Please Sign Our New Petition – Save Hofmann Forest!

The petition says:

NC State University should not sell Hofmann Forest a 79,000-acre tract of public land in coastal North Carolina to a private businessman to be bulldozed into cornfields and golf courses. Hofmann Forest should be permanently protected from development, and opened back up for the public to enjoy.

MoveOn Civic Action does not necessarily endorse the contents of petitions posted on this site. MoveOn Petitions is an open tool that anyone can use to post a petition advocating any point of view, so long as the petition does not violate their terms.

via MoveOn Petitions – Save Hofmann Forest from being destroyed.

Thanks,

John

Appeal Reply Briefs

Thanks to our team at Ragsdale-Liggett, Jim Conner, Amie Sivon, Ed Coleman, and Katheryn Fleming, for preparing the following Reply Briefs and for all their efforts to date in the effort to Save Hofmann Forest:

2014-07-14 Reply to Brief of BOT

2014-07-14 Reply to Brief of NRF

March 28, 1934, Radio Talk for Issac Walton League by Dr J V Hofmann

1934-03-28 Radio Talk for Issac Walton League by Dr J V Hofmann

Compiled from North Carolina State University College of Natural Resources, School Forests Records, UA 140.045, Special Collections Research Center, North Carolina State University Libraries, Raleigh, North Carolina.

http://www.lib.ncsu.edu/findingaids/ua140_045#CollectionDescription

December 7, 1935, Radio Talk by J.V. Hofmann on Demonstration Forests

Referring to the future Hofmann Forest, Dr. Hofmann wrote:

“The area of 84,000 acres that has been secured by the forest school for field work , demonstration and forest management is located in Jones and Onslow counties in the eastern part of North Carolina . This area includes what is called a pocosin. It is spelled p-o-c-o- s -i-n and the traditional definition of the work (sic) in the Indian language means “swamp on a hill.” This formation is found in eastern North Carolina and South Carolina on the coastal plains and it is the only place in the world that this type of formation exists.”

December 7, 1935, Radio Talk by J.V. Hofmann on Demonstration Forests

Compiled from North Carolina State University College of Natural Resources, School Forests Records, UA 140.045, Special Collections Research Center, North Carolina State University Libraries, Raleigh, North Carolina.

http://www.lib.ncsu.edu/findingaids/ua140_045#CollectionDescription

July 6, 1930, Radio Talk by Dr. J.V. Hofmann over WPTF

Dr. Julius Hofmann explaining the importance of demonstration forests such as Hofmann Forest:

“To further this program a School of Forestry has been established at State College equipped with educational facilities, However, a forest school would be in no better position for teaching forestry, without a demonstration forest than a medical school without a clinic or hospital. We are grateful that public spirited men realize this need and are doing something to help solve this problem.”

1930-07-06 Forestry Education -A Radio Talk Given by Dr J V Hofmann over WPTF Radio

Compiled from North Carolina State University College of Natural Resources, School Forests Records, UA 140.045, Special Collections Research Center, North Carolina State University Libraries, Raleigh, North Carolina.

http://www.lib.ncsu.edu/findingaids/ua140_045#CollectionDescription

ARE THERE CARNIVOROUS PLANTS IN HOFMANN FOREST?

Are there carnivorous plants in Hofmann Forest?  It stands to reason that because carnivorous plants are known to exist  near Hofmann Forest (personal observations of Jessica Hult, Steve Malay, and John Eddy), there are probably populations in areas of similar habitat within Hofmann Forest!  Development of Hofmann Forest as depicted in the Hofmann LLC Prospectus, may endanger such populations.  This is but one of the many reasons an Environmental Assessment needs to be performed prior to this sale of public land!

Here are some photos of nearby carnivorous plants, Venus Flytraps, Pitcher Plants, and Sundews, courtesy of Jessica Hult and Steve Malay (IWLA). Location info has been intentionally removed to protect the plants!

10012590_1453521864884317_8187298_n - Copy image031 - Copy image039 - Copy image044 - Copy PIC_0924 - Copy PIC_0940 - Copy

 

 

 

 

 

 

 

 

 

Jessica Hult adds:

The NC Museum of Natural Sciences is well aware of the presence of carnivorous plants in Holly Shelter, even hosting Carnivorous plant walks— http://naturalsciences.org/programs-events/holly-shelter-carnivorous-plant-adventure & even this year– http://naturalsciences.org/programs-events/holly-shelter-lifelong-hike 

That places these plants to the east and southwest of Hofmann.  Very convincing evidence that they would exist within Hofmann, too.

Please help us Save Hofmann Forest and the important habitat it provides!

 

14-Apellee Brief (BOT) 2014.6.26 with Bookmarks and recognizable text, too

14-Apellee Brief (BOT) 2014.6.26 with Bookmarks and recognizable text, too

Full Text, automatically generated with Adobe Acrobat:

NO. COA14-311 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
FREDERICK CUBBAGE, RONALD )
W. SUTHERLAND, PHD., )
RICHARD J. “BARNEY” BERNARD, JR., )
JAMES D. GREGORY AND JOHN EDDY, )
)
Plaintiffs-Appellants, )
)
v. ) From Wake County
)
THE BOARD OF TRUSTEES OF THE )
ENDOWMENT FUND OF NORTH CAROLINA )
STATE UNIVERSITY AT RALEIGH )
and NC STATE NATURAL RESOURCES )
FOUNDATION, INC., )
)
Defendants-Appellees. )
)
***************************************
BRIEF FOR DEFENDANT-APPELLEE
THE BOARD OF TRUSTEES OF THE ENDOWMENT FUND
OF NORTH CAROLINA STATE UNIVERSITY AT RALEIGH
***************************************
INDEX
TABLE OF AUTHORITIES ……………………… iv
ISSUES PRESENTED ………………………….. 1
STATEMENT OF THE CASE ……………………… 2
STATEMENT OF THE FACTS …………………….. 4
STANDARD OF REVIEW ………………………… 7
ARGUMENT …………………………………. 8
I. THIS COURT SHOULD DISMISS
PLAINTIFFS-APPELLANTS’ APPEAL
BECAUSE PLAINTIFFS-APPELLANTS
LACK STANDING TO CHALLENGE
DEFENDANTS-APPELLEES’ SALE OF
LAND. …………………………… 8
II. THE TRIAL COURT PROPERLY
ALLOWED DEFENDANTS-APPELLEES’
MOTION TO DISMISS BECAUSE
PLAINTIFFS-APPELLANTS FAILED
TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED UNDER
THE NORTH CAROLINA
ENVIRONMENTAL POLICY ACT …………. 16
A. Defendant Endowment Fund’s
contract to sell the Hofmann
Forest does not constitute the
use of public monies …………….. 18
1. The resources used in
the execution of the
sales contract are
excluded from the
definition of public
monies …………………….. 18
-ii-
2. Charitable gifts made to
Defendant Endowment Fund
are subject to the
intent of the gift donor …….. 19
3. Assets of Defendant
Endowment Fund do not
arise from nor supplant
State appropriations ………… 21
B. Defendant Endowment Fund’s
contract to sell the Hofmann
Forest does not constitute use
of public land ………………….. 22
1. The Hofmann Forest is
not public land as
defined by SEPA …………….. 22
2. Sale of the Hofmann
Forest is not a use of
public land as defined
by SEPA ……………………. 23
C. Defendant Endowment Fund’s
contract to sell the Hofmann
Forest is not a project or
program significantly affecting
the quality of the environment
of the State ……………………. 24
III. THE TRIAL COURT PROPERLY ALLOWED
DEFENDANTS-APPELLEES’ MOTION TO
DISMISS BECAUSE PLAINTIFFSAPPELLANTS
FAILED TO STATE A CLAIM
UPON WHICH RELIEF CAN BE GRANTED
UNDER ARTICLE XIV, SECTION 5 OF
THE NORTH CAROLINA STATE
CONSTITUTION ……………………. 30
CONCLUSION ………………………………. 33
CERTIFICATE OF SERVICE ……………………. 35
-iii-
CONTENTS OF APPENDIX
Motion for Temporary Restraining Order and
Preliminary Injunction …………… App. 1-4
Denial of Temporary Restraining
Order ……………………………. App. 5
Motion for Preliminary Injunction …….. App. 6-9
Order Denying Motion for Preliminary
Injunction ……………………… App. 144
-iv-
TABLE OF AUTHORITIES
CASES
Aubin v. Susi, 149 N.C. App. 320,
560 S.E.2d 875, disc. rev. denied,
356 N.C. 610, 574 S.E.2d 474 (2002) ………. 8
Burgin v. Owen, 181 N.C. App. 511,
640 S.E.2d 427, disc. rev. denied
and appeal dismissed, 361 N.C. 425,
647 S.E.2d 98, cert. denied, 361 N.C. 690,
652 S.E.2d 257 (2007) …………………… 8
Coker v. DaimlerChrysler Corp.,
172 N.C. App. 386, 617 S.E.2d 306 (2005) ….. 9
Elliott v. Board of Equalization,
203 N.C. 749, 166 S.E. 918 (1932) ……….. 32
Hampton v. North Carolina Pulp Co.,
223 N.C. 535, 27 S.E.2d 538 (1943) ………. 11
Harris v. Pembaur, 84 N.C. App. 666,
353 S.E.2d 673 (1987) …………………… 8
In re Environmental Management Commission,
53 N.C. App. 135, 280 S.E.2d 520
(1981) (“In re E.M.C.”) …………….. 28, 29
In re Investigation of the Death of Miller,
357 N.C. 316, 584 S.E.2d 772 (2003) ……… 24
In re McKinney, 158 N.C. App. 441,
581 S.E.2d 793 (2003) ………………….. 10
In re W.L.M., 181 N.C. App. 518,
640 S.E.2d 439 (2007) ………………….. 10
Lewis v. White, 287 N.C. 625,
216 S.E.2d 134 (1975) …………… 26, 27, 28
-v-
Marriott v. Chatham Cnty.,
187 N.C. App. 491, 654 S.E.2d 13
(2007), disc. rev. denied,
362 N.C. 472, 666 S.E.2d 122 (2008) …. 11, 12
Morgan v. Nash Cnty., ___ N.C. App. ___,
735 S.E.2d 615, 2012 N.C. App. LEXIS 1369
(N.C. Ct. App. 2012), disc. rev. denied,
366 N.C. 561, 738 S.E.2d 379 (2013) ………. 9
Neuse River Foundation, Inc. v.
Smithfield Foods, Inc.,
155 N.C. App. 110, 574 S.E.2d 48
(2002), disc. rev. denied,
356 N.C. 675, 577 S.E.2d 628 (2003) …… 8, 9,
10, 11, 15
Perry v. Stancil, 237 N.C. 442,
75 S.E.2d 512 (1953) …………………… 31
State ex rel. Martin v. Preston,
325 N.C. 438, 385 S.E.2d 473 (1989) ….. 31, 32
State ex rel. Rohrer v. Credle,
322 N.C. 522, 369 S.E.2d 825 (1988) ….. 32, 33
State v. Emery, 224 N.C. 581,
31 S.E.2d 858 (1944) …………………… 31
State v. Webber, 190 N.C. App. 649,
660 S.E.2d 621 (2008) …………………… 9
State v. Williams & Hessee, 53 N.C. App. 674,
281 S.E.2d 721 (1981) ………………. 27, 28
The Town of Highlands v. Hendricks,
164 N.C. App. 474, 596 S.E.2d 440
(2004), disc. rev. denied,
359 N.C. 75, 605 S.E.2d 149 (2004) ………. 27
-vi-
Town of Midland v. Morris, 209 N.C. App. 208,
704 S.E.2d 329 (2011), disc. review
denied and appeal dismissed,
710 S.E.2d 1, 2011 N.C. LEXIS 265
(N.C. 2011) …………………………… 10
STATUTES AND CODES
N.C. Const. art. XIV, sec. 5 …………… passim
N.C.G.S. § 36E-3 (2013) …………………… 19
N.C.G.S. § 36E-3(a) (2013) ………………… 19
N.C.G.S. § 36E-4(a) (2013) ………………… 20
N.C.G.S. § 113A (2013) ………………… 11, 16
N.C.G.S. § 113A-1 (2013) ………………….. 11
N.C.G.S. § 113A-2 (2013) ………………….. 16
N.C.G.S. § 113A-4(2013) ……………. 16, 17, 27
N.C.G.S. § 113A-4(2) (2013) ……………….. 25
N.C.G.S. § 113A-8(2013) …………………… 11
N.C.G.S. § 113A-9 (2013) ………………….. 24
N.C.G.S. § 113A-9(1)(2013) ………………… 25
N.C.G.S. § 113A-9(3)(2013) ………………… 25
N.C.G.S. § 113A-9(7)(2013) ………………… 22
N.C.G.S. § 113A-9(11)(2013) ……………….. 23
N.C.G.S. § 116-36 (2013) …………………. 4,5
N.C.G.S. § 116-36(b) (2013) ……………….. 21
N.C.G.S. § 116-36(g) (2013) ………………… 4
N.C.G.S. § 116-36(m) (2013) ……………….. 19
-vii-
N.C.G.S. ch. 143 (2013) ………………. 4, 5, 6
N.C.G.S. ch. 143C (2013) …………………… 4
N.C.G.S. ch. 146 (2013) ………………. 4, 5, 6
N.C.G.S. § 162A-7 (2013) ………………….. 29
N.C.G.S. § 162A-7(c) (2013) ……………….. 29
01 NCAC 25 .0108(b)(3) (2013) ……………… 25
01 NCAC 25 .0108(b)(4) (2013) ……………… 18
01 NCAC 25 .0603 (2013) ……………….. 25, 26
N.C.R. Civ. P. 12(b)(6) …………………. 7, 8
NO. COA14-311 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
FREDERICK CUBBAGE, RONALD )
W. SUTHERLAND, PHD., )
RICHARD J. “BARNEY” BERNARD, JR., )
JAMES D. GREGORY AND JOHN EDDY, )
)
Plaintiffs-Appellants, )
)
v. ) From Wake County
)
THE BOARD OF TRUSTEES OF THE )
ENDOWMENT FUND OF NORTH CAROLINA )
STATE UNIVERSITY AT RALEIGH )
and NC STATE NATURAL RESOURCES )
FOUNDATION, INC., )
)
Defendants-Appellees. )
***************************************
BRIEF FOR DEFENDANT-APPELLEE
THE BOARD OF TRUSTEES OF THE ENDOWMENT FUND
OF NORTH CAROLINA STATE UNIVERSITY AT RALEIGH
***************************************
ISSUES PRESENTED
I. SHOULD THIS COURT DISMISS PLAINTIFFSAPPELLANTS’
APPEAL BECAUSE PLAINTIFFSAPPELLANTS
LACK STANDING TO CHALLENGE
DEFENDANTS-APPELLEES’ SALE OF LAND?
II. DID THE TRIAL COURT PROPERLY ALLOW
DEFENDANTS-APPELLEES’ MOTION TO DISMISS
BECAUSE PLAINTIFFS-APPELLANTS FAILED TO
STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED UNDER THE NORTH CAROLINA
ENVIRONMENTAL POLICY ACT?
III. DID THE TRIAL COURT PROPERLY ALLOW
DEFENDANTS-APPELLEES’ MOTION TO DISMISS
BECAUSE PLAINTIFFS-APPELLANTS FAILED TO
STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED UNDER ARTICLE XIV, SECTION 5 OF THE
NORTH CAROLINA STATE CONSTITUTION?
-2-
STATEMENT OF THE CASE
On 23 September 2013, Frederick W. Cubbage, Ronald W.
Sutherland, Richard J. “Barney” Bernard, Jr., James D. Gregory,
and Ronald E. Cox (hereinafter “Plaintiffs-Appellants”) filed a
complaint for injunctive relief and petition for declaratory
judgment against the Board of Trustees of the Endowment Fund of
North Carolina State University at Raleigh (hereinafter
“Defendant Endowment Fund”), and NC State Natural Resources
Foundation, Inc. (hereinafter “Defendant Foundation,” or
collectively referred to as “Defendants-Appellees”) in Wake
County Superior Court. (R pp 2-33)
On 23 September 2013, Plaintiffs-Appellants filed a motion
for a temporary restraining order and preliminary injunction in
Wake County Superior Court. (R S pp 1-4; App. 1-4) On 25
September 2013, Plaintiffs-Appellants’ motion for a temporary
restraining order came on in the Civil Session, Wake County
Superior Court. (R S p 5; App. 5) On 25 September 2013, the
trial court entered an order denying Plaintiffs-Appellants
motion for a temporary restraining order. (R S p 5; App. 5)
On 4 October 2013, Plaintiffs-Appellants filed a motion for
a preliminary injunction in Wake County Superior Court. (R S
pp 6-9; App. 6-9) On 7 October 2013, Defendants-Appellees filed
-3-
motions to dismiss Plaintiffs-Appellants’ complaint for
injunctive relief and petition for declaratory judgment in Wake
County Superior Court. (R pp. 41-47) On 5 November 2013,
Plaintiffs-Appellants filed a notice of voluntary dismissal of
all claims of Ronald E. Cox. (R pp. 48-49) On 5 November 2013,
Plaintiffs-Appellants filed an amended and supplemental
complaint for injunctive relief and petition for declaratory
judgment against Defendants-Appellees in Wake County Superior
Court, with John Eddy included as one of the Plaintiffs-
Appellants. (R pp. 50-131) On 7 November 2013, Defendants-
Appellees filed motions to dismiss Plaintiffs-Appellants’
amended and supplemental complaint for injunctive relief and
petition for declaratory judgment in Wake County Superior Court.
(R pp. 132-37)
On 12 November 2013, Plaintiffs-Appellants’ motion for a
preliminary injunction and Defendants-Appellees’ motions to
dismiss came on at the Civil Session, Wake County Superior
Court, the Honorable Shannon R. Joseph, presiding. (R p 1) On
19 November 2013, the trial court entered an order denying
Plaintiffs-Appellants’ motion for preliminary injunction. (R S p
144; App. 10) On 22 November 2013, the trial court entered an
-4-
order granting Defendants-Appellees’ motions to dismiss. (R pp.
138-39)
On 2 December 2013, Plaintiffs-Appellants gave notice of
appeal to this Court from the trial court order entered on 22
November 2013 “which granted the Board of Trustees of the
Endowment Fund of North Carolina State University at Raleigh and
NC State Natural Resources Foundation, Inc.’s motion to
dismiss.” (R pp 142-43) On 18 March 2014, the record on appeal
was docketed with this Court. On 23 April 2014, Plaintiffs-
Appellants filed their brief with this Court. On 21 May 2014,
Defendants-Appellees filed a motion for extension of time to
file their briefs. On 23 May 2014, this Court allowed
Defendants-Appellees’ motion. Defendants-Appellees’ brief is
due to be filed with this Court on or before 26 June 2014.
STATEMENT OF THE FACTS
Defendant Endowment Fund is an entity created pursuant to
N.C.G.S. § 116-36 for the financial support of North Carolina
State University at Raleigh. Among the statutorily authorized
powers of Defendant Endowment Fund is the power to acquire real
property. N.C.G.S. § 116-36(g) (2013). The General Statutes
specifically exempt the Endowment Fund from the provisions of
Chapters 143, 143C, and 146 of the General Statutes. Id.
-5-
On 15 December 1977, the North Carolina Forestry
Foundation, Inc. entered a deed of gift to Defendant Endowment
Fund. (R p 17) The deed gifted to Defendant Endowment Fund a
parcel of land known as the Hofmann Forest, which consisted of
82,029.87 acres located in Jones and Onslow counties in North
Carolina. (R p 17) The deed also included the following
language:
This deed is executed by party of the first part and
accepted by party of the second part upon the express
condition that:
(i) All net income of whatever kind earned by said
land and all net proceeds from the sale or other
disposition of said land shall be used solely for the
support of the School of Forest Resources of North
Carolina State University, Raleigh, North Carolina;
and (ii) the General Assembly of the State of North
Carolina shall not amend the provisions of Section
116-36 of the North Carolina General Statutes to
provide that proceeds from endowment funds for the
constituent institutions of the University of North
Carolina shall take the place of State appropriations
or any part thereof or to provide that the sale,
leasing, or other disposition of properties belonging
to any such endowment fund shall be subject to the
provisions of Chapter 143 and 146 of the North
Carolina General Statutes. In the event that any of
the foregoing conditions is not fulfilled, the party
of the first part shall have the right to re-enter and
take possession of said land, and the title thereto
shall revert to the party of the first part, its
successors or assigns by operation of law.
(R pp. 18-19)
-6-
On 15 December 1977, a contract was executed between
Defendant Endowment Fund and the North Carolina Forestry
Foundation, Inc. which stated that “[t]he Endowment Fund shall
not sell, lease, or otherwise dispose of or encumber the Hofmann
Forest, or any part thereof, without the prior written consent
of the Foundation.” (R p 21) The contract stated that:
If the net income, of whatever kind, earned by the
Hofmann Forest or the net proceeds from its sale or
other disposition, or any part of said net income or
net proceeds, is used by the Endowment Fund for any
purpose other than the support of the School of Forest
Resources of North Carolina State University at
Raleigh, Raleigh, North Carolina, or if the General
Assembly of the State of North Carolina shall amend
the provisions of Section 116-36 of the North Carolina
General Statutes to provide that proceeds from
endowment funds for the constituent institutions of
the University of North Carolina shall take the place
of State appropriations or any part thereof or to
provide that the sale, leasing, or other disposition
of properties belonging to any such endowment fund
shall be subject to the provisions belonging to any
such endowment fund shall be subject to the provisions
of Chapters 143 and 146 of the North Carolina General
Statutes, then, upon the happening of any of the
foregoing events, the Endowment Fund shall execute
such documents and take whatever other action as shall
be required to cause the title to the Hofmann Forest
to revert to the Foundation or, if said property shall
have been sold or disposed of, to cause the proceeds
of such sale or disposition to be paid over to the
Foundation.
(R p 22)
-7-
On 16 June 2008, the North Carolina Forestry Foundation,
Incorporated, filed Articles of Merger with the Department of
Secretary of State in North Carolina to change its name to NC
State Natural Resources Foundation, Inc., Surviving Corporation
and Pulp and Paper Foundation, Inc., Merged Corporation. (R p
24) That entity is now the Defendant Foundation.
On 25 October 2013, Defendant Endowment Fund entered in an
“agreement for purchase and sale of real property” with Hofmann
Forest LLC, a North Carolina limited liability company, with the
consent and joinder of Defendant Foundation for the sale of
approximately 78,902 acres known as the Hofmann Forest for a
purchase price of one hundred forty-five million eight hundred
thousand dollars ($145,800,000.00). (R pp 68-102, 68, 73)
Defendant Foundation joined the agreement for the purpose of
agreeing to release the reversion at closing. (R p 69) The
contract also states that “[r]eal estate taxes, utility charges,
personal property taxes, contracts assumed by Purchaser, and
rental payments under the Leases shall be prorated between the
parties as of the Closing.” (R pp 91-92)
STANDARD OF REVIEW
The standard of review of an order granting a 12(b)(6)
motion is whether the complaint states a claim for
which relief can be granted under some legal theory
-8-
when the complaint is liberally construed and all the
allegations included therein are taken as true. On a
motion to dismiss, the complaint’s material factual
allegations are taken as true. Dismissal is proper
when one of the following three conditions is
satisfied: (1) the complaint on its face reveals that
no law supports the plaintiff’s claim; (2) the
complaint on its face reveals the absence of facts
sufficient to make a good claim; or (3) the complaint
discloses some fact that necessarily defeats the
plaintiff’s claim. On appeal of a 12(b)(6) motion to
dismiss, this Court conducts a de novo review of the
pleadings to determine their legal sufficiency and to
determine whether the trial court’s ruling on the
motion to dismiss was correct.
Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428-29
(citations omitted), disc. rev. denied and appeal dismissed, 361
N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C. 690, 652 S.E.2d
257 (2007).
ARGUMENT
I. THIS COURT SHOULD DISMISS PLAINTIFFS-APPELLANTS’
APPEAL BECAUSE PLAINTIFFS-APPELLANTS LACK STANDING TO
CHALLENGE DEFENDANTS-APPELLEES’ SALE OF LAND.
“Subject matter jurisdiction refers to the power of the
court to deal with the kind of action in question . . . [and] is
conferred upon the courts by either the North Carolina
Constitution or by statute.” Harris v. Pembaur, 84 N.C. App.
666, 667, 353 S.E.2d 673, 675 (1987). “Standing is a necessary
prerequisite to a court’s proper exercise of subject matter
jurisdiction.” Aubin v. Susi, 149 N.C. App. 320, 324, 560
-9-
S.E.2d 875, 878, disc. rev. denied, 356 N.C. 610, 574 S.E.2d 474
(2002). See Neuse River Found., Inc. v. Smithfield Foods, Inc.,
155 N.C. App. 110, 114, 574 S.E.2d 48, 51 (2002) (Standing
“refers to whether a party has sufficient stake in an otherwise
justiciable controversy so as to properly seek adjudication of
the matter.”), disc. rev. denied, 356 N.C. 675, 577 S.E.2d 628
(2003). The three elements of standing are:
(1) “injury in fact” – an invasion of a legally
protected interest that is (a) concrete and
particularized and (b) actual or imminent, not
conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged
action of the defendant; and
(3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable
decision.
Morgan v. Nash Cnty., ___ N.C. App. ___, 735 S.E.2d 615, 619,
2012 N.C. App. LEXIS 1369 (N.C. Ct. App. 2012), disc. rev.
denied, 366 N.C. 561, 738 S.E.2d 379 (2013). “The party
invoking the trial court’s jurisdiction bears the burden of
establishing that it has standing to maintain its action.” Id.
at 619, 2012 N.C. App. LEXIS 1369, at *8. “If a party does not
have standing to bring a claim, a court has no subject matter
jurisdiction to hear the claim.” Coker v. DaimlerChrysler
Corp., 172 N.C. App. 386, 391, 617 S.E.2d 306, 310 (2005).
-10-
“It is well-established that the issue of a court’s
jurisdiction over a matter may be raised at any time, even for
the first time on appeal or by a court sua sponte.” State v.
Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008); see
also, Town of Midland v. Morris, 209 N.C. App. 208, 223, 704
S.E.2d 329, 340 (2011) (“[S]tanding is a jurisdictional issue
and this Court may raise the question of subject matter
jurisdiction on its own motion.”), disc. rev. denied and appeal
dismissed, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (N.C. 2011).
“Subject matter jurisdiction cannot be conferred by consent or
waiver, and the issue of subject matter jurisdiction may be
raised for the first time on appeal.” In re W.L.M., 181 N.C.
App. 518, 524, 640 S.E.2d 439, 443 (2007). See In re McKinney,
158 N.C. App. 441, 444, 581 S.E.2d 793, 795 (2003) (“[B]efore a
court may act there must be some appropriate application
invoking the judicial power of the court with respect to the
matter in question.”).
In Neuse River Foundation, Inc., 155 N.C. App. at 116, 574
S.E.2d at 53, the plaintiffs “contend[ed] that since each of
them either owns property adjacent to, works on, protects, or
has concern for the welfare of the rivers allegedly polluted by
defendants, they all suffer special damages to a degree
-11-
different from those suffered by the general public.” This
Court stated that “there is no North Carolina authority
supporting the contention that injury to aesthetic or
recreational interests alone, regardless of degree, confers
standing on an environmental plaintiff.” Id. See Hampton v.
North Carolina Pulp Co., 223 N.C. 535, 542, 27 S.E.2d 538, 543
(1943) (emphasizing the difference between injury to a fishery
business owner, who has standing in an action opposing the
proposed location of a bridge on the river, and recreational
anglers, who do not). This Court held that “[t]he environmental
river associations, riverkeepers, and recreational fishermen,
therefore, do not have standing to maintain an action against
defendants under the circumstances alleged.” Id.
In Marriott v. Chatham Cnty., 187 N.C. App. 491, 492, 654
S.E.2d 13, 14 (2007), disc. rev. denied, 362 N.C. 472, 666
S.E.2d 122 (2008), the plaintiffs-appellants were “landowners in
Chatham County whose properties [were] adjacent to several large
tracts of land proposed for residential development along the
banks of the Haw River.” The plaintiffs-appellants brought suit
to enjoin the development of the property until the county
amended ordinances which were established to comply with
N.C.G.S. § 113A-1 and N.C.G.S. § 113A-8, and which stated:
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Pursuant to Chapter 113A of the North Carolina
General Statutes, the Planning Board may require the
subdivider to submit an environmental impact statement
with the preliminary plat if the development exceeds
two acres in area, and if the Board deems it necessary
for responsible review due to the nature of the land
to be subdivided, or peculiarities in the proposed
layout.
Marriott, 187 N.C. App. at 493, 654 S.E.2d at 15. The
defendants filed a motion to dismiss on the grounds that the
plaintiffs-appellants lacked standing and that they failed to
state a claim upon which relief can be granted. Id. The trial
court entered an order dismissing the plaintiffs-appellants’
claims for “lack of subject matter jurisdiction and for failure
to state a claim upon which relief can be granted.” Id. at 493-
94, 654 S.E.2d at 16. The plaintiffs-appellants appealed, and
contended that “the trial court erred in dismissing their
complaint on the grounds of lack of subject matter
jurisdiction.” Id. This Court held “that plaintiffs lacked
standing to bring their claims and that the trial court properly
granted defendants’ and defendants-intervenors’ motions to
dismiss.” Id. at 496, 654 S.E.2d at 17. Here, Plaintiffs-
Appellants alleged that:
2. Plaintiff Frederick Cubbage, Ph.D is a citizen
and resident of Wake County, North Carolina, and is a
tenured Professor in the Department of Forestry and
Environmental Resources at North Carolina State
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University. Professor Cubbage uses cases from the
Hofmann Forest continually as examples for sustainable
forest management and to illustrate the practice of
professional forestry and natural resources in his
classes in natural resource policy and forest
economics at North Carolina State University, and is
the former Department Head of the Department of
Forestry at NCSU, from 1994 to 2004. He has been to
Hofmann State Forest roughly twenty times, and has
supervised a Master’s student whose research work was
done on economically optimal timber management regimes
on at the State Hofmann Forest. He has written
frequently this year about practicing what we teach
about sustainability, and the land ethic we will
convey by retaining the State Hofmann Forest.
3. Plaintiff Ronald Sutherland, is a citizen and
resident of Durham County, North Carolina, a graduate
of NCSU, and holds his Ph.D degree from Duke
University’s Nicholas School of the Environment. He
is a conservation scientist for the Wildlands Network,
a national non-governmental organizational dedicated
to the preservation of large tracts of uninterrupted
forest like Hofmann State Forest. Mr. Sutherland has
spent years researching habitat connectivity in the
coastal plain of North Carolina and other adjacent
southern states, and is familiar with the ecological
and conservation importance of Hofmann Forest.
4. Plaintiff Richard J. “Barny” Bernard, Jr. is a
citizen and resident of Durham County, North Carolina,
is a North Carolina registered professional consulting
forester, and is the former president of both The
North Carolina Forestry Foundation, Inc. and the NC
State Natural Resources Foundation, Inc. (the latter
being a defendant in this matter). Mr. Bernard was
responsible for the leadership and direction of the
Hofmann State Forest in both of those latter
positions.
5. Plaintiff James D. Gregory, Ph.D is a citizen and
resident of New Hanover County, North Carolina, and is
a Professor Emeritus of the Department of Forestry and
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Environment at North Carolina State University.
Professor Gregory has had a close association with the
Hofmann State Forest for over fifty (50) years as a
student and faculty member of the Department of
Forestry and Environmental Resources at NCSU, and
taught forest hydrology, performed research, and
taught hydrology and wetlands courses to professional
managers on the State Hofmann Forest.
6. Plaintiff John Eddy is a citizen and resident of
Jones County who uses the Hofmann State Forest and the
rivers emanating from the Hofmann State Forest, for
outdoor recreation and is the owner of two tracts of
nearby land that will be affected by the sale of
Hofmann State Forest and its conversion to corporate
investment property. Mr. Eddy’s connection to the
Forest and the impacts of the sale on Mr. Eddy, as
well as impacts upon the Eastern North Carolina
environment, are more fully described in the Affidavit
of John Eddy, which is attached as Exhibit B, and
incorporated herein by reference.
(R pp 50-52)
Plaintiffs-Appellants have failed to establish that they
possess standing to bring their claims against Defendants-
Appellees. Plaintiffs-Appellants have failed to establish that
they possess an injury in fact, either by means of a legally
protected interest that is concrete and particularized, or one
that is actual and imminent. None of Plaintiffs-Appellants
articulate a legally protected interest, and the potential
injuries theorized by Plaintiff-Appellants represent generalized
fears based on speculation, rather than fact. Plaintiffs-
Appellants have also failed to establish that they possess an
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injury that is fairly traceable to the challenged action of
Defendants-Appellees. No evidence exists that the sale
transaction of the Hofmann Forest will result in any injury to
any Plaintiff-Appellant. Plaintiffs-Appellants likewise failed
to establish that the injury will be redressed by a favorable
decision. A favorable decision in this case does not foreclose
Plaintiff-Appellants’ unfounded, feared outcomes for the future
of the Hofmann Forest. Finally, like the plaintiffs in Neuse
River Foundation, Inc., Plaintiffs-Appellants failed to
establish that their use of the Hofmann Forest rose to a level
beyond aesthetic or recreational use. See 155 N.C. App. at 116,
574 S.E.2d at 53 (stating that “there is no North Carolina
authority supporting the contention that injury to aesthetic or
recreational interests alone, regardless of degree, confers
standing on an environmental plaintiff”).
Plaintiffs-Appellants have failed to satisfy their burden
of establishing their standing to bring claims under the North
Carolina Environmental Policy Act or Article XIV, Section 5 of
the North Carolina State Constitution. As a result, Plaintiffs-
Appellants possess neither standing nor subject matter
jurisdiction to bring these claims against Defendants-Appellees,
and this Court should dismiss this appeal.
-16-
II. THE TRIAL COURT PROPERLY ALLOWED DEFENDANTS-APPELLEES’
MOTION TO DISMISS BECAUSE PLAINTIFFS-APPELLANTS FAILED
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
UNDER THE NORTH CAROLINA ENVIRONMENTAL POLICY ACT.
Plaintiffs-Appellants argue that the trial court erred when
it allowed Defendants-Appellees’ motion to dismiss because
Plaintiffs-Appellants stated a claim upon which relief can be
granted under the North Carolina Environmental Policy Act
(“SEPA”). Plaintiffs-Appellants’ argument is without merit.
Chapter 113A, Article 1 of the General Statutes establishes
SEPA. Pursuant to N.C.G.S. § 113A-2 (2013), a purpose of SEPA
is “to require agencies of the State to consider and report upon
environmental aspects and consequences of their actions
involving the expenditure of public moneys or use of public
land.” In furtherance of that purpose, under N.C.G.S. § 113A-4
(2013),
The General Assembly authorizes and directs that, to
the fullest extent possible:
. . . .
(2) Every State agency shall include in every
recommendation or report on any action involving
expenditure of public moneys or use of public land for
projects and programs significantly affecting the
quality of the environment of this State, a detailed
statement by the responsible official setting forth
the following:
a. The environmental impact of the proposed action;
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b. Any significant adverse environmental effects which
cannot be avoided should the proposal be implemented;
c. Mitigation measures proposed to minimize the
impact;
d. Alternatives to the proposed action;
e. The relationship between the short-term uses of the
environment involved in the proposed action and the
maintenance and enhancement of long-term productivity;
and
f. Any irreversible and irretrievable environmental
changes which would be involved in the proposed action
should it be implemented.
In other words, a detailed environmental statement is only
required where a State agency is taking an action involving the
expenditure of public monies or use of public land for a project
or program significantly affecting the environment.
Here, the trial court properly denied Defendants-Appellees’
motion to dismiss because Plaintiffs-Appellants failed to state
a claim upon which relief can be granted under SEPA because
Defendant Endowment Fund’s contract to sell the Hofmann Forest
(1) does not constitute the use of public monies; (2) does not
constitute the use of public land; and (3) does not involve a
project or program significantly affect the quality of the
environment of the State. The trial court properly dismissed
-18-
Plaintiffs-Appellants’ claim. This Court should affirm the
trial court’s order.
A. Defendant Endowment Fund’s contract to sell
the Hofmann Forest does not constitute the
use of public monies.
1. The resources used in the
execution of the sales contract
are excluded from the definition
of public monies.
The North Carolina Administrative Code provides guidance as
to the scope of “public monies” as used in SEPA. 01 NCAC 25
.0108 (b)(4) states:
(4) “Public monies” includes all expenditures in
support of the proposed activity by federal, state or
local or quasi-public entities from whatever source
derived, but does not include resources used solely
for processing a license, a certificate, or a permit;
the lending of credit; or the resources used for the
provision of technical services.
(emphasis added).
SEPA does not apply to Defendant Endowment Fund’s contract
to sell the Hofmann Forest because the resources used to
consummate that transaction are excluded under this definition.
Closing costs and other administrative costs are resources used
solely in processing the sales contract, and are more closely
akin to resources used for processing a license, a certificate,
a permit, for the lending of credit, or for technical services.
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The use of resources for these closing costs and administrative
costs does not constitute the use of public monies by Defendant
Endowment Fund.
2. Charitable gifts made to Defendant
Endowment Fund are subject to the
intent of the gift donor.
In recognition of the fact that university endowment funds
such as Defendant Endowment Fund exist exclusively for a
charitable purpose to receive private gifts, the Uniform Prudent
Management of Institutional Funds Act (“UPMIFA”) of Chapter 36E
of the General Statutes applies to the endowment funds of the
University of North Carolina system. N.C.G.S. § 116-36(m)
(2013). UPMIFA establishes the standard of conduct for board
members and officers of endowment funds, as well as restrictions
on the expenditure of endowment fund monies. In this way, the
assets of endowment funds such as Defendant Endowment Fund are
unique from the assets of other State entities that may be
subject to SEPA.
“Subject to the intent of a donor expressed in a gift
instrument, an institution, in managing and investing an
institutional fund, shall consider the charitable purposes of
the institution and the purposes of the institutional fund.”
N.C.G.S. § 36E-3(a) (2013).
-20-
“Subject to the intent of a donor expressed in the gift
instrument, an institution may appropriate for expenditure or
accumulate so much of an endowment fund as the institution
determines is prudent for the uses, benefits, purposes, and
duration for which the endowment fund is established.” N.C.G.S.
§ 36E-4(a) (2013). “Unless stated otherwise in the gift
instrument, the assets in an endowment fund are donor-restricted
assets until appropriated for expenditure by the institution.”
Id. (emphasis added)
In other words, pursuant to UPMIFA, gifts to Defendant
Endowment Fund are restricted to a specified gift purpose, and
cannot be expended unconditionally by Defendant Endowment Fund.
The donor can designate the gift’s use, and Defendant Endowment
Fund’s use of the gifted property is subject to the intent of
the donor. Unlike the assets of other State entities, which may
be expended for any authorized public purpose, assets of
Defendant Endowment Fund may only be expended in conformity with
the gift instrument. Failure on the part of Defendant Endowment
Fund to abide by the donor-imposed restrictions would result in
a violation of UPMIFA and possible reversion under the gift
instrument. As a result of this restriction, the charitablydonated
assets of Defendant Endowment Fund cannot be considered
-21-
public monies for the purpose of SEPA. To hold otherwise could
result in a profound chilling effect on private gifts made to
the endowment funds for the support of the University of North
Carolina system.
3. Assets of Defendant Endowment Fund
do not arise from nor supplant
State appropriations.
N.C.G.S. § 116-36(b) (2013) states, in pertinent part:
It is not the intent of this section that the
proceeds from any endowment fund shall take the place
of State appropriations or any part thereof, but it is
the intent of this section that those proceeds shall
supplement the State appropriations to the end that
the institution may improve and increase its
functions, may enlarge its areas of service, and may
become more useful to a greater number of people.
The assets of Defendant Endowment Fund are not public
monies because they arise from private charitable gifts, not
State appropriations, and are used only to supplement, and not
supplant, State appropriations. Again, in this respect,
Defendant Endowment Fund is distinct from those State entities
that may indeed trigger the application of SEPA through their
expenditures. To hold otherwise ignores the purpose for the
creation of UNC system endowment funds such as Defendant
Endowment Fund.
-22-
Plaintiffs-appellants failed to establish that public
monies will be expended in the execution of the sales contract
between Defendant Endowment Fund and Hofmann Forest LLC. The
trial court properly dismissed Plaintiffs-Appellants’ claims.
This Court should affirm the trial court’s order.
B. Defendant Endowment Fund’s contract to sell
the Hofmann Forest does not constitute use
of public land.
1. The Hofmann Forest is not public
land as defined by SEPA.
For the purposes of SEPA, the General Statutes define
“public land” as “all land and interests therein, title of which
is vested in the State of North Carolina, in any State agency,
or in the State for the use of any State agency or political
subdivision of the State, and includes all vacant and
unappropriated land, swampland, submerged land, land acquired by
the State by virtue of being sold for taxes, escheated land, and
acquired land.” N.C.G.S. § 113A-9(7) (2013).
This definition does not apply to the Hofmann Forest. When
the North Carolina Forestry Foundation, Inc., now Defendant
Foundation, a private, non-profit corporation, deeded the
Hofmann Forest to Defendant Endowment Fund, it retained a
reversionary interest in the property. (R p 21) Defendant
-23-
Endowment Fund’s title to the Hofmann Forest is therefore
encumbered by that private party’s reversionary interest, and as
a result the Hofmann Forest is not “public land” as defined by
SEPA.
2. Sale of the Hofmann Forest is not
a use of public land as defined by
SEPA.
SEPA defines the “use of public land” as follows:
(11) “Use of public land” means activity that results
in changes in the natural cover or topography that
includes:
a. The grant of a lease, easement, or permit
authorizing private use of public land; or
b. The use of privately owned land for any project or
program if the State or any agency of the State has
agreed to purchase the property or to exchange the
property for public land.
N.C.G.S. § 113A-9(11) (2013).
Applying this definition, no use of public land has
occurred by the execution of a contract for the sale of land.
The execution of a contract for sale does not result in a change
to the natural cover or topography of the Hofmann Forest.
Further, the execution of a contract for the sale of land is not
a “grant of a lease, easement, or permit authorizing private
use” of the land. While Plaintiffs-Appellants would like this
Court to insert the word “sale” into the plain language of this
-24-
definition, in adopting SEPA the General Assembly specifically
enumerated the uses that would trigger SEPA and excluded the
sale of land. See In re Investigation of the Death of Miller,
357 N.C. 316, 325, 584 S.E.2d 772, 780 (2003) (“Under the
doctrine of expressio unius est exclusio alterius, when a
statute lists the situations to which it applies, it implies the
exclusion of situations not contained in the list.”) (citations
omitted). Thus, the sale of the Hofmann Forest is not a “use of
a public land” as defined in N.C.G.S. § 113A-9 and does not
trigger the requirements of SEPA. The trial court properly
dismissed Plaintiffs-Appellants’ claims and this Court should
affirm the trial court’s order.
C. Defendant Endowment Fund’s contract to sell
the Hofmann Forest is not a project or
program significantly affecting the quality
of the environment of the State.
The sale of the Hofmann Forest is not a “project or
program” that would have an environmental impact, because there
is no “project or program” at all. The action in question is a
transaction for the sale of real property and there are no
environmental impacts associated with a transfer of title to a
parcel of land. Presumably this is the very reason the sale of
-25-
property was specifically not included in the definition of “use
of public land,” as discussed supra.
“‘Environmental assessment’ (EA) means a document prepared
by a State agency to evaluate whether the probable impacts of a
proposed action require the preparation of an environmental
impact statement under this Article.” N.C.G.S. § 113A-9(1)
(2013). “‘Environmental impact statement’ (EIS) means the
detailed statement described in G.S. 113A-4(2).” N.C.G.S. §
113A-9(3) (2013).
01 NCAC 25 .0108(b)(3) (2013) states:
(b) For the purpose of this Chapter:
….
(3) “Environmental effect” includes direct,
indirect, and cumulative impacts for the
project or program that may be significant,
depending upon the manner in which the
activity is carried out.
01 NCAC 25 .0603 (2013) established the requirement for format
and content of the environmental impact statement, and stated
that the document shall include:
(6) Environmental Consequences. This section of the
document shall form the scientific and analytic basis
for the comparisons under Item (4) of this Rule. It
shall include:
(a) direct effects and significance;
-26-
(b) indirect effects and significance;
(c) cumulative effects and significance;
(d) the relationship between the short-term uses of
the environment involved in the proposed action and
the maintenance and enhancement of long-term
productivity;
(e) any irreversible and irretrievable environmental
changes which would be involved in the proposed action
should it be implemented; and
(f) possible conflicts between the proposed activities
and the objectives of federal, state, and local plans,
policies, and controls for the affected area.
In Lewis v. White, 287 N.C. 625, 216 S.E.2d 134 (1975),
citizens and taxpayers of the State filed a complaint seeking to
enjoin the Art Museum Building Commission and others from
constructing an art museum at the Polk Prison site in Wake
County. The plaintiffs alleged that the Commission had failed
to comply with the Environmental Policy Act by filing an EIS as
required by that Act. Id. The Court upheld the trial court’s
dismissal of this claim and noted:
Nothing in this Act makes the filing of such
statement a condition precedent to the commencement of
construction of a building for which State funds have
been appropriated. Furthermore, the complaint does
not purport to state any respect in which the
construction of an art museum at the present site of
the Polk Prison could adversely affect the environment
of the State or its natural beauty or the beneficial
use of its natural resources. It is perfectly obvious
that, nothing else appearing, the substitution of an
-27-
art museum for a prison will not adversely affect the
environment.
In the absence of any allegation in the complaint as
to how such proposed substitution could adversely
affect ‘the quality of the environment of the State,’
we find no error in the conclusion and order of the
Superior Court dismissing Claim No. 9.
Id. at 639-40, 216 S.E.2d at 143-44. See also The Town of
Highlands v. Hendricks, 164 N.C. App. 474, 483, 596 S.E.2d 440,
447 (2004) (holding that “[t]he obtaining of an environmental
impact study was not a prerequisite to the commencement of
condemnation proceedings in this matter, even if the Department
of Transportation initiated the condemnation proceedings”),
disc. rev. denied, 359 N.C. 75, 605 S.E.2d 149 (2004).
In State v. Williams & Hessee, 53 N.C. App. 674, 281 S.E.2d
721 (1981), the State instituted condemnation proceedings
against the defendants. The trial court stated that “the filing
of an Environmental Impact [Statement] is not a prerequisite to
the acquisition of land by condemnation.” Id. at 678, 281
S.E.2d at 725. The defendant appealed to this Court, and argued
that “the State had no authority to condemn the lands at issue
without first filing an Environmental Impact Statement (EIS) as
required by G.S. 113A-4.” Id. at 677, 281 S.E.2d at 724. While
this Court determined that the defendants waived the issue of
-28-
whether the State was required to file an environmental impact
statement, this Court also found that the State was not required
to file an environmental impact statement. Id.
Here, the execution of the contract for sale of land
between Defendant Endowment Fund and Hofmann Forest LLC did not
affect, or significantly affect, the quality of the environment
of the State. Nothing affects the quality of the environment of
the State by the execution of a contract for the sale of land.
The purpose of an environmental impact statement is
inconsequential where the contract is for the sale of land
because there are no environmental consequences to assess.
Rather, the sale of land is more closely akin to condemnation
proceedings or construction of a building where neither the
condemnation proceeding nor the construction project in itself
affects the environment. See Lewis, 287 N.C. at 639-40, 216
S.E.2d at 143-44; Williams & Hessee, 53 N.C. App. at 674, 281
S.E.2d at 721.
Plaintiffs-Appellants’ reliance on In re Environmental
Management Commission, 53 N.C. App. 135, 280 S.E.2d 520 (1981)
(“In re E.M.C.”), is misplaced. In In re E.M.C., this Court
determined “whether the issuance of a certificate authorizing
acquisition of land for the construction of a reservoir
-29-
constitutes . . . a ‘recommendation or report on proposals for
legislation and actions involving expenditure of public moneys
for projects and programs significantly affecting the quality of
the environment.’” 53 N.C. App. at 141, 280 S.E.2d at 525
(citations omitted). This Court reviewed the authority of the
Environmental Management Commission under N.C.G.S. § 162A-7,
which is to “issue certificates only to projects which it finds
to be consistent with the maximum beneficial use of the water
resources in the State.” Id. at 142, 280 S.E.2d at 525. This
Court determined that “[w]hen G.S. 162A-7(c) is read in
conjunction with the North Carolina’s Environmental Policy Act,
it becomes apparent that certification action by the Commission
is State action which, if it significantly affects the
environment, necessitates an impact statement.” Id. at 143, 280
S.E.2d at 526. The effect of the execution of a contract for
the sale of land is inherently different than the certificate at
issue in In re E.M.C. authorizing the acquisition of land for
the construction of a reservoir, which would affect the water
resources of the State. In the case of the latter, a specific
“project or program” existed – the construction of a reservoir –
which was authorized by the issuance of the certificate and
would significantly affect the environment. Again, no “project
-30-
or program” exists in the case of the sale in question here, and
no environmental effects will occur. Plaintiffs-Appellants’
argument is without merit. This trial court properly dismissed
Plaintiffs-Appellants’ claims and this Court should affirm the
trial court’s order.
III. THE TRIAL COURT PROPERLY ALLOWED DEFENDANTS-APPELLEES’
MOTION TO DISMISS BECAUSE PLAINTIFFS-APPELLANTS FAILED
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
UNDER ARTICLE XIV, SECTION 5 OF THE NORTH CAROLINA
STATE CONSTITUTION.
Plaintiffs-Appellants argue that the trial court erred when
it allowed Defendants-Appellees’ motion to dismiss because
Plaintiffs-Appellants stated a claim upon which relief can be
granted under Article XIV, Section 5 of the North Carolina State
Constitution. Plaintiffs-Appellants’ argument is without merit.
Article XIV, Section 5 of the North Carolina State
Constitution states:
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.
-31-
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.
“Issues concerning the proper construction of the Constitution
of North Carolina ‘are in the main governed by the same general
principles which control in ascertaining the meaning of all
written instruments.’” State ex rel. Martin v. Preston, 325
N.C. 438, 449, 385 S.E.2d 473, 478 (1989) (quoting Perry v.
Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953)).
The will of the people as expressed in the
Constitution is the supreme law of the land. In
searching for this will or intent all cognate
provisions are to be brought into view in their
entirety and so interpreted as to effectuate the
manifest purposes of the instrument. The best way to
ascertain the meaning of a word or sentence in the
Constitution is to read it contextually and to compare
it with other words and sentences with which it stands
connected.
State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944)
(citations omitted). “In interpreting our Constitution — as in
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interpreting a statute — where the meaning is clear from the
words used, we will not search for a meaning elsewhere.”
Preston, 325 N.C. at 449, 385 S.E.2d at 478 (citing Elliott v.
Bd. of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 920-21
(1932)).
Here, Article XIV, Section 5 of the North Carolina
Constitution authorizes the State and its political subdivisions
to preserve property; it does not prohibit the sale of property,
particularly property which is owned by an endowment fund and is
subject to a reversionary interest. Furthermore, the second
paragraph of Article XIV, Section 5 of the North Carolina
Constitution shows that the stated policy of conservation is to
be advanced by the dedication of lands through legislative
action, not by authorizing private individuals to contest
actions taken by statutorily-created endowment funds, whose
decisions the General Assembly has entrusted to the sound
discretion of the boards of trustees.
Plaintiffs-Appellants cite State ex rel. Rohrer v. Credle,
322 N.C. 522, 369 S.E.2d 825 (1988), in support of their
contention that the Constitution forbids Defendants-Appellees’
sale of the Hofmann Forest. Credle does not support Plaintiffs-
Appellants, however, because the Supreme Court in Credle did not
-33-
recognize a private cause of action in Article XIV, Section 5.
Rather, the Court merely observed this constitutional provision
reflects the “endorsement” by the people of North Carolina of
the public policy behind legislative actions regulating the
fishing of oyster bottoms. Id. at 532, 369 S.E.2d at 831. In
Credle, the constitutional mandate of “the conservation and
protection of public lands and waters for the benefit of the
public” assisted the Court in reaching its conclusion that a
private party could not acquire, by prescription, exclusive
rights to harvest oyster bottoms in North Carolina’s coastal
waters. Id.
Article XIV, Section 5 of the North Carolina Constitution
does not create a private right of action. Therefore,
Plaintiffs-Appellants have not stated a claim under this
provision upon which relief can be granted. The trial court
properly dismissed Plaintiffs-Appellants claims. This Court
should affirm the trial court’s order.
CONCLUSION
For the foregoing reasons, Defendants-Appellees
respectfully request that this Court dismiss Plaintiffs-
Appellants’ appeal, or affirm the trial court’s order.
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Respectfully submitted this the 26th day of June, 2014.
Roy Cooper
ATTORNEY GENERAL
Electronically Submitted
Catherine F. Jordan
Assistant Attorney General
State Bar No. 34030
cjordan@ncdoj.gov
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 716-66920
Facsimile: (919) 716-6764
Attorney for Defendant-Appellee
The Board of Trustees of the
Endowment Fund of North Carolina
State University at Raleigh
-35-
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day served the foregoing
BRIEF FOR DEFENDANT-APPELLEE THE BOARD OF TRUSTEES OF THE
ENDOWMENT FUND OF NORTH CAROLINA STATE UNIVERSITY AT RALEIGH
upon Plaintiffs-Appellants by placing a copy of same in the
United States Mail, first class postage prepaid, addressed to
the attorney of record as follows:
James L. Conner II
Ragsdale Liggett, PLLC
P.O. Box 31507
Raleigh, N.C. 27622-1507
Counsel for Plaintiffs-Appellants
This the 26th day of June, 2014.
Electronically Submitted
Catherine F. Jordan
Assistant Attorney General
CONTENTS OF APPENDIX
Motion for Temporary Restraining Order and
Preliminary Injunction ………………………….. App. 1
Denial of Temporary Restraining Order ……………….. App. 5
Motion for Preliminary Injunction …………………… App. 6
Order Denying Motion for Preliminary Injunction …….. App. 144
-App. 1-
-1-
l3CVfl t 288~· ..
FILED STATE OF NORTH CAROLINA IN Tim GENERAL COURT OF nJSTICE
! SUPERIOR COURT DIVISION
.COUNTY OF WAKE tn8 Sff 2 3 rlf ): 38 ‘ FILE NO. 13 ·cvs
FREDERICK CUBBAGg, R~~9 R ‘: •1 C ~S.C.
COX, RONALD W. SUTHEREAND;:~~·-·
RICHARD J. “BARNY” BERNARD, JR,., )
JAMES D. GREGORY, )
Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE
ENDOWMENT FUND OF NORTH
CAROLINA STATE UNIVERSITY AT
RALEIGH AND NC STATE NATURAL
. RESOURCES FOUNDATION, INC.,
Defendants.
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MOTION FOR TEMPORARY
RESTRAINING ORDER
… and
PRELIMINARY INJUNCTION
NOW COME Plaintiffs Frederick Cubbage, Ronald E. Cox, Ronald W. Sutherland, PhD,
Richard J. “Barny” Bernard, Jr., and James D. Gregory, (”Plaintiffs”) to move the Court,
pursuant to Rule 65 of the North Carolina Rules of Civil Procedure, N.C. Gen. Stat. § 1-485 and
150B-48, and Local Rule 14, to grant a Stay and Temporary Restraining Order, to remain in
effect until a hearing is had on a preliminary injunction. Plaintiffs further move for a preliminary
injUnction to remain in effect until a final judgment has been entered in this matter. In support of
this Motion, Plaintiffs shows the Court as follows:
1. The allegations of the verified Complaillt for Injunctive Relief and Petition for
Declaratory Judgment are incorporated herein by reference.
2. Hofmann State Forest is the largest parcel of state owned public land in the state
of North Carolina. It has been maintained since the first half of the twentieth
century as a working forest, providing educational opportunities for forestry and
environmental studies students at North Carolina State University, recreational
315200vl
-App. 2-
3l5200vl
-2-
opportunities for North Carolina residents (especially residents of Onslow and
Jones counties), and exceptional wildlife habitat. The Forest was founded by
Professor Julius Hofmann as a legacy for the people of North Carolina, and
especially, students and professors at NCSU. The forest has been maintained by a
series of foundations with the intent of its being ~ enduring legacy to the people
of North Carolina and to the wildlife of eastern North Carolina.
3. The Defendants have decided, in a series of closed meetings, to sell Hofinann
State Forest into private hands.
4. The legally required procedures for the sale of Hofmann State Forest, including
compliance with the North Carolina Environmental Policy Act, have not been
followed and the sale is imminent.
5. The sale of this property is in violation of the North Carolina Constitution, Article
XIV, Section 5.
6. Plaintiffs will suffer irreparable harm unless the sale is enjoined. Once the sale
occurs, no relief this court can grant will be adequate to address the hann.
7. The status quo should be preserved until this Court can determine whether the
sale violates the law and Constitution ofNorth Carolina.
8. Plaintiffs have shown in their Complaint abundant probable cause for this Court
to believe that Plaintiffs are likely to prevail on the merits.
WHEREFORE, Plaintiffs move the Court for the following relief:
a. A temporary restraining order restraining Defendants from selling Hofinann
Forest until tile hearing of the motion for preliminary injunction;
b. A preliminary injunction restraining Defendants from selling Hofmann Forest
-2-
-App. 3-
315200vl
-3-
until the hearing of the issues in this case. on the merits and decision thereof;
c. Such other and further relief as this Court deems just an,d proper.
This the 23rd day of sq)tember. 2013.
By:
-3-
~zs=- J~.–
N.C. Bar No. 12365
RAGSDALE LIGGE1T PLLC
2840 PUiza Place, Suite 400
P.O. Box 31507 (27622-1507)
Raleigh, NC 27612
Phone: (919) 787-5200
Fax: (919) 78.3-8991
Email: iconner@rl-law.com
Counsel for Plaintiffs
-App. 4-
-4-
CERTIFICATE OF SERVICE
The Undersigned attorney hereby certifies that on this the 23rd day Df September, 2013, a
copy of the. foregoing MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION has been duly served upon all parties to this action by U.S.
mail addressed to the following:
315200vl
Katherine A. Murphy
Assistant Attorney General
N.C. Department of Justice
P.O. Box629
Raleigh, NC 27602-0629
Counsel for Defendants
By:
-App. 5-
STATE OF NORTH CAROLINA
COUNTY OF WAKE
FREDERICK W. CUBBAGE, RONALD : -.:)
W. SUTHERLAND, PhD, RICHARD·J. )
“BARNEY”‘ BERNARD, JR., JAMB~ D. )
GREGORY and RONALD E. COX, )
Plaintiffs, )
v.
THE BOARD OF TRUSTEES OF THE
ENDOWMENT FUND OF NORTii
CAROLINA STATE UNIVERSITY AT
RALEIGH; and NC STATE NATURAL
RESOURCES FOUNDATION, INC.,
· Defendants.
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-5-
. . -:. ~ . . ”
rN:Tiffi GENERAL COURT OF nJSTICE
~:.: .. : ~·~~~~:~~~Js~Jri?f
, .
• , .1.,
DENIAL OF
TEMPORARY RESTRAINING ORDER
Tms MATI’ER coming on to be heard before the undersigned on plaintiffs’ motion for
~
temporary restraining order on 25 September 2013;
AND ALLP ARTIES being present, and the Court having heard from all parties and considered
all matters of record;
AND IT APPEARING to the Collrt that plaintiffs have failed to show that they are entitled to
a temporary restraining order;
Now, THEREFORE, plaintiffs motion for temporary restraining order is hereby DENIED.
This, the 25th day of September, 2013.
Superior Court Judge Presiding
-App. 6-
~w
_STATE OF NoRTH CAR0
0
LINA
ell. 3′ c._
cotiNWlb\:t-i1~ · ·v ‘··” c s c • . , -cc,\~ \ !• • •
FREDtm’CtC’CUBBAGE,
RONALD W. S~PhD,.
RICHA!t9 J; “B’A.RNY”‘ BERNARD, JR.,
JAMES D. GREGORY, and
RONALD E. COX,
Plaintiffs,
v.
THE BOARD OF TRUSTEES OF Tim
ENDOWMENT FUND OF NORTH
CAROLINA STATE UNIVERSITY AT
RALEIGH AND NC STATE NATURAL
RESOURCES FOUNDATION~ INC.,
Defendants.
-6-
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IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DMSION
FILENO. 13 CVS 12884
MOTION FOR PRELIMINARY
INJUNCTION
NOW COME Plaintiffs Frederick Cubbage, Ronald E. Cox, Ronald W. Sutherland, PhD,
Richard J. “Barny” Bernard, Jr., and James D. Gregory, (”Plaintiffs”) to move the Court,
pursuant to Rule 65 of the North Carolina Rules of Civil Procedure, N.C. Gen. Stat. §1485 and
150B-48, and Local Rule 14, to grant a preliminary injunction to remain in effect until a final
judgment has been entered in this matter. In support of this Motion, Plaintiffs shows the Court
as follows:
316203vl
1. The allegations of the verified Complaint for Injunctive Relief and Petition for
Declaratory Judgment are incorporated herein by reference.
2. Hofinann State Forest is the largest parcel of state owned public land in the state
of North Carolina. It has been maintained since the first half of the twentieth
century as a working forest, providing educational opportunities for forestry and
environmental studies students at North Carolina State University, recreational
-App. 7-
316203vl
-7-
opportunities for North Carolina residents (especially residents of Onslow and
Jones counties), and exceptional wildlife habitat. The Forest was founded-’by
Professor Julius Ho:finann as a legacy for the people of North. Carolina, and
especially, students and professors at NCSU. The forest has been maintained by a
series of foundations with the intent of its being an enduring legacy to the people
ofNorth Carolina and to the wildlife of eastern North Carolina.
3. The Defendants have decided, in a series of closed meetings, to sell Hofinann
State Forest into private hands.
4. The legally required procedures for the sale of Hofmann State Forest, ilicluding
compliance with the North Carolina Environmental Policy Act, have not been
followed.
5. The sale of this property is in violation of the North Carolina Constitution, Article
XIV, Section 5.
6. Plaintiffs will suffer irreparable harm unless the sale is enjoined. Once the sale
occurs, no relief this court can grant will be adequate to address the harm.
7, The status quo should be preserved until this Court can detennine whether the
sale violates the law and Constitution ofNorth Carolina.
8. Plaintiffs have shown in their Complaint abundant probable cause for this Court
to believe that Plaintiffs are likely to prevail on the merits.
WHEREFORE, Plaintiffs move the Court for the following relief:
a. A preliminary injunction restraining Defendants from selling Ho.finann Forest
until the hearing of the issues in this case on the merits and decision thereof;
b. Such other and further relief as this Court deems just and proper.
-2-
-App. 8-
This the 4th day of October, 2013.
316203vl
-8-
By: ~L,~.,-~T
c;i8Dles L. Conner ll 5;-’Ji’
. ~ 3-
N.C. Bar No. 12365
RAGSDALE LIGGEIT PLLC
2840 Plau Place, Suite 400
P.O. Box 31507 (27622~1507)
Raleigh, NC 27612
Phone: (919) 787-5200
Fax: (919) 783-8991
Email: jconner@rl-law.com
Counsel for Plaintijfo
-App. 9-
-9-
CERTDqCATEOFSERVICE
· ‘fhe undersigned attorney hereby certifies that on this the 4th day of October, 2013, a copy
of the foregoing MOTION FOR PRELIMINARY INJUNCTION bas been duly served upon
all parties to this action by U.S. mall addressed to thefollowmg:
316203vl
Katherine A. Murphy
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629 .
Raleigh, NC 27602-0629
Counsel for Defendant The Board ofTrustees ofthe
Endowment Fund of North Carolina State University at Raleigh
. Paul T. Flick
JORDAN PRICE WALL GRAY JONES & CARLTON, PLLC
Post Office Box 10669
Raleigh. North Carolina 27605-0669
Counsel for NC State Natural Resources
Foundation, Inc.
By:a.,_,_L. ~
~L. C<liiDer ii
-4-
NC Bar No. 12365
P.O. Box 31507
Raleigh, NC 27622-1507
Telephone: (919) 787-5200
Facsimile: (919) 783-8991
Email: jconner@rl-law.com
Counsel for Plaintiffs
-App. 10-
‘ STATE OF NORm CAROLINA
. COUNTY OF WAKE
-144-
. ·,
lN,.IHE GENERAL COURT OF JUSTICE
t=~ Lt !.)SUPERIOR COURT DMSION .
. 13 cvs 12884
lnB t:!C’.’ I q P 2= ·02
FREDERICKW. CUBBAGE, RONAlD,~\””~ .,, .. , .. ,t·•··.~ I’ f~ , ..
SUTHERI..AND, PhD, RICHARD J. . ·:.~ .. ,;’.’: ‘J···: · · ~ :1 -’·\· •••••
”BARNY” BERNARD, JR., JAMES D.
GREGORY, and JOHN EDDY,
Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE
ENDOWMENT FUND OF NORm
CAROLINA STATE UNIVERSITY AT
RALEIGH and NC STATE NATURAL
RESOURCES FOUNDATION, INC.,
Defendants.
_…;,~····-·-···-·—
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ORDER DENYING MOTION FOR
. PRELIMINARY IN.WNCTION
THIS· MATI’ER having come on for hearing and being heard by the undersigned Superior
Court Judge presiding over the November 12, 2013 session of the Wake County Civil Superior
Court upon the Plaintiffs’ Motion for Preliminary Injunction and after considering the Amended and
Supplemental Complaint and the Affidavits filed herein and having heard the arguments of counsel;
IT APPEARING to the Court that the Plaintiffs have failed to demonstrate entitlement to the
relief scnight and that said Motion for Preliminary Injunction should be DENlED.
IT IS· THEREFORE ORDERED that the Plaintiffs’ Motion for Preliminary Injunction is
hereby is DENIED.
This the \ ’1 day of November, 2013_,

15-Apelle Brief (Found) 2014.6.26 with Bookmarks and recognizable text, full text, too

15-Apelle Brief (Found) 2014.6.26 with Bookmarks and recognizable text

Full text, automatically generated through Adobe Acrobat:

No. COA 14-311 TENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
********************************
FREDERICK CUBBAGE, RONALD W.
SUTHERLAND, PHD., RICHARD J.
“BARNEY” BERNARD, JR., JAMES
D. GREGORY AND JOHN EDDY,
Plaintiffs-Appellants,
v.
THE BOARD OF TRUSTEES OF THE
ENDOWMENT FUND OF NORTH
CAROLINA STATE UNIVERSITY AT
RALEIGH AND NC STATE NATURAL
RESOURCES FOUNDATION, INC.,
Defendants-Appellees.
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From Wake County
No. 13-CVS-12884
*****************************************
DEFENDANT-APPELLEE NC STATE NATURAL RESOURCES
FOUNDATION, INC.’S BRIEF
*****************************************
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INDEX
TABLE OF CASES AND AUTHORITIES …………….. ii
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE FACTS …………………….. 2
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. THE TRIAL COURT DID NOT ERR IN GRANTING
THE FOUNDATION’S MOTION TO DISMISS
PLAINTIFFS-APPELLANTS’ CLAIMS ARISING
UNDER THE NORTH CAROLINA ENVIRONMENTAL
POLICY ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. The North Carolina Environmental
Policy Act Does Not Apply Because
There Is No Use of Public Land for
Projects or Programs ………………. 8
B. The North Carolina Environmental
Policy Act Does Not Apply Because
There Is No Expenditure of Public
Moneys for Projects or Programs ……. 14
C. The National Environmental Policy
Act Is Not Applicable …………….. 18
II. THE TRIAL COURT DID NOT ERR IN GRANTING
THE FOUNDATION’S MOTION TO DISMISS
PLAINTIFFS-APPELLANTS’ CLAIMS ARISING
UNDER ARTICLE XIV, SECTION 5 OF THE
NORTH CAROLINA CONSTITUTION …………… 19
CONCLUSION ………………………………. 2 6
IDENTIFICATION OF COUNSEL …………………. 27
CERTIFICATE OF SERVICE ……………………. 28
-ii-
TABLE OF CASES AND AUTHORITIES
Cases:
Citizens for Clean Industry v. Lofton,
109 N.C. App. 229,
427 S.E.2d 120 (1993) ………………. 10-11
Dickens v. Puryear, 302 N.C. 437,
276 S.E.2d 325 (1981) …………………. 13
Hargrove v. Billings & Garrett, Inc.,
137 N.C. App. 759, 529 S.E.2d 693 (2000) …. 6
In re Env’l Mgmt. Comm’n, 53 N.C. App. 135,
280 S.E.2d 520 (1981) ………………. 10-11
In re Investigation of the Death of Miller,
357 N.C. 316, 584 S.E.2d 772 (2003} …….. 13
Marvin M. Brandt Revocable Trust v.
United States, 134 S. Ct. 1257 (2014) …… 13
Matter of Am. Waste & Pollution Control
Co., 633 So.2d 188 (La. Ct. App. 1994) .. 24-25
Owsichek v. State, Guide Licensing
& Control Ed., 763 P.2d 488 (Alaska 1988) .. 24
Sierra Club v. Dep’t of Transp.,
167 P.3d 292 (Haw. 2007) ……………. 23-24
State ex rel. Hunt v. North Carolina
Reinsurance Facility, 302 N.C. 274,
275 S.E.2d 399 (1981} ………………. 12-13
State ex rel. Martin v. Preston,
325 N.C. 438, 385 S.E.2d 473 (1989) …. 21, 26
State ex rel. Rohrer v. Credle,
322 N.C. 522, 369 S.E.2d 825 (1988} ….. 22-23
Constitutional Provisions and Statutes:
Haw. Const. art. Xi, §9 …………………… 24
-iii-
La. Canst. art. IX, Sec. 1 ………………… 25
N.C. Canst. art. XIV, §5 …………. 19-22, 25-26
42 U.S.C. § 4321 et seq …………………… 18
42 U.S.C. § 4332(2} (C) ……………………. 19
N.C. Gen. Stat. § 113A-1 et seq . ……………. 5
N.C. Gen. Stat. § 113A-2 ………………….. 11
N.C. Gen. Stat. § 113A-4(2) . …………….. 7, 10, 19
N.C. Gen. Stat. § 113A-9(11) . …………………….. 8
N.C. Gen. Stat. § 116-30.20 ………………… 2
N.C. Gen. Stat. § 116-36(a) . ……………………… 2
N.C. Gen. Stat. § 116-36 (d) . …………………………. 14
N.C. Gen. Stat. § 116-36(e) .. …………………………… 14
N.C. Gen. Stat. § 116-36 (g) . …………………………….. 15
Other:
1 NCAC 2 5. 010 8 (a) . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . 17
1 NCAC 25.0108 (b) (4) ……………………… 17
1 NCAC 25.0108 (b) (7) ……………………… 18
Op. Att’y Gen., Environmental Policy
Act of 1971; Application of Ongoing
Projects, pp. 26-36 (July 13, 1973) ………… 18
Milton S. Heath, Jr. and Alex L. Hess, III,
The Evolution of Modern North Carolina
Environmental and Conservation Policy
Legislation, 29 Campbell
L. Rev. 535 {2007) ……………………. 22
Restatement (First) of Property
§ 154(1) (1936) ……………………….. 13
No. COA 14-311 TENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
********************************
FREDERICK CUBBAGE, RONALD W.
SUTHERLAND, PHD., RICHARD J.
“BARNEY” BERNARD, JR., JAMES
D. GREGORY AND JOHN EDDY,
Plaintiffs-Appellants,
v.
THE BOARD OF TRUSTEES OF THE
ENDOWMENT FUND OF NORTH
CAROLINA STATE UNIVERSITY AT
RALEIGH AND NC STATE NATURAL
RESOURCES FOUNDATION, INC.,
Defendants-Appellees.
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From Wake County
No. 13-CVS-12884
*****************************************
DEFENDANT-APPELLEE NC STATE NATURAL RESOURCES
FOUNDATION, INC.’S BRIEF
*****************************************
ISSUES PRESENTED
I. DID THE TRIAL COURT ERR IN DISMISSING PURSUANT TO RULE
12(B) (6) PLAINTIFFS-APPELLANTS’ CLAIMS UNDER THE NORTH
CAROLINA ENVIRONMENTAL POLICY ACT.
II. DID THE TRIAL COURT ERR IN DISMISSING PURSUANT TO RULE
12(B) (6) PLAINTIFFS-APPELLANTS’ CLAIMS UNDER ARTICLE XIV,
SECTION 5 THE NORTH CAROLINA CONSTITUION.
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STATEMENT OF THE FACTS
The land comprising Hofmann Forest is currently owned by
Defendant-Appellee The Board of Trustees of The Endowment Fund
of North Carolina State University at Raleigh (“Endowment
Fundn), subject to a reversionary interest held by Defendant-
Appellee NC State Natural Resources Foundation, Inc.
(“Foundation”) . (R. pp. 5, 9, 21-22, 112.) The Endowment Fund
is an entity created pursuant to N.C. Gen. Stat. § 116-36(a),
for the purpose of, inter alia, acquiring and disposing of
property pursuant to donor requests and otherwise providing
financial support to North Carolina State University. The
Foundation is a private, nonprofit corporation formed to support
the College of Natural Resources at North Carolina State
University. (R. pp. 5, 24, 53, 68); see also N.C. Gen. Stat.
§ 116-30.20 (2013) (encouraging the establishment of private,
non-profit corporations to support the constituent institutions
of The University of North Carolina and The University System).
The Foundation acquired Hofmann Forest in 1934. (R. p.
68.) On 15 December 1977, the Foundation1 gifted Hofmann Forest
to the Endowment Fund via a Deed of Gift recorded in both Jones
1 In 2008, the North Carolina Forestry Foundation, Inc. merged with Pulp and
Paper Foundation, Inc. and changed its
Foundation, Inc. The North Carolina
original signatory to the Deed of Gift.
name to NC State Natural
Forestry Foundation, Inc.
(R. p. 58, 112, 117.)
Resources
was the
-3-
and Onslow Counties. (R. p. 110.) The Deed of Gift was
conditioned on the requirement that “[a]ll net income of
whatever kind earned by said land and all net proceeds from the
sale or other disposition of said land shall be used solely for
the support of the School of Forest Resources of North Carolina
State University.”2 (R. p. 111.} If proceeds were not used for
that purpose, title would revert to the Foundation. (R. p. 111-
12.) Further, the Deed of Gift provided that title to the land
would revert to the Foundation in the event that the General
Assembly amended N.C. Gen. Stat. § 116-36 to provide (a) that
proceeds from endowment funds would take the place of State
appropriations or (b) that sale, leasing or other disposition of
properties belonging to an endowment fund would be subject to
Chapters 143 [State Departments, Institutions, and Commissions]
and 14 6 [State Lands] of the North Carolina General Statutes.
( R . pp . 111-12 . )
In conjunction with the Deed of Gift, the Foundation and
The Endowment Fund also executed an Agreement that reiterated
the conditions set forth in the Deed of Gift, restated the
Foundation’s reversionary interest in the property, and
prohibited the Endowment Fund from selling, leasing or otherwise
2 The School of Forest Resources of North Carolina State University is now
known as the College of Natural Resources.
-4-
disposing of Hofmann Forest without the Foundation’s consent.
( R . pp . 114 -15 . ) Pursuant to the Agreement, the Foundation
remains responsible for operating and development expenses of
Hofmann Forest, as well as taxes assessed against the property,
in excess of moneys earned by Hofmann Forest. (R. p. 115.) The
net income, of whatever kind, earned by Hofmann Forest, can only
be used for the
expressly mandated
College
that
of
the
Natural
proceeds
Resources, and it is
from any sale or
disposition are solely to support the College of Natural
Resources, or else those proceeds must be paid over to the
Foundation. (R. pp. 111, 115.)
On 25 October 2013, the Endowment Fund and the Foundation
entered an Agreement for Purchase and Sale of Real Property
(“Purchase Agreement”) to sell Hofmann Forest to Hofmann Forest,
LLC, a North Carolina limited liability company. (R. p. 68.)
The Purchase Agreement recites a purchase price of
$145,800,000.00. (R. p. 73.) Of that amount, $120,800,000.00
is to be paid in cash at closing, with the remaining
$25,000,000.00 to be paid over time pursuant to the terms of a
purchase money promissory note. (R. p. 73.) In addition to the
cash portion of the purchase price to be paid at closing,
Hofmann Forest, LLC agreed to make a gift of $4,200,000.00 to
the Endowment Fund at closing. (R. p. 73.)
-5-
Plaintiffs-Appellants, after the plans for a potential sale
of Hofmann Forest were made public, filed a civil action on 23
September 2013 seeking declaratory and injunctive relief under
the North Carolina Environmental Policy Act3 (“SEPAn) and the
North Carolina Constitution (“Constitution”) in an attempt to
halt any planned sale of Hofmann Forest. (R. p. 2. )
Plaintiffs-Appellants filed an Amended and Supplemental
Complaint (“Complaint”) on 5 November 2013, again seeking
declaratory and injunctive relief under SEPA and the
Constitution. (R. p. 50.) On 7 November 2013, the Foundation
and the Endowment Fund each filed a Motion to Dismiss the
Complaint pursuant to Rules 12 (b) (1) and 12 (b) (6) of the North
Carolina Rules of Civil Procedure, on the grounds that
Plaintiffs lacked standing to pursue their claims and that
Plaintiffs had failed to state claims for which relief could be
granted under both SEPA and the Constitution. (R. pp. 132,
135.)
On 12 November 2013, the Motions to Dismiss were heard by
The Honorable Shannon R. Joseph, who entered an order on 22
November 2013 granting the Motions to Dismiss pursuant to Rule
3 The North Carolina Environmental Policy Act, N.C. Gen. Stat. § 113A-l et
seq., is referred to as SEPA – the State Environmental Policy Act – as well
as by the acronym NCEPA. The Foundation has utilized the acronym SEPA given
the terminology originally set forth in Plaintiffs-Appellants’ Complaint.
-6-
12 (b) (6). (R. pp. 138-39.) Having concluded that Plaintiffs
failed to state claims upon which relief could be granted, the
trial court did not reach the Motions to Dismiss pursuant to
Rule 12 (b) (1). (R. p. 139.) On 2 December 2013, Plaintiffs
filed a Notice of Appeal of the order granting the Foundation’s
and the Endowment Fund’s Motions to Dismiss. (R. p. 142.)
STANDARD OF REVIEW
The standard of review of an order of dismissal based upon
Rule 12(b) (6) of the North Carolina Rules of Civil Procedure is
whether the allegations of the complaint, treated as true, are
sufficient to state a claim upon which relief may be granted
under some legal theory. Hargrove v. Billings & Garrett, Inc.,
137 N.C. App. 759, 760, 529 S.E.2d 693, 694 (2000). “A
complaint may be dismissed pursuant to Rule 12(b) (6) if no law
exists to support the claim made, if sufficient facts to make
out a good claim are absent, or if facts are disclosed which
will necessarily defeat the claim.”
at 694 (citations omitted).
Id., at 760-61, 529 s.E.2d
-7-
ARGUMENT
I. THE TRIAL COURT DID NOT ERR IN GRANTING THE
FOUNDATION’S MOTION TO DISMISS PLAINTIFFS-APPELLANTS’ CLAIMS
ARISING UNDER THE NORTH CAROLINA ENVIRONMENTAL POLICY ACT.
In their Complaint, Plaintiffs-Appellants assert claims for
declaratory judgment and injunctive relief arising under SEPA.
In their First, Third and Fourth Causes of Action, Plaintiffs-
Appellants seek a declaratory judgment that SEPA applies to the
sale of Hofmann Forest, that the Foundation and Endowment Fund
failed to comply with SEPA, and that the sale cannot not move
forward until SEPA requirements are satisfied. In conjunction
therewith, Plaintiffs-Appellants request an injunction to stop
the sale of Hofmann Forest.
In essence, Plaintiffs-Appellants assert that Defendants-
Appellees are required to prepare an environmental impact
statement (“EIS”) prior to selling Hofmann Forest under SEPA,
specifically N.C. Gen. Stat. § 113A-4(2). (R. pp. 59-62.) The
statute provides that every State agency shall include an EIS
“in every recommendation or report on any action involving
expenditure of public moneys or use of public land for projects
and programs significantly affecting the quality of the
environment of this State.” N.C. Gen. Stat. § 113A-4 (2) (2013)
(emphasis added) . Assuming arguendo that the Endowment Fund, as
record owner of Hofmann Forest, is a “State agency” under SEPA,
-8-
or that SEPA applies to property in which a reversionary
interest is held by a private corporation, SEPA still does not
apply to the transaction at issue here because the pending sale
of Hofmann Forest does not involve the “use of public land” or
the expenditure of “public moneys.”
A. The North Carolina Environmental Policy Act Does. Not
Apply Because There Is No Use of Public Land for Projects or
Programs.
The proposed sale of Hofmann Forest is not a “use of public
land” that would require an EIS. The term “use of public land”
is defined by SEPA as follows:
(11) “Use of public land” means activity
that results in changes in the natural cover
or topography that includes:
a. The grant of a lease, easement, or
permit authorizing private use of
public land; or
b. The use of privately owned land
for any project or program if the
State or any agency of the State
has agreed to purchase the
property or to exchange the
property for public land.
N.C. Gen. Stat. § 113A-9(11) (2013). Subsection {a) is the only
potentially applicable language. The act of transferring title
to Hofmann Forest will not result in changes in the natural
cover or topography of Hoffman Forest, and further, the act of
transferring title does not involve “[t] he grant of a lease,
-9-
easement, or permit”. Under the plain language of the statute,
the sale does not involve “use of public land,” and accordingly,
the requirements of SEPA simply do not apply.
Plaintiffs-Appellants attempt to argue that transfer of
ownership of Hofmann Forest is equivalent to an action by a
state agency to award grants, issue permits, or grant licenses,
which, they state, constitutes action under SEPA. In support of
their position, Plaintiffs-Appellants rely on a guidance manual
published by the North Carolina Department of the Environment
and Natural Resources that explains for a project to be subject
to SEPA, it must involve action by a state agency “such as
appropriating land or money, awarding grants, issuing permits 1
or granting licenses.” (Pl.-App. Br. p. 14.) Plaintiffs.,..
Appellants state that the “issuance of a permit is a classic
trigger for NCEPA” and that “printing and signing of a permit,
just like the printing and signing of a deed, creates no
environmental impact itself.” (Pl.-App. Br. p. 14.)
This argument ignores the fact that permits are required in
the above situations because an entity intends to implement a
project or program, or in other words, to take some specific
action that is regulated. Grants and licenses are awarded
because an entity has requested permission to undertake a
project or to perform some specific action for which money or
-10-
permission is needed. Those permits, grants and licenses are
necessary and inextricably entwined with the action being
pursued. That is not the case here as there is not a specific
action, project or program tied to the transfer. The statute
itself emphasizes the requirement that there be some project or
program at issue. An EIS is required for ~any action involving
expenditure of public moneys or use of public land for projects
and programs significantly affecting the quality of the
environment of this State.” N.C. Gen. Stat. § 113A-4(2)
(emphasis added) .
Plaintiffs-Appellants cite to In re EMC and Citizens for
Clean Industry to bolster their position, but reliance on such
cases is misplaced. In the former case, the Orange Water and
Sewer Authority ( “OWASA”) petitioned the Environmental
Management Corrunission (~commission”) for a “certificate
authorizing institution of eminent domain proceedings in order
to construct a dam and reservoir for water supply purposes.” In
re Env’l Mgmt. Comm’n, 53 N.C. App. 135, 136, 280 S.E.2d 520,
522 (1981). In that case the Court of Appeals held that
certification action by the Commission triggered the preparation
of an EIS. However, there the Commission was specifically
empowered by the legislature to issue certificates authorizing
land and water rights acquisition, and the entire purpose of the
-11-
certificate was to allow acquisition for the purpose of
constructing a dam and reservoir. In other words, there was a
specific action behind the certification.
In Citizens for Clean Industry v. Lofton,. 109 N.C. App.
229, 427 S. E. 2d 120 ( 1993), the environmental assessment was
triggered because a permit was sought that would allow a
specific action the discharge from a wastewater treatment
plant. Here, no matter the speculation Plaintiffs-Appellants
may raise with respect to the future of Hofmann Forest, the only
issue is the sale of property to a private entity, and there is
no specific action, project, program or activity linked to such
sale.
SEPA recites that its purpose is to “require agencies of
the State to consider and report upon environmental aspects and
consequences of their actions involving the expenditure of
public moneys or use of public land.” N.C. Gen. Stat. § 113A-2
(2013). The requirement of an EIS is designed “to provide a
mechanism by which all affected State agencies raise and
consider environmental factors of proposed projects” and to
provide the responsible agency “with a useful decisionmaking
tool.” In re Env’l Mgt. Comm’n, 53 N.C. App. at 144, 280 S.E.2d
at 527 (emphasis added). Again, the common factor is that the
EIS is to be utilized to evaluate some specific project, program
-12-
or proposed action. Because the sale of Hofmann Forest is not
an activity that results in changes in the natural cover or
topography of the land, there is no defined environmental impact
to consider. Further, because there is no specific project or
program attached to the sale, there is no action that could be
argued as “significantly affecting the quality of the
environment of the State.”
Plaintiffs-Appellants also attempt to argue that the sale
of land should be read into the definition of “use of public
land” by this Court, even though “sale” is not included in the
language of the definition. The General Assembly provided a
precise definition of “use of public land,” and listed the grant
of a lease, permit, or easement, but not the sale of land. In
addition, the “use of public land” must be an activity that
results in changes in the natural cover or topography, which a
sale alone does not do. It must be assumed under the doctrine of
expressio unius est exclusio alterius that the General Assembly
intentionally omitted the sale of land from this definition.
“Where a statute sets forth one method for accomplishing a
certain objective, or sets forth the instances of its
application or coverage, other methods or coverage are
necessarily excluded under ‘the maxim expressio unius est
exclusio alterius.” State ex rel. Hunt v. North Carolina
-13-
Reinsurance Facility, 302 N.C. 274, 290, 275 S.E.2d 399, 407
(1981) (internal quotation marks omitted}; see also In re
Investigation of the Death of Miller, 357 N.C. 316, 325, 584
S.E.2d 772, 780 (2003) (“Under the doctrine of expressio unius
est exclusio alterius, when a statute lists the situations to
which it applies, it implies the exclusion of situations not
contained ln the list.n (internal quotation marks omitted));
Dickens v. Puryear, 302 N.C. 437, 444 n.8, 276 S.E.2d 325, 330
n.8 (1981).
It must also be emphasized that Hofmann Forest was gifted
by the Foundation to the Endowment Fund, expressly subject to a
reversionary interest. (R. pp. 5, 9, 21-22, 112.} “A
reversionary interest is ‘any future interest left in a
transferor or his successor in interest.’ It arises when the
grantor \transfers less than his entire interest’ in a piece of
land, and it is either certain or possible that he will retake
the transferred interest at a future date.” Marvin M. Brandt
Revocable Trust v. United States, 134 S. Ct. 1257, 1266 (2014)
(quoting Restatement (First) of Property § 154 (1) (1936)). The
Endowment Fund simply holds Hofmann Forest as a gift, subject to
the restrictions of the Deed of Gift and Agreement. The
Foundation is a private, nonprofit corporation formed to support
the College of Natural Resources at North Carolina State
-14-
University. ( R. pp. 5, 2 4, 53, 6 8 . ) Given the manner and
restriction of the title, Hofmann Forest is uniquely held and
does not qualify as “public land” under SEPA.
B. The North Carolina Environmental Policy Act Does Not
Apply Because There Is No Expenditure of Public Moneys for
Projects or Programs.
The Endowment Fund is a creature of statute and was created
to support North Carolina State University, separate and apart
from the moneys received “from State appropriations and from
tuition and fees collected from students and used for the
general operation of the institution.” N.C. Gen. Stat. § 116-
3 6 (d) • The Endowment Fund meets this purpose through private
gifts, like that of Hofmann Forest gifted by the Foundation.
See id. (noting that “the trustees of an endowment fund may
receive and administer as a part of the endowment fund gifts,
and devises and any other property of any kind”) .
The Endowment Fund is specifically tasked with the
responsibility for investment of the fund, ”but in compliance
with any lawful condition placed by the donor upon that part of
the endowment fund to be invested.” N.C. Gen. Stat. § 116-
36 (e) (2013). The Endowment Fund is also specifically authorized
to buy, sell, lend, exchange, lease, transfer, or otherwise
dispose of or to acquire any property, real or personal, in
either public or private transactions except when such act
-15-
would violate a lawful condition of receipt of the gift. N.C.
Gen. Stat. § 116-36 (g) (2013). When engaging in such activities,
the Endowment Fund is not subject to Chapters 143, 143C or 146
of the General Statutes, which respectively deal with State
Departments, Institutions and Commissions; the State Budget Act;
and State Lands. Id.
Hofmann Forest was gifted by the Foundation to the
Endowment Fund in 1977 with specific restrictions related to the
Endowment Fund’s use of the proceeds of Hoffman Forest. (R. pp.
17-24.) The Agreement expressly contemplated the possibility of
the sale of Hoffman Forest. (R. p. 114). Under the Agreement
and Deed of Gift to the Endowment Fund, the Foundation remains
responsible for all operating and development expenses and taxes
in connection with Hofmann Forest. (R. pp. 110 – 116.) The net
income, of whatever kind, earned by Hofmann Forest, as well as
the proceeds from any sale or distribution, can only be used to
support the College of Natural Resources. (R. p. 115) . Failure
to honor this condition will result in Hoffman Forest reverting
to the Foundation, a private entity.
The Endowment Fund is, at best, a passive record owner,
that simply holds Hofmann Forest as a gift, subject to the
restrictions of the Deed of Gift and Agreement. There are no
“public moneys” at issue in this unique situation. The
-16-
Endowment Fund is not entitled to benefit from any moneys
associated with Hofmann Forest. (As discussed above, there are
also no projects and programs tied to any expenditure of public
moneys with respect to the sale of Hofmann Forest.)
The only alleged upublic moneys” specifically identified by
Plaintiffs-Appellants to support their argument that
applies to the sale of Hofmann Forest are as follows:
a. Seller’s payment for preparation of a deed and
other documents necessary to perform Seller’s
obligations under the Purchase Agreement;
b. Seller’s payment of excise tax (revenue stamps);
c. If there are exceptions to title, Seller’s
payment to remove, satisfy or otherwise cure
those exceptions; and
d. Splitting of profits from timber harvesting from
the date of the Purchase Agreement through
Closing between Seller and Purchaser.
SEPA
(R. at 61.) Deed preparation and payment of excise taxes are
specifically made a part of the Seller’s closing obligations,
meaning that those costs will be paid out of proceeds at
closing. (R. at 92.) In other words, the profit from the sale
of Hofmann Forest will be reduced by those costs. Similarly, if
timber profits are split, that simply means that the
-17-
Foundation’s share of net income attributable to timber sales
during that time period is reduced. Again, no proceeds related
to Hofmann Forest inure to the benefit of the Endowment Fund.
The remaining item – payment to address exceptions to title – is
speculative. The only way any moneys would be expended is if
there were any exceptions to title that were uncovered. Even if
any exceptions were uncovered, the Foundation is responsible for
all operating and development expenses of Hofmann Forest (R. p.
22), and such payment to address any exceptions would simply
reduce the net income paid to the Endowment Fund for the benefit
of the College of Natural Resources at closing.
Plaintiffs-Appellants attempt to support their theory that
“public moneys” are at issue by citing to the definition of
“public moneys” contained in 1 NCAC 25.0108 (b) (4) (2013}. (Pl.App.
Br. pp. 21-22.) However, the regulations implementing SEPA
that are described in Chapter 25 of the Administrative Code are
applicable only when there is (1) an expenditure of public
moneys or the use of public land; (2) an action by a state
agency subject to this Chapter; and (3) a potential
environmental effect upon, inter alia, natural resources. 1
NCAC 25.0108 (a) (2013) (emphasis added) . The term “State
agencies subject to this Chapter” is a defined term, and is
defined by reference to several statutes which list principal
-18-
departments such as the Department of Health and Human Services,
Department of Revenue, Department of Commerce, etc., as well as
their subdivisions. See 1 NCAC 25. 0108 (b) (7) (2013) and
statutes cited therein. The Endowment Fund is not state agency
subject to Chapter 25 and the definition of “public moneys”
relied upon by Plaintiffs-appellants is not applicable.
c. The National Environmental Policy Act Is Not
Applicable.
Plaintiffs-Appellants also argue that under the National
Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”),
which applies only to federal land, the sale or exchange of land
has been treated as triggering NEPA requirements, and cite to an
opinion from the North Carolina Attorney General to support the
idea that SEPA must be interpreted in the same manner:
This question has been raised under the National
Environmental Policy Act, 42 USCA § 4321 et seq., the
federal Act that the State Environmental Policy Act
traced with very few exceptions almost verbatim.
Since the two Acts are extremely similar, unl.ess the
State Act differs subs tan tial.ly from the federal. Act
J..n its wording, the legal reasoning of the federal
courts in interpreting the Federal Act applies to the
State Act also.
Op. Att’y Gen., Environmental Policy Act of 1971; Application of
Ongoing Projects (July 13, 1973} (emphasis added}. The obvious
flaw ln Plaintiffs-Appellants’ theory is that, with respect to
the issues before this Court, NEPA and SEPA do differ
substantially.
-19-
The central question before this Court is whether SEPA is
applicable to the sale of Hofmann Forest such that an EIS must
be prepared. NEPA states that all federal government agencies
shall include an EIS “in every recormnendation or report on
proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment. a
42 u.s.c. § 4332 (2) (C). When adopting SEPA, the North Carolina
General Assembly replaced the expansive jurisdictional language
of NEPA, namely, “proposals for legislation and other major
Federal actions,” by the more restrictive language, “any action
involving expenditure of public moneys or use of public land for
projects or programs.” See N.C. Gen. Stat. § 113A-4(2).
Further, while NEPA does not contain definitions, our
legislature expressly defined the question before this Court,
including the “use of public land,” and as discussed above, the
definition does not include the sale of land. Therefore, any
case construing NEPA is necessarily inapposite to this case.
II. THE
FOUNDATION’S
ARISING UNDER
CONSTITUTION.
TRIAL COURT DID NOT ERR IN GRANTING THE
MOTION TO DISMISS PLAINTIFFS-APPELLANTS’ CLAIMS
ARTICLE XIV, SECTION 5 OF THE NORTH CAROLINA
Plaintiffs-Appellants have not advanced specific,
applicable authority supporting their contention that the trial
court erred in dismissing their claims under Article XIV,
-20-
Section 5 of the North Carolina Constitution. That Section
states, 1n full:
N.C.
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 1 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.
Const. art. XIV, § 5. Plaintiffs-Appellants have
repeatedly cited to the first paragraph of Article XIV, Section
5, as support for their position that the sale of Hofmann Forest
by the Endowment Fund or other party should be forever
prohibited. A simple reading of this constitutional provision
compels rejection of Plaintiffs-Appellants’ sweeping
-21-
interpretation which is based upon only a part of Section 5.
The provision indicates authorization to preserve property (“it
shall be a proper function … to acquire and preserve … “), as
opposed to prohibition on the sale of property, particularly
property with a reversionary interest held by a private
corporation.
Plaintiffs-Appellants also completely ignore the second
paragraph of Section 5, which is a provision acknowledging that
the State’s policy of conservation is to be advanced by
acquisition of lands and the dedication of lands through
legislative action as part of the State Nature and Historic
Preserve. The paragraph expressly provides a specific mechanism
to conserve and protect the lands and waters of the state, but
it does not prohibit in any way the sale of land or provide a
private cause of action.
Plaintiffs-Appellants would have this Court impermissibly
read into the North Carolina Constitution a prohibition on the
sale of land that simply is not present. “In interpreting our
Constitution – as in interpreting a statute – where the meaning
is clear from the words used, we will not search for meaning
elsewhere.” State ex rel. Martin v. Preston, 325 N.C. 438, 439,
385 S.E.2d 473, 479 (1989).
-22-
Plaintiffs-Appellants label Section 5, and in particular
its first paragraph, as a “constitutional mandate.” In reality,
it is simply a policy declaration, as confirmed by its own
words: “It shall be the policy of this State N.C. Const.
art. XIV, § 5; see also, Milton S. Heath, Jr. and Alex L. Hess,
III, The Evolution of Modern North Carolina Environmental and
Conservation Policy Legislation, 29 Campbell L. Rev. 535, 539
{ 2007) (noting that with respect to Section 5, “It is worth
emphasizing that the constitutional provision begins with the
words, “It shall be the policy.”) Although there is an express
authorization to allow the State and its counties, cities and
towns to acquire property for preservation purposes, there is
nothing whatsoever that prohibits the sale of property
generally.
To bolster their contention that the Constitution forbids
the sale of Hofmann Forest, Plaintiffs-Appellants cite to State
ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 {1988).
Citation to Credle is unavailing, however, because the Supreme
Court in Credle did not recognize a private cause of action in
Article XIV, Section 5. Rather, the court merely observed that
the constitutional provision reflects the “endorsement” by the
people of North Carolina of the public policy behind legislative
actions regulating the fishing of oyster bottoms. Credle, 322
-23-
N.C. at 532, 369 S.E.2d at 831. In Credle, the constitutional
policy of uthe conservation and protection of public lands and
waters for the benefit of the public” assisted the court in
reaching its conclusion that a private party could not acquire,
by prescription, exclusive rights to harvest oyster bottoms in
North Carolina’s coastal waters. Id.
Plaintiffs-Appellants also cite cases under various other
state constitutions for the proposition that “other states have
allowed individuals to bring state constitutional challenges to
various acts affecting the environment on the basis that the act
violates the state’s environmental constitutional amendment.”
(Pl.-App. Br. p. 34.) The cases cited, however, involve
decidedly different issues as well as decidedly different
constitutional language, and provide no support for PlaintiffsAppellants’
arguments.
For example, in the first case, Sierra Club v. Dep’t of
Transp., the issue before the court was related to an
environmental group’s standing to bring claims asserting that
the Hawaii Department of Transportation was required to perform
an environmental assessment under state law. Sierra Club v.
Dep’t of Transp., 167 P.3d 292, 297 (Haw. 2007}. The issue was
not that the plaintiffs had brought a “state constitutional
challenge” on the basis that the challenged act “violate[d] the
-24-
state’s environmental constitutional” provisions. In analyzing
the standing issue, the court discussed Hawaii’s “Environmental
Rights” constitutional provision, which stated “[e] ach person
has the right to a clean and healthful environment, as defined
by laws relating to environmental quality Any person may
enforce this right against any party, public or private, through
appropriate legal proceedings.” Id. at 313 (citing Haw. Canst.,
art. XI, § 9). The language therein conveyed specific rights to
individuals, with a specific right of enforcement, which
supported the court’s interpretation that the group in question
had standing. Neither the situation nor the language of the
Hawaii Constitution is analogous to the matter before this
Court.
In Owsichek v. State Guide Licensing & Control Ed., 763
P.2d 488, 491 (Alaska 1988), the issue before the court was
whether two statutes authorizing a licensing board to establish
exclusive guide areas violated the Alaska Constitution’s common
use clause, which specifically reserved natural state, fish,
wildlife, and waters to the citizens of Alaska for common use.
Plaintiffs-Appellants have mounted no constitutional
challenge to any state statute.
Finally, in Matter of Am. Waste & Pollution Control Co.,
633 So.2d 188 (La. Ct. App. 1994), the challenge was to a state
-25-
agency’s issuance of a construction permit for a solid waste
facility. The court noted that the state’s regulatory framework
for environmental protection was based on the Louisiana
Constitution, and went on to discuss the interrelationship of
constitutional, statutory and regulatory requirements. Id. at
193. The Louisiana Constitution was interpreted to impose a
duty of environmental protection on state agencies, require
environmental protection “insofar as possible and consistent
with the health, safety, and welfare of the people,” and mandate
the legislature to enact laws to implement said policy. Id.
(quoting La. Const., art. IX, Sec. 1).
Our Constitution does not contain the same language.
Article XIV, Section 5 of the North Carolina Constitution merely
sets forth a policy of conservation authorizing the acquisition
and preservation of natural resources, and to that end,
authorizing the designation of certain land as part of the State
Nature and Historic Preserve. The prohibition requested by
Plaintiffs-Appellants is simply not present.
The cases cited by Plaintiffs-Appellants obviously do not
interpret our Constitution. Even if the language were similar,
which it is not, in construing and applying the Constitution of
North Carolina this Court is not bound by the decisions of
federal court, including the Supreme Court of the United States,
-26-
much less other state courts. See State ex rel. Martin, 325
N.C. at 449-50, 385 S.E.2d at 479 (1989). Article XIV, Section
5 of the North Carolina Constitution neither prohibits the sale
of property nor creates a private right of action in PlaintiffsAppellants.
CONCLUSION
WHEREFORE, for the reasons stated herein, Defendant-
Appellee NC State Natural Resources Foundation, Inc.
respectfully requests that this Court affirm the decision of the
trial court dismissing Plaintiffs-Appellants’ Amended and
Supplemental Complaint for Injunctive Relief and Petition for
Declaratory Judgment.
This the
-27-
day of June, 2014.
JORDAN PRICE WALL GRAY JONES & CARLTON
By:
Paul T. Flick
N.C. State Bar No. 13494
pflick@jordanprice.com
By: Lo~~J€~
N.C. State Bar No. 32872
ljones@jordanprice.com
1951 Clark Avenue
Raleigh, North Carolina 27605
Telephone: (919) 828-2501
Facsimile: (919) 834-8447
Counsel for Defendant-Appellee
NC State Natural Resources
Foundation, Inc.
-28-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of
the foregoing brief on all parties by depositing a copy,
contained in a first-class-postage-paid wrapper, into a
depository under the exclusive care and custody of the United
States Postal Service, addressed as follows:
James L. Conner II
Ragsdale Liggett PLLC
P.O. Box 31507
Raleigh, NC 27622
Counsel for Plaintiffs-Appellants
Catherine F. Jordan
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
Counsel for Defendant-Appellee
The Board of Trustees
of The Endowment Fund of
North Carolina State University
This ~ day of June, 2014.
Paul T. Flick

 

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