U.S. sets tough conditions in a draft special use authorization regarding access to 50 private acres straddling the rim of a mountain range
The N.C. Geological Survey warns there’s a stream acidity hazard above Fires Creek, which are the Clean Water Act waters of highest quality here
Thirty-four days are left to file written objections to regional forester in Atlanta
By Tom Bennett
Special to Hiwassee River Watershed Coalition
Near Hayesville, Clay County, N.C., July 6, 2015 – In Federal Forest Purchases Circular No. 9 in 1924, the early U.S. Forest Service giant Verne Rhoades of western North Carolina made an important delineation. He published what he considered to be a list of the appropriate special uses available in the new national forests here.
According to historian Kathryn Newfont, Rhoades included: “Apiaries, stone quarries, gravel pits, pastures, railroad and flume right-of-way, municipal water supply, tobacco beds, tree nurseries, sanitaria, hotels, stores, garages, restaurants, school houses and what not.”
Well, for the sake of the national forests, I’m happy to report that the rules for special uses, even the “what nots,” have been tightened a good deal over the nearly century since Rhoades ruled.
Now this brings me to a development here last month involving Michael Anderson and Chris Logan. One is a real-estate salesman, magistrate and former Clay County manager, and the other is a chip-mill operator and former U.S. Forest Service employee, according to their application for an easement.
They represent about seven other local residents who have not incorporated but call their group the Laurel Creek Property Owners Association. In its behalf, Anderson and Logan applied in 2008 for an easement to a private 50-acre inholding. It’s a glorious anomaly that’s completely far within the Nantahala National Forest. They intend four primitive cabins. This parcel left out of the national forest during purchases of the 1920s and 1930s straddles mountains that form the border between Clay and Cherokee counties at the western tip of the Tarheel state.
How are “inholdings” like this left out of the NF? The answer is that the U.S. only purchased from willing sellers, writes Kathryn Newfont in her 2012 book, “Blue Ridge Commons: Environmental Activism and Forest History in Western North Carolina.”
The Clay County Register of Deeds office is steward of applicable public records dating at least to W.T. and Eugenia Bumgarner’s October 1935 sale of the 50 acres. They are “lying on the waters of Fires Creek,” the deed states. Did the Bumgarners object to a national forest? I’ll have more on that in a moment.
In the ensuing years, owners in New Orleans, La., Norfolk, Va., and Fletcher, N.C. possessed this tract until 2006 when Anderson, Logan and the others acquired it and its already four subdivided parcels.
It’s interesting to note that their Laurel Creek Property Owners don’t take their unincorporated group name from the popular recreation area Fires Creek lying immediately downslope. Instead, the name is taken from a tributary higher up steep Phillips Ridge in what are called the Valley River Mountains. (Both creeks are Hiwassee River tributaries that itself hands off the water to the Tennessee, Ohio and Mississippi. I say what’s in the water matters.)
On June 25th of this year, allowing 45 days for public comment, Forest Supervisor Kristin Bail of National Forests in North Carolina published in the Federal Register her unsigned draft decision. It conditionally grants Anderson and Logan and the others not the easement they want, but instead a condition-laden special use authorization.
A LONG LIST OF CONDITIONS
It has the expected stipulations to comply with the Clean Water Act, N.C. Sediment Control Act and “all necessary permits of the U.S. Army Corps of Engineers and N.C. Dept. of Environmental Quality.” But I wondered, too, about utilities high up and deep within a national forest at what an earlier environmental assessment says range from 2,200 to 3,700 feet above sea level. In this regard, the Bail draft decision states the owners “will have to apply for a utilities access and special use authorization and go through a separate EA for the utilities application.”
They’re responsible for road reconstruction at costs ranging up to $18,107 a mile for what Hiwassee River Watershed Coalition calculates to be 3.88 miles for Phillips Ridge “Road” alone. They can’t haul logs or engage in commercial activities.
‘HARMFUL TO AQUATIC LIFE’
It would be major stirring of the steep soil and that’s alarming because there is a stream acidity hazard on this slope, according to the N.C. Geological Survey by Carl E. Merschat in a 2003 map series.
“Oxidation and hydrolysis of the freshly exposed sulfide minerals produces sulfuric acid runoff, which causes a sudden decrease in pH in nearby streams,” Merschat writes. “This increase in acidity is harmful to aquatic life.”
I share now an excerpt from the 2002 NCDENR Division of Water Quality’s Little Tennessee River Basinwide Water Quality Plan, page 92:
The National Park Service has been studying ways of addressing the water quality problems in Beech Flats Prong (and other streams that are likely impacted by roads running through the GSMNP). No scientifically and economically defensible way to manage the extensive road cut has been found. Disturbance of Anakeesta materials should be avoided in the GSMNP and other areas in the southern Appalachian Mountains in the future to prevent these impacts.
U.S. PURCHASES AT A GLACIAL PACE
I promised earlier to try to explain how 50 acres on the rim of mountains beloved by hikers stayed out of the national forest. Here the 2012 book by Kathryn Newfont, associate professor of history and faculty chair for the Center for Regional Studies at Mars Hill College, is indispensable. No wonder the hardcover printing is for sale on Amazon at $69.95.
“Once an offer had been accepted and a contract signed, the machinery of final payment and title transfer began,” Newfont writes. “It moved at a glacial pace… The Forest Service lacked manpower adequate to the task of processing the huge number of tracts it purchased, and a backlog built up, both of title research and of survey work. The final exchange occurred months or even years after the National Forest Reservation Commission decision.”
In this setting the Bumgarners may have gotten tired of waiting so sold to the Westfelds of New Orleans who sold to the Fitzpatricks of Nolfolk. The latter subdivided for four sons. One of them living in Fletcher, N.C. created Brite Stars LLC, which needed only six months’ time in last decade’s real estate boom to find buyers Michael Anderson and Chris Logan. Their 2006 lawyer is a good one, I can tell you, but may have written too naively in their deed how this was “a blanket utility (with) surface rights and road right of way until permanent roads are built.”
Tom Bennett of the Martins Creek community near Murphy, N.C., was a retired newsman, Hiwassee River Watershed Coalition member/volunteer/donor and recipient of the 2015 Holman Water Quality Stewardship Award. Tom died on December 28, 2020.