According to INDY Week, The sale of Hofmann Forest was nearly derailed last March over disagreements between investors and timing of money coming from DOD. This is significant because it implies that a deal between the buyer and the DOD is already done.
ORDER GRANTING MOTION TO DISMISS
FREDERICK W. CUBBAGE, RONALD W. SUTHERLAND,. PhD, RICHARD “BARNY” BERNARD, JR., JAMES GREGORY, and JOHN EDDY, Plaintiffs,
THE BOARD OF TRUSTEES OF THE ENDOWMENT FUND OF NORTH CAROLINA STATE UNIVERSITY AT RALEIGH and NC STATE NATURAL RESOURCES FOUNDATION, INC., Defendants.
IN THE GENERAL COURT OF JUSTICE, SUPERIOR COURT DIVISION, WAKE COUNTY, Filed 2013 NOV 22, 2:27PM, 13 CVS 12884
This matter came on for hearing during the 12 November 2013 civil session of Wake County Superior Court. Plaintiffs later submitted a Supplemental Response to Motions to Dismiss, to which Defendants objected. Also in response to Plaintiffs’ supplemental submission, defendant NC State Natural Resources Foundation moved for sanctions pursuant to Rule 11 of the North Carolina Rules of Civil Procedure. Plaintiff filed a written response to the Objection and Motion.
The role of this Court is not to decide whether the sale of Hofmann Forest is wise or ill-advised. Rather, this Court must decide whether the North Carolina law on which Plaintiffs rely would entitle them to relief assuming that their allegations are true. In this case, it would not.
The North Carolina Environmental Policy Act (“SEPA”), N.C. Gen. Stat. §§113A-1, et seq., does not apply to Defendants’ sale of Hofmann Forest. Nor does Article XIV, Section 5 of the North Carolina Constitution apply to prevent a sale of HofmannForest. The Court therefore concludes that Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) should be, and therefore is, GRANTED.
The Court, having concluded that Plaintiffs have failed to state a claim on which relief can be granted, does not reach Defendants’ Motion to Dismiss pursuant to Rule 12(b)(1).
Defendant NC State Natural Resources Foundation’s Rule 11 Motion is DENIED. Each party is to bear its own costs.
This the 22d day of November, 2013.
Shannon R. Joseph
Order granting motion to dismiss (N0005775@xC1D49) (1)-1s
“I’m going to be real honest with you here. I always am,” Woodson said. “We can’t control everything that happens to the land after we sell it, but we could control the way it was sold, and finding a buyer that had the intent to manage it in a way consistent with the way it’s managed now … Twenty years down the road, I can’t predict what will be happening there and, candidly, if we restrict with covenants the way a person used it in perpetuity, no one would buy it.”
Technician: “So to you, Chancellor Woodson, we apologize. We apologize for not doing the research we should’ve to realize that the conservation of the Hofmann Forest was never a priority for you.”
On our UNC Exceptions post, we outlined the UNC System Policy where the President, Chancellor, or their designees may determine that environmental documents under the NCEPA are required in any case where one of the findings applies to a proposed activity. We will be addressing those in turn, but not necessarily in order. This post deals with Exception 6.c:
6.c. The proposed activity is of such an unusual nature or has such widespread implications that an uncommon concern for its environmental effects has been expressed to the University or the constituent institution.
- Sale of the largest research forest in the world is of “an unusual nature.”
- Sale of 80,000 acres, with no significant land use restrictions, impacting three already impaired watersheds has “widespread implications.”
- “An uncommon concern for its environmental effects has been expressed to the University or the constituent institution.”
Based on Exception 6.c alone, the President, Chancellor, or their designee may determine that documents under the NCEPA should be prepared.
Going forward, we will address all of the Exceptions. If only one Exception is sufficient, would it not be irresponsible of the the President, Chancellor, or their designee to determine that documents under the NCEPA should be prepared if several Exceptions can be demonstrated?
Minimum Environmental Criteria for the North Carolina Environmental Policy Act, NUMBER 369, DATE 5/5/97
6. Exceptions to Minimum (Non-Major) Criteria
Any activity falling within the parameters of the minimum criteria set out in this memorandum will not routinely be required to have environmental documentation under the NCEPA; however, the President, Chancellor, or their designees may determine that environmental documents under the NCEPA are required in any case where one of the following findings applies to a proposed activity.
a. The proposed activity could cause significant changes in industrial, commercial, residential, silviculture, or agricultural land-use concentrations or distributions which would be expected to create adverse water quality, air quality, or groundwater impacts, or affect long-term recreational benefits, shellfish, wildlife, or their natural habitats.
b. The proposed activity has indirect effect or is part of cumulative effects not generally covered in the approval process for state action and that may result in a potential risk to human health or the environment.
c. The proposed activity is of such an unusual nature or has such widespread implications that an uncommon concern for its environmental effects has been expressed to the University or the constituent institution.
d. The proposed activity may have a potential for significant, adverse, and direct effects on a “sensitive area” which include but are not limited to the following:
1) Wetlands delineated by the U.S. Army Corps of Engineers in accordancewith 33 CFR 328.3 and 40 CFR 230.3;
2) Historical and Archeological sites protected by the National HistoricPreservation Act and National Executive Order 11593 and StateExecutive Order 16 administered by the N.C. Department of CulturalResources;
3) National Historic Landmarks as designated in accordance with theHistoric Site Act at 16 USC 461;
4) State Parks Lands administered in accordance with G.S. 113-44.9;
5) State-Owned Game Lands administered in accordance with G.S. 113-264and 306 (d);
6) State-Owned Forest Land administered in accordance with G.S. 113-22;
7) State Nature Preserves and Dedicated Natural Areas administered in accordance with G.S. 113A-164.1;
8) Primary and Secondary Nurseries designated in accordance with 15ANCAC 3R.0003 and 10C NCAC .0503, and Critical Habitat Areas designated in accordance with 15A NCAC 31.0001; and 101 NCAC .0001 (5);
9) State High-Quality Waters designated in accordance with 15A NCAC 2B.0201 (d); this includes waters classified as WS-I, WS-II, SA and ORW (Outstanding Resource Waters):
10) State Natural and Scenic Rivers designated in accordance with G.S.113A-30;
11) North Carolina Coastal Reserves designated in accordance with G.S. 113A-129.1;
12) State Lakes administered in accordance with G.S. 146-3; and
13) Lands which contain animal or plant species protected by the Federal Endangered Species Act (administered by the U.S. Fish and Wildlife Service), State Endangered and Threatened Wildlife and Wildlife Species of Special Concern Act (G.S. 113-311 administered by the North Carolina Wildlife Resources Commission), State Plant Protection and Conservation Act (G.S. 106-202.12 administered by the North Carolina
Department of Agriculture).
STATE RECORD OF DECISION
North Carolina Department of Transportation
US 17 Improvements
From SR 1330 / SR 1439 south of Belgrade to the New Bern Bypass
at the Jones / Craven County line
Onslow and Jones Counties
Project No. 34442
TIP No. R-2514 B, C, and D
In compliance with the North Carolina Environmental Policy Act of 1971
G.S. 113A-1 through 113A-13