ESA Class Exercise

1. ESA Class Exercise

2. Tennessee Valley Authority (TVA) and the Snail Darter • Discovered in the Lower Little Tennessee River in 1973 by Dr. David Etnier • Listed as Endangered in 1975 - Listing Opposed by TVA • One of the Most Famous Cases in U.S. Conservation Law

3. Tellico Dam Construction Began in 1967 Tellico Dam is 120 Feet High and Reaches 3,238 Feet Across the Little Tennessee River Tellico Reservoir Stretches 33 Miles Along the LTR into the Mountains of East TN 357 Miles of Shoreline and 15,560 Acres of Water

4. Snail Darter(Percina tanasi) 3 ½ Inches Long (Max.) Historically Found in the Main Channel of the Tennessee River Found Over Gravel Shoals, Mid-Channel, Swift Flow Feeds Predominantly on Snails

5. Snail Darter vs. Tellico Dam • TVA Began Tellico Dam in 1967 • $50 Million Spent and 70% Completed by 1975 • 1975 FWS Received Emergency Listing Petition - University of Tennessee Professor - Long-Time Opponent of Tellico Project - Discovers Snail Darter in Search for a Listable Species in 1973 • FWS Responds Quickly to List Species - First Such Action; Wants to Set Precedent - Asks TVA to Reassess Project

6. Snail Darter vs. Tellico Dam • 1976 Federal Court Suit to Stop Construction - Citizens Group: Farmers, Sportsmen, Archaeologists, and Representatives of the Cherokee Nation • District Court Rules for TVA • US Court of Appeals Reverses Lower Court - Orders Project Halted****

7. Northern Spotted Owl vs. Logging • 1984 – The Forest Service publishes its final EIS for the Pacific Northwest Regional Guide. • NGOs complain that the guide does not adequately protect spotted owls or old growth forests. • The Chief of Forest Service says guide is adequate; however, his decision is reversed by Deputy Secretary of Agriculture. The guide is sent back for a supplemental EIS to more adequately cover spotted owl management concerns. • 1990 – The FWS lists the northern spotted owl as threatened under the ESA.

8. Northern Spotted Owl • Rely on mature and old-growth forests because these habitats contain the structures and characteristics required for nesting, roosting, and foraging. • Generally, flying squirrels and wood rats are the major part of their diet, while other minor prey include deer mice, tree voles, red-backed voles, gophers, snowshoe hare, birds, and insects. ****

9. TVA v. Hill, 437 U.S. 153 (1978) • “One would be hard pressed to find a statutory provision whose terms were any plainer than those in Section 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species or ‘result in destruction or modification of habitat of such species’. This language admits of no exceptions.” Chief Justice Warren Burger

10. TVA v. Hill, 437 U.S. 153 (1978) • “It may seem curious to some that the survival of a relatively small number of three-inch fish among the countless millions of species [that exist] would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after…[it know about the dam’s]…impact upon the survival of the snail darter.” Chief Justice Warren Burger

11. ESA 1978 Amendments • Sets Up “Appeal” Process – God Squad - Secretaries of: - Interior - Commerce - Army - Agriculture -Chiefs of: - Council of Economic Advisor - EPA - NOAA -Representatives of Agencies from Affected States

12. ESA 1978 Amendments • Requires “Critical Habitat” at Time of Listing - Cost-Benefit Analysis Allowed for Habitat Designation • More Public Access for Listing Decisions - Notice - Comments

13. Snail Darter vs. Tellico Dam • God Squad Ruled Tellico Dam Does Not Warrant a Wavier on Economic Grounds • 1979 – Energy and Water Development Appropriations Bill - Exemption for the Tellico Dam from any Other Laws That Might Prohibit it. - Sponsored by Sen. Howard Baker (R-TN) - signed by President Carter

14. Snail Darter vs. Tellico Dam • Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir.), cert. Denied, 449 U.S. 953 (1980) - Cherokee Nation Files Suit to Stop Project - Tellico Dam Will Flood Sacred Lands - Violates National Historic Preservation Act - Court Dismisses Case Based on Blanket Exemption of EWDA 1979 • November 1979: Tellico Dam Completed • Little Tennessee River Population of 5,000-20,000 fish were extirpated when Tellico Dam closed in 1979.

15. Snail Darter Good News • Several Other Populations are Now Known • Tellico Dam Case Sparked a Search for New Natural Populations - S. Chickamauga Creek (GA); Sewee Creek, TN R Mainstem, Sequatchie R. (TN); Paint Rock R. (AL) • Few Transplanted Populations Successfully Established • Hiwassee, Holston and Elk Rivers (TN) Contain Populations of 100’s to 2, 500

16. Northern Spotted Owl vs. Logging • 1990 – FWS delay ordering any specific management plan for the spotted owl because of immediate impacts that ruling would have on the timber industry. • FWS says logging can continue on federal lands until a long-term management plan was adopted. • NGOs (Audubon Society) are not happy with the status quo and file a lawsuit against the Forest Service. • A task force meets behind closed doors and proposes a 20% decrease in logging. • 1991 – Federal District Court Judge Dwyer rules against the Forest Service and required them to revise their standards and guidelines ”to ensure the northern spotted owl’s viability”.

17. Northern Spotted Owl Future • Final recovery plan completed in May 2008. • Managing sufficient habitat for the spotted owl now and into the future is essential for its recovery. However, it is becoming more evident that securing habitat alone will not recover the spotted owl. • Based on the best available scientific information, competition from the barred owl poses a significant and complex threat to the spotted owl. • Past habitat loss and current habitat loss are also threats to the spotted owl, even though loss of habitat due to timber harvest has been greatly reduced on Federal lands for the past two decades.