549 F.2d 1064 (6th Cir. 1977), 76-2116, Hill v. Tennessee Valley Authority

Docket Nº:76-2116.
Citation:549 F.2d 1064
Party Name:Hiram G. HILL, Jr., Zygmunt J.B. Plater, Donald S. Cohen, The Audubon Council of Tennessee, Inc., and The Association of Southeastern Biologists, Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY, Defendants-Appellees.
Case Date:January 31, 1977
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1064

549 F.2d 1064 (6th Cir. 1977)

Hiram G. HILL, Jr., Zygmunt J.B. Plater, Donald S. Cohen,

The Audubon Council of Tennessee, Inc., and The

Association of Southeastern Biologists,

Plaintiffs-Appellants,

v.

TENNESSEE VALLEY AUTHORITY, Defendants-Appellees.

No. 76-2116.

United States Court of Appeals, Sixth Circuit

January 31, 1977

Argued Oct. 14, 1976.

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[Copyrighted Material Omitted]

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Zygmunt J. B. Plater, Wayne Law School, Detroit, Mich., W. P. Boone Dougherty, Bernstein, Dougherty & Susano, Knoxville, Tenn., for plaintiffs-appellants.

Herbert S. Sanger, Jr., Gen. Counsel, Div. of Law, T. V. A., Charles A. Wagner III, Thomas A. Pedersen, Nicholas A. DellaVolpe, Knoxville, Tenn., for defendants-appellees.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

For the third time in five years we are called upon to resolve a dispute between environmentalists and the Tennessee Valley Authority (TVA) over the legality of the Tellico Dam and Reservoir Project. The issue on appeal in this instance is the propriety of the district court's denial of Appellants' request for a permanent injunction to prevent TVA from imminently closing the Tellico Dam. Appellants allege that the resulting reservoir will flood the only recognized habitat of the snail darter, a rare protected species of river-dwelling fish,

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thereby jeopardizing its continued survival, in violation of §§ 7 and 9 of the Endangered Species Act of 1973. 1 16 U.S.C. § 1531 et seq.

Tellico was initially proposed by TVA and ultimately approved by Congress in October, 1966, as a multipurpose, water resource and regional economic development project. It was primarily intended to benefit Blount, Loudon and Monroe Counties, Tennessee, "an area characterized by underutilization of human resources and outmigration of young people." Hearings before a Subcomm. of the House Comm. on Appropriations, 94th Cong., 2d Sess., at 261.

The engineering focus of the proposal was a concrete and earthfill dam to be situated near the mouth of the Little Tennessee River. This impoundment would create a navigable reservoir thirty-three miles long covering an area of 16,000 acres, including 2,100 acres of the existing river bed. Proponents of the project claimed that it would stimulate new shoreline industrial development, increase recreational opportunities and tourism, and augment existing hydro-electric power generating and flood control capabilities. 2 Congress agreed and in 1966 authorized initial Tellico project appropriations. Construction commenced in March, 1967. Closure of the dam is now scheduled to be completed in January, 1977.

For the present, the river remains free-flowing and Appellants seek to preserve it indefinitely in its present state as a natural resource. 3 TVA counters that it is the express will of the Congress that Tellico "be completed as promptly as possible in the public interest." S.Rep.No.94-960, 94th Cong., 2d Sess. 96 (1976). TVA believes that such an unequivocal expression of congressional intent neutralizes any violation of the Endangered Species Act which may be involved in the impoundment of the river. We are therefore asked to balance the survival of a living species against the completion of a public works project which is more than 80% completed and represents a federal investment of almost ninety million dollars.

In 1971 and again in 1973, environmentalists and affected landowners petitioned the federal court seeking to forestall construction of the Tellico Dam on the ground that TVA had failed to comply with requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. They were successful in obtaining a preliminary injunction which halted project implementation for more than a year and a half, 4 affirmed by this Court in Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972), but the district court ultimately concluded that TVA's revised Tellico environmental impact statement fully complied with NEPA, 5 and we affirmed. Environmental Defense Fund v. Tennessee Valley Authority, 492 F.2d 466 (6th Cir. 1974).

In August, 1973, a University of Tennessee ichthyologist discovered a unique and theretofore unknown species of fish, the snail darter (Percina Imostoma tanasi), thriving in the Little Tennessee River. This three-inch, tannish, bottom-dwelling member of the perch family was found to feed upon fresh water snails (from whence its name was derived). In addition to providing the snail darter with a bountiful supply of its primary food, the river also maintained the oxygen levels required to sustain the species through aerating action of its rapidly flowing currents. The range

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of the snail darter's habitat encompassed seventeen miles of the river's course scheduled to be subsumed within the Tellico Reservoir. A search of other rivers of comparable ecology confirmed that the Little Tennessee was virtually the exclusive preserve of the world's snail darter population (recently estimated to number between 10,000 and 15,000 fish). 6

On December 28, 1973, four months after the discovery of the snail darter, Congress passed the Endangered Species Act, 16 U.S.C. § 1531 et seq. One of the Act's purposes was "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . ." 16 U.S.C. § 1531(b). Section 1533 of the Act empowered the Secretary of the Interior to compile and maintain separate official lists of threatened and endangered species. 7 Section 1536 unequivocally commits all federal agencies to:

utilize their authorities in furtherance of the purposes of (the Act) by . . . taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary . . . to be critical. (emphasis added).

Section 1540(g)(1)(A) authorizes suits by private citizens seeking "to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of (the Act) or regulation issued under the authority thereof."

In January, 1975, several persons, including Appellants Hill and Plater, petitioned the Secretary of the Interior to add the snail darter to the endangered species list. Section 1533(c)(2). As part of the rule making procedure, 8 TVA was invited by the Department to comment. On November 10, 1975, over TVA's objections, the snail darter was designated as an endangered species primarily because of the threat posed by the Tellico project to destroy the species and its only known habitat. 9 50 C.F.R. § 17.11(i) (1975); 40 Fed.Reg. 47505-47506 (1975). As required by § 1540(g)(2)(A)(i), Appellants notified both the Department of the Interior and TVA on October 20, 1975, that continued preparations to impound the Little Tennessee River would violate § 1536.

On February 28, 1976, Appellants brought suit in United States District Court for the Eastern District of Tennessee seeking to permanently enjoin completion of the dam. In April, the United States Fish and Wildlife Service, acting pursuant to rule making authority originally granted to the Secretary of the Interior in § 1536, designated river miles .5 to 17 as the "critical habitat" of the snail darter. 41 Fed.Reg. 13926-13928 (1976); see 50 C.F.R. § 17.81 (1976). 10 On April 29th and 30th a trial was held during which evidence was presented pertaining to whether the scheduled inundation of the Little Tennessee would jeopardize the species' continued survival. The Court also entertained argument on whether permanent injunctive relief would be appropriate to enforce compliance with the Act if the evidence made out a prima facie

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violation of §§ 1536 or 1538(a)(1)(B). In a memorandum opinion and order dated May 25, 1976, 11 the court concluded:

. . . the preponderance of the evidence demonstrates that closure of the Tellico Dam in January 1977 and the consequent creation of the Tellico Reservoir will result in the adverse modification, if not complete destruction, of the snail darter's critical habitat. 12

However, the Court denied Appellants' prayer for a permanent injunction and dismissed the action based upon an analysis of the equities which it found to be controlling.

Appellants claim that the Court's refusal to impose an injunction was legally inconsistent with its finding of a blatant statutory violation. They contend that the Court clearly abused its discretion in light of express congressional recognition, in § 1540(g)(1)(A), of the appropriateness of injunctive relief to redress violations of the Act or of rules promulgated thereunder. They find no support within the language of the Act or its legislative history for exempting on-going projects from compliance and therefore ask us to enforce the letter of the law by summarily halting Tellico Dam construction. Appellants argue that only Congress and the Secretary of the Interior have the power to relieve TVA of its obligations under the Act through enabling legislation or remedial rule making respectively. Our abiding interest in preserving the functional independence of the coordinate branches of government, as ordained by the constitutional separation of their enumerated powers, compels us to reverse the District Court and grant the relief requested. Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842, 892-893 (1973).

Although this legal controversy may well enjoy a modicum of notoriety because it appears to pit the survival of an...

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