The Wide Open
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This is 99% Invisible. I'm Roman Mars. When the Endangered Species Act passed in 1973, it was a bipartisan home run. The act established protections for plants and animals on the endangered and threatened species lists. And across the aisle, everyone seemed to agree that it would be bad for a bunch of species to go extinct. When the act went to a vote, not a single senator voted against it.

Flash forward just over 50 years and the story could not be more different. Today, communities across the nation are fighting over the ESA and a whole legal specialty has sprung up around how to use it and how to fight it. The 1973 Endangered Species Act is the subject of an incredible new podcast called The Wide Open. The series is hosted by Nick Mott.

We're going to be playing an episode from The Wide Open, but before that, I had a conversation with Nick about his new series and the controversial law at its center. Hi, Nick. So you host a podcast called The Wide Open. Its first season is about the Endangered Species Act of 1973, which gave federal protection to plants and animals listed as either threatened or endangered.

And I just want to start from the beginning. Like, what made you want to do a story about the Endangered Species Act specifically? Like, there are lots of different stories you can cover about the environment. What got you interested in this one? You know, I feel like the Endangered Species Act has kind of been following me around for years. I grew up in Kansas in the suburbs where, like, it wasn't a wild place at all. It turns out now there's certainly endangered species there, but I didn't know about them.

But after I went to college, I moved out west to do conservation work. So things like building trails, you know, cutting down non-native trees to restore habitat for sage grouse, which is a controversial species when it comes to the Endangered Species Act. Or I'd be getting rid of invasive species and get shown this like little pool of two dozen tiny pupfish that exist only there and nowhere else that challenge water rights across the whole region. And-

You know, flash forward many years, I became a journalist. I moved to Montana. And when I moved here, I was on the grizzly bear beat, which is, you know, this is a state that's huge and not a lot of people and a lot of wildlife. So like that's a thing just covering grizzly bears. And, you know, I saw these emotions pile up and these divides form in the areas I live. And this thread of like, why do species divide us in the same way as these much seemingly larger social issues divide

really seized me. And the more I dug into it, the more I realized it wasn't just the species. It was the law behind the species and particularly the Endangered Species Act. How does the Endangered Species Act apply to grizzly bears in particular? Well, the grizzlies have been listed as threatened and the government's been trying to get them off the list for years. They've tried to remove protections two times and both times they got sued and those protections were overturned in federal courts. And the

They're thinking about doing it a third time around now. So the issue is really who should manage grizzly bears, the federal government or the state government? And with state management comes a hunt, which a lot of people find unpalatable. So the episode we've chosen to play is actually the second episode in your series in which the Endangered Species Act or ESA, which is a little easier to say, it has been passed. So set the stage for us a little bit. Like what is happening in the environmental movement in American society now?

in the early 1970s that made the ESA possible? Because, you know, it is hard to imagine the ESA passing today. Why was it more palatable then? There were a few things going on at the time, both in the environmental world and outside of it. The first thing to know about is there's been this like environmental awakening in a sense. Rachel Carson's book, Silent Spring, was published. The first Earth Day is held. There's this burgeoning reckoning with our impact on the natural world. You know, we see that impact happening

playing out. Birds are declining. Whales are dying. Like the impact that people have had in the growth of cities and suburbs is hard to deny. And at the same time, we've had the civil rights movement. So we've seen like the real power of grassroots work and protests. And I think the really interesting thing to me, too, to understand is like Nixon is president and he passes a

all of our bedrock environmental laws, which is really kind of a counterintuitive thing in the way politics works today. Like you wouldn't expect a Republican president to sign into law the National Environmental Policy Act, the Endangered Species Act, the Clean Air and Clean Water Act. But he does sign

And one of the sort of cynical readings of it is he wants this public victory to sort of counteract the bad stuff going on with Watergate in Vietnam. And, you know, back then, legislators who were voting on this stuff, they didn't know the implications the law would have down the line. Like I talked with this guy named Buff Bolin, who was in the Interior Department at the time that the Endangered Species Act was passed. And he was instrumental in writing the law.

And he said, like, nobody really gave it a lot of thought. Nobody read it. It was like, oh, yeah, let's protect the grizzlies. Let's protect the whales. Let's it seems like such an intuitively good idea. Let's not let species go extinct. But what people didn't think about was what that could mean for industry and development and oil and gas drilling and all this other stuff that comes with these markers of what we think of progress in America. Yeah. Do you know why they didn't think of that? I mean, that seems like the point of it all. Why did they not consider that?

There are several answers to that. First of all, we didn't grasp the extent of the extinction crisis back then. Like we had no idea how many critters were in trouble. And the Endangered Species Act, it doesn't just protect big charismatic species. It protects insects and plants too. There are –

More than 2,000 species protected both in America and across the world through the ESA. People were just talking about, you know, wolves and whales and bears back then. Not burying beetles.

And we didn't have these laws in the books. And so we didn't foresee like the lawsuits that would spiral and the ways that, you know, citizens, individual people could sue over the Endangered Species Act, that it could stop government projects in their tracks, that it could impact property owners or developers or just this sheer extent of what this single law could.

could have sway over. And that sort of leads us to the story that we're going to play for people today, which is about one of the first big fights of the ESA. And that fight was not about bears or eagles or whales. It was about a tiny fish called a snail darter. Is there anything about the story that you want people to know before they hear it? I mean, just to put this in context, I want the story to begin and people to be thinking about how...

Recently, like the Endangered Species Act passes in 1973, this fish you're about to hear about gets discovered in 1973. This test comes quick and people are still talking about this fish today. I think everything else more or less speaks for itself. Great. Well, let's go here. This is the second episode of The Wide Open.

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 coats and ties back then. I didn't. And 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 afoot 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 minnow 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 biologist 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 Ma. 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 spanned 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. They'd 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 T. 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 Ritchies 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 call poor, 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.

And 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 T that would change the lives of Carolyn and hundreds of her neighbors. This project took place.

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, DVA 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.

In fact, 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.

Work 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 T that didn't exist anywhere else in the world.

It's also the same year that rebellious law student Hank Hill's professor, Zig Plotter, 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 T. 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, his student again.

He had chosen to never fish the little T, and Zig's the ultimate fly fisherman. Zig didn't want to risk falling in love with the clear waters of the little T, 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, you know, 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's enough 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 brought. Let's go fishing. We fished 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 Tee.

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 like him. He wore penny loafers 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 man.

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 dam come hell or high 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. 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 creek 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 T, planting willows. In their minds...

Bringing it back to life. The battle for the little T was just beginning. It's 1976, and Zig, Hank, and the gang are hanging on for dear life to a legal roller coaster 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's been accepted, and a panel of three judges in downtown Cincinnati is hearing Zieg and 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, Zieg's optimistic. TVA's 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, he said, 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.

Ziggs 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. Ziggs, 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 won.

F'ed 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 hellfire 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 bushy 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 Daughter 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% 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 Act shouldn't be used to stop a project that's already nearing completion. And the Attorney General, 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 darter in a jar to the courtroom, and he holds it up for everybody to see. I have in my hand a darter, snail darter. It was Exhibit 7 in the case. It's supposed to be a full-grown snail darter, about three inches in length. Is it alive? I've been...

I've been wondering what it's in if it is. This makes Zig nervous. Arguments aside, Zig says it's a bad omen 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 darter to look tiny. Ridiculous. When you're on your feet and arguing a case, to have the courtroom laugh at your opponent is gold.

Zig gets up to deliver his part of the arguments. What purpose is 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 or a direct economic value, others for scientific study and a philosophical question. So Zig's saying that we might avoid extinction in general for economic or for philosophical reasons, but his argument for saving the snail darter 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 darter 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. That is... The last place it's been discovered, I take it... Your Honor, TVA has looked everywhere for snail darters. They've searched... Maybe the turning point in the case was when...

I got a laugh. Zieg 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 Teleco Dam would obliterate the only known habitat of the snail darter. 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, gentlemen. 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 passed the Tennessee bar, and so that's great. And so the students are jumping around. We whooped 'em, we got 'em." 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 darter versus the Teleco Dam and Reservoir in Tennessee. The dam is a $116 million... 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 6-3 vote, the Supreme Court decides in favor of the snail darter. Because of this little fish, dam construction has to stop, even though it's about 90% done. Chief Justice Warren Burger 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 barroom 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-darter prevailed. They've taken the case to the highest court in the country and, at least for now, stopped the dam. Our Constitution vests 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 the survival or the critical habitat of a newly discovered species of water spider 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 multimillion-dollar Tennessee Valley Authority project will stand idle because of today's 6-3 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 going to keep on fighting, right? Ziggs won in the Supreme Court. But now the battle for the little T 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 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.

We didn't need fixing. Zig learned the ins and outs of D.C. 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 Daryl Stein, an anagram of snail darter. He'd learned how to handle the reins of D.C. 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 and 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. But

The snail darker 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's 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 darters' 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 to 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, if 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 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 whooping crane case and the snail darter.

Zig and some of the farmers whose land is on the line pack into a room of 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 analyze the minutiae of the economics of the project.

And one of the government bigwigs in the room, the chair of the Council of Economic Advisors, 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. To clarify, 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. 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 snail 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.

Baker was often called the great conciliator. He worked to cross 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 a 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 or basically a budget bill, right? Billions and billions of dollars. So, and this is just one line saying the dam can go ahead. Just one line. It's called a rider line.

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 Zig's 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 passed-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 run over by the fire truck after you pull him out. In the video, he's wearing a suit and tie. By now, Hanks 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 in the balls, made him sit down that day. But probably not because I'd have gone to prison for that. I don't think I'd have changed 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 t is crucial to the tribe's First Amendment 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 that stopped the dam at one time, we felt here at Cherokee that this was going to go through and would halt 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 higher courts, even the U.S. Supreme Court, if they have to. Richard Crowe echoed the sentiments of the Indian heritage. It was told to me by my parents that this is our...

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 loss 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's 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. What would Jimmy Carter do if we went down to Peanut County and started flooding some of his ancestors' graves? We'd be put in jail, and they would probably rely on us.

We can't even die in peace. They dig us up 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 Ritchie'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 Instamatic cameras, because that's all we had, some little Kodak drop in the thing and go. And so she stood there. I don't know how she kept her hands...

And we have snapshots, snapshots, snapshots 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. Jean Ritchie, her husband, and four children have lived in this home for 28 years. We raised our children here. We've lived here the most of our married life. A lot of happy memories and sound of children growing up.

Not long after Carolyn Ritchie'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 1125 this morning, the state of Tennessee has a new lake, the Teleco Lake. Ziggs 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.

Ultimately, Zig and 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. Tell them this is where we live. This is where we live.

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. That'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. And tell them it starts right here at Teleco Village.

But there aren't any more snail darters there. There's also a museum commemorating the birthplace of Sequoia, a Cherokee leader. The historic Cherokee towns of Chota and Tanasi, the ancestral homes of the Cherokee people, are underwater. There are memorials on 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 upcrop and used to dry my feet in the spring when I first go barefoot in the

The sun was out and the rock was warm, but my feet were wet from the dew. And I had a pitty patty and my footprints all over it. And that rock's the only thing that's recognizable. I'll always go back as long as I can 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 Tee, too.

Today, it persists in small numbers on other rivers, not the Little T, 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, things 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 truth to power. We were seizing power. During my dad's deposition, he said...

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 Auld with editorial support from Jewel Banville, Lee Banville, and Corin Cates Carney. Our story editor is Lacey Roberts. Jesse Stevenson created art for the season. Our theme music is by Isaac Obatz, arranged and produced by Dylan Rodrigue, featuring Jordan Bush on pedal steel. Other original music is by Dylan Rodrigue. Jake Birch mixed this episode with help from Alice Sautter.

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 Plotter, 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.

This project was produced in collaboration with the Montana Media Lab at the University of Montana School of Journalism. The Wide Open is also a production of Montana Public Radio. The Wide Open is supported by the Murray and Jan Ritland Fund, the Cinnabar Foundation, and Humanities Montana. After the break, more of my conversation with Nick Mott.

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I'm back with Nick Mott. We just heard the second episode of his new series, The Wide Open. So, Nick, it turns out that the story of the snail darter is still ongoing because on January 3rd, there was a New York Times article that stated that there were some new ichthyologists that said that the snail darter might not actually be a species at all. Do you know anything about that? What's going on with that? I'll say I know what's going on just a little bit.

And because it really blew my mind. They did this genetic analysis that said the snail darter was basically identical to this other darter called the stargazing darter that exists elsewhere. And so it's not its own species at all.

As a person who reported this story from 50 years ago and you see this news, how does it affect your view of the outcome and the fight that you described? I mean, to me, it doesn't affect the outcome at all because the dam got built. Yeah, that's true. Isn't that the point? Yeah, the dam ended up getting built. But fundamentally –

It shows, I think, that, you know, this battle and so many endangered species battles aren't just about the species. I think the species is deeply important, but the battle is about the ecosystem. And we don't have the legal tools to protect ecosystems in the same way that we do to protect species. So species become this proxy for something much bigger.

And the dam was built and it did have that impact on that river valley. Like this darters that were living there aren't living there anymore because they can't survive there. It flooded out this beautiful, historically and culturally significant area that was also home to this darter. Like the issue was never only the species. The issue was the farmers and the tribes, like Zig repeatedly says in the episode, and the fish. Right, right. And so-

Taken in totality, the fish is the thing that you can sue on. The fish is the thing that stopped the dam for the longest period of time, as opposed to any other argument.

But if everyone knows that they're really fighting about something else, but they're just using the ESA as a tool, like, is that a problem? You know, as a reporter, I actually go back and forth on this. Lawsuits using the Endangered Species Act have absolutely skyrocketed. And for a lot of federal officials, it's a major nightmare and headache and time suck. It's

It stopped what some argue to be vital projects. But at the same time, I think it's more central than ever because extinction crisis is worse than it's ever been. We're facing climate change, which the framers of the Endangered Species Act didn't foresee.

In the case of the snail darter, we didn't have tools to protect it in any other way. And the fish did prove expedient, but it also proved effective. And sometimes that's what's necessary. Like for some of the most pressing ecological issues of our time, for climate, for extinction, for just loss of biodiversity overall,

Sometimes we need to have legal backstops and, you know, our bottom line, making more money, you know, increasing GDP, whatever that is, isn't going to do it. Like we have to have these backstops. I think it's both of these things at once. Like it is sometimes stretched beyond its intended use, but sometimes it's important to be stretched beyond its intended use because we're facing challenges that nobody that wrote the law ever could have foreseen.

Do you walk away from this like a fan of the ESA? Do you think this is the right tool? I am a fan of the ESA. I think it's done magnificent work to protect species, but it does have real problems, too.

It's really hard to remove protections for species. These lawsuits we've been talking about are spiraling and arguably out of control. And many people argue that, like, we didn't understand ecology back when it was passed. We need different and maybe stronger protections that can actually target ecosystems and save ecosystems rather than having to use a species to do so.

Like maybe we need different laws that give us similar outcomes, but just specifically articulate what we're trying to do here. Yeah, yeah. That don't need to be kind of –

sneaky in nature. Like they don't need to be all built around this one species or this biological definition of a species to have value. It really could be save this area because this area has value for all these different reasons. Exactly. But it'd be so hard to get something like that passed. So we got to work with what we got. Yeah. Yeah, that makes sense. Well, it is such a good series. I love it so much.

So thank you so much for talking with us and producing it. I just had a blast. Thank you for featuring the show. It's been wonderful talking with you.

Thank you.

And me, Roman Mars. The 99% Visible logo was created by Stephan Lawrence. We are part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora building in beautiful Uptown, Oakland, California. We are all over Blue Sky and our Discord server is thriving. There's a link to those as well as every past episode of 99PI at 99pi.org.

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