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November 19, 2014
Pamlico County Commissioners were asked Monday night to join in a Citizens Enforcement Action over the destruction of wetlands in Merritt. Draining wetlands to create farmland – or any upland – has been illegal for decades and the Southern Environmental Law Center and NC Coastal Federation are preparing to call on the Environmental Protection Agency to enforce the law on the Atlas Tract, 4600 acres owned by the Illinois agribusiness, Spring Creek Farms. They wanted the County Commission to join them in that Citizens Enforcement Action.
The Commissioners appeared to be swayed instead by Spring Creek Farms’ attorney who alluded to the prospect of lawsuits by his client if the County pursued enforcement. He encouraged a “dialogue” instead. The majority of the Commissioners, all but Ken Heath, voted for that dialogue. There was talk of reaching a compromise.
In a Letter to the Editor, some of the residents who attended the meeting question what will be compromised.Oriental residents Dan Reinecke and Michael Tigar give good overviews of some of the dialog taking place Monday last at the Pamlico Commissioner’s Meeting. While listening to lawyer Clark Wright, retained by Spring Creek Farm to represent them I was reminded of actor Richard Gere describing his technique in the movie Chicago that he called “Razzle Dazzle ‘em”. He also drifted into a good old boy impersonation of Peter Faulk in Columbo much of the time. It certainly worked on our commissioners as all but two got cold feet and denied the will expressed by nine of the ten public speakers. One commissioner voted to join the citizens action and one voted no, based on a stated political bias against the law firm representing the Coastal Federation and local populations, to bring the citizens action to the court. One wonders if that bias would also dictate such a vote regardless of the subject.
Apparently the fear expressed by the commissioners was related to the fear of being party to an expensive court trial and not related to the merits of the issue. Sounds like the same fear used on our Oriental Town Commissioners for many years related to the property at the end of South Street. It’s not clear to me how real this fear is since Pamlico County would not incur financial responsibility by being party to the action. If it is not the Pamlico County Commissioners who should look after the public interests of Pamlico County, then whose job is it? In any case, it appears to leave the door open to anyone who is willing to be party to an illegal activity if the governmental agency responsible for enforcement thinks it is inconvenient or otherwise troublesome to do their appointed job.
As I understand the issue, it is simply a suit to have the EPA and Corps of Engineers to look again at the property and do the due diligence entrusted to them by citizens. Of course, law is never simple when powerful entities are involved and thus the fear factor arises. The motion for the affected parties to play nice and open a dialog to resolve differences was the total of official action by the commissioners. Perhaps that will happen but judging from other similar wishful thinking, most likely not. Previous actions already taken place on the Atlas Tract and continuing today by Spring Creek Farm does not offer much hope for playing nice.
Further development is a given but all development should adhere to established rules and these rules should not be ignored just because powerful moneyed entities are involved. Ditto thanks to Kenny Heath for taking a stance for the people. Many have failed because there was a wishbone where there should have been a backbone.
All the weapons, inducements and arguments of irresponsible developers were in evidence at Monday’s meeting of the Pamlico County Commissioners.
Almost all of the public speakers expressed support for the County becoming involved in litigation to protect the Atlas Tract from further activity that would convert more of it from wetland to farmland. Watermen spoke of the runoff harm to fisheries, including silt, pesticides and heavy metals. A hydrologist spoke of the dangers to ground water. One speaker noted the string of broken developer promises in this region, and urged the Commissioners to look at a study by four ECU professors that points towards viable and economically sound activity for North Carolina’s “inner banks.”
The developer’s lawyer took a predictable stance. First, he congratulated himself at length for having settled an environmental lawsuit against Weyerhauser by agreeing to set aside a relatively small amount of land for ecologically sound purposes. That litigation, he said, cost $7 million dollars. If the County gets involved in the case, it would not have legal fees, but would be subject to a lot of burdensome discovery – from his client, he omitted to say.
As for the harm already done to the Atlas Ttract: well, we were told, it is complicated and difficult. This, of course, is the stock answer of every developer and polluter. Lots of things cause harm to the environment, and the part our activity plays in that is just too hard to figure out. The answer therefore is to do nothing except have a conversation with the developer about what they are willing to do without there being any litigation leverage to put pressure on them. In other words, the county and its people should give up all their weapons and rely on the developer’s good faith and charitable disposition.
Let’s be clear. The proposal to join the citizens enforcement action was to start an administrative proceeding, and later perhaps a lawsuit, to take things from idle debate to real fact finding under rules of evidence. The County should welcome the opportunity to have decisions made based on facts.
One expected that somebody — anybody — on the commission with a little reflection on what irresponsible development has already done to the County, would speak up, and cut through this “good old boy” rhetoric. That did not happen. Instead, the public’s concern was dismissed with statements that the matter is more complicated than the public speakers could or did understand. (The argument that the people are too dumb to decide their own futures was made by George III, and rejected at that time, but it crops up again from time to time.)
So hooray for Kenny Heath, the lone stalwart.
Michael E. Tigar
Dear Editor:“Fear, Uncertainty, and Doubt” is a time-honored strategy brought to you by the tobacco, gun, chemical, and coal industries when the spotlight of unfavorable public attention hits them.
Last night I had the rare privilege of watching it in action as Clark Wright, the folksy, newly-hired lawyer for Spring Creek Farms, had his opportunity to present his client’s point of view. First, he impressed upon us that he was a successful defender in a lawsuit against Weyerhaeuser that after many years and many millions of dollars, resulted in a paltry set aside for wetlands. To prove this, he artfully showed us a clock presented to him by his grateful client. Implied was the threat that Pamlico County could find itself embroiled in a similar lawsuit. This would be the Fear component.
The Uncertainty component was well represented as Mr. Wright presented a murky picture purporting to show a large canal dug previous to 1975 and thus grandfathered in before the Wetland regulations. Who could prove that this canal did not drain all of the water, ‘legally’, before the contested ditching even took place? As we mulled this over, completely ignored was the fact that clearly all of the water was not drained by this first ditch since a subsequent owner had felt the need to do extensive illegal ditching in the following years to remove much more water.
Doubt crept in as Mr. Wright portrayed his client as anxious to start a dialog, do the right things to insure the safety of the waterways, and be a good community member. The owners of Spring Creek Farms were in fact “Teddy Roosevelt conservationists”. There was even a recent letter testifying to their good intentions. This ignores that fact that Spring Creek Farms had snuck into Pamlico County and in the blink of an eye clear-cut 250 acres without so much as a howdy-do, thus causing the first outpouring of public concern. And in the year since the initial Commission meeting, there has been no significant “dialog” with Spring Creek Farms until the recent EPA ruling put a bit of fear into them.
Fear, Uncertainty, and Doubt had their effect on the Commission, as they passed a motion (with one courageous nay vote by Mr. Heath) to defer supporting the efforts by the Southern Environmental Law Center and the NC Coastal Federation to get the EPA to do their job and enforce the regulations about wetlands. Instead, they approved a period for the various parties to have a meaningful and productive dialog. I truly wish them success with that. In any case, I and many vocal community members who appreciate the special value of Pamlico County’s waterways will be there to keep the spotlight on.
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