The Snail Darter, the Endangered Species Act, and the U. S. Fish and Wildlife Service

On October 5, 2022, a self-congratulatory effusive press release crowing about the delisting of the snail darter from the Endangered Species Act was issued by the U.S. Fish and Wildlife Service (=USFWS). But aside from a few sentences about the role the species played with the infamous Tellico Dam, no mention was made of the fact that Agency higher ups fearful of the political controversy had only begrudgingly protected the fish. It was a very public bureaucratic and political altercation that proven to be a watershed event that determined what the Endangered Species Act truly means; demonstrated the value we, as a Nation, place on Life; and set the foundation for many USFWS leaders who would not hesitate to corrupt the Act or even Science itself to ensure political controversies don’t have blowback on their careers.

To understand the tortuous history and significance of the snail darter and Tellico, we must start back in 1973, the year the Endangered Species Act became the law of the land. Congress gave the responsibility for its administration and enforcement to two agencies, the National Marine Fisheries Service and the USFWS. At the time, USFWS was arguably an unsophisticated backwater arm of the Federal government best known for managing wildlife refuges and growing waterfowl for hunters, activities well out of the watching eyes and ire of the politicians and the public.

Figure 1. Snail darter and Tellico Dam

Lynn Greenwalt, Director of the Agency when the Endangered Species Act became law, later commented that upon first reading it, he immediately realized USFWS had been assigned responsibilities and duties for which it was unprepared. His initial impression would sadly provide prophetic as the politics and soon after that the high stakes pressure from endangered species controversies surely must have seemed like bureaucratic Hell to more than one of its managers. Among the first was the snail darter and the proposed construction of Tellico Dam on the Little Tennessee River in the State of Tennessee. Tellico Dam was a mega-million dollar pork barrel project ginned up by the Tennessee Valley Authority (=TVA), a powerful nation-unto-itself Frankenstein-like hybrid government-private sector organization, and almost as powerful politicians.

But years before the snail darter was even known to scientists or government bureaucrats, many people, mostly locals, had been fighting against the construction of Tellico Dam. The battles were over other important reasons for leaving the Little Tennessee River undamed, free flowing, and untouched. Turning a crystal clear river filled with native aquatic life into a murky algae clogged artificial reservoir was staunchly opposed by farmers being forcefully evicted from their lands where some families had lived for centuries, Cherokees opposed to the flooding and destruction of ancient sacred sites, and fly fishermen trying to save the richest big water trout recreational fishery east of the Mississippi. Tellico Dam was a classic out of control big government boondoggle that history would show was ill conceived from the start.

The TVA was ordered by a Federal Judge to complete and environmental impact statement for the proposed Tellico Dam as a result of a lawsuit filed under the then recently passed National Environmental Quality Act (=NEPA). Unfortunately compliance with NEPA requires only that the agency identify and describe the environmental harms that may result from a project along with presenting some alternatives. In this case, the loss of rich farmland, destruction of lands important to Native Americans, loss of world class trout fishing, and the highly questionable and obvious overblown economic and hydroelectric benefits that might be produced by Tellico Dam. Environmental impact statement completed and checked off the list of things to do, the TVA quickly continued full steam ahead with the project.

It was around this time that Dr David Etnier, the world’s expert on darters, and his graduate students at the University of Tennessee discovered an unknown species of darter living in the Little Tennessee River, which they formally named Percina tansai, or as it would become more widely known, the snail darter. Despite intensive searching by Etnier, his colleagues, and TVA biologists in other streams and rivers in the region, the only place on the entire Planet where the fish was found to exist was exactly where TVA wanted to build Tellico Dam. And Etnier, and almost certainly TVA realized damming the unpolluted free flowing Little Tennessee River would eliminate the specific conditions required by the snail darter for feeding, resting, breeding and other essential behaviors - cool water, high amounts of oxygen, specific types of invertebrate prey, and a rocky bottom free of a coating of algae- and result in the extinction of the unique species.

A petition to list the snail darter under the recently enacted Endangered Species Act was quickly submitted to the USFWS by environmental attorney extraordinaire Zygmunt Plater. Plater quickly encountered signs of discomfort from Agency staff and managers as the fish and its petition immediately impacted their bucolic world. But inside the Agency, hidden from the view of outsiders, the reaction was more than just annoyance, the heads of some higher ups were exploding.

USFWS higher ups put on their thinking caps, not to determine the best course of action to save the snail darter, but to figure out how to defuse the endangered species bomb that had unexpectedly been placed in their laps. Meanwhile, TVA and its supporters quickly seized the high ground in public opinion, successfully pushing the propaganda sound bite that a critical job producing multi-million dollar hydroelectric dam was being stopped by, of all things, a “minnow.” They were so effective, it is a misconception that persists in the minds of the public to this day. And even then, rather than taking over the battle for the hearts and minds of the public from TVA, many higher ups at the USFWS went to ground, like gophers hiding in their burrows, while internal efforts were mainly focused on trying to keep the Agency out of the line of fire from angry politicians.

Figure 2. Formed in 1933, TVA is an electric utility corporation owned by the Federal government. Its service area includes the states of Tennessee, Alabama, Mississippi, Kentucky, Georgia, North Carolina and Virginia. Over the decades, TVA has used eminent domain to evict not only the people who were living in the footprint of Tellico Dam, but over 125,000 human residents to build the Agency’s projects.

Many USFWS leaders would later use the measures used for the snail darter and Tellico Dam to prevent listed and imperiled species from becoming political controversies in the future, and, more importantly to them, liabilities to their careers. First, keep knowledgeable earnest but loose-lipped staff endangered species biologists from talking to the press, the public, or the absolutely worse - environment groups unless a politically reliable manager is present, and two, all decisions must be made only by proven politically reliable managers who understand the “big picture” at the Regional or Washington DC levels. Or as some of us in the field observed “making sure a lid” was kept on the problem. The unofficial rules were somewhat relaxed in later years with the placement of managers “who get it” at the field office level. And this risk-avoidance style of management has only become more sophisticated, even more insipid, since the snail darter. Graduation from higher up approved supervisory training, such as “Stepping Up To Leadership” is sometimes recognized as a good indication of Agency loyalty over concern for imperiled species.

Very unlike the present day, when management’s worse self-serving instincts are often carried out and drive the USFWS’s handling of politically controversial issues from beginning to end, not only was the snail darter listed as an endangered species with the protection of the heavy environmental hammer of the Endangered Species Act, perhaps even more astounding, the review process from start to finish was done at bureaucratic warp speed. What today takes years or even decades, the imperiled fish was designated as an endangered species in a mere seven months.

The petition requesting the listing of the snail darter on the Endangered Species Act was submitted to the USFWS on March 7, 1975. Three months later, a on June 17, 1975m a proposed rule for its listing was published in the Federal Register. The Federal Register is the government’s “daily newspaper” notifying the public and other interested parties of actions it either intends to take or has implemented. Four months later, on October 9, 1975, the snail darter was officially designated as an endangered species.

Yet despite the fact the snail darter was protected by the Endangered Species Act, TVA deliberately continued to move ahead with construction work on Tellico Dam despite pathetically weak and ineffective pleas to stop from the USFWS. Plater and his colleagues filed, then lost a case in Federal District Court asking TVA be stopped because the Dam was jeopardizing the survival of the snail darter and thus in clear violation of section 7 of the Endangered Species Act. Fortunately, the Federal Court of Appeals agreed with Plater and ordered TVA to halt construction.

TVA appealed to the Supreme Court for what they almost certainly considered an unforgivable outrage and slap in the face against their authority by environmentalists. The highest court in the land granted a writ of certiorari to the giant hide bound agency. Due to TVA’s in-your-face attitude to the snail darter and its protectors, Tellico Dam was nearly complete by the time TVA v. Hill was heard by the Supreme Court. Arguing for the government and for the completion of the Dam, Attorney General Griffin Bell tried to play down the importance of the creature to the Justices when he held up a glass vial containing a lifeless preserved specimen exclaiming it was a fish “you can’t even eat.” The betting money was riding on Tellico Dam because the thought such an insignificant species would stop an already Congressionally approved multi-million dam was simple incomprehensible to many politicians and even some environmentalists.

By a 6-3 voter the Justices ruled the clear and unambiguous language of the Endangered Species Act, demonstrated Congress fully intended that section 7 prohibited Federal agencies from “… jeopardizing the continued existence of any endangered or threatened species.” Even if the listed species is a tiny fish and the action is a multi-million dollar dam. TVA v. Hill is among the strongest pro-Endangered Species Act opinions in the history of the Supreme Court.

Yet, this was a Pyrrhic victory for the snail darter because before the year was out, Congress quickly amended the Endangered Species Act to include an exemption process requiring the formation of a “God Squad,” a group consisting of Cabinet heads and the Governor(s) of affected States(s) who would review and then decide whether the economic or social values of a project determined to jeopardize a listed species outweighed driving it to extinction. The first meeting of the God Squad was Tellico Dam.

Not at all surprisingly, the cleansing light of day exposed that TVA had grossly over-inflated the economic benefits of Tellico Dam. The God Squad’s careful and thoughtful review of the dam and the snail darter concluded the project was of insufficient regional or national importance, and the benefits of completing it were far less than abandoning it. It was such shameless boondoggle that Cecil Andrus, Secretary of the Department of Interior and a member of the God Squad would sagely remark “I hate to see the snail darter get the credit for stopping a project that was so ill-conceived and uneconomic in the first place.”

But as with all environmental battles, the forces seeking to eliminate an imperiled species or destroy ecologically valuable habitat can lose countless times and still eventually win, while those seeking to save a rare plant, animal, or their habitat can lose only once. Likely seething from the loss of face because of an “insignificant” fish, some congressmen placed a rider on a must-pass appropriations bill ordering TVA to complete construction of Tellico Dam. Despite a lack of votes to override his veto, the nature of the bill coupled with his concerns he would lose the critical support of key Congressionals for his efforts to turn the Panama Canal over to Panama, Jimmy Carter signed it into law thus making him the first and only President to intentionally drive an endangered species to extinction.

At the time of its listing, the snail darter was only known for a tiny stretch of the Little Tennessee River where the Tellico Dam was being constructed, despite intensive searching by Dr Etnier and his colleagues, as well as TVA biologists. In the years following the controversy, 16 populations have either been discovered or introduced in the Little Tennessee River drainage and nearby River drainages in Tennessee as well as north Alabama and Georgia. Two populations have been extirpated including the population that inhabited the Tellico Dam site, and five introductions were successful.

Figure 3. Extirpated, existing, and unsuccessfully introduced populations of the snail darter from the USFWS October 5, 2022, final ESA delisting rule for the species. Curiously, the population eliminated by Tellico Dam (circled in red) is not specifically identified identified - perhaps an attempt by USFWS higher ups to help the public forget about this painful controversy.

The increased number of known populations led to the downlisting of the snail darter from endangered to threatened species status on July 5, 1984. And then, on October 4, 2022, with much fanfare and higher ups patting themselves on their backs, the USFWS concluded the species was no longer in danger of extinction and removed it from the Endangered Species Act.

After the snail darter battle in the Supreme Court, those of us at the USFWS in the frontlines of endangered species protection were regularly admonished by higher ups that the endangered Species Act itself was on the verge of extinction. Like man-eating bear stories told around campfires to frighten small children, we were warned that members of Congress, notably Richard Pombo and the late Don Young were waiting and watching for us to make the slightest mistake or foolishly commit the cardinal sin of overstepping our statutory authority. Their unspoken message was clear - sometimes it’s better to lose a listed species or a site containing important habitat than to put the Endangered Species Act in danger.

But, for about a 30 year-period, by and large many higher ups at USFWS and those of us on the line did do The Right Thing for some of our most disenfranchised fellow inhabitants of Planet Earth - imperiled plants and animals. Or at least we tried to stand up for them. John Turner, Agency Director and former US Senator from Wyoming listed the northern spotted owl despite extreme political pressure on him and fear mongering the World would end if the bird was protected. Former Directors Jamie Clark and the late Mollie Beattie not only fought to reintroduce wolves and Mexican wolves back into their former range, they personally carried the cages containing the endangered canids to the release sites. The irascible and surly (at least to me) Marv Plenert, a Regional Director, approved the listing of the Delhi Sands flower-loving fly (a Fly!) and four species of California fairy shrimp. And Marv did this knowing the vicious political blowback that would come from his actions, but he did it because the Science clearly indicated the animals were in dire need of Federal protection.

Figure 4. Statement of former USFWS Director John Turner when he signed the final rule designating the northern spotted owl as a threatened species on the Endangered Species Act

Figure 5. Top - former USFWS Director the late Mollie Beattie carries an endangered wolf for release at Yellowstone National Park. Bottom - former USFWS Director Jamie Clark carries an endangered Mexican wolf for release in the southwestern United States. Actions of this level of conservation significance jumpstarting the recovery of politically controversial listed species are unlikely to be repeated by current Agency higher ups.

Today, would USFWS higher ups protect an imperiled but politically controversial species like the snail darter with the Endangered Species Act? Unfortunately, the answer is a resounding NO.

Like a slow acting corrosive acid, people who are self-serving, risk avoidant, and eager to please their political masters or powerful outside interests began to populate the ranks of Agency management. And since we tend to hire the people with whom we are the most comfortable - ourselves - these attitudes have permeated leadership at nearly all levels as well as Agency culture.

In stark contrast to the seven months taken to list the snail darter in 1975, it now takes years or often decades for an imperiled species to make it out of “ESA Listing Purgatory.” Only after multiple lawsuits and orders from Federal Judges, does a plant or animal enter a seemingly endless Kafkaesque maze concocted by USFWS bean counters and paper pushers that consists of “status reviews,” technical and management committees often composed of foot-dragging know-nothing ne’er du wells, before finally making it to a final review by “decision makers.” It’s sad to think you can’t get a home mortgage for as long as some imperiled species have been waiting for the USFWS to protect them. Even if by some miracle a plant or animal hasn’t gone extinct or declined to the point where even Herculean efforts won’t save them, listing is still likely to be denied.

Some of the egregious examples include the wolverine, whose status was so precarious the Assistant Regional Director for Endangered Species pushed for its listing on the Endangered Species Act. But his boss, the Regional Director, decided it would not be protected based on their interpretation of biology and global climate change that many of us considered quite difficult to understand. The dunes sagebrush lizard, imperiled by oil and gas drilling in southeastern New Mexico and west Texas has been waiting for Endangered Species Act protection for 39 years. A former Regional Director testified that “… there is no way we would list a lizard in oil country during an election year.” Instead, USFWS higher ups approved and signed some of the perhaps most nonsensical conservation agreements in Agency history with these two states that had little, if any, credible protection for the reptile.

Figure 6. Imperiled species typically spend years in ESA Listing Purgatory, up some have been languishing there for decades. Chart by the Center for Biological Diversity

Even being a designated threatened or entered species doesn’t guarantee USFWS higher ups will require or even ask for more than cosmetic conservation measures when faced with politically controversial projects. In far too many incidents, we watched in dismay and disgust as some Agency leaders performed perverse bureaucratic contortions to approve developments, pipelines, oil and gas drilling, roadways big solar and wind power farms, and other actions that shoved listed species ever closer to extinction or avoided taking any actions to save them while hoping flimsy “scientific” explanations would cover their deliberate negligence.

The take home message of the snail darter-Tellico Dam controversy was the Endangered Species Act, the “System,” worked as it was intended despite fearful USFWS higher ups, arrogant TVA officials, and egotistical Congressional politicians. The Supreme Court, the highest court in the land agreed when they found the unambiguous language of the Act backed by the best Science available make it clear the dam should not have been completed because it was jeopardizing an endangered species.

It was when politicians and higher ups in both the Executive and Legislative branches unnecessarily monkeyed around with the Endangered Species Act that things went bad for the snail darter. Far too many of the leaders and managers at of USFWS are reluctant, even fearful to take monolithic sister agencies, their political or corporate backers or politically powerful organizations and individuals to task when they have violated the Act or simply refuse to follow it. Charged by the American people with the awesome responsibility to protect all listed plants and animals, great and small, the fact is far too many USFWS higher ups and managers are instead driven by their obsessive quest for power, titles, and big retirement checks.

Figure 7. Upper photo - the Little Tennessee River in 1979 before the gates of Tellico Dam were closed and the valley flooded. Lower photo - current day. Tellico Lake formed by Tellico Dam.

References

Bean, M.J. 1983. The evolution of national wildlife law. Praeger Publishers, New York, New York

_____ 2022. Melville’s mistake. Texas A&M University Press, College Station, Texas

Blake ship, S. 2013. From the halls of Congress to the shore of the Little T: the snail darter and the dam: how pork-barrel politics endangered a little fish be killed a river by Zygmunt Plater. Animal Law 20: 229-249

Plater, Z. 2013. The snail darter and the dam: how pork-barrel politics endangered little fish and killed a river. Yale University Press, New Haven, Connecticut

Shake off, P. 1979. Carter assailed on dam imperiling the snail darter. New York Times September 27, 1979

U. S. Fish and Wildlife Service. 2022. Endangered and threatened wildlife and plants; removing the snail darter from the list of endangered and threatened wildlife. Federal Register 87(192): 60298-60313