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.
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.