After nearly eight months of wrangling with the Eastern Band of Cherokee Indians, Swain County leaders and a vocal citizens group, Duke Energy agreed to relocate an electrical substation from a controversial location — one that would loom over a Cherokee spiritual site and mar views of a rural farming valley.
Despite putting money into the site work and grading, Duke announced this week it would move from the location.
While Duke and the tribe have hailed the move as a sign of cooperation between the two entities, a citizens group fighting the substation and a major upgrade to electrical lines associated with the project stopped short of calling it a victory.
In November 2009, Duke Energy began work on a knoll in the picturesque valley located between Ela and Bryson City as the site of the new substation, which incidentally overlooked Kituwah, a sacred Cherokee site that historically served as the tribe’s political and spiritual center.
Swain County leaders imposed a moratorium on new utility projects in March of this year, partly due to the public outcry and partly because the county was miffed Duke had started grading the site without informing the county of its plans.
Along the way, citizens filed a complaint before the North Carolina Utilities Commission while lengthy negotiations played out between Duke and the tribe, which had hinted at the possibility of legal action.
Throughout those negotiations, Duke maintained that one of the principal reasons for the line upgrade and, consequently, the substation was the need to provide more power to Harrah’s Cherokee Casino, which is in the midst of a $600 million expansion project.
Duke’s announcement that it will move the substation to one of two alternative sites by the end of the year solves the point of conflict with the tribe over the cultural impact on Kituwah.
Michell Hicks, principal chief of the Eastern Band of Cherokee Indians, used Duke’s announcement as an opportunity to reinforce the tribe’s intent to vigorously protect Cherokee cultural sites.
“It is my honor and responsibility to protect our land base and our Cherokee culture,” Hicks said in a release prepared by Duke and the tribe. “The land of Kituwah, our mother town, is central to our identity as a tribal nation and I will do everything in my power to ensure this sacred site is protected.”
But Hicks also reinforced his appreciation of Duke’s efforts to work with the tribe regarding the issue.
“I appreciate Duke Energy’s understanding of these sensitive issues and their hard work to identify alternate locations for the electrical station,” Hicks said. “We are pleased that through the cooperation with Duke Energy, we will continue to have reliable electricity and the landscape around Kituwah will be protected.”
Duke Energy has offered Swain County $400,000 for a 13-acre site in the county industrial park. In addition to the $400,000 price tag, Duke Energy would give the county $1.1 million to help defray the cost of relocating the county IT building, which has been in the development stages for nearly a decade.
Swain County commissioners voted unanimously on Monday to grant Duke a six-month property option on the site for $15,000.
Duke has another site under consideration as well in the Sheppard’s Creek area. Duke announced that it would decide between two alternative sites by the end of the year.
Should Duke move forward with the purchase of the site in the industrial park, the company would have made up for its lack of communication with the Swain County board that led to the imposition of a county-wide moratorium on utility projects.
With the county and the tribe appeased, Duke still has the citizens group to deal with, however.
Katy Travitz, spokesperson for Citizens to Protect Kituwah Valley, said her group will continue to pursue a complaint before the North Carolina Utilities Commission that alleges Duke Energy broke the law by not filing the proper paperwork for their line upgrades.
“I don’t see it as a victory,” Travitz said. “I think they made a smart decision, and there’s still work for them to do.”
The new substation is part of a massive upgrade of Duke’s West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing 66kv line mounted on wooden poles with a 161kv line mounted on 120-foot steel towers and constructing new substation facilities to accommodate the increased amount of power.
A complaint filed by Citizens to Protect Kituwah Valley is still playing out before the state utility commission. It essentially alleges that Duke Energy intentionally misrepresented its project as an upgrade when it is actually a new infrastructure project that should have triggered a long list of requirements including public hearings.
“We believe Duke broke the law, because they didn’t file for the certificate to do the work,” Travitz said. “Moving the substation doesn’t satisfy the complaint, and we intend to stay the course.”
The citizens group represents both enrolled tribal members with a cultural interest in protecting Kituwah, as well as Swain County residents whose properties are directly affected by the line upgrade.
But other citizens have been a part of the discussion, too. Nate Darnell, a farmer in Swain County who appealed to the board of commissioners to implement the moratorium, said moving the substation from the site near Kituwah to an alternative location over the hill in Shepard’s Creek doesn’t solve the problem that drew him into the debate.
Darnell saw the issue from the perspective of the impact it had on the environment and the agri-tourism businesses in the valley.
“I like the idea that they’re looking at the industrial park,” Darnell said. “You got to have this stuff and if you’re going to have it, you need to localize it so you can regulate it more easily and consolidate the impact it’s going to make.”
If there is a clear winner in the scenario, it’s the Eastern Band, which preserved its cultural legacy without jeopardizing the supply of power to its growing casino complex.
The tribe’s historic preservation officer, Russ Townsend, said Duke’s willingness to negotiate over a cultural viewshed sets an important precedent.
“I hope it’s an example to other agencies that we deal with that our concerns are legitimate and there are often alternatives to finish a project without undermining our cultural concerns,” Townsend said.
Townsend said the concept of viewscapes and cultural landscapes have been a part of regulatory discussions dealing with the way federal agencies approach cultural sites like the Gettysburg battlefield, but they’ve never been a part of discussions with private companies.
“I think if there’s a precedent set it’s that there wasn’t a federal agency that made Duke come to the table,” Townsend said.
Duke’s narrative of the events in the release announcing the company’s intent to move the substation acknowledges the cultural issues raised by the tribe, but it also defends the line upgrade as a necessary attempt to meet the needs of its customers.
“Initially, a new electric tie station was planned at a site within view from Kituwah, an ancient and sacred gathering place of the Cherokee people that is adjacent to the Tuckaseegee River, east of Bryson City, N.C.,” the company’s statement read. “After hearing concerns from the Cherokee people about the initial site, the company worked for several months with tribal and other community leaders to identity alternate locations.”
Brett Carter, president of Duke Energy Carolinas, stated the company’s position succinctly.
“Our customers expect and rely on Duke Energy to provide the electricity that powers their homes and businesses,” said Carter. “Finding a new location for this important infrastructure allows us to deliver on our commitment to customers, without impacting the landscape around Kituwah.”
Duke Energy wants an option to buy land at the Swain County Industrial Park with the intention of using it as the alternate site for an electrical substation, which was originally slated for the Ela area.
According to Jason Walls, Duke’s spokesperson, the company has offered to pay the county $15,000 to reserve an option to buy the 13-acre site of the proposed Swain County IT building at a price of $400,000. The option would give Duke six months to consider whether to follow through with the purchase.
In addition to the $400,000 price tag, Duke Energy would give the county $1.1 million in community development grant money to help with the cost of relocating the IT building, which has been in the development stages for nearly a decade.
“It’s part of our commitment to continue to work towards an alternate site,” Walls said. “We haven’t settled on an alternate site, but we continue to examine a few sites very closely.”
Duke has been in negotiations with the Eastern Band of Cherokee Indians and Swain County over relocating the substation after both entities voiced their disapproval of the current site.
The substation project is part of a massive upgrade of Duke’s West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing 66kv line mounted on wooden poles with a 161kv line mounted on 120-foot steel towers and constructing new substation facilities to accommodate the increased amount of power.
Duke began work on a substation on a hill near the Kituwah mound in the picturesque valley of Ela between Cherokee and Bryson City in November 2009, but this March, Swain County imposed a moratorium that halted the project after both the EBCI and a citizens group opposed it. Protests by citizens are also playing out before the state utility commission.
Should Duke follow through with the purchase of the land and the relocation of the substation, it would signal a monumental compromise between the energy company, the tribe and the county over a sensitive cultural preservation issue.
In March Swain County commissioners voted to enact a moratorium that put a halt to Duke Energy’s substation project on a hill overlooking the Cherokee mound site, Kituwah.
The moratorium was passed amidst a heated dialogue between the county, the Eastern Band of Cherokee Indians, and Duke about the location of the project. It was intended to give the county time to develop an ordinance that would regulate the construction of telecommunications and utilities facilities on county land.
The Swain County commissioners will convene for a public hearing on the draft ordinance at 1:30 p.m. on June 7. County Attorney Kim Lay wrote the draft ordinance, and County Manager Kevin King said it is the first of three ordinances that together will give the county the power to enforce zoning regulations on building projects.
King said the document that will be considered at the June 7 meeting is a “policing ordinance” that gives the county the right to make sure utilities and telecommunications construction projects comply with its land disturbance regulations.
King said the county would work with outside legal counsel to develop two additional ordinances that would impose certain types of zoning regulations on public utility and telecommunications projects.
The major proviso of the first draft ordinance is its requirement that any project that involves the “construction and demolition of certain structures not otherwise subject to the North Carolina building code” and requires a land disturbance permit must wait six months from the date it files its application to begin work.
Homes, because they are subject to the building code, are not affected by the ordinance. But the language does mean that Duke Energy would not be able to resume the work on its substation for six months, should the board adopt the draft ordinance.
Duke has initiated a $79 million upgrade of its West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing unobtrusive 66kv line mounted on wooden poles with 17.5 miles of 161kv line mounted on 120-foot steel towers. The proposed 300-by-300-foot substation on a hill overlooking Kituwah mound is part of the line upgrade.
Duke has been in discussions with the county and the EBCI and both King and Principal Chief Michell Hicks have expressed their opinion that the dialogue has progressed to the point that they expect the substation to be moved.
“We’re all working toward the end of the substation project being up there,” King said.
The substation would mar the viewshed of the Kituwah site and the picturesque valley that lies between Bryson City and Ela along the Tuckaseegee River. Both the county and the EBCI have offered Duke alternative sites for the substation.
Imagine buying an idyllic piece of land in the mountains only to learn you’ll be living under a giant, humming transmission line the size of a 12-story building. That’s what happened to Swain County residents Paul Wolf and Jennifer Simon.
“This is unsellable now,” Simon said, looking at her manufactured home on Davis Branch. “Nobody is going to buy this property.”
The controversy over a Duke Energy power substation located in close proximity to Kituwah, one of the Cherokee’s most revered sites, has thrown the company’s larger line upgrade project into the spotlight. Now a group of Swain County residents who live along the power line right of way are saying the company ignored rules governing the construction of transmission lines that would have given them the chance to object to it.
“I believe there’s been a devaluation of my land, and I believe it’s quantifiable,” Wolf said. “What we’re asking for is a do-over, because Duke didn’t get a permit.”
Duke has initiated a massive upgrade of its West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing unobtrusive 66kv line mounted on wooden poles with a 161kv line mounted on 120-foot steel towers.
Wolf and Simon have joined residents who object to the substation near Kituwah in filing a complaint with the North Carolina Utilities Commission under the complainant name Citizens to Protect Kituwah Valley and Swain County.
A hearing on the complaint was canceled last week because the utility commission determined the complaint’s primary purpose — namely a request for an injunction on the work — was moot.
Duke has, according to the NCUC response to the complaint, voluntarily stopped work on the substation due to the dispute over its location. The substation would not only mar views for the spiritual and historical Cherokee mound site, but create a visual blight on the rural farming valley of Ela.
While the hearing was canceled, the utility commission has required the power company to respond to the citizens’ complaint in detail by May 10.
The ruling means that a new argument has emerged in the controversy. What began as Cherokee outrage over the new substation’s proximity to Kituwah has expanded to include questions about the process of upgrading a large stretch of transmission line. The complaint to the utility commission cites both issues.
“Although [Kituwah] is a vitally important issue to the Citizens, there are also serious matters addressed in the Complaint over the siting and construction of the transmission lines,” the complaint reads.
The Swain citizens group has banded together to fight Duke on both fronts.
“We have a better chance as a group than as a few disaffected landowners,” Wolfe said.
Don’t tread on me
Wolf and Simon know they are fighting a David versus Goliath battle. Both of them signed easements that permit Duke to use their land to develop their lines.
“When you buy land out here and you need power, which we all do, you basically have to sign a blanket easement,” Wolf said.
But the way Duke has gone about its business has shown such disrespect, according to Wolf, that he has no choice but to fight.
State law requires a utility constructing new transmission lines of 161kv to go through a process that includes an environmental assessment and public hearings. While Duke’s new lines feeding the substation through Swain and Jackson counties are indeed 161kv, Duke has argued the work is exempt since it is an upgrade and not new construction.
“This is an upgrade of an existing transmission right of way that has been there for decades,” said Jason Walls, Duke spokesperson.
For Simon and Wolf, that argument is absurd. They bought property along the right of way and didn’t mind the wood poles and power lines, which were mostly obscured by trees. In fact, the right of way served as a kind of greenway for the neighbors in the vicinity.
Now, though, they have to deal with a huge naked swathe of land marked by massive steel towers that hum through the night. Simon lives with Dorothy Proctor, who is 100 percent dependent on a pacemaker that could be affected by the electric and magnetic fields produced by the new high voltage line.
To add insult to injury, Simon claims the subcontractors and employees she has encountered have been dismissive. Work on the line upgrade began at the end of 2008. Simon recalled her first encounter with one of the engineers.
“We were sitting by the fire pit and a truck passed us and then turned around and came back,” Simon said. “I have a dog that’s protective and the man stopped the truck and said, ‘That dog is going to be a problem.’ And I said, ‘Yes he is. And who are you?’”
Wolf has his own horror stories. With sons ages 11, 7, and 4 accustomed to having the run of the land, he now has to contend with the human waste of the subcontractors.
“These guys have literally [defecated] all over my land and not covered it up,” Wolf said. “It’s disrespectful, it’s unsanitary, and it’s got to be illegal.”
Walls said Duke has not received any formal complaints about the behavior of contractors, but the company would take them seriously.
“This is not behavior that we tolerate from subcontractors, so if there are allegations about their behavior, we encourage our customers to let us know about them,” Walls said.
A battle on many fronts
In March, Swain County commissioners passed a moratorium on telecommunications and utility projects that effectively halted Duke’s construction of the power substation near Kituwah. The moratorium gave the county time to create an ordinance regulating the construction of those kinds of facilities.
The moratorium expires on June 9. Swain County Manager Kevin King said the county commissioners would likely begin reviewing draft regulations in the next week.
County Chairman Glenn Jones said he was not sure if the new ordinance would be an obstacle to the substation. Swain County and Duke are in negotiations over alternative sites for the substation, but Walls said it might stay where it is.
“At the end of the day, this may be the best site, but we are working very hard with the tribe and the county to determine if there are alternative locations or if we can do anything further to mitigate the impact of the tie station,” Walls said.
Neither Swain County or the Eastern Band of Cherokee Indians has filed complaints with N.C. Utility Commission. According to public staff there, if Duke satisfactorily responds to the complaints of the Swain County citizens’ group, the project will be cleared to move forward.
Walls said the timetable for the transmission line upgrade has not changed, and Duke would move forward as soon as it has resolved the issue of the substation’s location. According to Walls, the company’s capacity studies have shown that the power supply from the existing 66kv line could be inadequate for consumers as early as next summer.
Jones said Swain County is still looking for an amicable solution to the issue and has not considered joining the complaint.
“We’ve got to look at both sides and try to come to a happy medium,” Jones said. “If we need ever enter in... if that’s best for the citizens of the county, I guess it’s possible we could enter in.”
Meanwhile landowners like Simon and Wolf are challenging the idea that a signed easement is a license for Duke to do whatever they want on private land.
“Do we have to live in fear that by right of condemnation they’ll come back in and take more of our land?” Wolf said.
Wolf said he hopes the fight against Duke over the line upgrade will at the very least prompt the county to look into the way the company operates.
“We realize we may be screwed here, but maybe this can be a lesson for Swain County,” Wolf said.
• To learn more about the citizens’ group complaint, visit www.savekituwahvalley.com.
• To learn more about Duke Energy, visit www.duke-energy.com.
A coalition of Cherokee and Swain County residents have stepped up the pressure on a proposed Duke Energy substation in the vicinity of the sacred Cherokee mothertown, Kituwah.
Last week, a coalition of more than a dozen people filed a formal complaint with the N.C. Utilities Commission asking the regulatory body to halt the project. According to critics, the substation and related transmission lines would mar views of a rural valley between Cherokee and Bryson City and alter the character of the nearby Cherokee ceremonial site.
Natalie Smith, a member of the Eastern Band of Cherokee Indians, has been an outspoken critic of the substation and has spearheaded a grassroots effort to move it away from Kituwah. Smith is the only named complainant in the case, but says the coalition includes a mix of county residents, property owners, business owners and tribal members.
“This wasn’t started or formulated for the Eastern Band’s interest,” Smith said of the challenge. “It’s for all the citizens of Swain County and all Cherokee people.”
The coalition’s complaint alleges that Duke Energy began work on the substation without state approval required for projects that exceed a certain capacity and that the project will have significant adverse impacts on residents.
Duke Energy spokesperson Jason Walls released a written statement reiterating the company’s willingness to work in conjunction with tribal leaders to resolve the issue.
Duke is considering alternative sites for the substation suggested by the tribe. It is also looking for ways to reduce the visual impact should it stay in its proposed location, Walls said.
Smith expressed her concern that the tribe has not taken any legal measures to stop the project, even after the tribal council authorized legal action in February.
“I’m curious as to exactly why they haven’t, and I suspect that it is politics,” Smith said. “If it proves to be politics, then I think our leaders need a major recalibration of their priorities, because Kituwah is the heart and soul of our people. It’s beyond any individual or political status.”
The utilities commission has the power to issue an immediate injunction on the project pending resolution of the complaint, but the project has already been halted.
Last month, Swain County commissioners passed a moratorium that put a stop to the project for 90 days, enough time for the county to create an ordinance regulating substations and cell towers.
A group of activists arrested for civil disobedience during protests of Duke Energy’s new coal plant last year have been let off the hook for a second time.
Activists were arrested for trespassing in two separate demonstrations last year, one in front of Duke’s headquarters in Charlotte and one in front of N.C. Governor Beverly Perdue’s mansion in Raleigh. Civil disobedience was a planned part of both protests challenging the construction of a new coal plant in WNC by Duke.
One of the organizers behind both events was Avram Friedman of Sylva, the executive director of the Canary Coalition, a statewide air quality advocacy group. Friedman is also waging his second run this year for state political office with a challenge to Rep. Phil Haire, D-Sylva.
Prosecutors this month dismissed the charges stemming from the protest in Raleigh. The charges stemming from the Charlotte protest, which involved 43 people on Earth Day last April, had been dropped as well.
Those arrested were preparing a “necessity defense” to prove their action was justified, Friedman said.
“The ‘necessity defense’ holds that defendants intentionally committed a crime in order to prevent a much greater harm,” Friedman explained. “Duke Energy and cooperating state officials are perpetrating great and unnecessary harm against public health, the environment and the economy of all North Carolinians by constructing a new coal-burning power plant that will produce massive quantities of toxic air and water pollutants for the next 50 years.”
The exonerated defendants maintain that the Cliffside plant is not needed to meet North Carolina’s future energy demand, but is only being constructed to increase Duke Energy’s profits at the expense of the citizens of North Carolina, Friedman said.
Friedman points to expansion by Duke Energy last year outside its core service territory. Duke signed a contract to provide 1,000 megawatts to five energy co-ops in South Carolina and has another contract in the works to provide 600 megawatts outside its service area in South Carolina.
The new coal plant, if completed, will provide only 800 megawatts of capacity. The sale of power outside its service area shows that Duke Energy already has a huge surplus of power and is merely building the new plant to fuel expansion and increase profits, despite the negative economic and health impact of the plant, Friedman said.
North Carolina ratepayers face an increase in their utility bills next year, partially to pay for construction of the new Cliffside power plant.
Friedman is running for office to bring the issue to public light, including complicity of state officials and leaders to allow the plant’s construction.
The setting may have been humble –– a nondescript meeting room in a county administration building –– but the Swain County commissioners’ vote to pass a moratorium on communications and utility projects may prove monumental. The vote could force utility giant Duke Energy to the negotiating table, and it was a bona fide act of solidarity with the Eastern Band of Cherokee Indians on the part of the county.
Last week, four Swain County commissioners –– Genevieve Lindsay, Steve Moon, Phil Carson, and David Monteith –– voted unanimously to pass a 90-day moratorium on all telecommunications and utility projects that require a county building permit.
The moratorium could prevent Duke Energy from moving forward with a controversial electrical substation project near the sacred Cherokee site Kituwah.
After the vote, a small but energetic crowd of Swain County residents –– some enrolled EBCI members –– applauded loudly.
“We don’t often get applauded,” said a smiling Commissioner Genevieve Lindsay, who chaired the meeting in the absence of County Chairman Glenn Jones.
Judging by the crowd, Lindsay should not have been surprised by the applause.
Nate Darnell, whose family operates Darnell Farms, an agri-tourism business in the same valley as the Kituwah mothertown site, expressed his support for the moratorium.
“I want people to come to our farm and say, ‘Wow, this place is unscathed by development,’” Darnell said. “We have to take a stand and say some things are more valuable than power.”
Darnell’s family has leased the farmstead since 1984 and is the most recognizable business in the valley below the proposed Duke Energy substation project at Hyatt Creek, between Ela and Bryson City.
“I’m not a conservationist. I’m a preservationist,” Darnell said. “I don’t want the land locked up, I want it used wisely.”
Natalie Smith, a Swain resident and Cherokee business owner who has led a citizens’ group that opposes the substation project, also spoke in support of the moratorium.
“I am so relieved to see Swain County take the reins. It is overdue. This could be an historical event,” Smith said. “I feel as if Swain County has taken many punches over the decades from big conglomerates and continues to suffer from them. Finally, we are standing up for ourselves and acknowledging our assets.”
Smith’s citizen action group has announced its intent to bring suit against Duke over the project.
“The coalition is organizing and we are going legal, but we can’t discuss any details until the case is in court,” Smith said.
But it was the Swain County commissioners themselves who had the final say on the moratorium, which will be in effect for 90 days. During that time the county will develop an ordinance regulating the construction of telecommunications and utility facilities. New ordinances can’t be adopted until a public hearing is held, meaning Swain citizens will get the opportunity to address the proposal before it becomes law.
“You can’t stop progress, and we don’t want to,” said Commissioner Steve Moon. “But it would be a shame if they were allowed to continue to desecrate that site. Let’s see if the project can be located in a place that would be less visible and less detrimental.”
Moon said he felt the need to stand up for the Cherokee residents of Swain County, in part, because his wife Faye is an enrolled EBCI member who feels strongly about the issue.
“They’re our friends, our relatives and our neighbors,” Moon said.
Commissioner Phil Carson said his vote was prompted by his experience at a meeting last month between Duke Energy’ and the EBCI to which the Swain commissioners were invited.
“I felt like it was a real eye-opener,” Carson said. “We were really just observers and weren’t considered as part of the solution to the problem. Working together for all our people is the common goal.”
While it’s not entirely clear whether the moratorium will stop Duke’s progress on the 300-by-300-foot substation on a hill overlooking the Kituwah site, Fred Alexander, Duke’s regional director, was clearly concerned by the vote.
“Quite frankly what Duke is trying to do is find an alternative that will meet the needs of our customers in Swain and Jackson counties that gets us off of that mountain,” Alexander said.
Renissa Walker, another enrolled member of the EBCI who resides in Swain County, confronted Alexander after the meeting, asking him to consider the issue from the perspective of a tribal member.
“Stand on top of the mound under a full moon and do a 360-degree turn making a full circle, and you’ll see that Kituwah is protected by all of those mountains and you’ll see the genius of why our ancestors put it there,” Walker said.
The EBCI Tribal Council passed a resolution last month clearing the way for the tribe to take legal action against Duke. So far, the tribe has not filed any suits in court or with the state utilities commission, preferring instead to hold ongoing negotiations focused on locating alternative site locations and considering options for mitigating the visual impact of the project.
The Swain moratorium poses the first legal hurdle to the project, but much depends on what kind of ordinance the county produces during the moratorium period. Duke needs a county building permit for the project and does not have one.
Alexander, while communicating Duke’s desire to resolve the conflict with the tribe and the county, was careful to reiterate the company’s stance so far on the issue.
“On the other hand, we’re not in a position to say, ‘No, we can’t be where we are today,’ because we have a responsibility to serve our customers,” Alexander said.
Both Swain County and the EBCI have offered alternative locations, and Alexander said Duke would continue to evaluate its options before making a decision on whether to relocate its substation.
Swain County has entered the fight over Duke Energy’s proposed electrical substation that would mar views in a rural farming valley near a highly sacred Cherokee site.
Swain commissioners are considering a moratorium that would halt any electrical and telecommunications substations that require either a county building permit or soil and erosion permit. The county has scheduled a public hearing on the moratorium for Tuesday, March 9, at 1 p.m. at the county administration building.
According to County Manager Kevin King, the moratorium is intended to give the county time to develop an ordinance regulating substations.
County Chairman Glenn Jones said the moratorium was not aimed at the Duke Energy substation project directly, but it was an outgrowth of talks between the commissioners, Duke leadership and Cherokee tribal leaders over the issue.
“We’re not going to pass anything that’s just going to be detrimental, but we wanted to pass something so people can’t start scratching around without talking to us,” Jones said.
Site preparation for the substation pad began last November on a mountainside tract in the Ela community between Bryson City and Cherokee. Duke never received any county permits for the work and did not file an application with the North Carolina Utilities Commission.
Swain County commissioners learned of the extent of the substation and line upgrade projects only after members of the Eastern Band of Cherokee Indians came to a board meeting to complain. Cherokee is upset that the substation and associated transmission lines will impact the character of Kituwah, which historically served as the spiritual and political center of the Cherokee.
Jones said the commissioners plan to pass the moratorium at the special public hearing next week and have an ordinance in place within 60 days.
“Within 60 days, we’ll have some kind of ordinance in place so we can move forward,” Jones said.
King said county commissioners came away from the meeting last month in Cherokee realizing they needed their own regulations. At that meeting, Duke Energy Carolinas President Brett Carter made it clear the reason his company had consulted with Jackson County over the substation and transmission line project was that their ordinances required it.
“He made it clear that if you have a local ordinance, you’d have a seat at the table, and if you don’t have an ordinance, you don’t have a seat at the table,” King said.
Swain Commissioner David Monteith said the moratorium was a way to bring Duke to the table now and in the future.
“I think the moratorium is a way to get them to sit down and talk with us, not only now but even more so in the future,” Monteith said. “I feel that Duke owes the people of Swain County and Western North Carolina more respect than what they’ve given us ... which is nothing.”
It’s not clear whether Duke’s current substation project will be directly affected by the moratorium or the ordinance the county puts in place.
King said Duke’s regional manager Fred Alexander was concerned enough to call and ask him if the moratorium would affect the substation.
“He was basically asking whether this would impeded the project, and I said he’d probably need to consult their attorneys on that,” King said.
Duke spokesman Jason Walls said it was too early to tell how the moratorium would affect the project, but the company’s attorneys would review the documents as they were made available.
“We’re engaged with the county to better understand what the moratorium would entail and until we see the actual document, we won’t know how it might affect the company’s plans,” Walls said.
David Owens –– a professor at UNC-Chapel Hill’s Institute of Government who specializes in land-use law –– believes Duke would have to make the case that they had a vested right in the project to claim exemption from the moratorium. Under vested rights claims, developers who are already underway with a project can be exempt from regulations that come along later.
“They would have to show that they’d sunk some cost in this particular location and those costs would be lost if the structure were moved to a different site,” Owens said.
Owens said the announcement of a public hearing on a moratorium by Swain commissioners sets the stage for whatever legal arguments are to come.
“Once a county sends a notice of a moratorium, that freezes the status quo,” Owens said. “The question is what is Duke’s position at that point.”
In 2006, state legislators tightened the laws governing moratoria imposed by local governments. The statute mandates that counties state the problems that necessitate a moratorium, list the development projects that could be affected, name a date for the end of the moratorium, and develop a list of actions designed to remedy the problem.
Duke is currently in negotiations with the Eastern Band over whether to mitigate the visual impact of the substation or move the project altogether. Swain County’s actions have added pressure to the energy giant.
King said the fact that many tribal members are Swain County residents motivated the commissioners to act.
“Every tribal member that lives in Swain County votes in our election, so as far as the board is concerned there is no ‘us’ and ‘them.’ It’s all ‘us,’” King said.
Both the county and the tribe have offered Duke alternative sites for the substation. King said he offered a site in the county’s industrial park.
“That’s an area that’s visually polluted already,” King said. “We’re trying to deliver alternatives. The tribe is trying to deliver alternatives, and hopefully we can all get this resolved.”
Swain County officials have stressed, as has the tribe, that they prefer an amicable resolution to the issue rather than a legal battle.
“If coming out of this we could get an open dialogue with Duke, this can be a positive thing for Swain County in the future,” Monteith said.
After a day of discussions between the leadership of Duke Energy and the Eastern Band of Cherokee Indians, the dispute over the construction of a proposed power substation near the tribe’s most sacred site remains unresolved.
Last Wednesday (Feb. 17) Brett Carter, President of Duke Energy Carolinas, led a delegation to the EBCI Council House to meet with members of the tribal council and Principal Chief Michell Hicks. The meeting was billed as a closed-door discussion between leadership of the two entities, but before it began a group of demonstrators expressing support for the tribe’s leadership was invited inside.
What followed was, according to participants, a formal and orchestrated dialogue in which Carter expressed his regret that Duke Energy had not consulted with the tribe before beginning the site preparation for the substation. But while Duke has admitted to poor communication and expressed a willingness to pursue mitigation of the visual impact of their project, they have also continued to work on preparing the site for construction.
“The work that’s going on at the site is grading and prep work, and that work is going to continue,” said Duke spokesperson Jason Walls.
While the tribe wants to see the substation moved to another tract, Duke asserts the visual impacts can be mitigated.
After the discussion between Carter and the members of the Tribal Council had finished, the council allowed a series of questions from the audience. Some were probing and others impassioned, but all of the tribal members who showed up wanted to make it clear visual mitigation wasn’t enough; they wanted the substation and line upgrade project moved off the hill.
Natalie Smith, a tribal member and Cherokee business owner who helped organize the demonstration, said she was grateful to the council for inviting them into the dialogue.
“You can’t do this here,” Smith said. “That was the bigger message.”
Chief Hicks also invited members of the Swain County board to the table. Swain County Commissioner David Monteith was not impressed with Duke’s communication with the leadership of the county or the tribe.
“I think they treated Swain County like a left-handed stepchild,” Monteith said. “Professional courtesy from a company of the size of Duke with a project that large would at least tell you to talk to the commissioners.”
George Wickliffe, a chief of the Oklahoma Cherokee United Keetoowah Band, sat in on the meeting, too.
“Kituwah is well documented as our Mother Town and due to its history, not only through such documentation, but orally and as a part of our religious tradition, is like the Garden of Eden to the Christian,” said Wickliffe.
After the meeting, Hicks said the tribe had already identified areas that could be used as alternative sites for the substation, but he wouldn’t comment on whether any definite alternatives had already been discussed.
“We’re still working on what our options are,” Hicks said. “I think they were sincere about the failure to notify us of the project. As far as negotiating, we won’t know until we see what options they present.”
Hicks said over the next two weeks Duke would submit plans to minimize the visual impact of their project, and the EBCI would offer Duke options for moving the site off the hillside.
Walls called the meeting “productive” and said Duke “left with a commitment to work on additional mitigation to minimize the visual impact” of the project.
In the wake of the controversy surrounding the company’s proposed substation, Duke Energy representatives claimed they were unaware of the project’s potential impact on the Cherokee’s most valued site.
But Russ Townsend, historic preservation officer for the Eastern Band of Cherokee Indians, isn’t so sure. Townsend received an archeological report that Duke conducted on the site of the substation in 2008.
“It basically clarified that Duke did know all of these things they were saying they weren’t aware of,” Townsend said. “That was disappointing. They’re not required by law to consult with me, but they’ve always said they wanted to be a good neighbor.”
Archeologically, the substation project’s interference with Kituwah presents an interesting dilemma.
The EBCI bought 309 acres around the mound site in 1996, and an archeological survey the following year discovered a 65-acre village site that confirmed a long term of settlement. The mound site and the surrounding village are listed separately on the federal register of historic places.
The mound, 170 feet in diameter and five feet tall, formed the base for the council house where the Cherokee conducted some of their most sacred ceremonies.
The Duke substation project is taking place on a surrounding hillside that is not owned by the tribe. Duke considers the project an upgrade of an existing line, and therefore is not bound to a public vetting process that would involve consulting with state historic preservation officials. The substation site covers a 300 by 300 foot square, and its structures will be 40-feet high.
But the Cherokee have argued the project directly threatens the integrity of the Kituwah site.
Tom Belt, who teaches Cherokee language and culture at Western Carolina University, explained that the concept of the Kituwah mothertown for the Cherokee would encompass the entire area within a day’s walk of the council house. Belt said the actual valley and its mountains play crucial roles in spiritual ceremonies held on the solstices and in the cosmology that support the tribe’s clan structure.
“On those days if you stand at the mound where the council house was, the very place the light hits first is on the seven peaks on that mountain where the substation will be built,” Belt said.
Townsend said the archeological report filed by Duke confirmed there were 15 important sites within a mile of the substation project, and two nationally registered sites within a half mile. Townsend said there are likely no artifacts left in the ground in the area, but the report, conducted by a private firm, leaves little doubt about its archeological significance.
“It’s my professional opinion that this is really a true adverse impact to Kituwah,” Townsend said. “It’s not just a site on a hill we don’t want developed.”