Montana News
Episode 02: Hell or High Water
It's 1974, the year after the Endangered Species Act passed, and in Knoxville, Tennessee, a law student named Hank Hill feels lost in a sea of suits. They all wore coach and ties back then. I did. I came to school the first day in red, white, and blue bell bottoms. Hank grew up in Tennessee, but he had a bit of a rebel streak. One of his professors, who you'll meet in a bit, told me he'd skip class to go pick psychedelic mushrooms out of cow pies. In law school, Hank's grappling with this essay he has coming up in one of his classes. And one night, he's venting about it with a buddy over some beers. I was going to do a term paper in environmental law on the First Amendment impact of nuclear power proliferation. And this friend of mine said, "What in the hell are you talking about? Why would you do that?" There was a big movement of foot to save a local river, the little Tennessee from a dam that was being proposed. Hank loved that river, and the dam would leave a big muddy lake in its place. He didn't want the thing built. Hank's buddy just so happened to have a professor who'd recently made a discovery while surveying the river, this itty-bitty fish. It was in the perch family, a fish called a darter. If you scooped it up in a net, you'd probably mistake it for any other two-inch mineral you could pull out of near any other lake in the country. But this little darter had a few little strips of darkness on its back, like saddles. And that professor was convinced this place, about to be changed forever by the dam, was the only place in the world that lived. "It used to be everywhere until TVA dammed every single river except the last 30 miles of the little Tennessee." The same year that biologists stumbled across that darter, this little-known law got passed, the Endangered Species Act. So Hank gets those beers with his buddy, and then he gets to wondering, could the ESA work to stop the dam? "Oh my God, this fits." The battle that Hank's little idea for his term paper would start would set off a cascade that starts in this little stretch of river and winds up in the highest court in the country and beyond. This is The Wide Open, I'm Nick Maan. The Endangered Species Act has become one of the most contentious pieces of legislation on the books, and battles on both sides over the survival of grizzlies, wolves, even fish are largely waged in the judicial system. This time, the Endangered Species Act goes to court, a legal saga sets the stage for the Endangered Species conflicts we have today. "This is the Tennessee Valley, cradled by the rangers of the Unica." This is a promotional video for the Tennessee Valley Authority, or TVA, they're a government agency who proposed that dam on the little Tennessee River. The Tennessee River system in its natural state, the video says, was unruly and unpredictable. It needed to be tamed, and by the 1930s, a great depression had descended upon the people of the Tennessee Valley, as it also descended upon the nation. So as part of the great public works programs that span the country as part of the New Deal, TVA sprang into being. The agency, focused mostly on generating power, would bring jobs, wealth, and electricity to the region. And the primary way it would do that was building dams. "For the first time in history, a single federal agency has been given responsibility for developing all the natural resources of a region with a unified purpose." Fast forward a couple decades. By the end of the 1950s, TVA didn't have much left that it could dam. It put in nearly 70 along the Tennessee River system. All that was left free-flowing in its natural state was those 30 miles of the little tea, and that stretch of river meant a lot to a lot of people. The ancestral homes of the Cherokee Nation were on the banks of the river, along with hundreds of archaeological sites in the area. Tribal leaders had been born, and were still buried there. It was an area of immense natural beauty. For anglers, it held the best trout fishing east of the Mississippi, and that abundant water and fertile soil made life possible for hundreds of farmers, like Carolyn Ritchie and her family. It was 119 acres on a small plateau about a quarter of a mile from Jackson Bend and the Little Tennessee River. The Ritchie's ran a small herd of beef cattle. They had a little tobacco patch, grew corn, oats, wheat, alfalfa, even got into soybeans. We liked our way of life. We didn't know anything else. We probably were what some people would come up for, but we didn't know it. Carolyn remembers one morning, back in first grade. Her family was gathered around the breakfast table, her mom reading the paper. She was gossiping back and forth with her father about the news. In that particular morning, Carolyn remembers a headline that would shape her life for nearly the next two decades. It was 1961, and it was on the front page of the Knoxville News Sentinel. The article said TVA wanted to build one more dam. The Teleco Dam, it would be a massive project on that last stretch of free-flowing water on the little tea that would change the lives of Carolyn and hundreds of her neighbors. This project took, eventually we found out, 38,000 acres, 16,000 was going to be reservoir. That's 22,000 extra acres beyond the reservoir. The Teleco Dam would force nearly 350 families off their land, and Carolyn's family lived in that sprawling area that TVA wanted to raise. The dam wouldn't generate any electricity itself, though a small bit of water would get sent to another dam that did. Instead, it would create a reservoir, and around it, TVA would contract with developers to build a city that could attract industry to the area. It's going to be recreational, residential, and industrial. So they're going to take our land for nothing and resell it for megabucks, and that's going to be part of the benefit cost ratio. From the beginning, Carolyn's family decided to fight. They were going to take my community. They were going to ruin where I lived, and they were going to damn the little Tennessee River and ruin everything I knew, and I didn't like that when I owed a bit. In fight they did, in the years that followed, appraisers came to the door. She says they were mean men, trained to be bullies. And her folks told them only marginally more politely to F-right off. Their first line of defense was the legal system, banding together with other farmers fighting the project, they managed to get a 16-month stop order on the dam using the National Environmental Policy Act. They claimed TVA hadn't analyzed what damming the river would mean for the ecosystem, but TVA coughed up the right environmental paperwork and got the okay to proceed. The paperwork resumed on the dam in 1973, the same year a piece of legislation called the Endangered Species Act quietly made its way through Congress. And a University of Tennessee biology professor found a little fish in the little tea that didn't exist anywhere else in the world. It's also the same year that rebellious law student Hank Hill's professor, Zig Plauter, started at the University of Tennessee. Today, Zig's freshly retired from more than 40 years teaching law at Boston College. His career put him on the front lines of some of the biggest environmental disasters of the last several decades, like the Exxon Valdez and Deepwater Horizon oil spills. But back then, he was not long out of law school, actually not even that much older than Hank, and he was entranced by this new field, environmental law. Zig grew up on a mountaintop in Pennsylvania. His dad was a Polish diplomat. My father had this feeling that land and forests and rivers were eternal and humans had to adjust to that instead of conquering it. When he was young, he'd fallen in love with fishing a little stream at the bottom of that hill where he'd grown up. But Philadelphia started dumping some of its waste outside the city. Toxins seeped into that little stretch of water he'd come to love. It just wiped out the stream, it just... everything in it was killed. All you have to do is lose once, and it's gone, you have to keep on winning. When Zig moved to Tennessee, he'd heard about the beauty in world-class trout fishing on the little tee. But to him, the teleco dam was the equivalent of a toxic waste dump about to be released. It would change the ecosystem there forever. Here's Hank Hill, the student again. He'd chosen to never fish the little tee and zig the ultimate fire fisherman. Zig didn't want to risk falling in love with the clear waters of the little tee, just to lose them to the dam. But then, Hank came to Zig with this idea about this term paper. He came in and he said, "Do you think the fact that the teleco dam may violate the endangered species act is enough for 10 pages?" Hardly anybody understood the power of the ESA at the time. So Zig read the law, and when he did, he had a flash of inspiration. Unlike other environmental laws, the ESA had teeth. If that little fish, the snail-darter, gets listed under the Endangered Species Act, they could sue, and they could stop the work in its tracks. So in that conversation with Hank, Zig suddenly realizes the potential here. The idea, it had legs that could go way beyond a term paper. Zig tells him, "Yes, I think it took them for 10 pages." Hank's idea showed Zig that the river wasn't done for. Not yet. At the end of that conversation, Hank remembers. He said, "Come on, get your fish, bro, let's go fishing. We're fizzled a little tea that day." Once I had hope, then I started fishing it a lot. Along with the fishing, the two started planning. The idea was, the ESA allows citizens, regular folks like you and me, to petition the government to get species listed, and also to sue the government when it's not enforcing the law. But before Zig and Hank could do any of that, they needed to get those farmers that had already spent over a decade fighting the dam on board. Hank arranged a meeting with an organization called the Association for the Preservation of the Little Tea. Zig, an intellectual from up north, stood out like a goldfish among trout. Even his clothes were out of place. I'd never seen anybody quite lacking, he wore penny lovers, and he wore turtlenecks. I'd never seen a man wear a turtleneck. I was wearing God help me, Birkenstocks with a turtleneck, but Hank, he was genuine Tennessee. In that, Hank's authenticity was their saving grace. The farmers were on board. The goal was to save the river, but the means focused on just one of its inhabitants, the snail-darter. They took a hat and passed it around the room. They raised enough money to file a lawsuit. This little fish, we all rallied behind that little thing, thinking, "Oh, please let it be something that's going to turn into something that's going to be something big." It was all we had left to hang on to, because they were going to have this damn come-hell or hot water. In October 1975, the snail-darter made the endangered species list. Zig and Hank filed their lawsuit. Hank was still in law school, but he was listed as lead plaintiff. Zig was just as new, and when he ventured into the District Court in Knoxville, appearing before a judge that was in his mind in the pocket of TVA, it was the first time he'd argued in an actual courtroom. In that first step of the snail-darter's long journey, the fish, and along with it, Zig and Hank and Carolyn and the other farmers, they all lost, but that's what they expected to happen. The federal court judge, Robert Taylor, ruled in favor of TVA. The case has now been appealed to the Sixth Circuit Court of Appeals in Cincinnati. As they waited for the higher court to decide whether to take up the case, TVA sent construction into overdrive. Zig calls this a sunk cost strategy. The farther along the project is, the more money spent, the more trees felled and earth moved, the sillier the fish will look in comparison. It was humiliating, devastating, heart-wrenching, and you could hardly breathe at times because they just didn't tear stuff down. They came in and cut the creep banks. They denuded everything, and they either burned it or buried it. It was like living in a war zone, and your own country was the one that was warring against you. It was horrendous. But as construction crews worked away, raising the earth, opponents of the dam walked along the banks of the little tea, planting willows, and their minds, bringing it back to life. The battle for the little tea was just beginning. Stay with us. It's 1976, and Zig Hank and the gang are hanging on for dear life to a legal rollercoaster that would bounce them back and forth from courtroom to DC to TV cameras for the next two years. Zig in particular is ricocheting across the country. He's been fired from his job at the University of Tennessee because of his snail-darter activism. It was as close to a nervous breakdown, I suppose, as you can get. I couldn't even fish for trout. But he's found another Professor gig, this one in Detroit. He and Hank and the rest of the legal team are raising money by selling Save the Snail Darter t-shirts. Their appeal has been accepted, and a panel of three judges in downtown Cincinnati is hearing Zig in Hank's case, with the fate of the river, Cherokee history, and dozens of farmers like Carolyn on the line. And now he'd moved the case away from TVA's turf. This time, Zig's optimistic. TVAs arguing that the dam is almost done, and that the law was never meant for something like a silly fish to stop such a massive project. Zig said their lawyer's argument was essentially, "Your honor, this is a ridiculous case." To Zig, the language of the ESA is clear. As he's making his argument, that the dam will destroy the only known habitat of the snail-darter and ensure its extinction, he notices something promising. A judge is diligently scribbling away on a pad of paper. He's taking notes, he's taking the fish seriously. A couple months later, the decision comes out. Zig's won, all three judges have decided in favor of the snail-darter, and he also gets a tip from one of the court's clerks. That judge, who seemed so engaged, wasn't actually taking notes. Instead, he was writing a limerick. Zig, of course, still more or less has it memorized. "Sing ho' to the lowly snail-darter, the fish that would not be a martyr. He eft over that dam in the waters he swam. Can you think of a fish any smarter?" And I was happy with that. TVA appeals. Suddenly, the snail-darter's threat to the dam is poised to be the first endangered species case to go all the way to the Supreme Court. Zig was getting backlash not just from industry, but from environmentalists who would otherwise be allies. He remembers a colleague in one group telling him, "This is going to bring all kinds of hell fire down on us, and furthermore, it's going to hurt the Endangered Species Act. We want a bald eagle or a whooping crane." This law, so new, was making a splash over a tiny fish, so suddenly it's not just the river on the line for Zig. If he fails, it could poison the future of the entire law of the ESA. "Everybody was thinking we want to have a photogenic endangered species for the first case that goes all the way up." The case, Little Fish vs Big Dam, it looked absurd to outsiders, and he gets accused of using the snail-darter as a tool, not to stop extinction, but to stop a dam. "People ask us if we're hypocrites. You know, what we really care about is just this river valley. We don't care about the snail-darter." This is from an interview back in the Snail-Darter Days. Zig's clean shaven, tall and skinny with pushy hair and a blue polo shirt. "The snail-darter, as best we can understand, used to live throughout the eastern river system of Tennessee. That is to say, it lived throughout all these rivers. And one by one by one by one, as these rivers were destroyed, so was the snail-darter. The fact that that fish lives here and only here in this river is like a biological warning flag." For Zig, the darter is a tool, but it's the only one left in the shed. He looks at it like this. He used the Endangered Species Act to stop a dam in the same way the government ended up putting away the gangster al Capone on his taxes, rather than murder, or theft, or bribery. "Supreme Court has agreed to hear what has become a classic example of the conflict between environment and..." One April day in 1978, Zig finds himself arguing the first court case of his life in front of the highest court in the country, with the future of hundreds of families and this river that he loves at stake. He needed all the luck he could get. Zig had served in the Peace Corps in Ethiopia, and whenever he was going to go on a particularly hard hike, he'd wear this bright pair of green polyester boxer shorts. "I found the lime green boxer shorts, and I was wearing those. Plus I was wearing a snail darter t-shirt under my white shirt. I think I'd even reversed it so it didn't shine through. I tell you, being superstitious is not a sign of silliness, I think. It's sometimes part of what helps you gird your loins, and in this case, my loins were lime green polyester girded." To me, Zig's superstition makes sense. Zig's entire courtroom experience was arguing this case, just getting here to the highest court in the country, and the U.S. Attorney General was arguing for TVA. In terms of power, resources, and experience, Zig was outmatched. The proceedings start. "We'll hear arguments first this morning in Tennessee Valley Authority against Hiram G Hill." The mood of the courtroom made a difference, and the mood in the courtroom was, "Oh god, these guys shouldn't be here. Why did they bring this case?" A big part of TVA's argument throughout has been, "This project is more than 90 percent done. There's a big structure spanning the river. They just need to drop some gates to sever the connection. They've already spent $100 million on the thing. The Endangered Species Acts shouldn't be used to stop a project that's already nearing completion, and the Attorney General, in Georgian, with the booming foghorn leghorn voice named Griffin Bell, also tries to highlight the absurdity of the whole affair. He's brought a snail-daughter in a jar to the courtroom, and he holds it up for everybody to see. "I have in my hand a snail daughter. It was an exhibit seven in the case, supposed to be a full-grown snail daughter, about three inches in length." "Is it alive?" "I've been wondering what is in, if it is." This makes Zig nervous. Arguments aside, Zig says it's a bad homing when your opponent gets that kind of laugh in court. And this is part of the same strategy Zig's opponents have been using since the start. They want the daughter to look tiny, ridiculous. When you're on your feet and arguing the case, to have the courtroom laugh at your opponent is gold, Zig gets up to deliver his part of the arguments. "What purpose you've served, if any, by these little daughters, are they used for food?" "No, Your Honor. When Congress passed the law, it made it clear that the purpose of the act was to prohibit the extinction of species for a variety of reasons. One of them is where there was a food value and a direct economic value, others for scientific study and a philosophical question that indeed." So Zig's saying that we might avoid extinction in general for economic or for philosophical reasons. But his argument for saving the snail-daughter in particular is something different. He says it's the proverbial canary in the coal mine. Its demise shows the havoc we've wrought on a watershed. "It is highly sensitive to clean, clear, cool flowing river waters. And after 68 dams through the TVA river system, 68 of them, one after another, the range of the snail-daughter has apparently been destroyed one by one until this last 33 river miles is the last place on Earth where the species and human beings as well have the qualities of the habitat." "The last place that's been discovered, I take it." "Your Honor, TVA has looked everywhere for snail-daughter's. They've searched it." Maybe the turning point in the case was when I got a laugh. Zig argues that the language of the Endangered Species Act is clear. The government can't take an action that jeopardizes a protected species. The facts are on his side. Lower court judges had agreed that the telecodam would obliterate the only known habitat of the snail-daughter. If it closes its gates, all signs point to extinction. The meat of his argument is all about the separation of powers. The court should enforce the law. If this seems like a ridiculous case, which, by the way, it's not, Zig says, it's not for the court to decide. That should go to Congress. The arguments wrap up. "Thank you, Your Honor." "Thank you, Your Honor." "The case is submitted." "I hadn't slept for two days, but I also feel this joy of optimism." Hank has just heard that he's past the Tennessee Bar, and so that's great. And so the students are jumping around. We whooped him. We got him. He goes outside to the flashing bulbs of the press. The mood is celebratory. "Bell's youthful opponent said he sensed victory at hand and said Bell had an impossible case." "I was very pleased we covered all of the issues that are involved in the case, especially." But he still needs to wait for the decision, and a couple months later, it arrives. The Supreme Court today handed down its decision in the case of the Snail Doctor versus the Teleco Dam in Reservoir in Tennessee. The dam is a $116 million dollar. This case has been identified as one involving a three-inch fish. The case also involves a $120 million dam, which was authorized by the Congress, and that dam is virtually completed and ready to operate. On a six-to-three vote, the Supreme Court decides in favor of the Snail Doctor. Because of this little fish, dam construction has to stop, even though it's about 90 percent done. Chief Justice Warren Berger read the decision. "In our view, the Congress has, wisely or not, decreed that the endangered species have priority over even a multi-million dollar dam." This case that started with the Bar Room Conversation, funded by T-shirt sales, has prevailed against the power of the federal government. "Today in what may be the Supreme Court's strongest endorsement yet for environmental protection, the Snail Doctor prevailed." They've taken the case to the highest court in the country, and, at least for now, stopped the dam. "Our Constitution invests all such responsibilities in the political branches, and the matter is now in the hands of Congress." Justice Lewis Powell read the dissenting opinion. It was powerful. "The court's decision casts a long shadow over the continued operation of even the most important projects, projects serving vital needs of society, as well as national defense. If continued operation endangers a survival, or the critical habitat of a newly discovered species of water spatter or cockroach, operation of the project could be brought to a halt." A three-inch fish defeated a 70-foot-high dam in the Supreme Court today, and unless Congress changes the law, the almost finished multi-million dollar Tennessee Valley Authority project will stand idle because of today's six-to-three court ruling. "So you win in the Supreme Court. Do you recognize immediately that the battle's not over?" "Oh, absolutely. You don't get anywhere by compromising. You keep on fighting, and so I figured, you know, I fought the fight, but I'm gonna keep on fighting, right?" We'll be back. The Wide Open is supported by the Murray and Jan Ritlin Fund, the Santa Bar Foundation, Humanities Montana, and listeners like you. Ways to contribute and make this kind of journalism possible at mtpr.org. Zig's won in the Supreme Court, but now the battle for the little tea turns from the courts to Congress. He knows there's an assault on the fish, and maybe even the Endangered Species Act coming. To get ahead of it, he'll have to win over both legislators and the people who vote for them. TVA, with deep connections in Washington and deeper pockets, was already a step ahead. "The politicians and the peak powers within TVA, they went to Washington, and their constituents were told it was stagnant, and we were backward, meaning dumb, and that we needed to be fixed. And we didn't need fixing." Zig learned the ins and outs of DC from fledgling green groups who'd roosted in the attic of a fast food joint for its cheap rent. He used code names to get information from agency insiders. My favorite is Darryl Stein, an anagram of snail-darter. He'd learned how to handle the reigns of DC politics with skill, but getting the public on his side was another story. TVA's message was clear and easy to understand. Build the dam. It's already almost done, it'll bring progress, jobs, and development. Zig's message is much harder to understand. Even though he's won in the country's highest court, the national media's relationship with the case has stayed more or less the same. It was the little fish versus the big dam builders in the Supreme Court. The snail-darter is a fish less than two inches long. You wouldn't think that a fish this small could beat City Hall, much less a colossus as big as the Tennessee Valley Authority. The snail-darter doesn't grow any bigger than a minnow, and that's a good thing, because it's already powerful enough to torpedo the $190 million teleco dam project in Tennessee. To Zig, the teleco dam was a clear example of pork barrel politics, spending for spending sake. All along, he'd argued that the dam didn't make economic sense. There were alternatives that could preserve the river and the farmland and generate more for the economy than the dam ever would. Things like a non-intrusive industrial area and an interpretive trail that could draw tourists from nearby Great Smoky Mountains National Park, but the press never grappled with that in a meaningful way. Here's Zig venting at the time. It's a shame the way the story has always been covered. Little fish, big dam, David and Goliath, that's the whole story. At least in the Bible with David and Goliath, they talked about the battleground. Here you've got a valley that is not discussed in the press reports, and it's at the heart of the snail-darter's survival, and it's at the heart of what the citizens have been fighting for for all these years. So as Zig battles for the public and politicians, the Congressional wheels get the turning. First, Congress amends the Endangered Species Act. The bill is championed by Tennessee's Congressional delegation, and it creates a committee that can exempt projects from the ESA. It gets dubbed the God Squad. So the God Squad is agency leaders get together and they decide if it's okay to let a species go extinct. The benefits to society outweigh the downsides of extinction. I'd change that and say that the heads of these agencies have been made into a new statutory body with the power to change federal law based on their vote, but they have to do it in person. It is a formal proceeding like a court with a stenographer taking the notes of the whole thing, evidence is being brought in by the economists. Its extinction boiled down to bureaucracy. In January of 1979, the God Squad meets on the agenda, a whipping crane case, and the snail-darter. Zig and some of the farmers whose land is on the line pack into a room with the Department of the Interior in D.C. Instead of the language of the law, like Zig debated in court, at issue now are facts and figures, representatives of the Department of the Interior, the Department of Agriculture, the EPA, the Army, they all analyzed the minutiae of the economics of the project. In one of the government bigwigs in the room, the Chair of the Council of Economic Advisers says, "If you look at this project, it's 95% finished. And if you take the total benefits of this project, for the final 5%, it still doesn't make economic sense, and the whole room breaks out into laughter. Because everybody knows that this is a pile of crap. So the Chairman goes around, does anybody have another opinion? No, they take a vote unanimously. This project is not worth completing. Declarified, it's not worth completing, and it only has what 5% of the whole project to go, and it's still only 5% of the budget still to spend, and the total project benefits don't add up to 5%. By the actual numbers, the committee reports that the dam would generate about $6.5 million every year, but it would cost $7.2 million to operate, so it would be firmly in the red. Zig hoped for an explosion in the media. To him, this was major news. It wasn't covered by the press, because it didn't fit the cliche. So the story, if it appears, is like on page 22, and it says, "The fish wins again." The Endangered Species Committee today barred the Tennessee Valley Authority from completing the dam, which is almost finished, because it might doom the species. What is- Excuse me, the drama of this is that for 19 years, the farmers have been fighting saying that this project made no sense. And now, finally, an unprecedented, unique, extraordinary presidential-level economic interrogation has said they're right. The project will destroy more than it would ever create. And the farmers finally have won their land back, except that if America doesn't know, then the pork barrel can keep on rolling. Now, you might think this is the end of the story for this nail-darter. It's won in the Supreme Court, and now it's won in this special economic analysis created by Congress too. But Tennessee's congressmen weren't finished with the fish yet. There's one name in particular to keep in mind here, Howard Baker. He's from Tennessee, and he's Senate minority leader, with ambitions of running for president. This two-inch fish, which surely kept the lowest profile of all of God's creatures until a few years ago, has since become the bane of my existence and the nemesis of what I had fondly hoped would be my golden years. Baker was often called the great conciliator. He worked across party lines and make deals. His stepmother once said, "He's like the Tennessee River. He flows right down the middle." "I've been locked in mortal combat with the lowly snail-darter for what now seems like an eternity. And I'm embarrassed to say that I've taken the sound trashing so far." Baker had voted for the ESA back in '73. Back then, most of the talk was about majestic, charismatic animals, eagles, wolves, and whales. Not cold, slimy stuff like the snail-darter. And locally in Tennessee, polls showed the public was firmly on the side of the dam. Baker helps craft another bill. This called out the teleco dam in particular. It said, "Despite the Endangered Species Act, and any other federal law it might be breaking for that matter, the dam will be built." That bill doesn't get passed, but like a ghost, its spirit lives on. The idea gets tacked on to this much larger spending bill, and it gets ping-ponged back and forth between the house and the senate, until eventually the fate of the fish and the river and the farmers comes down to this one final hearing in a senate committee. We beat it twice in the senate, and twice in the house, and then the third time it goes up again. So this is like a line in a huge appropriations, basically a budget bill, right? Billions and billions of dollars. And this is just one line saying the dam can go ahead. Just one line. It's called a rider, and it's stuck onto this Christmas tree so that we can't stop it. There will be people who want this law to go through because it's going to bring all kinds of money down to their congressional districts. By zigz telling, as senators cast their votes, there was this clock ticking down, and with about 10 seconds to go, it becomes clear that zig has won, yet again, just by a hair. But then Howard Baker asks for a timeout, just before the buzzer, a three-minute break. It's like a March Madness game, but for a budget bill. With the clock stopped, we'd won. Baker walks over to another senator, who'd voted for the darter, puts his hand on his shoulder and whispers something in his ear. This senator changes his vote, and so do four others. Time runs out. Zig, Hank, and Carolyn had taken this case from a past-around hat in a meeting of farmers to the highest levels of government. They'd won in the courts, and for so long they'd held off the legislature. But all it took was this one loss. And that was the vote that killed the river. President Jimmy Carter signed the bill. The dam, the law said, would be built. Here's Hank Hill in a news report back then. It's sort of like saving a very close friend from a raging fire, only to have him rovered by the fire truck after he pulled him out. In the video, he's wearing a suit and tie. By now, Hank's finished law school, and he's learned how to fit in, at least a little bit, with the legal establishment. But today, reflecting on the long battle for the snail-darter, there's still that little bit of rebel in him. I would not change anything except that I might have kicked Howard Baker into balls, making him sit down that day, but probably not because I got a prison for that. I don't think I could change anything. At that moment, with the fate of the river sealed by Congress and the president, Zig still had hope. He saw one more legal mechanism that might save the valley, and it would involve leaving the snail-darter behind. He worked with the Cherokee tribe, and together, they filed one more lawsuit. This one argued that the little tea is crucial to the tribe's first-to-men rights to freedom of religion. Not many Cherokee remained in the area. Tribal members had been removed in the 1800s, forced to march the so-called Trail of Tears, a grueling journey to Oklahoma in which more than 4,000 died. But lead plaintiffs were descendants of tribal leaders, who claimed the area was vital to continue to gather medicine, and that their culture originated from there. Dan McCoy, tribal chairman of the Eastern Band of Cherokee at the time, talked with a reporter about the case back then. Why did the tribe wait so long to file a lawsuit? Well, as you know, the Endangered Species Act that came into play to stop the dam at one time, we felt here at Cherokee that this was going to go through and would hold it, but evidently we've lost that battle, you know, indirectly. One way to look at this last Hail Mary is cynical. This lawsuit, after the loss in Congress, is yet more proof that the snail-darter itself was never all that important. Like the fish, the tribes in this view were just another tool. If anything, it shows the real goal here, was to stop the dam and save the valley. But to be clear, tribal members had been involved in protests against the dam since the late 1960s. It's hard to overstate the historic and cultural importance of the area to the Cherokee. The Cherokees say they do expect to carry the lawsuit to hire courts, even the US Supreme Court if they have to. Richard Crow echoed the sentiments of the Indian heritage. It was told to me by my parents that this is our beginning. We must not let it die, not let it go. If we have to give this up, it's going to be one of the greatest laws to my people now, to my people in generations. More than a decade earlier, University of Tennessee archaeologists, at the invitation of TVA, began hurriedly excavating sacred sites along the river, trying to get at graves and artifacts before the floodwater could. The remains of more than a thousand native people were dug up, most of them relocated to a University of Tennessee basement. Department of the Interior officials had written that the archaeological remains there couldn't be matched by any other area of that size in the country. In a news report from back then, a reporter is talking with a tribal member, but they don't ID him by name, which maybe says something about the press's relationship with tribes in those days. The court with Jimmy Carter that if we went down Peanut County and started flooding some of his ancestors' grades, we'd be putting jail, and they would probably rely. We can't even die in peace. They dig except 200 years later to see what killed us. While that case was in the courts, after years of protesting, flying to and from D.C., and pushing to stop the dam, demolition began on Carolyn Richie's home in mid-November 1979. That same day. "Mama happens to go by our house because we still go by, it's still home. And she goes by and lo and behold, they're tearing it down, TVA's there, and they're tearing it down. She flies on up to the house where we're staying at, gets some systematic cameras because it's all we had, some little Kodak dropping the thing and go. And so she stood there on how she kept her hands steady. And we have snapshot, snapshot, snapshot of them tearing our things down, everything she had ever fought for and written letters for, she took pictures of it." Some reporters back then had talked with her family about it. "Gene Richie, her husband and four children, have lived in this home for 28 years." "Yes, mama!" "We raised our children here, we've lived here the most of our married life. A lot of happy memories and then the sound of children growing up." Not long after Carolyn Richie's home was demolished, the dam closed its gates, cutting off the flow of the river along with the cold, clean, moving water the snail darter needed to survive. "As of 11.25 this morning, the State of Tennessee has a new lake, the Teleko Lake." Biggs still had hopes the damage could be mitigated through the Cherokee lawsuit. The gates to the dam could be lifted again. The flooding could stop. "It may be the last time that we'll be able to see our sacred Cherokee village sites and burial grounds and this area, our elders have always told us, "Hanna, do you got the land on her name? This is where we began." Ultimately, zig in the tribe lost the case. This was truly the end. How did that feel? I mean, terrible. I mean, I knew that the farmers had been right for 19 years. I knew that I'd been right for the last six years. I knew that there were so many good people who were hoping that the law and the facts and the common sense would prevail in the American democracy. It may feel like the tribes got short-shrift here, and that's because they did. The story of the tribe's relationship with the Little Tennessee River became but a footnote to the drama of the little fish in the dam. Most of the tribal members involved in this case have since passed on. One person who was involved did get back to us, but he was in too poor of health for an interview. Big picture, the idea that the dam could threaten a three-inch fish garnered the attention of a nation and stopped a more than $100 million dam for more than half a decade. The idea that a dam could threaten a human culture died quietly in the courts. Teleco is still the last dam built by TVA. This is a commercial for what's there today, a planned community for retirees, three golf courses, a yacht club, a country club, small industrial parks. About 7,300 people live there on the banks of Teleco Lake. It's far short of the bustling city of 30,000 TVA originally thought would develop there. But people do go there to boat and paddleboard, fish for bass and catfish. But there aren't any more snail-daughters there. There's also a museum commemorating the birthplace of Sequoia, a Cherokee leader, the historic Cherokee town of Chota and Tanasi, the ancestral homes of the Cherokee people are underwater. There are memorials in the shore of the lake, near where the sites once existed. Today, Carolyn still goes back to what used to be the river, every now and then. In a way, it still feels like her home. She harvests the daffodils. She calls them Easter flowers that bloom on what used to be her family's property. There are still old-grain silos exposed above the water. It still pulls me. I can see where the barns were and where I stood on a little limestone upcropping and would use to dry my feet in the spring when I first go barefoot and the sun was out and the rock was warm, but my feet were wet from the dew and not a pitty patty and make footprints all over it. That rock is the only thing that's recognizable. I'll always go back so I'm going to drag myself up there. In 2022, more than 40 years after the Teleco Dam closed its gates, one more twist developed in the snail-darter story. Whether on land, air, in the water, animals help shape our identity and now one of those special creatures is celebrating a huge milestone. The snail-darter never went extinct. In fact, the government declared its population had grown enough. It had recovered. It didn't need federal protections anymore. The snail-darter fish is no longer considered endangered. Back in the 1970s, TVA frantically tried to relocate the fish to other rivers. Those days in court and the legislature, it was too soon to tell if any of it would take. But it did. And small natural populations were later discovered outside the little tea, too. Today, it persists in small numbers on other rivers. Not the little tea, in part because TVA has to continue to oxygenate the water and open a dam's floodgates at certain times of the year to clean the silty river bottoms. So the fish lived, but the hope it symbolized for Zig and Carolyn and many more perished. I still wake up in the night thinking of things I could have done or if I'm still back there in my mind thinks I can do to save the river. We lost everything, but I don't think unless you have a connection to the land, you can ever truly understand the loss, what that means. Today the fish lives on in other ways, too. This moment showed all sides, the power the Endangered Species Act could wield. For the first time, but far from the last, the Endangered Species Act became a way to achieve goals far grander than putting a stop to extinction. Next time, on the wide open, a team of activists uses the power of the ESA to make a splash much larger than one little fish in one river. When we started doing environmental litigation, we were seeing like immediate and rapid success where we were no longer speaking true to power. We were seizing power. During my dad's deposition, he said, "I'd like to take him out the barn and beat the hell out of us." We're very reasonable people dealing with a very chaotic and unreasonable world. If these agencies weren't so serially addicted to serving the corporate interests that they're supposed to be regulating, then they wouldn't be in this pickle. This episode was reported and written by me, Nick Ma. It was produced by Mary Ald with editorial support from Jewel Banville, Lee Banville, and Corrin Cates Carney. Our story editor is Lacey Roberts. Jesse Stevenson created art for the season. Our theme music is by Isaac Opatz, arranged and produced by Dylan Rodrigge, featuring Jordan Bush on Pedalsteel. Their original music is by Dylan Rodrigge. Jake Birch mixed this episode with help from Alice Soder. Web design and marketing is by Josh Burnham, and fact-checking is by Victoria Traxler. Special thanks goes to Leah Swartz for the conservation education and support. I also want to thank everybody who's talked with me about the ESA, even those who didn't make it into this episode, along with of course Carolyn Ritchie, Zig Plaudder, and Hank Hill. And also Chapman and McLean Way for the absolute treasure trove of archive. Please follow us wherever you get your podcasts, leave a review, post on social media, do all the things. Help us spread the word. We'll be back in a week with another episode of The Wide Open. [Music], "The Wide Open Open" and "The Wide Open Open" are by David O'Brien. [Music], "The Wide Open Open" and "The Wide Open Open" are by David O'Brien. [Music] This project was produced in collaboration with the Montana Media Lab at the University of Montana School of Journalism. The Lab is a center for audio storytelling and journalism education that elevates perspectives from underserved communities in the West. Learn more at montanamedialab.com. The Wide Open is also a production of Montana Public Radio. MTPR enriches the mind and spirit, inspires a lifetime of learning and connects communities through access to exceptional programming. More information at mtpr.org. The Wide Open is supported by the Murray and Jan Ritland Fund, the Cinnabar Foundation, and Humanities Montana.