Pocosins, Where Rivers are Born
Join host Tom Earnhardt for this weekly series highlighting the state’s diverse local landscapes & unique natural features—from the Black Mountains trails atop Mount Mitchell, and the gold and gemstone mines lining the piedmont to the endless fossil digs in the clay beds of the coast. This episode explains Pocosins, Where Rivers are Born, and the important role they play in coastal hydrology. Hofmann Forest’s important role is also presented.
Here are a few more detailed thoughts regarding Monday’s NC Supreme Court hearing on Hofmann Forest:
Our lawyer Jim Conner’s main point was this – we’re appealing the decision last November by Superior Court Judge Shannon Joseph to dismiss our case under a “12b6 motion” made by the attorneys for NCSU and the Natural Resources Foundation. In order to dismiss our case under a 12b6 motion, the Judge is supposed to assume all of our factual allegations are true, and then still find that we have no chance of legal victory.
We’ve alleged that public monies were spent in the process of putting Hofmann Forest up for sale, and we’ve alleged that significant environmental impacts will occur as a result of the sale. If those two points are true (and we think they are) then it is clear that the NC Environmental Policy Act (SEPA) should apply, and NC State University should have completed an Environmental Impact Statement before finalizing the decision to sell Hofmann Forest.
The NC Department of Administration is charged with implementing SEPA, and their simple guidelines for when SEPA applies are as follows [with my notes]:
1. was public money spent or public land used? [yes and yes]
2. was there an action by a state agency? [yes, NCSU knows it is subject to SEPA]
3. is there a potential environmental impact? [yes, almost off the charts]
So we’re optimistic that the NC Supreme Court will rule in our favor, and send the case back to the trial court, where we will finally be able to gather and present evidence supporting our claims. The case back in November was dismissed before we had a chance to do discovery, depositions, etc – and a mere 24-hours before the prospectus from Jerry Walker was leaked to us showing the buyer’s actual plans for Hofmann Forest.
NC State University leaders, of course, really want to keep that evidence-gathering process from happening, as all kinds of new information will come to light in our favor.
Although we don’t need the NC Constitutional argument to win, it is worth pointing out that Paul Flick, the attorney for the Natural Resources Foundation, made another attempt to re-write history by inventing his own definition of what Article 14 Section 5 of the NC Constitution really means.
Here’s the amendment, for your easy reference:
Sec. 5. Conservation of natural resources.
It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.
To accomplish the aforementioned public purposes, the State and its counties, cities and towns, and other units of local government may acquire by purchase or gift properties or interests in properties which shall, upon their special dedication to and acceptance by a law enacted by a vote of three-fifths of the members of each house of the General Assembly for those public purposes, constitute part of the ‘State Nature and Historic Preserve,’ and which shall not be used for other purposes except as authorized by law enacted by a vote of three-fifths of the members of each house of the General Assembly. The General Assembly shall prescribe by general law the conditions and procedures under which such properties or interests therein shall be dedicated for the aforementioned public purposes.
Paul Flick argued before the NC Supreme Court that this amendment is solely focused on establishing the state system of dedicated natural areas described in the second paragraph. The first paragraph, according to his view, is just a fluffy preamble with no actual meaning.
We, on the other hand, contend that the first paragraph stands on its own as a definitive and powerful policy statement for North Carolina. Why do we think that? Well, back in 1972, when this amendment was put to voters, the ballot measure said “Conserve and protect our natural resources”. It didn’t say “Establish a dedicated natural areas system”. So when 87% of voters in that statewide election (with Presidential and Gubernatorial races on the same ballot) voted yes for this amendment, they were indicating their strong and nearly unanimous preference for NC to commit to protecting our natural resources.
Second, we can also point out that many of the action steps mentioned in the first paragraph (controlling air pollution and excessive noise, for example) are not easily accomplished through a dedicated natural areas system. Clearly this amendment constitutionally authorizes the State to undertake all manner of environmental protections, under the controlling aegis of the plain language policy statement that leads off the amendment.
Unlike other recent amendments that I needn’t mention here, Article 14 Section 5 has never been found in conflict with the US Constitution, and it is clearly still relevant to North Carolina citizens today. Many people have never heard of it, but with your help I think we can fix that deficiency.
If conserving our lands and waters is state policy according to the NC Constitution, then it follows that selling the largest tract of state-owned forest to private buyers (and handing said buyers a commercial development plan covering 9000 acres, as NCSU did!) is an unacceptable violation of that policy.
919-401-7271 w 919-641-0060 c
Fred Cubbage, Professor, Coordinator, Natural Resources Program /FWC/
Joseph Roise, Professor, Director of Graduate Programs, FER /JR/
In the NWQEP NOTES, The NCSU Water Quality Group Newsletter, Number 138 August 2013 ISSN 1062-9149, one recommendation is outstanding:
…The State water quality agency should consider
encouraging the state, local agencies, or land trusts to
purchase riparian properties in cases where watershed
cleanup efforts have failed to be achieved or failed to be
lasting. Environmental agencies should review their
programs for conflicting mandates and implementations.
Specific roles, reporting requirements, and priorities should
We couldn’t agree more! Granted, the above recommendation has a much narrower contextual focus than presented by the prospective sale of Hofmann Forest, but it is alarmingly apropos to the apparent divergent goals and implementations highlighted by this sale of public land by NCSU and concurrent efforts within NCSU and other state agencies.
Will the NC supreme Court find that North Carolina’s various agencies and programs have conflicting goals (broader than mandates) and implementations with regard to the sale of Hofmann Forest? Will they find the sale of Hofmann Forest consistent with the intent of the NC Constitution, the State Environmental Policy Act (SEPA), and UNC System Policy?
Does the apparent internal inconsistency of NCSU rushing to the sale, while simultaneously promoting vastly disparate public policy, reflect a lack of cogent leadership within the University? Is the sale of Hofmann Forest representative of a broader inconsistency within state government that only action by the NC Supreme Court or legislation could remedy?
The North Carolina State University (NCSU) Water Quality Group is a multidisciplinary team that analyzes and evaluates nonpoint source (NPS) pollution control technologies and water quality programs in North Carolina and nationwide. We are a component of the North Carolina Cooperative Extension Service (NC CES), Biological and Agricultural Engineering Department (Bio&Ag) at North Carolina State University and the N.C. State University’s Soil and Water Environmental Technology Center (SWETC).
According to NOAA:
Eighty percent of pollution to the marine environment comes from the land. One of the biggest sources is called nonpoint source pollution, which occurs as a result of runoff. Nonpoint source pollution includes many small sources, like septic tanks, cars, trucks, and boats, plus larger sources, such as farms, ranches, and forest areas. Millions of motor vehicle engines drop small amounts of oil each day onto roads and parking lots. Much of this, too, makes its way to the sea.
Some water pollution actually starts as air pollution, which settles into waterways and oceans. Dirt can be a pollutant. Top soil or silt from fields or construction sites can run off into waterways, harming fish and wildlife habitats.
Nonpoint source pollution can make river and ocean water unsafe for humans and wildlife. In some areas, this pollution is so bad that it causes beaches to be closed after rainstorms.
More than one-third of the shellfish-growing waters of the United States are adversely affected by coastal pollution.
So, it makes sense for North Carolina to sell 79,000 acres of coastal forest land into private ownership with the only real restriction on land-use being the highest and best use real estate development doctrine? What else is wrong with the sale of Hofmann Forest?
North Carolina spends lots of money on signs. They are everywhere, along our roads, on river and stream banks, in coastal waters, and on beaches. The signs may be informational, educational, or regulatory, but they are all there ostensibly for our benefit as citizens. Signs for the benefit of citizens – good, right? More, better? Not so fast! After the sale of Hofmann Forest, we’ll get a whole new crop of signs that will say one thing, but will be symbolic of something else entirely.
NCSU, a public University, is selling Hofmann Forest, public land, to private entities, with no significant long-term restrictions against development. On the other hand, we have the significant positive accomplishments of other North Carolina government entities working to protect and preserve sources for future drinking water supplies and to reduce the extent of surface water quality impairment.
It is well known that development, including agriculture, is the main source of water quality degradation and resulting impaired surface waters. Research and conclusions on this subject, much conducted at NCSU, are abundant and clear. Across a wide spectrum of North Carolina government, this simple, but true, educational message is repeated again, and again. You cannot escape North Carolina’s watershed-awareness and impact-of-development messages as you go about your life in this state. You find them as you visit our state’s websites, schools, museums, aquariums, estuarium, parks, and even when you drive on our highways! Ever see an “Entering Neuse Basin” sign? Those signs, and the worthy efforts of which they are symbolic, are your tax dollars at work!
NCSU Officials, the NCSU Endowment Fund Board, and Attorney General Roy Copper, who are promoting and facilitating the sale of Hofmann Forest, must have missed all of the NCSU subject matter research and North Carolina’s extensive and well-intentioned watershed-awareness and impact-of-development messages. How else could they be promoting and facilitating the sale of Hofmann Forest, with no significant long-term restrictions against development? Hofmann Forest is a significant percentage of the undeveloped land in three already impaired river basins of this state.
Maybe dysfunctional state government just likes signs. By selling Hofmann Forest, North Carolina will almost certainly get more opportunities to put up closed shellfish waters and swimming advisory signs! How do I know? The state says so, again, and again, and again. I didn’t even have to come up with that one myself!
By the way, those swimming advisory and closed shellfish waters signs, and the worthy efforts of which they are symbolic, are your tax dollars at work, too!
See, we really can pay for it both ways! After the destruction of Hofmann Forest at the hands of the state, we’ll get a whole new crop of signs. All these signs, especially the new ones, will become symbolic of the North Carolina’s worthy efforts to protect us from the consequences of the North Carolina’s, not so worthy, sale of Hofmann Forest! The signs will cease to have any real meaning related to their words. Instead, they will just be symbolic of dysfunctional state government.