Putnam Mine Case Over; Victory for that A.T., ATC

August 18, 2004—The North Carolina Supreme Court has declined to hear the appeal of the owner of a gravel quarry in the foreground view from the Appalachian Trail, who sought to overturn a May 4 ruling by the state Court of Appeals that upheld the revocation of his permit. The Appalachian Trail Conference, the National Parks Conservation Association, and local Trail supporters, with legal assistance from the Southern Environmental Law Center, later joined by the state agency that originally issued the permit, had argued for four years that the quarry hurt the views and sounds from the Trail on Hump and Little Hump mountains on the North Carolina-Tennessee border and therefore violated state law. The lower appellate court unanimously overturned on every count a December 2002 trial-court decision that would have allowed the Putnam Mine gravel quarry to continue operations. The August 13 Supreme Court order ends the case, said both ATC's lawyers and Charles Gardner, retired head of the permit-issuing agency.

Issue Background

N.C. Appeals Court Rules for Trail against Quarry

May 6, 2004—Capping a four-year battle, Trail supporters hope, the N.C. Court of Appeals has ruled that the state mining commission rightfully revoked a permit for a quarry that hurt the views and sounds from the Appalachian Trail on Hump and Little Hump mountains on the North Carolina-Tennessee border. In a decision released May 4, the court unanimously overturned on every count a December 2002 lower-court decision that would have allowed the Putnam Mine gravel quarry to continue operations, except for an injunction while the appeal was heard. It agreed with all points brought to it by the Department of Environment and Natural Resources (DENR), the Appalachian Trail Conference, the National Parks Conservation Association, and local opponents led by Jay Leutze. The Southern Environmental Law Center argued the case for ATC and NPCA.

The battle has been a see-saw. The DENR originally had issued the permit in 1999 without considering the impact on the A.T., despite protective state laws. Once advised of the noise and destruction of the highly popular vistas from the Roan Highlands, the agency began the process of revoking the permit, including hiring expert landscape and sound analysts. After the September 2000 revocation, an administrative law judge ruled in 2001 in favor of the quarry owner but was overturned later in the year by the mining commission in a decision heralding the importance of the Trail. Then, Superior Court Judge Stafford G. Bullock overruled the commission in 2002. Clark Stone Company could appeal to the state Supreme Court. The decision is available at www.aoc.state.nc.us/www/public/coa/opinions/2004/030526-1.htm.

Quarry Reprieve Stayed by Appellate Court

April 11, 2003—The North Carolina Court of Appeals—at the request of state officials, the Appalachian Trail Conference, and concerned local citizens—has stayed a lower court's reinstatement of a permit allowing a gravel quarry to operate in plain view and earshot of the Trail along the Highlands of Roan near the Tennessee-North Carolina border. That prevents the so-called Putnam Mine from reopening while opponents wait to argue the merits of the case at that level. Despite a 6-1 decision by the N.C. Mining Commission to overrule one of its own officials and uphold the revocation of the 1999 permit as improperly issued, the superior court judge in December ruled in favor of Clark Stone Company, operator of the 151-acre quarry in Avery County. The judge later refused to suspend his decision pending appeal, so the opponents turned to the high court.

Awaiting Next Round

November 11, 2002—The Appalachian Trail Conference and other opponents of a western North Carolina gravel quarry marring the views (and sounds) from the Trail atop Roan Mountain along the Tennessee line are awaiting a state superior court ruling.

The quarry owners had appealed a state Mining Commission revocation of their original permit from the state. The commission cited the importance of the A.T. and laws protecting it. The case was argued again in superior court the last week of October, with ATC represented by the Southern Environmental Law Center. Whatever the ruling, the losing side can be expected to take the case to the North Carolina Court of Appeals. The owners are arguing that the state should have decided the A.T. issues in the first place.

ATC will be closely monitoring any new proposals by Clark Stone to quarry or process rock in the same locale.

Mining Panel Sides with ATC Against Quarry

November 2001—The North Carolina Mining Commission in October [2001] rejected an agency judge's earlier recommendation and sided with efforts by the Appalachian Trail Conference and allied organizations fighting construction of a gravel quarry near the scenic balds of Hump Mountain.

The action upholds a ruling that closed the quarry [in 2000].

The commission voted 6-1 to reverse the recommendation of an administrative law judge in the N.C. Office of Administrative Hearings (NC-OAH). The judge in May had issued a summary judgment in favor of the operator of the quarry, Clark Stone Company. NC-OAH Judge Melissa Owens Lassiter decided that the state of North Carolina had no authority to revoke the quarry's permit because the provisions of the state Mining Act of 1971, on which the revocation was based, were not mandatory, but discretionary.

By voting to reject the judge's recommendation, the commission upholds a decision by the North Carolina Department of Environment and Natural Resources (NC DENR) Division of Land Resources to revoke the mining permit for the quarry, known as Putnam Mine. The reasons include visual effects and significant noise from the operation that would thwart the purpose of a public park—the A.T.—and violate the Mining Act. The commission also said the judge had interpreted the agency's revocation authority in the Mining Act too narrowly.

The quarry operator, Clark Stone Company, had appealed to the agency after the September 2000 revocation of the quarry's permit, originally issued in 1999. The permit was revoked following months of complaints from Trail supporters and local residents.

The commission's decision is the final action on the state agency level, but the quarry owner has the option of taking the case to a state superior court and seeking to over-turn the ruling.

The Mining Act states that a permit may [emphasis added] be denied upon finding “that the operation will have a significantly adverse effect on the purposes of a publicly owned park, forest, or recreation area.” NC DENR also admitted that the effects of the quarry on the Trail were not considered when the permit was issued.

In a separate action, two lawsuits seeking to halt the quarry's construction have been filed in Superior Court, but no judgment had been made in those cases. ATC is party to one of the suits. The next trial date for the suit was tentatively scheduled for November 12, 2001 [postponed until 2002].

The loophole in the Mining Act that allowed the initial issuance of the permit has since been closed by the state legislature, which amended the act to require better public notice of proposed permits.

The 151-acre quarry is opposed by ATC, the National Park Service Appalachian Trail Park Office and more than 4,000 persons who have sent e-mails of protest to the state since March 2000.

The permit was sought in February 1999 without public notice or review—despite the fact that state law requires permit applicants to notify adjoining property owners of their intentions and prove they have done so to the state's satisfaction. Clark Stone submitted proof only that it had notified the persons from whom it was buying or leasing land for the quarry, and DENR accepted that. (The ATC lawsuit contends that was contrary to DENR regulations, instructions to applicants, and past practice within the department.)

A state law specifically focused on the Appalachian Trail requires DENR to “give due consideration to the conservation of the environment of the Appalachian Trail.” Neither ATC nor other Trail groups named in that act were consulted about the permit, which ATC did not become aware of until June 1999.

Judge's Decision a Setback in Quarry Case

May 2001—Efforts to stop the construction of a gravel quarry near the A.T. as it passes over Hump Mountain in the Roan Highlands were dealt a blow by the May 2, 2001 recommendation of an administrative law judge in the N.C. Office of Administrative Hearings (NC-OAH).

The quarry operator, Clark Stone Company, had appealed to this body after the September 2000 revocation of the quarry's permit by the N.C. Department of Environment and Natural Resources (NC DENR), which first issued the permit in 1999. The permit was revoked following months of complaints from Trail supporters and local residents.

Although club volunteers, ATC personnel, and NPS administrators were to testify in support of the revocation at a hearing, the judge instead granted a summary judgment in favor of the operator of the quarry, Clark Stone Company. NC-OAH Judge Melissa Owens Lassiter decided that the state of North Carolina had no authority to revoke the quarry's permit because the provisions of the N.C. Mining Act of 1971, on which the revocation was based, were not mandatory, but discretionary.

The Mining Act states that a permit may [emphasis added] be denied upon finding “that the operation will have a significantly adverse effect on the purposes of a publicly owned park, forest, or recreation area.” NC DENR also admitted that the effects of the quarry on the Trail were not considered when the permit was issued.

Because the judge's decision was non-binding, the case will now be heard by the N.C. Mining Commission, which will make the final decision on the revocation of the quarry permit. The date of this hearing had not been determined as of early June 2001. In a separate action, two lawsuits seeking to halt the quarry's construction have been heard in Superior Court, but no judgment had been made in those cases pending the resolution of the case in the NC-OAH. ATC is party to one of the suits. The next trial date for the suit is tentatively scheduled for November 12, 2001.

The loophole in the N.C. Mining Act that allowed the initial issuance of the permit has since been closed by the N.C. legislature, which amended the act to require better public notice of proposed permits.

Background

Putnam Mine/Clark Stone Quarry

November 2000—The 151-acre quarry operated by Clark Stone Company, known as the Putnam Mine, is opposed by ATC, the National Park Service Appalachian Trail Park Office and more than 4,000 persons who have sent e-mails of protest to the state since March 2000.

Blasting and other quarry preparations had prompted so many complaints by individuals by March 2000 that DENR did call a “public hearing” —later terming it a “public meeting,” for which no authority has been found in state law. This means the quarry opponents had no administrative remedy under state law for actions flowing from it.

The DENR on April 19, 2000, notified Clark that it was issuing a notice of intent to revoke the quarry's permit. “Reasons for revocation include significant noise and visual effects from the mining and crushing operation that would thwart the purposes of a public park and violate the state Mining Act …” the agency's news release said. “The issuance of the original permit, dated May 13 of last year, was an oversight by staff who did not realize the quarry's proximity to and visibility from the trail.” [Emphasis added.]

That staff oversight was contrary to the spirit, if not the letter, of the 1971 North Carolina Mining Act and the North Carolina Appalachian Trail Systems Act, ATC Executive Director Startzell said.

In July 2000, the Appalachian Trail Conference joined neighbors of the new quarry in Avery County, North Carolina, and the National Parks and Conservation Association in suing DENR and the quarry to try to stop its operations. After a hearing August 21, a Superior Court judge reserved decision on the motions for a preliminary injunction and a finding that the permit was improperly issued.

The other plaintiffs are the unincorporated Association of Concerned Citizens to Protect Belview Mountain and quarry neighbors Faye Williams and Ollie Cox.

The steps taken last year by the DENR, after public objections to the permit arose, amounted to “a perversion of the administrative process [that] allows the offensive activity to continue indefinitely in the face of a finding that should require immediate withdrawal or suspension of the permit,” the plaintiffs had said in asking the courts to step in.

The lawsuit contends that the permit should have been withdrawn after such a finding that the original application was, in fact, incomplete. “The director may not shop around for a more politically palliative remedy while the harm continues,” it maintains.

Charles H. Gardner, director of the division of land resources, N.C. Department of Environment and Natural Resources, revoked the permit on September 6, 2000. Although the company appealed the decision to the state Mining Commission, Gardner asked it to cease all operations except to reclaim the land as required by the permit, completing that work within six months. Gardner said the mine violated state law because of its “significantly adverse effect” on the Appalachian Trail.

The quarry operations continued despite the permit's revocation. A consent order was entered between all parties on September 28 that ended the construction until the November 15 hearing on the ATC lawsuit. Since the N.C. administrative hearing was in process during this time, the Superior Court judge declined to rule on the suit and orally extended the order halting construction until the permit revocation case was resolved. The order remains in effect.

View of Putnam Mine site from the Appalachian Trail just north of Hump Mountain, Avery County, N.C.—May 2000. Affected area circled in yellow. Photo by Witt Langstaff.

Hikers walking north on the Appalachian Trail across Hump Mountain face directly into the scar on Belview Mountain, two to three miles below, for more than 20 minutes.

This area of the Trail, known as the Highlands of Roan, is characterized by grassy balds that offer panoramic views of the surrounding landscape. At the eastern (Trail north) end of this section, at an elevation of 5,200 to 5,500 feet, the A.T. is about two miles from the quarry, which is at an elevation of about 4,100 feet.

The Appalachian Trail Conference, based on a U.S. Forest Service visual analysis, does not believe acceptable mitigation of the site for a quarry operation is possible. It hopes that reclamation — vegetative ground cover, removal of equipment, and erosion-control measures—can remove the scar that already exists.