned from the farmers for an average of $330 an acre. I was told that the land was being sold for a half-acre for more than $100,000.

BRIAN: What about the snail darter?

ZYGMUNT PLATER: The snail darter was transplanted to two lesser rivers. I’m pleased to say that it is back up to 25,000. It’s extinct in it’s only natural habitat. But the problem is its on life support.

TVA has to put bumbling machines into the rivers where the snail darter’s been transplanted, to allow it to survive through the summer months.

BRIAN: So it’s quite literally on life support. It’s on oxygen.

ZYGMUNT PLATER: It’s literally on life support. But if I had named it case Tellico Farmers versus TVA, reporters would have wanted to talk to who– to the farmers. And they would have found out what? Your lands are not being condemned for a hydroelectric lake.

They’re being condemned– I mean 40 square miles of family farms were being condemned for resale by Boeing. That was the whole point. And America never got that message, because I couldn’t name the case Tellico Farmers versus TVA.

BRIAN: Zyg, do you dream about the snail darter?

ZYGMUNT PLATER: For 30 years– I’d sometimes would wake up in the middle of night and turn over to Anne–(GROANING). And she would say, snail darter? And I would say, yes. And she’d go, oh, write the damn book.

BRIAN: Zygmunt Plater is a law professor at Boston College. And in case you’re wondering, he finally got around to writing that book. It was published last year under the title The Snail Darter and the Dam.

You can listen to Zyg’s story of his very tense phone call about the snail darter with President Carter at