Smoky Mountain News

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The case hinged on state’s rights versus federal pre-emption — whether the opinion of a federal agency superseded state law that grants counties the power of eminent domain.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