Thoughts Regarding Monday’s NC Supreme Court Hearing on Hofmann Forest

Here are a few more detailed thoughts regarding Monday’s NC Supreme Court hearing on Hofmann Forest:

Our lawyer Jim Conner’s main point was this – we’re appealing the decision last November by Superior Court Judge Shannon Joseph to dismiss our case under a “12b6 motion” made by the attorneys for NCSU and the Natural Resources Foundation. In order to dismiss our case under a 12b6 motion, the Judge is supposed to assume all of our factual allegations are true, and then still find that we have no chance of legal victory.

We’ve alleged that public monies were spent in the process of putting Hofmann Forest up for sale, and we’ve alleged that significant environmental impacts will occur as a result of the sale. If those two points are true (and we think they are) then it is clear that the NC Environmental Policy Act (SEPA) should apply, and NC State University should have completed an Environmental Impact Statement before finalizing the decision to sell Hofmann Forest.

The NC Department of Administration is charged with implementing SEPA, and their simple guidelines for when SEPA applies are as follows [with my notes]:
1. was public money spent or public land used?  [yes and yes]
2. was there an action by a state agency?  [yes, NCSU knows it is subject to SEPA]
3. is there a potential environmental impact?  [yes, almost off the charts]
(http://www.doa.state.nc.us/clearing/documents/chapter25rules.pdf)

So we’re optimistic that the NC Supreme Court will rule in our favor, and send the case back to the trial court, where we will finally be able to gather and present evidence supporting our claims. The case back in November was dismissed before we had a chance to do discovery, depositions, etc – and a mere 24-hours before the prospectus from Jerry Walker was leaked to us showing the buyer’s actual plans for Hofmann Forest.

NC State University leaders, of course, really want to keep that evidence-gathering process from happening, as all kinds of new information will come to light in our favor.

Although we don’t need the NC Constitutional argument to win, it is worth pointing out that Paul Flick, the attorney for the Natural Resources Foundation, made another attempt to re-write history by inventing his own definition of what Article 14 Section 5 of the NC Constitution really means.

Here’s the amendment, for your easy reference:
http://www.ncga.state.nc.us/legislation/constitution/ncconstitution.html
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Sec. 5.  Conservation of natural resources.

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.

To accomplish the aforementioned public purposes, the State and its counties, cities and towns, and other units of local government may acquire by purchase or gift properties or interests in properties which shall, upon their special dedication to and acceptance by a law enacted by a vote of three-fifths of the members of each house of the General Assembly for those public purposes, constitute part of the ‘State Nature and Historic Preserve,’ and which shall not be used for other purposes except as authorized by law enacted by a vote of three-fifths of the members of each house of the General Assembly.  The General Assembly shall prescribe by general law the conditions and procedures under which such properties or interests therein shall be dedicated for the aforementioned public purposes.
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Paul Flick argued before the NC Supreme Court that this amendment is solely focused on establishing the state system of dedicated natural areas described in the second paragraph. The first paragraph, according to his view, is just a fluffy preamble with no actual meaning.

We, on the other hand, contend that the first paragraph stands on its own as a definitive and powerful policy statement for North Carolina. Why do we think that? Well, back in 1972, when this amendment was put to voters, the ballot measure said “Conserve and protect our natural resources”. It didn’t say “Establish a dedicated natural areas system”. So when 87% of voters in that statewide election (with Presidential and Gubernatorial races on the same ballot) voted yes for this amendment, they were indicating their strong and nearly unanimous preference for NC to commit to protecting our natural resources.

Second, we can also point out that many of the action steps mentioned in the first paragraph (controlling air pollution and excessive noise, for example) are not easily accomplished through a dedicated natural areas system. Clearly this amendment constitutionally authorizes the State to undertake all manner of environmental protections, under the controlling aegis of the plain language policy statement that leads off the amendment.

Unlike other recent amendments that I needn’t mention here, Article 14 Section 5 has never been found in conflict with the US Constitution, and it is clearly still relevant to North Carolina citizens today. Many people have never heard of it, but with your help I think we can fix that deficiency.

If conserving our lands and waters is state policy according to the NC Constitution, then it follows that selling the largest tract of state-owned forest to private buyers (and handing said buyers a commercial development plan covering 9000 acres, as NCSU did!) is an unacceptable violation of that policy.

Ron

Ron Sutherland, Ph.D.
Conservation Scientist
Wildlands Network
919-401-7271 w 919-641-0060 c
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