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B22 Asbury Part Press. Sun. April 1. 1979 Tiny Fisi Casting Big Shadow Over TV A Dam Project vv7V' jirrl lie on the hand of their discoverer, Associalod Preu of perch, was found in 1973. 'We've lived without dinosaurs for millions of years.

Why can't we get along without snail ii astride seven states, a kind of superre-gional government accustomed to controversy but not defeat the discovery proved a thoroughly indigestible canape. For more than 15 years, TV A had fought off opposition to the dam from the high and the low. A court injunction, which had held up construction 21 months, was about to be vacated. The battle seemed won. For TVA and most of the surrounding residents who had been told the new dam would bring jobs to their depressed area, the timing of the snail darter's appearance in the affairs of men seemed insufferable, if not unconstitutional.

It was discovered seven years after the dam was begun, two months before Congress passed an effective Endangered Species Act and two years before it came officially under that act's protection against extinction. "What the hell," said an embittered union official, "We've lived without dinosaurs for millions of years. Why can't we get along without snail darters?" FOR THE FARMERS whose rich soil the dam would flood, for the outdoorsmen and trout fishermen who would lose a rare and lovely stretch of free-flowing river, for the environmentalists concerned about the delicate balance of nature, for the Cherokees outraged by the prospective drowning of their ancestral origins, for the many who thought one mote TVA dam was just a dumb idea, Etnier's snail darter, a female, surfaced like Joan of Arc. They would have preferred the American bald eagle, the grizzly bear or anything more imposing, but the three-inch fish was their last best hope of stopping Tellico. In the early '30s, where this tale begins, almost nobody mentioned ecology, environment was something psychologists and sociologists worried about and the most endangered s(eoies seemed to be man.

People were jobless and people were hungry and concern for the rest of the animal kingdom was an esoteric luxury reserved for a few scientists and safari hunters. As low as the national average income was during the Great Depression, it was less than half that in the Tennessee Valley. Farming was the principal livelihood. The Tennessee River at flood stage was an unmanageable monster. Rural electric power was even harder to find than hope.

On April 10, 19113, midway through his first "hundred days," Franklin Roosevelt asked Congress to create "a corporation clothed with the power of government hut possessed of the flexibility and initiative of a private enterprise." THIRTY-NINE DAYS days later he had a bill for a new federal agency with broad powers to tame the river for economic development and conservation, a combination that later would he regarded as contradictory. Conservation then meant the prevention of soil erosion and the replanting of denuded woodlands direct, practical objectives Conservatives, especially the business establishment, bitterly opposed TVA as socialism. Liberals welcomed it as a bold new idea in large-scale social planning Neither was wrong. In 45 years, TVA changed the face and the soul of the Tennessee Valley. It built 24 major dams and acquired or controlled 11 others.

It harnessed the river against floods and made a 6f0-mile waterway navigable from Paducah to Knoxville. It lit the countryside with cheap power. AND SO IT CAME to pass, as the indignation of ideology yielded to the balms of prosperity, that yesterday's so By SAUL PETT AP Special Correspondent ON AUG. 12, 1973, in the late morning of a sunny summer day, in a remote shoal area well removed from human strife, a fish expert named David Etnier was floating in 18 inches of cool, clear water in the Little Tennessee River, breathing through a snorkel, staring through a face mask, vaguely searching for he knew not what. He was about to move on when he saw a fish.

At first glance, it appeared to be a sculpin, a common variety, light brow-n, slightly less than three inches long, just hanging there near a gravel bar and going nowhere, certainly like nothing on its way to the Supreme Court of the United States. It occured then to Etnier that this fish might be too slender for a sculpin. He poked at it gently. The fish moved a few inches and lazily settled down again over a bed of sand. SLOWLY, CAREFULLY, Etnier cupped both hands and lifted it out of the water.

In the bright sunlight, he looked at the fish and was immediately persuaded he had found a new species. For an ichthyologist, the moment was akin to the exciiement an astronomer feels on discovering a new star. On the river bank, Etnier met a farmer he knew. "What you got there, Dave9" "Something that just might stop the Tellico Dam." History does not record what Sir Alexander Fleming said when he stumbled on penicillin in a spot of green mold. But David Etnier was certain in his initial reactions: that he was looking at a fish never identified before and that it could halt completion of a $100 million dam which was half-finished and hot with controversy.

He could not know (hen that the little fish would come to symbolize another collision of national concerns in the same way coal collides with clean air, black progress with white rights, freedom with obscenity, inflation with recession. HE COULD NOT know that the fish would divide one branch of government and involve all three. Or that it would reveal a Congress appropriating funds, year after year, for a project that violated an act of Congress. Or that, for the mighty Tennessee Valley Authority, one of the grandest monuments to Franklin Roosevelt's New Deal, the fish would become a tiny, ornery Trojan horse. The fish Etnier found was a species of perch unknown before he found it.

For formal scientific purposes, he named it Percina imostoma tanasi, for the genus, the subgenus and the nearby site of a village which the Cherokee Indians made their capital until 1725. For common usage, he called it the snail darter, after its favorite diet. Etnier was not a purely disinterested scientist when he went down to the Little Tennessee in 1973. He was among those who opposed the Tellico Dam and had testified against it in an environmental suit. Expecting to testify again, he went snorkeling that day in the vague hope of bolstering his testimony by finding a rate and endangered species threatened with extinction by the dam.

He found it seven miles below Tellico. FOR TV a billion-dollar eollossus '5 11.. i TV Mmrty compkttd Tettic I town Is Uttie Temtemm JUwr wbx-h they i i h. 1 ,1,. zoologist David Etnier.

The fish, a species check with their lawyer and refused to cash it, scorning the interest, refusing to sign over their deed, insisting on paying their taxes. "If not for the snail darter, we'd been sunk," said a beaming Jean Ritchey. "We never dreamed that a fish could do what people couldn't." GOD (TO NOAH): "Anil of every living thing of all flesh, you shall bring two of every sort into the ark to keep them alive with you; they shall be male and female. Of the birds according to their kinds and of the animals according to their kinds, of every creeping thing on the ground according to its kind, two of every sort Keep (them) alive upon the face of all the earth. The instructions given Noah were, of course, simpler than those Congress gave the Department of Interior with the Endangered Secies Act of 1973.

It contained 17 sections and enough subsections to sink an ark. It gave unrelenting protection to any endangered member of the plant and animal kingdom (with the exception of certain insect pests) and their habitats. It included not only those already endangered but those likely to be endangered, not only domestic species but those anywhere in the world that might be harmed by importation It authorized the Secretary to buy land for the conservation of affected species. It provided civil and criminal penalties for violations, the criminal punishment going up to a year in jail, $20,000 fine, either or both. It said no one was to "take" any endangered secies and it said "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct." AT 10:12 IN THE morning of April 18, 1978, Griffin Boyette Dell, the 72nd attorney general of the United States, rose in the Supreme Court of the United States.

He wore a frock coat and striped trousers and held a small vial. He showed it to the opposing attorney, Zygmunt Plater. Plater: "Is this a full grown one?" Bell (after checking with an aide): "Yes." Plater didn't think so. In fact, he was convinced that in all the court actions so far the other side tried to make his small 4 rmwm -rr 0 111 i Two preserved snail darters -x Asso'it'd Press DR. DAVID ETNIER He went fishing rialism became the darling of today's business establishment.

The Chamber of Commerce, conservative newspapers and other communal pillars are now its most ardent supporters. Its critics today are the new liberals, who view TVA as a monolithic giant swollen by success, a runaway rogue elephant unresponsive to current needs The Tellico Dam had been on TVA's drawing board since 19. as part of its master plan. It wanted to replace the river with a lake, to make the shoreline attractive for recreation and industry, to create new jobs, expand flood control and add enough new power for homes. The entire project would require 38,000 acres, nearly half of it increasingly scarce prime farmland.

In l3, the agency dusted off the idea as a formal proposal and for the next throe years it was debated in Washington and Tennessee. Finally, in lflftf, Congress approved it has appropriated funds for Tellico every year since and construction tx'K'in in 17. The total cost was estimated then at $41 million. IN 1971. suit was filed in federal court to stop construction on the grounds that TVA had failed to supply a proper environmental impact statement as required by the National Environmental Policy Act of 19t)9.

Still trying to shoo away e.sky flies, TVA insisted the legislation could not lie applied retroactively to a project begun two years before. The judge thought otherwise and stopped TVA bulldozers for 21 months until the agency filed an acceptable impact statement. It did The bulldozers rolled again. In the months following his discovery, David Etnier, professor of zoology at the University of Tennessee, turned his back on secular matters and plunged into the task of proving his initial reactions and preparing his "description," his formal sc ientific pajwT. He studied the records of 3,000 fish collections fnim Tennessee since the year 1HM.

He compared notes with ichthyologists in other slates. He determined that the nearest possible relative of his fish was the star gaing darter in the Ozarks, S00 miles away. Etnier collected more snail darters from the Little Tennessee. He and the discoverer of the star gazing darter ex changed 10 siecimens each and studied the differences. They concluded the two were distinctly seperate seeies From his own exienonce and the records, Etnier also concluded that the snail darter was nowhere to be found but in the Little Ten nessee.

Ergo, rare. HE FOUND THAT the half finished dam was killing off his darter. The young were being swept down through the open sluice gates by a current moving 10 feet a second. The darter's top speed was half that. It couldn't get back through the sluices to spawn Ergo, endangered.

And it came to pass that a law student named Hiram Hill at the University of Tennessee was searching for a term paper idea in his course on environmental law. He had been considering "The First Admendment Implications of Nuclear Power" when one of Etnier'a students told him about the perils of the snail darter. Hill told his professor, Zygmunt Plater, a lawyer active in environmental cauwes. "Do you think the snail darter might w-''rs fl i i i "It just might be a little more than that," said Plater. THUS BEGAN the matter of "Hiram G.

Hill, Jr. vs. Tennessee Valley Authority," with the professor becoming the chief attorney for his student. On Jan. 31, 1977, the 6th Circuit Court of Appeals unanimously ruled that "whether a dam is 50 per cent or 90 percent completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life.

Courts are ill-equipped to calcuate how many dollar's must be invested before the value of a dam exceeds that of the endangered species." "Something has gone awry," said TVA chairman Aubrey Wagner. The country, he said, has lost a balanced perspective. His view: We need to save endangered species where possible but the snail darter is only one of 116 species of darters to be found in the United States, 77 of them in the Tennessee Valley. LOCAL POLLS showed that a majority of residents agreed with Wagner. They wanted Tellico, the jobs and new business promised them.

Not that "creek minner." On the other side, the people who knew Tellico. as "the damndam" rejoiced in what they saw as a triumph of outraged citizens over big government. Plater, the environmental lawyer, said the central issues were much larger than the fish. TVA had paid about $22 million for the land and improvements. (Late in 1978, TVA said that land might now be worth twice that.) "What right does the government have to do this?" asked Jean Ritchey, a farm wife.

"If we have to sell, why ran we sell it ourselves to the ultimate buyers''" TVA's answer was that it must control the sales for planned development By now, 300 families had moved from their farms in the Tellico area, most of them reluctantly. Four families remained, refusing to sell. TVA sent the Ritcheys a check for $101,150 for their 119 acres of farmland and timber, farm house and outbuildings. The Ritcheys said the property couldn't he replaced, even then, for twice that amount. In any case, they didn't want to sell.

The Ritcheys left the government 1 ii 1 2LUJ m. ill aKMF I Av 1-1 ti AKKoriattd Prrf BEN and JEAN RITCHEY They wouldn't sell client seem even smaller. But, here in the high court, he held his peace. "I'have in my hand, a snail darter," Bell told the justices. "It's three inches' (and) is supposed to he full grown." "Is it alive?" a justice asked "I've been wondering.

It seems to move around." THE JOKING OVER, Bell began his argument Mostly, he dwelled on the TVA argument: the law should not apply retroactively to a nearly completed project; Congress had clearly implied, by continued appropriations, that it intended the dam to be finished. He summed up Interior's dissent briefly: The substance of a law could not be changed by an appropria tions bill. In his turn, Plater argued that TVA was violating a law which Congress had not changed, that appropriations could i not change it and that the dam would re- suit in "the first conscious extinction of a living species in human history." On June 15. in the 2l2nd year of the Republic, the fish won. 6 to 3.

Chief Jus- tice Warren Burger, white haired and. as always, Olympian, wrote and delivered the majority opinion: "THE PLAIN INTENT of Congress was to halt and reverse the trend toward species extinction, whatever the cost. Neither the Endangered Species Act nor the Constitution provides federal courts witn authority to make such fine utilitarian calculations (the relative values of a fish and a dam) "Expressions of committees dealing with requests for appropriations cannot bo equated with statutes enacted by Congress. It is emphatically the exclusive province of the Congress not only to mandate programs and projects but also to establish their relative priority for the Nation." The ball was clearly back in Congress' court and four months later, it lobbed. In October, it amended the Endangered Species Act, sotting up a special, cabinet-level committee to review the case.

On Jan. 23, the committee voted Unanimously to kill Tellico and save the fivh It cid cnmnlet in iirnl ml, Ikjk dam would cost more than it was worth cuiu nidi oevru'piiiem 01 ine river wan more feasible than creating a lake. I But six days later, Sen. Howard Baker, R-Tenn Introduced a bill to abolish the committee and complete TellicQ, IF THE COMMITTEE prevails and the dam is left unfinished, it becomes TVA's job to put the egg together 12 years after the omelette was started. The snail darter can't live with the concrete part of the dam as It now stands because the fish can't swim through the sluice gates to spawn.

Either the concrete dam has to he destroyed or a channel has to be cut through the adjoining earthen dam for the fish. And the land? Fairness, said David Freeman, the new TVA chairman, wotikl oblige TVA to sell It back to the original owners, who sold reluctantly at a low price years ago. But TVA's charter requires it to sell to the highest bidder, and the land has doubled in value although the houses and the barns and the trees are gone. And so, in conclusion, there is no conclusion. Amendments can be amended: losers yXL I 1 '7 JMnp 'if--2.

L.j -W( t. J- J-Wil, Mr" "jKyJ AiiwotAPI wits jmne4 to eorthefl mtenkmert the wee ewwtnetod to farm a Did Etwee pmet trm tt kif coOertiM ol specirwiH, liM-loding vtrtully eet7 know trter, a4 th VmivtnUj of Teaociwe. ne a gtx Rica for my term paper? can still go back to the courts. i mimmm,.