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.”

A disagreement over Duke Energy’s placement of a power substation near Cherokee’s most significant cultural site has instigated a meeting between the top leaders of the tribe and the company.

Principal Chief Michell Hicks, the tribal council, and the attorney general of the Eastern Band of Cherokee Indians are set to meet with Duke Energy Carolinas President James Rogers behind closed doors on Wednesday (Feb. 17) to discuss the issue.

Hicks said he wanted to wait until after the meeting to discuss whether negotiations would involve visual mitigation of the substation or moving the project entirely.

“We want the land protected, and we want the viewshed protected,” Hicks said. “I don’t know where they’re at. Until I sit down with the president and hear where they’re coming from, I don’t want to comment on that.”

The ECBI owns a 309-acre Kituwah mound site, which was historically the tribe’s spiritual and political center. But it does not own the surrounding hillsides where the substation is slated to go.

In November, Duke began bulldozing part of a mountainside tract near the Hyatt Creek/Ela exit off the Smoky Mountain Expressway between Cherokee and Bryson City to prepare for construction of the substation. The mountainside is considered by the Cherokee to be a part of the greater Kituwah mothertown. Should the project move forward, it would mar a viewshed integral to the tribe’s cultural identity.

The EBCI’s tribal council passed a resolution authorizing Principal Chief Michell Hicks to seek outside legal counsel to attempt to prevent Duke from moving forward with the substation and a transmission line expansion near the Swain County site during its meeting on Feb. 4.

Since then, work at the site has continued. Some 15 members of the tribe traveled to the Swain County commissioners meeting last week in order to ask the board to join with the tribe in opposing the Duke project. The commissioners took no formal action.

“We don’t have any ordinance or regulatory authority to cover that,” said Chairman Glenn Jones. “If the Cherokee want to bring a lawsuit or whatever, we told them we would probably be willing to put our name to it.”

Representatives from Duke have said the substation and line upgrade was intended to serve the expanding demand for energy created by the growth of Harrah’s Cherokee Casino.

Company spokesperson Paige Layne cited a lack of communication over the issue as the point of tension.

“This was not something we initiated to cause harm,” Layne said. “Our goal was to provide energy to our consumer base. I guess the next step is to make sure we’re doing that with the utmost respect to the tribe’s culture.”

Wednesday’s meeting could clear the air, but it could also solidify differences between the tribe and the utility company.

Duke has already expressed its intent to resolve the issue through a plan to mitigate the visual impact of the substation on the mountainside. But the tribal council’s resolution cleared the way for a legal battle that could play out in the form of hearings before the North Carolina Utility Commission.

The Eastern Band of Cherokee Indians may pursue legal action against Duke Energy after learning about the utility company’s plans to put an electric substation near Kituwah mound, the tribe’s most sacred site.

On Friday the EBCI’s tribal council passed a resolution authorizing Principal Chief Michell Hicks to seek outside legal counsel to attempt to prevent Duke from moving forward with the substation and a transmission line expansion near the Swain County site.

“I’m very disappointed with the lack of contact with Duke on such a large facility being built near our most important site,” Hicks said.

Hicks said he learned about the estimated $79 million project –– which he termed a “desecration”–– in late December and voiced his concerns to Duke’s regional manager, Fred Alexander. The ensuing discussions were limited, Hicks said.

In November, Duke began bulldozing part of a mountainside tract near the Hyatt Creek/Ela exit off the Smoky Mountain Expressway between Cherokee and Bryson City to prepare for construction of the substation. The mountainside is considered by the Cherokee to be a part of the greater Kituwah mothertown, which was once the tribe’s spiritual and political center. Should the project move forward, it would mar a viewshed integral to the tribe’s cultural identity.

Duke Spokesperson Paige Layne said the company was surprised about the concerns over the substation, which she said is being constructed in part to service Harrah’s Cherokee Casino.

“This was not something we initiated to cause harm,” Layne said. “Our goal was to provide energy to our consumer base. I guess the next step is to make sure we’re doing that with the utmost respect to the tribe’s culture.”

Layne said Duke Energy’s president, James Rogers, has scheduled a meeting on Feb. 22 to visit the site and to discuss the matter with Hicks.

Poor communication

The controversy over the construction of the substation emerged when the tribe’s administrators became aware of the scope of the project in late December. Duke Energy purchased the mountainside site in 2008 and a report of the Edison Electric Institute issued in January of the same year identified the Hyatt Creek Substation project as part of a larger $79 million transmission line upgrade that would nearly triple the voltage capacity on 17.5 miles of transmission line from 66 kV to 161kV.

When bulldozing work began late last year as part of the site preparation work, some of the tribe’s employees inquired about the project. The tribe’s legal office contacted the North Carolina Utilities Commission to find out what was going on.

Thomas McLawhorn, spokesperson for public staff at the commission, explained that Duke determined they did not need to file an application for the project.

“Duke has not filed an application, and I don’t believe they intend to,” McLawhorn said.

McLawhorn explained that Duke’s staff had determined that the upgrade project did not require an application under general statute 62.101, which governs the construction of transmission lines.

According to Hannah Smith, an attorney for the tribe, utility companies are required by the statute to notify a number of state agencies and file an application whenever lines of 161kV or more are involved.

McLawhorn said Duke made the determination that, as an upgrade, the project did not require an application, and therefore did not have to specify why the project was necessary.

McLawhorn did say that the North Carolina Utility Commission could impose an injunction on the project in response to an official complaint on behalf of the tribe.

“The commissioners could instruct Duke to cease construction of the facility until the commission has had time to investigate the issue and form an opinion,” McLawhorn said.

McLawhorn said Duke staff members informed him that the upgrade was driven by the need to provide more power to the Harrah’s Cherokee Casino.

Layne confirmed providing power for the casino and hotel expansion is the intent of the project.

“The area up there is growing and when we look specifically at the expansion of the hotel and casino, we need to bring in more service to the area,” Layne said.

Layne said Duke was looking at how they could have communicated with the tribe better.

“We have to better understand where in our process we could have taken more steps,” Layne said. “To us it was routine, and when we learned about the visual impairment, it was not routine.”

Is mitigation enough?

Last week the tribal council met to consider a resolution authorizing the EBCI attorney general’s office to pursue a course to stop the project.

Tom Belt, a professor of Cherokee Language and Culture at Western Carolina University, said Duke’s construction of the substation near Kituwah was tantamount to putting a McDonald’s sign near the pulpit of a church. Belt urged the tribal council to do whatever it could to protect the site.

“The Kituwah site is one of the most sacred things we have and I would submit that it may have been part of the reason so many of your forbears stayed here in 1838,” Belt told the tribal council.

Tribal council member Teresa McCoy put the issue in perspective for her colleagues.

“I like power, but this is bigger than power,” McCoy said.

According to Layne, Duke has already offered to mitigate the impact of the substation on the viewshed by using non-reflective steel, replanting the area with native plants, and using stone-colored material for retaining walls.

Natalie Smith, a tribal member who owns Tribal Grounds Coffee Shop in Cherokee, asked the tribal council to stand up to Duke and get the project moved.

“I don’t think we should compromise at all with Duke,” Smith said. “I think they’re counting on us not to know the law and I think they’re counting on their Fortune 500 lawyers beating us.”

Hicks seemed to share that sentiment during the meeting.

“The bottom line is it’s a disrespect to our tribe and a disrespect to the people of Swain County,” Hicks said.

Russ Townsend, the tribe’s historic preservation officer, believes Duke should have done more to communicate its plans.

“We’re constantly gathering data that shows Duke has had more opportunities to share more information with us,” Townsend said.

Townsend urged the council to exhaust its resources in defending the site.

“This is our most important site. We’re only ever going to have one Kituwah,” Townsend said. “I don’t think there’s any resource we shouldn’t expend to make Duke realize the importance of the site.”

The meeting between Hicks and Rogers on Feb. 22 could determine whether the state’s largest power company and one of the country’s most wealthy tribes will face off in court over the issue.

The United Keetoowah Band of Oklahoma released a statement denouncing Duke’s failure to communicate with all of the Cherokee bands that hold a stake in the cultural legacy of Kituwah.

EBCI council member Perry Shell said all Cherokees should band together to protect their mothertown.

“United we stand a better chance of fighting this,” Shell said.

When Duke first broached the idea of tearing down the Dillsboro dam eight years ago, Mark Singleton thought he would see this day come much sooner than it did.

A champion of dam removal both for the ecological and recreation benefits, Singleton had a front row seat last week on the banks of the Tuckasegee when a hoe ram struck its first blow, taking a tiny but symbolic chip from the top of the dam.

“It’s a historic day for the river. It’s also nationally significant,” said Singleton, a Jackson County resident and paddler. “Dams like this don’t come down very often.”

Singleton hardly slept the night before, wondering what the river would look like in its natural state. Before the dam came down, you could barely make out giant rock formations lurking beneath the surface. The dam was also rumored to sit on top of a rock ledge. That would all be exposed as the water dropped, revealing what Singleton hoped would be fodder for a paddlers playground.

“What kind of cool features are waiting under there?” Singleton said. “It is like Christmas. You are unwrapping a present.”

Singleton also wondered whether the large rock formations would create shallow tide pools, something his own children like to explore.

“All of that is underneath here. We just haven’t seen it in 100 years,” Singleton said.

Singleton said the former dam site will be a construction zone for a few months yet, but by summer, he hopes to be paddling down the new stretch of river. A big spike among paddlers could be witnessed the first year, but Dillsboro will likely find itself as a new hub for recreational paddlers even after the novelty wears off, said Singleton, the executive director of American Whitewater, a national paddling advocacy group.

“It is a great thing. I am glad to see the river is free-flowing,” said James Jackson, a local paddler and business owner. “I think it will be a great addition to the county.”

Meanwhile, environmental benefits of dam demolition were also cheered by biologists who had lobbied for dam removal.

For starters, nearly a mile of slow moving backwater behind the dam will be restored to a natural mountain river. Also, with the dam gone, fish will once again have free range to migrate up and downstream, expanding their reach, according to Mark Cantrell, biologist with the U.S. Fish and Wildlife Service.

Aquatic species have been “bumping their head on this dam for years,” Cantrell said.

One such species is the endangered Appalachian elktoe mussel. The eggs of elktoe mussles hitchhike on fish, which unwittingly play host to the developing larvae in their gills. The baby mussels eventually jump ship and wherever they land becomes their new home. Dams that block fish consequently block the distribution of the elktoe mussels.

Dam removal will allow previously isolated elktoe populations to unite and in turn build back up the gene pool, Cantrell said.

Dam removal will also help the sicklefin redhorse, an extremely rare fish that Cantrell would like to see placed on the list of endangered species. It is found on only five rivers in the world, all of them here in the mountains.

Like salmon, but on a smaller scale, the sicklefin redhorse swim upstream to spawn. But the Dillsboro Dam blocked them from doing so. Removing the dam will it allow access to new spawning grounds.

The sicklefin redhorse traditionally returns to where it hatched to spawn. Since the fish currently aren’t found upstream of the dam, it could take generations for them to discover the new territory if left to their own devices.

But Fish and Wildlife biologist have lent a helping hand by rearing sicklefin redhorse in captivity and releasing newly hatched fry upstream of the dam every year, imprinting the fish to return to the same spot one day when laying eggs of their own.

The sicklefin redhorse don’t spawn until the fifth year of their life, but the biologists are now in the fifth year of the releases — with a total of about 5,000 released over that time. Within a year, the first of those imprinted fish should reproduce naturally on sections of the Tuck upstream of Dillsboro, giving rise to a new population of the threatened sicklefin.

U.S. Fish and Wildlife has conducted species assessments above and below the dam, and will watch eagerly to see if the numbers and diversity increase in the years following dam removal.

“This is what it is all about,” Cantrell said. “The intent of dam removal is to see these environmental benefits.”

As the dam came down

While the river ecology will improve over the long run with the dam down, biologists were concerned about immediate impacts of chunks of the dam and backlogged sediment washing downstream during the demolition process. While Duke was required to dredge some of the sediment prior to demolition, a lot still remained.

“As the water levels drop, we will see some of that sediment that was previously sequestered behind the dam be redistributed downstream,” said Cantrell, whose agency is monitoring ecological issues in the Tuck before, during and after dam demolition.

A large cloth net was strung across the river to strain out debris coming down, but it wasn’t a catch-all.

So water monitoring stations were set up above and below the dam to measure sediment during demolition. If sediment levels got too high, the rate of demolition could be slowed. Another tactic would be releasing more water from Duke’s other dams higher up the river to dilute the ratio of sediment in the water being flushed downstream, Cantrell said.

Safety precautions were also in place, including a lifeline strung across the river should a worker fall overboard, and a motorized lifeboat moored at the river bank to go after someone.

What’s next?

As onlookers watched the water level drop last week, they braced themselves for the ugly scene that would be revealed: a giant, barren pit of mud and muck stretching along the riverbanks.

Duke is supposed to do steambank restoration to kick-start revegetation, and it’s something both the community and biologists hope Duke will do well.

Duke is working on a massive landscape plan to revegetate the banks, according to Hugh Barwock, the project manager for dam removal and a senior environmental resource manager for Duke out of Charlotte.

TJ Walker, owner of the Dillsboro Inn, is keeping his fingers crossed that Duke does a good job with streambank restoration. For now, the view from his inn on the banks of the Tuck is that of a fresh mud flat. But Walker says the project manager has promised it won’t look that way for long.

Walker initially fought dam removal, but backed down a couple of years ago.

“My sense of abandonment is replaced with a sense of hope,” Walker said last week.

Want to learn more?

The Fish and Wildlife Service has created a Web site dedicated to removal, including demolition photo and facts of environmental benefits at www.fws.gov/asheville/htmls/projectreview/DillsboroDam.html

The seven-year battle between Jackson County commissioners and Duke Energy has come to a close.

After losing a critical court battle this month, Jackson County commissioners voted 4 to 1 to give up their legal fight against Duke Energy last week.

“It is not prudent for Jackson County to move forward any further,” County Commissioner Chairman Brian McMahan said of the commissioner’s decision.

Recently, the fight has appeared nothing more than a tug-of-war over the Dillsboro Dam: Duke wants to tear it down and the county wanted to save it.

But the origin of the conflict is philosophical: how much does Duke owe Jackson County in exchange for harnessing the Tuckasegee River with numerous dams? Duke proposed removing one of those dams — the small and ancient Dillsboro dam — as compensation for using the Tuck in its lucrative hydropower operations, which net the utility millions annually.

Duke contends the river will be better off environmentally without the Dillsboro dam and it will open a new stretch of free-flowing river to paddlers and rafters.

Therein lay the crux of the disagreement, however. The county didn’t want the dam torn down, so it should hardly count as compensation, said Commissioner Joe Cowan, who voted against giving up the fight.

“It’s a bum deal,” Cowan said. “Duke ought to be ashamed of itself as a large corporation to attempt to pull such a stunt on the intelligent people of this county. I resent the hell out of it.”

Cowan gave a strongly worded speech directed at Duke at the meeting Tuesday.

“Why did they want to take the dam down? Because they didn’t want to give the county anything,” Cowan said.

Cowan said taking down the dam was a grand scheme on Duke’s part, a ruse intended at duping local people into believing Duke was doing them a favor by taking down the dam. But Cowan said Duke was only looking out for its own monetary interests by offloading a small, aging dam instead of real mitigation.

“Had it not been for greed, there would have been no seven years of bickering with Duke Power,” Cowan said. “Duke had many opportunities to step up and do the right thing as a good neighbor would do. Duke hasn’t done that. They have resisted it.”

The other four commissioners who voted to call it quits clearly did not revel in their decision.

“Seven years has been a long time and looking back on what has transpired, I still feel as strong today about my position on saving the dam as I did then,” said McMahan. “I grew up there learning to fish. It holds a sentimental place. It is going to move into our history now. It is going to become a part of our past.”

Commissioner Tom Massie, who has been urging the rest of the board to throw in the towel for over a year now, said he hopes the county and Duke can mend fences and work together in the future.

“It is unfortunate it has gotten to this point in terms of the legal costs and wrangling that has gone on,” Massie said. “I am glad it is over with.”

It’s one statement Duke agreed with.

“We at Duke are, as one of the commissioners remarked, glad it is over with,” said Fred Alexander, Nantahala district manager of Duke Energy. “About 10 more miles of free flowing Tuckaseigee River and improved aquatic habitat should benefit fishermen, boaters, and the critters in the water.”

Several members of the public took a turn the podium to thank the county commissioners for putting up a valiant fight.

“I came tonight to applaud you — applaud you for giving us leadership in your efforts to retain the Dillsboro Dam, as a historical site, as a viable source of sustainable energy and as land to be used by all the residents of Jackson County,” said Susan Leveille, an artist with a gallery in Dillsboro. “You have strived well to lead us toward the moral high ground of not just thinking of ourselves today but for making wise decisions with regard to the people, the land and the resources.”

Supporters said Jackson did the right thing by standing up to Duke, even if the cards were stacked against them.

“I also want to commend this board for doing everything they could to save the dam and the powerhouse,” said Tim Parris, a resident of Dillsboro. “I do realize you were up against a fight with a corporate giant in Duke Power — not only that but you had to fight the special interest groups like American Whitewater. The landscape is changing at Dillsboro, but I can tell you it is not what the people of Dillsboro want.”

But Sam Fowlkes, a paddler who is pleased the dam will finally come down, chastised commissioners for wasting so much money on an ill-conceived strategy.

“I am sure lawyers who get billable hours will always have more options for you, but it kind of looks like game over,” Fowlkes said prior to the board’s vote to end their legal fight.

Fowlkes said the big winner isn’t Duke, but rather Jackson County’s attorney throughout the protracted standoff.

“Win or lose, it is more money for him,” Fowlkes said. “The losers? The taxpayers. I am one of them.”

The county does not have a final tally of its legal bill, but the most recent total was between $200,000 and $250,000.

Commissioner William Shelton congratulated Duke on its win.

“I grew up on the Tuckasegee River and have watched it about every day in my life,” Shelton said. “This has been a gut wrenching experience for me. There has not been one easy thing about it.”

The county will likely not have another opportunity to extract mitigation from Duke Energy for 30 years, when the hydropower license comes up for renewal again.

Demolition of the powerhouse has been completed and dam work will start in a couple of weeks.

“It was like a knife going through my heart,” said Starlotte Deitz, a Dillsboro resident and Duke opponent, who watched the demolition last week. “It is an icon that can never be replaced. You can’t put a money value on that.”

By Joe Cowan • Guest Columnist

Editor’s note: Jackson County Commissioner Joe Cowan made the following comments following a vote last week to stop legal proceedings against Duke Energy over its plan to take down the Dillsboro Dam, the centerpiece of the utility giant’s mitigation for a new license to use water from the Tuckasegee and its tributaries for the next 40 years.

Having observed this all my life, and the power company before Duke — Sylva-Dillsboro Electric Light Company, where my father worked for a few years — I’ve got some attachment to the dam and some interest in the relationships in the past and hopefully the type of relationship we may have in the future with Duke Energy.

I, too, observed the stakeholder meetings that have been referred to many, many times in the past seven years. Those stakeholder meetings, in my honest opinion, were a farce, nothing but a ruse to try and dupe good local people into believing that Duke Energy had the best interest of the people of Jackson County at heart rather than the monetary gain and interests of Duke Energy. That, to me, is a fact.

Greed. That’s the word I hear used frequently when large utility companies are referred to, greed. In my opinion, had it not been for greed, there would not have been seven years of bickering with Duke Energy.

Why did Duke want to take down the Dillsboro Dam? They haven’t said. They said many times in their proceedings that it was a linchpin of their proposal for a settlement, but why did they really want to take it down? It didn’t benefit Duke, didn’t do anything for 20 miles upriver. It’s not going to improve the environment of the river or what lives in it. Matter of fact, there is some evidence just the opposite of that.

Let’s get to why they want it down. Most of the time when an energy or utility corporation is asking to use someone’s water — and that’s what it is, asking to use the water of Jackson County for the next 40 years and make somewhere in the neighborhood of $16 million profit per year — you would think, just as a good neighbor policy, or if nothing else for the good will, the industry would have some desire to give back something to the people from whom this water use is being taken.

This is the thing that burns me up about the whole darn thing. There has been little to no evidence to this date that Duke Energy has been willing to give back even a token to this county for the use of their waterways for the next 40 years. And you multiply $16 million times 40 years, and see what you come up with. You’ll come up with a lot more than two or three hundred thousand dollars, which is the total that Duke offered, the token that Duke has offered.

Duke has had many opportunities to step up and do the right thing as a good neighbor would do. And in many cases others have done that, been good neighbors to Jackson County. Duke has not done that. They have no desire to do it. Thus seven years of bickering back and forth, back and forth.

Why do they want to take the dam down? They did not want to give the county anything, $250,000 or somewhere along there. That’s an insult for the use of the Tuckasegee River and its tributaries to the south for the next 40 years. An insult.

So they came up with this grand scheme: we will take down the dam for you. It reminds me a lot of the elderly lady crossing the street. A Boy Scout was out there helping her. They got to the other side and woman slaps the Boy Scout. A passerby saw her and said, “My God, what happened?” The lady said “I did not want to cross the dam street.”

Well, that’s what we’re dealing with here with Duke taking the dam down. We did not want the dam down, but Duke is going to do us a favor and take the dam down to show good faith to FERC. “Look what we’ve given Jackson County for the use of their water for the next 40 years.” Big deal, I hope Duke knows that.

.... It’s a bum deal. It’s a bum deal. Duke ought to be ashamed of themselves as a large corporation to attempt to pull such a stunt on the intelligent people of this county. I resent the hell out of it, and I think I’ve made that clear. That’s been my involvement in it, and as far as I’m concerned I hope it’s not over yet. We’ve still got 30 days to appeal this thing.

The seven-year battle between Jackson County commissioners and Duke Energy has come to a close.

After losing a critical court battle last week, Jackson County commissioners vote 4 to 1 to give up their legal fight against Duke Energy at a meeting Tuesday night (Jan. 19.)

“It is not prudent for Jackson County to move forward any further,” said County Commissioner Chairman Brian McMahan.

Of late, the fight has appeared nothing more than a tug-of-war over the Dillsboro dam: Duke wants to tear it down and the county wanted to save it.

But the origin of the conflict is philosophical: how much does Duke owe Jackson County in exchange for harnessing the Tuckasegee River with numerous dams? Duke proposed removing one of those dams — the small and ancient Dillsboro dam — as compensation for using the Tuck in its lucrative hydropower operations.

Therein lay the crux of the disagreement. The county didn’t want the dam torn down, so it should hardly count as compensation, said Commissioner Joe Cowan, who voted against giving up the fight.

“It’s a bum deal,” Cowan said. “Duke ought to be ashamed of itself as a large corporation to attempt to pull such a stunt on the intelligent people of this county. I resent the hell out of it.”

Cowan gave a strongly word speech directed at Duke at the meeting Tuesday.

“Why did they want to take the dam down? Because they didn’t want to give the county anything,” Cowan said.

Cowan said taking down the dam was a grand scheme on Duke’s part, a ruse intended at duping local people into believing Duke was doing them a favor by taking down the dam. But Cowan said Duke was only looking out for its own monetary interests.

“Had it not been for greed there would have been no seven years of bickering with Duke Power,” Cowan said. “Duke had many opportunities to step up and do the right thing as a good neighbor would do. Duke hasn’t done that. They have resisted it, thus seven years of bickering back and forth, back and forth.”

The other four commissioners who voted to call it quits clearly did not revel in their decision.

“Seven years has been a long time and looking back on what has transpired I still feel as strong today about my position on saving the dam as I did then,” said McMahan. “I grew up there learning to fish. It holds a sentimental place. It is going to move into our history now. It is going to become a part of our past.”

Commissioner Tom Massie, who has been urging the rest of the board to throw in the towel for over a year now, said he hopes the county and Duke can mend fences and work together in the future.

“It is unfortunate it has gotten to this point in terms of the legal costs and wrangling that has gone on,” Massie said. “I am glad it is over with.”

It’s one statement Duke agreed with.

“We at Duke are, as one of the commissioner’s remarked, glad it is over with,” said Fred Alexander, Nantahala district manager of Duke Energy.

Duke has contended the river will be better off without the dam environmentally. It will also open a new stretch of free-flowing river to paddlers and rafters, including commercial rafting operations.

Several members of the public took a turn the podium to thank the county commissioners for putting up a valiant fight.

“I came tonight to applaud you — applaud you for giving us leadership in your efforts to retain the Dillsboro Dam, as a historical site, as a viable source of sustainable energy and as land to be used by all the residents of Jackson County,” said Susan Leveille, an artist with a gallery in Dillsboro. “You have strived well to lead us toward the moral high ground of not just thinking of ourselves today but for making wise decisions with regard to the people, the land and the resources.”

Supporters said Jackson did the right thing by standing up to Duke, even if the cards were stacked against them.

“I also want to commend this board for doing everything they could to save the dam and the powerhouse,” said Tim Parris, a resident of Dillsboro. “I do realize you were up against a fight with a corporate giant in Duke Power — not only that but you had to fight the special interest groups like American Whitewater. The landscape is changing at Dillsboro, but I can tell you it is not what the people of Dillsboro want.”

But Sam Fowlkes, a paddler who is pleased the dam will finally come down, chastised commissioners for wasting so much money on an ill-conceived strategy.

“I am sure lawyers who get billable hours will always have more options for you, but it kind of looks like game over,” Fowlkes said prior to the board’s vote to end their legal fight.

Fowlkes said the big winner isn’t Duke, but rather Jackson County’s attorney throughout the protracted standoff.

“Let’s not forget Paul Nolan, the big winner. Win or lose, it is more money for him,” Fowlkes said. “The losers? The taxpayers. I am one of them.”

Commissioner William Shelton congratulated Duke on its win.

“I grew up on the Tuckasegee River and have watched it about every day in my life,” Shelton said. “This has been a gut wrenching experience for me. There has not been one easy thing about it.”

Duke Energy could start tearing down the Dillsboro Dam any day after Jackson County lost a final and critical legal battle this week.

Judge Zoro Guice denied a move by the county to temporarily halt demolition on the Dillsboro Dam. Jackson County hoped to exercise eminent domain to take the dam away from Duke and make it the focal point of a new riverfront park along the shore of the Tuckasegee. The county was seeking a restraining order against Duke to stop them from tearing down the dam while the condemnation suit played out.

The case hinged on state’s rights versus federal pre-emption — whether the opinion of a federal agency superseded state law that grants counties the power of eminent domain.

Guice ruled that the Federal Energy Regulatory Commission trumped state law and agreed Duke could proceed with tearing down the dam. After the dam is torn down, the county can use eminent domain to go after the river shore if it still wants to, the judge said.

Fred Alexander, Nantahala district manager for Duke Energy, said in a written statement demolition could begin in early February. Alexander cited the benefits of restoring a section of free-flowing river, intended to offset the environmental impacts of its myriad other hydropower dams in the region.

Jackson County Commissioner Chairman Brian McMahan said he had not had a chance to explore the implications of the ruling as of press time on Tuesday afternoon. The ruling was handed down Monday (Jan. 11).

“We will discuss it fully at our meeting and take some kind of action,” McMahan said of the commissioners meeting scheduled for at 6:30 p.m. on Tuesday, Jan. 12.

The county’s choices are presumably to throw in the towel or appeal the decision.

Commissioner Tom Massie isn’t surprised. For the past year, he has been the lone commissioner opposed to the protracted legal battle. Massie said he supported the county’s stance philosophically but felt the chance of success was too slim to justify the legal costs of continuing to fight Duke.

“I think they had to see for themselves where it was going to go,” Massie said. “Now it has played out to its conclusion.”

Massie said the Tuckasegee River could still make a wonderful backdrop for a park without the dam. Duke had all along planned to turn the river shore over to the county as part of the environmental mitigation required under the Clean Water Act in exchange for operating its other dams.

In a further blow to Jackson County, Duke can proceed with a countersuit for its legal costs, Guice ruled. Duke has filed a lawsuit against Jackson County for legal costs, as well as a lawsuit blaming Jackson County for an abuse of power. Jackson hoped the judge would throw out Duke’s countersuits, but he did not.

“I am disappointed we don’t have more leverage to negotiate with Duke. If we had gotten something more positive from the judge’s ruling, Duke may have been more willing to talk to us about an (out of court) settlement,” Massie said.

After years of battling Duke Energy in nearly every legal arena it could scout out, Jackson County was dealt a major blow last week when the U.S. Court of Appeals denied its plea for federal intervention.

Jackson County is trying to save the Dillsboro dam from being torn down by Duke, and at the same time force Duke to offer up better compensation for the environmental impacts of its network of hydropower facilities in the region. Jackson hoped the U.S. Court of Appeals would step into the fray and send Duke back to the drawing board to reconsider its plans for dam demolition, slated to move forward this winter.

“This brings Duke a giant step closer to river restoration by removing the Dillsboro Dam,” said Fred Alexander, Nantahala district manager for Duke.

After exhausting everything shy of the U.S. Supreme Court, Jackson County’s fate now hangs on a final case with a decision pending as early as next week. Jackson County hopes to exercise eminent domain to take the dam away from Duke and make it the focal point of a new river front park along the shores of the Tuckasegee River.

A lawsuit in Jackson County Superior Court will decide whether the county can go forward with the plan. Arguments were heard earlier this month, but a decision from Judge Zoro Guice is still pending.

Jackson County Manager Ken Westmoreland said the case for eminent domain is much more critical than the U.S. Court of Appeals filing was.

“That was just another one of those procedural administrative challenges. It doesn’t go to the heart of the issue now, which is condemnation,” Westmoreland said.

Duke’s biggest ally has been the Federal Energy Regulatory Commission, which has consistently agreed that tearing down the Dillsboro dam is a good idea and has been unwilling to force Duke into more mitigation.

Jackson County has challenged everything their lawyers could think of to challenge, from state and federal environmental reports to technical jurisdictional issues, pushing mountains of paperwork around over a six-year period.

Jackson County had finally appealed to the U.S. Court of Appeals in hopes it would force the energy commission to give a hard look at Jackson’s stance, but instead the three-judge panel upheld FERC’s decision.

“This decision affirms that FERC acted appropriately in approving Duke’s application to surrender the license and decommission and remove the Dillsboro Dam and Powerhouse,” Alexander said in a written statement.

The appeal did not require an extensive legal investment on the county’s part. It was mostly a matter of rounding up all the paperwork that has previously been filed in various arenas and packaging it with a new cover letter.

“Most of it was just a compilation of things that had taken place over the years, so it wasn’t all that expensive,” said Westmoreland. The county has not gotten a final legal bill for the appeal filing.