Watershed Update, Winter 2002

POWER LINE FIGHT: JUDGE DENIES GTC REQUEST ROUND ONE IS WON!

On February 19th 2002, an important victory in the power line battle was won. Senior Superior Court Judge Robert Struble denied Georgia Transmission Corporation’s (GTC) motion for an injunction to invalidate Rabun County’s moratorium prohibiting high voltage power lines.

GTC filed a lawsuit against Rabun County that was heard on January 30th by Judge Struble. GTC contended that Rabun County’s 3-year moratorium, passed in June of 2000, banning construction of power lines over 35 kV was unconstitutional. GTC filed for an injunction and declaratory judgment that would allow them to proceed with their proposed power line. GTC claimed that their right of eminent domain is restricted by the county’s moratorium and that since Georgia law authorizes them to distribute electrical power, the county cannot regulate them.

The Rabun County Board of Commissioners, defendants in this case, argued there was no emergency that would require the granting of an injunction at this time. Robert Denham, attorney representing the county, explained that an Interlocutory Injunction is granted when a plaintiff is in danger of suffering irreparable harm. In this case, GTC cannot proceed with its proposed transmission line until a permit is obtained from the US Forest Service allowing the use of public land for the power line (GTC switched their proposed route from private to public land in an attempt to diffuse controversy). A decision from the Forest Service is not expected before May or June of 2002. Therefore, Denham contended, there is no emergency that would necessitate an injunction. The county also argued that the power of eminent domain in Georgia is restricted to what is reasonably necessary and appropriate.

Judge Struble said he would have to rule on two matters: 1) Is the moratorium constitutional? 2) Is the time right for a decision since the Forest Service permits still must be obtained?

In his ruling, Judge Struble found that any act of the Court to declare the moratorium unconstitutional would be of no consequence if the Forest Service denied GTC’s permit. He concluded, “… a decision of the Forestry Service must precede this court’s decision, else such decision would be premature.” A trial date has been set for May 28, 2002 but will be continued if a Forest Service decision has not been received by then.

Two bills that could affect this issue have been introduced in the Georgia General Assembly this year. If passed, House Bill 1319 would prohibit the use of the power of eminent domain to acquire any property for the construction of an electric transmission line without a certificate of “public convenience and necessity” from the Public Service Commission. The applicant would be required to show that the proposed corridor is the least disruptive to the rights of private landowners and that all reasonable construction alternatives have been considered, specifically including both above and below ground construction. House Bill 1273 requires the approval of a county or municipality prior to condemning property for power, telephone or telegraph lines.

Citizens for Rabun’s Heritage and the Chattooga Conservancy have been pushing for this type of legislation, and ask citizens to support it by contacting their statehouse representatives.

STEKOA CREEK LAND SWAP

A proposed land swap between the Rabun County Board of Education and the US Forest Service raises concerns its potential impacts to the already impaired Stekoa Creek. The Board of Education is trying to acquire 45 acres of land, which would be given to the school system under the Education Land Grant Act. Under this law, the Forest Service can grant land to local school systems who can demonstrate a need for the land and the financial ability to build a school. The County wants the land on Boggs Mountain Road to build an elementary school.

This proposed land swap would in turn isolate other tracts of public land on Boggs Mountain, making them ripe for another land swap, which the Forest Service would like to see happen. The Forest Service maintains that isolated parcels of land are hard to properly manage, and would swap them with private individuals or county governments for land adjacent to existing, large Forest Service tracts.

One of the Chattooga Conservancy’s concerns is the nature of the property that lies above and along the steep slopes of Stekoa Creek. Stekoa Creek is on EPA’s 303(d) list, which means that its water quality is severely impaired. Further development along the creek threatens to worsen the current pollution problem. The Conservancy has requested that the “disposal” plans for this area be updated to remove the public lands north of Boggs Mountain in order to protect Stekoa Creek from further impairment.

“PEREGRINE” DEVELOPMENT

At the base of Whiteside Mountain, the head of the Chattooga River watershed, a subdivision named “Peregrine” is being laid out. Road building, surveying, well drilling and marketing are ongoing in an area that discharges into a tributary of Green Creek, which is classified as an Outstanding Resource Water (ORW) in the state of North Carolina. After researching the site plan for the development, the Chattooga Conservancy wrote a letter to the Water Quality Division of the North Carolina Department of Environment and Natural Resources (DENR) pointing out that an additional storm water permit needed to be issued, with provisions to insure protection for ORW and to allow for public input as prescribed by the Clean Water Act. A stop work order was also requested. Although the Division of Water Quality did issue a permit specific to the Peregrine development, it did not provide stringent requirements for insuring adequate protection for ORW, or to allow public input. The Chattooga Conservancy has now joined with the Jackson-Macon Conservation Alliance in requesting that the State of North Carolina amend storm water permits specific to ORW that are in compliance with the Clean Water Act, and to issue a stop work order until these actions are taken.

CHARTER FORESTS

Two sentences tucked in to President Bush’s lengthy 2003 budget proposal could change the face of the nation’s national forests. The plan would create “charter forests” out of public national forest land. The proposed pilot program would operate in a fashion similar to charter schools. The forests would be turned over to local trusts, which would be responsible for managing the land and complying with all necessary environmental rules. The budget says charter forests are needed to “overcome inertia and an excessive decision making structure” at the U.S. Forest Service.

Mark Rey, the agriculture undersecretary who oversees the Forest Service, said the idea came from local groups and insists that local trusts would have to follow federal laws. Rey, a former timber industry lobbyist, admits that the timber industry supports charter forests. Environmentalists have criticized the Bush administration for being too eager to give timber, mining and oil companies access to national forests. Green groups fear the plan would turn local forests over to groups that could become fronts for the timber industry, opening the national forests to increased logging. The Chattooga Conservancy is adamantly opposed to the idea of charter forests. Without strong national oversight, local commercial interests could co-opt control and dominate management of our national forests.

TAHOE LANDOWNER RIGHTS IMPORTANT LAND MANAGEMENT CASE PENDING

The U.S. Supreme Court will consider a case this year that may impact government regulation of private property. In Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the U.S. Ninth Circuit Court of Appeals declared in favor of the planning agency, that the government can deny use of private land without compensation, as long as the denial is temporary. The Tahoe-Sierra Preservation Council appealed this decision to the highest court in the land.

The Tahoe-Sierra case involves approximately 450 owners of residential property and improved lots near Lake Tahoe, who hoped to build vacation or retirement homes. Legislation passed by Congress in the late 1960s created a California-Nevada bi-state agency to protect Lake Tahoe and its surrounding basin. The Tahoe Regional Planning Agency (TRPA) passed a series of moratoriums in the 1980s that stopped owners of certain single family lots near Lake Tahoe and in its watershed from developing them. The owners, plaintiffs in the case, alleged that they were robbed of their property rights and should have received compensation. A federal judge and the Ninth Circuit held that the government did not have to compensate property owners when the restrictions are “temporary” and the possibility of future use exists. The landowners in this case have been waiting 18 years to use their property.

The Fifth Amendment, in what is referred to as the Taking Clause, states “nor shall private property be taken for public use, without just compensation.” The Agency argued that planning moratoria do not constitute a taking. Precedents have been established by the Supreme Court that “there is no difference between a temporary taking and a permanent taking” in regard to compensation. Landowners worry that the use of planning delays and temporary regulations would allow local, state and the federal government to restrict land use without paying for it. Stay tuned: this may be one of the most important cases yet before the Supreme Court concerning land use and development.

SOUND WORMY MANUSCRIPT PUBLISHED

Nicole Hayler edited Sound Wormy for the Chattooga Conservancy. UNIVERSITY OF GEORGIA PRESS is publishing the book, which can be ordered by calling 1-800-266-5842. Click image for a larger version.

Set in what remains some of the wildest country in the United States, Sound Wormy recalls a time when regulations were few and resources were abundant for the southern lumber industry. In 1901 Andrew Gennett put all of his money into a tract of timber along the Chattooga River watershed, which traverses parts of Georgia, South Carolina and North Carolina. By the time he wrote his memoir almost forty years later, Gennett had outwitted and outworked countless competitors in the southern mountains to make his mark as one of the region’s most seasoned, innovative, and successful lumberman.

His recollections of a rough-and-ready outdoor life are filled with details of logging, from the first “cruise” of a timber stand to the moment when the last board lies “on sticks” in the mill yard. He tells how massive poplars, oaks and other hardwoods had to be felled and trimmed by hand, dragged down mountain slopes by draft animals, floated downstream or carried by rail to the mill, and then sawn, graded, and stacked for drying. He tells of buying timber rights in a land market filled with “sharp” operators, where titles and surveys were often contested and kinship and custom were on an equal footing with the law.

Gennett saw more than potential “boardfeet” when he looked at a tree. He recalls, for instance, his efforts to convince the U. S. Forest Service to purchase undisturbed areas of wilderness at a time when its mandate was to condemn and buy up farmed-out and clear-cut land. One such sale initiated by Gennett would become the Joyce Kilmer Wilderness in North Carolina. Filled with logging lore and portraits of the southern mountains and their people, Sound Wormy adds an absorbing new chapter to the region’s natural and environmental history.