Brief for the defendants in response to the plaintiffs\u27 post-trial brief in the case of TVA v. Hill et al in the United States District Court for the Eastern District of Tennessee, Northern Division

Della Volpe, Nicholas A.

Pedersen, Thomas A.

Sanger, Herbert S., Jr.

Wagner, Charles A., III

English

Digital Commons @ Boston College Law School

Boston College Law SchoolDigital Commons @ Boston College Law SchoolSnail Darter Documents The Snail Darter and the Dam5-11-1976TVA’s Brief in Reply to Plaintiffs’ Post-Trial Brief,TVA v. Hill et al, Civil Action No. 3-76-48Herbert S. Sanger Jr.Charles A. Wagner IIIThomas A. PedersenNicholas A. Della VolpeFollow this and additional works at: http://lawdigitalcommons.bc.edu/darter_materialsPart of the Environmental Law Commons, Land Use Planning Commons, and the Water LawCommonsThis Archival Material is brought to you for free and open access by the The Snail Darter and the Dam at Digital Commons @ Boston College LawSchool. It has been accepted for inclusion in Snail Darter Documents by an authorized administrator of Digital Commons @ Boston College LawSchool. For more information, please contact nick.szydlowski@bc.edu.Digital Commons CitationSanger, Herbert S. Jr.; Wagner, Charles A. III; Pedersen, Thomas A.; and Della Volpe, Nicholas A., "TVA’s Brief in Reply to Plaintiffs’Post-Trial Brief, TVA v. Hill et al, Civil Action No. 3-76-48" (1976). Snail Darter Documents. Paper 81.http://lawdigitalcommons.bc.edu/darter_materials/81' I Civil Action No. CIV. 3-76-48 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE NORTHEfu~ DIVISION HIRAM G. HILL, JR., ZYGMUNT J. B. PLATER and DONALD S. COHEN Plaintiffs v. TENNESSEE VALLEY AUTHORITY Defendant TVA 1 S BRIEF IN REPLY TO PLAINTIFFS' POST-TRIAL BRIEF Herbert S. Sanger, Jr. General Counsel Tennessee Valley Authority Knoxville, ·Tennessee 37902 Telephone No. 615-632-2241 Charles A. Wagner III Assistant General Counsel Thomas A. Pedersen Nicholas A. Della Volpe Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE . NORTHERN DIVISION HIRAM G. HILL, JR., ZYGMUNT J. B. PLATER and DONALD S .. COHEN ) ) ) ) ) ) ) ) ) ) Plaintiffs v. Civil Action No. CIV. 3-76-48 TENNESSEE VALLEY AUTHORITY Defendant ) ) TVA'S BRIEF IN REPLY TO PLAINTIFFS' POST-TRIAL BRIEF We wish to respond briefly to two arguments raised in plaintiffs' post-trial brief: (1) the question of whether completion of the Tellico project violates section 9 of the Endangered Species Act (16 U.S.C. § 1538 (Supp. IV, 1974)); and (2) the question of whether public policy dictates the completion or scrapping of the Tellico project. 1, Completion of the Tellico Project · Will Not Violate Section 9 of the Act. ;Ln their trial brief (p, 10) and their brief in support of motion for temporary injunction (p. 9), plaintiffs took the position that section 9 was not applicable and that the only applicable directive to federal agencies was section 7 (16 U,S;C. § 1536 (Supp. IV, 1974)). In their words: The penalty provisions of § 1538 apply to private part'iesi the only directive to Federal agencies appears in § 1536 . . [emphasis added]. In their post-trial brief (pp. 6-7), plaintiffs reverse that position and contend that the closure of the Tellico Dam will "take" snail darters in violation of section 9, by modifying th~ darter's critical habitat. This new contention is without merit. Section 9 does not prohibit the modification or destruction of critical habitat. Section 9(a)(l)(B) provides in pertinent part that; .. it is unlawful for any person subject to the jurisdiction of the United States to--(B) take any such [endangered] species within the United States , . . As stated in TVA's post-trial brief, Congress consciously and deliberately deleted· the "destruction, modification, or cur-tai;Lment of its habitat or range" from the definition of the word "take.'' Section 3(6) of proposed Senate Bill 1983, as introduced by Senator Williams, defined the term "take" as follows: The term "take11 means (A) with respect to fish or wildlife, to threaten, harass, hunt, capture, or kill, or attempt to threaten, harass, hunt, capture, or kill; or the destruction, modification, or curtailment of its habitat or range, ... [emphasis added]. This language was rejedted, and section 3(14) of the statute as passed provides that; The term 11 take'1 means to harass, harm, . pursue, hunt, shoot, wound, kill, trap, capture, or collect, or.to attempt to engage in any such conduct, · Clearly, completion of the dam will not result in the ''taking" of sna;i_l darters as defined by the Act because modifi,cation of habitat does not constitute a 11 taking. 11 See also Sierra Club v .. Froehlke, No, 7 5-1252, pp. 33-34 (8th Cir., April 23, 1976), where the court held that an attempt to harass the Indiana bat could not reasonably be found to be among the purposes of the Meramec Park Lake Dam. 2 2. Public Policy Dictates That the Tellico Project Be Completed. Plaintiffs concede, as they must, that this Court has discretion as to whether or not to grant the equitable remedy of an injunction. Plaintiffs admit that "injunctive relief is never automatic upon the showing of a violation of the Act" (p. 16) and that "[a]n equity court has discretion in it;:s granting of an injunction" (p. 14); but they contend that the Court must give "effect to public policy declared by Congress" and issue an injunction (p. 14). The authorities cited and relied upon by plaintiffs are. not in point. Plaintiffs' argument ignores the basic fact that in our case there are competing public policies and interests, policies and interests which TVA has attempted to resolve by doing everything possible to conserve the snail darter while completing the Tellico project. In this, TVA has acted under the direction and with the acquiescence of Congress, These are the actions and circumstances which the Court must :cevie1>1 and consider in balancing the equities in exercising its traditional equitable powers. As previously stated, TVA has already taken the problem to Congress to resolve the ultimate issue of public policy and public interest in either completing or scrapping the Tellico project. This is essentially a legislative issue, and the Court should.honor the expressed intention of Congress and deny plaintiffs' request for an injuncti.on. If plaintiffs were not satisfied with what Congress decided, they should have sought to block congressional appropriations. As said in Environmental Defense Fund v. Corps of Engineers, 325 F. Supp, 728, 740 (E.D. Ark. 1971), aff'd, 470 F.2d 289 (8th Cir, 1972), with respect to the question of costs and benefits (also a legislative issue): 3 • I ' ,.. The plaintiffs and others are free to bring such matters to the attention of the legis-lative branch at the time any new approprla-tion for this project is proposed. Indeed, they could bring the matter to the attention of Congress at this time with the hope of obtaining legislation which would prevent the expenditure of funds already appropriated (which would obviously include. those needed. for the construction of the dam proper and the clearing of the lake). Respectfully submitted, Herbert S. Sang~r, Jr. General Counsel Tennessee Valley Authority Knoxville, Tennessee Charles A. Wagner III Assistant General Counsel Thomas A. Pedersen Nicholas A. Della Volp~ Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that the foregoing brief has been served upon plaintiffs by hand carrying a copy thereof to their attorney 1 W, P. Boone Dougherty, Suite 1200, Hamilton Bank Building, Knoxville, Tennessee 37902, this 11th day of May, 1976. Attorney for Defendant 

TVA’s Brief in Reply to Plaintiffs’ Post-Trial Brief, \u3cem\u3eTVA v. Hill et al\u3c/em\u3e, Civil Action No. 3-76-48

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TVA’s Brief in Reply to Plaintiffs’ Post-Trial Brief, \u3cem\u3eTVA v. Hill et al\u3c/em\u3e, Civil Action No. 3-76-48

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