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Hill v. Tennessee Valley Auth.

Citation: 7 ELR 20172
No. No. 76-2116, 549 F.2d 1064/9 ERC 1737/(6th Cir., 01/31/1977) Rev'd

Reversing the district court, 6 ELR 20583, the Sixth Circuit permanently enjoins further work on the Tellico Dam because completion of the project will violate § 7 of the Endangered Species Act, ELR 41825, by destroying critical habitat of the snail darter, a fish listed by the Department of the Interior as an endangered species. The lower court had found that completion of the Tellico project on the Little Tennessee River would destroy the darter's habitat, but refused to enjoin the project because the $90 million dam was more than 80-percent completed. The Sixth Circuit finds that proposed completion of the Tellico Dam violates the Act. The court explicitly rejects the argument that continuing appropriations for the project in spite of knowledge of the threat to the darter constitutes congressional approval, because it is not the court's role to ameliorate enforcement of a statute if a project is partially completed. Rather, the court's task is to enforce the statute strictly as written, and, based on the separation of powers, either Congress or the Executive Branch must then act to choose an alternative if the project is ongoing. Although the Tennessee Valley Authority did not act in bad faith in attempting to comply with the Act, the district court abused its discretion by failing "to enjoin a clear violation of federal law." The remedy is either for Congress to exempt specifically the Tellico project from the Endangered Species Act or for the Secretary of the Interior to withdraw the darter from protection under the Act.

A concuring opinion agrees that the Tellico project is not exempt from the Act either because it was begun before the Act became effective and the snail darter was listed or because Congress approved additional appropriations knowing the threat to the species.

A discussion of this decision is found in this issue of ELR at Comment, Wildlife Protection: Section 7 of Endangered Species Act Comes of Age, 7 ELR 10049 (Mar. 1977).

Counsel for Plaintiffs
Zygmunt J. B. Plater
Wayne State University Law School
Detroit MI 48202
(313) 577-3937

W. P. Boone Dougherty
Bernstein, Dougherty & Susano
1200 Hamilton Bldg.
Knoxville TN 37902
(615) 546-8030

Counsel for Defendant
Herbert F. Sanger, Jr., General Counsel
Charles A. Wagner, III, Assoc. General Counsel
Thomas A. Pederson
Division of Law
Tennessee Valley Authority
400 Commerce Ave.
Knoxville TN 37902
(615) 632-2101

Joined by Peck, J.; McCree, J., filed a concurring opinion.