Tag Archives: Appeal

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
*******

Sec. 5.  Conservation of natural resources.

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

To accomplish the aforementioned public purposes, the State and its counties, cities and towns, and other units of local government may acquire by purchase or gift properties or interests in properties which shall, upon their special dedication to and acceptance by a law enacted by a vote of three-fifths of the members of each house of the General Assembly for those public purposes, constitute part of the ‘State Nature and Historic Preserve,’ and which shall not be used for other purposes except as authorized by law enacted by a vote of three-fifths of the members of each house of the General Assembly.  The General Assembly shall prescribe by general law the conditions and procedures under which such properties or interests therein shall be dedicated for the aforementioned public purposes.
*************

Paul Flick argued before the NC Supreme Court that this amendment is solely focused on establishing the state system of dedicated natural areas described in the second paragraph. The first paragraph, according to his view, is just a fluffy preamble with no actual meaning.

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

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

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

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

Ron

Ron Sutherland, Ph.D.
Conservation Scientist
Wildlands Network
919-401-7271 w 919-641-0060 c
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Conflicting Goals and Priorities – Questions for the NC Supreme Court on the Sale of Hofmann Forest

In the NWQEP NOTES, The NCSU Water Quality Group Newsletter, Number 138 August 2013 ISSN 1062-9149, one recommendation is outstanding:

…The State water quality agency should consider
encouraging the state, local agencies, or land trusts to
purchase riparian properties in cases where watershed
cleanup efforts have failed to be achieved or failed to be
lasting. Environmental agencies should review their
programs for conflicting mandates and implementations.
Specific roles, reporting requirements, and priorities should
be consistent.

We couldn’t agree more!  Granted, the above recommendation has a much narrower contextual focus than presented by the prospective sale of Hofmann Forest, but  it is alarmingly apropos to the apparent divergent goals and implementations highlighted by this sale of public land by NCSU and concurrent efforts within NCSU and other state agencies.

Will the NC supreme Court find that North Carolina’s various agencies and programs have conflicting goals (broader than mandates) and implementations with regard to the sale of Hofmann Forest?  Will they find the sale of Hofmann Forest consistent with the intent of the NC Constitution, the State Environmental Policy Act (SEPA), and UNC System Policy?

Does the apparent internal inconsistency of NCSU rushing to the sale, while simultaneously promoting  vastly disparate public policy, reflect a lack of cogent leadership within the University?  Is the sale of Hofmann Forest representative of a broader inconsistency within state government that only action by the NC Supreme Court or legislation could remedy?

NWQEP NOTES, The NCSU Water Quality Group Newsletter, Number 138, August 2013 ISSN 1062-9149

NCSU Water Quality Group

The North Carolina State University (NCSU) Water Quality Group is a multidisciplinary team that analyzes and evaluates nonpoint source (NPS) pollution control technologies and water quality programs in North Carolina and nationwide. We are a component of the North Carolina Cooperative Extension Service (NC CES), Biological and Agricultural Engineering Department (Bio&Ag) at North Carolina State University and the N.C. State University’s Soil and Water Environmental Technology Center (SWETC).

via NCSU Water Quality Group.

What is the biggest source of pollution in the ocean?

According to NOAA:

Eighty percent of pollution to the marine environment comes from the land. One of the biggest sources is called nonpoint source pollution, which occurs as a result of runoff. Nonpoint source pollution includes many small sources, like septic tanks, cars, trucks, and boats, plus larger sources, such as farms, ranches, and forest areas. Millions of motor vehicle engines drop small amounts of oil each day onto roads and parking lots. Much of this, too, makes its way to the sea.

Some water pollution actually starts as air pollution, which settles into waterways and oceans. Dirt can be a pollutant. Top soil or silt from fields or construction sites can run off into waterways, harming fish and wildlife habitats.

Nonpoint source pollution can make river and ocean water unsafe for humans and wildlife. In some areas, this pollution is so bad that it causes beaches to be closed after rainstorms.

More than one-third of the shellfish-growing waters of the United States are adversely affected by coastal pollution.

via What is the biggest source of pollution in the ocean?

So,  it makes sense for North Carolina to sell 79,000 acres of coastal forest land into private ownership with the only real restriction on land-use being the highest and best use real estate development doctrine?  What else is wrong with the sale of Hofmann Forest?

N.C. Supreme Court RE: Cubbage, et al v The Board of Trustees Of The Endowment Fund Of NC State University, et al – 380A14-1

From N.C. Court of Appeals
( 14-311 )
From Wake
( 13CVS12884 )
10 October 2014
N.C. Supreme Court
RE: Cubbage, et al v The Board of Trustees Of The Endowment Fund Of NC State University, et al – 380A14-1
Dear Court:
The following Order was entered:
Pursuant to N.C.G.S. 7A-31(a) and (b)(2) and Rule 15(e)(2) of the North Carolina Rules of Appellate
Procedure, the Court on its own initiative hereby certifies for review prior to determination in the Court of Appeals
Cubbage, et al. v. Bd. of Tr. of N.C. State Univ. Endowment Fund, et al, COA14-311. The case shall be docketed
in this Court as of the date of this order. Briefs of the respective parties that have been submitted to the Court
of Appeals shall be considered by this Court. Any party may file a new brief in this Court consistent with the
North Carolina Rules of Appellate Procedure.

Order 380A14-1

State Supreme Court takes five controversial cases, bypassing the Court of Appeals | The Progressive Pulse

Cubbage v. N.C. State University Endowment Fund: This case concerns the pending sale of the Hofmann State Forest by the N.C. State Endowment Fund, which plaintiffs say was negotiated in secret and failed to comply with the N.C. Environmental Policy Act because the fund never obtained an Environmental Impact Statement. Wake County Superior Court Judge Shannon Joseph dismissed the case last November.

via State Supreme Court takes five controversial cases, bypassing the Court of Appeals | The Progressive Pulse.

SUPREME COURT DOCKET PAGE

ds-380A14-1

No. 380A14-1
SUPREME COURT OF NORTH CAROLINA
Docket Sheet
Cubbage, et al v The Board of Trustees Of The Endowment Fund Of NC State University, et al

FREDERICK W. CUBBAGE, RONALD W. SUTHERLAND, PHD, RICHARD BARNY BERNARD, JR., JAMES D. GREGORY, and
JOHN EDDY
v
THE BOARD OF TRUSTEES OF THE ENDOWMENT FUND OF NORTH CAROLINA STATE UNIVERSITY AT RALEIGH and
NC STATE NATURAL RESOURCES FOUNDATION, INC.

1 – CT_ORDER (Spec Order) – 10-09-2014
Filed: 10-10-2014 @ 12:06:23
FOR:
BY : N.C. Supreme Court

Party Name; Role
Cubbage, Frederick W.; Plaintiff-Appellant
Sutherland, Ronald W. (PhD); Plaintiff-Appellant
Bernard, Richard (Jr.) (Barny); Plaintiff-Appellant
Gregory, James D.; Plaintiff-Appellant
Eddy, John; Plaintiff-Appellant
The Board of Trustees Of The Endowment Fund Of North Carolina State University At Raleigh; Defendant-Appellee
NC State Natural Resources Foundation, Inc.; Defendant-Appellee
Cubbage, Frederick W., et al; Appellant

Attorney for Appellant – Cubbage, Frederick W., et al
Mr. James L. Conner, II [Primary Attorney]
Attorney at Law
jconner@rl-law.com
Ms. Amie C. Sivon
Attorney at Law
asivon@rl-law.com
RAGSDALE LIGGETT PLLC
P.O. Box 31507
Raleigh, NC 27622
(919) 881-2201

Attorney for Defendant-Appellee – The Board of Trustees Of The Endowment Fund Of North Carolina State University At Raleigh
Ms. Katherine A. Murphy [Primary Attorney]
Assistant Attorney General
kmurphy@ncdoj.gov
Ms. Catherine F. Jordan
Assistant Attorney General
cjordan@ncdoj.gov
N.C. DEPARTMENT OF JUSTICE
P.O. Box 629
Raleigh, NC 27602
(919) 716-6920

Attorney for Defendant-Appellee – NC State Natural Resources Foundation, Inc.
Mr. Paul T. Flick [Primary Attorney]
Attorney at Law
pflick@jordanprice.com
Ms. Lori P. Jones
Attorney at Law
ljones@jordanprice.com
JORDAN PRICE WALL GRAY JONES & CARLTON
P.O. Box 10669
Raleigh, NC 27605
(919) 828-2501

RALEIGH: NC Supreme Court takes several cases from its own appeals court | State Politics | NewsObserver.com

RALEIGH — The N.C. Supreme Court surprised parties in several lawsuits Friday by snatching their cases away from the state Court of Appeals.

These include an appeal by environmentalists who want to block the sale of N.C. State University’s massive Hofmann Forest – a case in which the appellate court was believed to be close to a decision

via RALEIGH: NC Supreme Court takes several cases from its own appeals court | State Politics | NewsObserver.com.