It became clear during the latest judicial appeals processes that tried to halt Mountain Air Development Corporation’s (MADC) destruction of a trout stream on land it owns at Mountain Air Country Club that the group with the deepest pocketbook would win.
Here’s the story: In 1996 MADC began construction of a 1,000-acre gated golf-course development — complete with airstrip — atop Slickrock Mountain in Yancey County. The construction involved bringing in bulldozers to clear land and remove trees. But that created muddy runoff that fouled local trout streams and destroyed natural habitat after moderate rains.
During the first two years of construction, the N.C. Department of Environment and Natural Resources (NCDENR) found more than 72 violations — including failure to maintain erosion-control measures, follow plans and provide adequate ground cover and encroaching on headwater trout-stream buffers. In 2001, DENR fined Mountain Air $5,000 for these violations.
But the project continued.
After the site was logged, rains that flooded Phipps Creek, Banks Creek and Bakers Creek would choke them with oily-smelling sediment. Most of the trout in those waters died. An electro-fishing survey conducted by Doug Besler of the N.C. Wildlife Resources Commission showed low densities of adult rainbow trout for a stream of that size. Besler also found no adolescent or first-year fish.
Even then, the project continued.
Opponents finally won a judgment from an administrative law judge to halt the stream destruction. When that decision was appealed to a three-judge court, it also upheld the ALJ’s decision by a 2-1 vote.
But then, one of the principals switched sides. The N.C. Division of Land Resources, a division of NCDENR, appealed the decision to the N.C. Supreme Court, which voted 6-1 in favor of Mountain Air. Meanwhile, Mountain Air, represented by the law firm of Dennis Wicker, the former lieutenant governor, continued the project, even while uncertain it would be approved finally.
“After the appellate court ruled in our favor, Mountain Air decided not to carry the case any further,” said Hope Taylor of Clean Water N.C., a plaintiff. “But to our horror, the Division of Land Resources asked for the appeal. It didn’t occur to us (DLR) would appeal.”
Now, Taylor said, she understands; it was North Carolina politics as usual.
“We’ve found idealistic people going into environmental protection agencies who later find the leadership at the top isn’t supporting them,” she said. “I know one DENR employee who was threatened with job loss by a legislator for doing basic wetlands protection.
“This is the kind of stress put on an agency by politicians. It doesn’t have to be bribes, but it comes from people who support certain legislators, who then turn around and harass (state) agencies. ”
The result is a quarter-acre of rare Slickrock Mountain wetlands has been lost to bulldozers, and 1,965 feet of trout stream will be piped underground forever — and the N.C. Supreme Court ruled those changes “temporary.” Not only that, but the “Supremes” set a precedent that any mountain developer legally can use to destroy stream buffers, trout and muddy waters.
Will it happen again? Would you bet against it?
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