Elk may be the most polarizing animal in Western North Carolina right now, but William Carter has kept a closer eye on the issue than most. Carter makes his living off a small mountain farm in the Jonathan Creek area, sharing a property line with the Ross dairy farm — that family’s elk-related struggles have earned them plenty of unwanted time in the local spotlight.
As the elk population has grown, Carter’s found himself wondering what the future holds for his acres of beans, pumpkins and cattle pasture.
Overbearing language in Haywood County’s emergency management protocols is being revised to make it more palatable to civil liberty watchdogs.
The emergency plan spells out powers the county can evoke in a major crisis — be it a mundane blizzard or extreme terrorist attack, or even a threat from a rogue paramilitary group.
Alice Parker Watty can’t get to her house.
The only driveway to her front door crosses her neighbor’s land, and suddenly they don’t want her using it anymore. Watty said she has driven on and maintained the driveway for 19 years.
But recently, Watty found herself in the midst of a lawsuit for trespassing on her neighbor’s property.
Every year on the first weekend in August, Linda Maxwell and other heirs of patriarch H.B. Wood make a pilgrimage to family land in the rural reaches of Little Canada and gather at the Wood cemetery where so many of their other descendents rest.
When Terry Stephenson bought a piece of hillside property on Lower Alarka Road in Bryson City, he expected it to slowly develop into a homestead for himself and his 11-year-old daughter. What he didn’t expect was the headache that the undeveloped hillside has become since he became embroiled in an argument with Bryson City’s Great Smoky Mountains Railway over his right to cross their tracks.
The railroad has 10 acres of Stephenson’s property that encompasses their tracks and the accompanying 100-foot right-of-way granted to railroad tracks, originally intended to allow freight and passenger rail companies space in which to store extra equipment. Stephenson said he would be unconcerned with the tracks if they didn’t cross the single dirt road that is the only entrance to his property.
The crossing that once existed there was excavated and replaced by the railroad, who then offered Stephenson a private right of way agreement that reinstated his right to use the crossing. But Stephenson only got a few words into the 14-point agreement before realizing that he would be coming out bearing the brunt of the burdens if he signed.
“There’s nothing in there for me at all,” said Stephenson. “It might as well have been printed on toilet paper.”
His chief grief with the company is the $3,000-a-year crossing insurance that the agreement stipulates, something he maintains has not been required of anyone else who has been granted a crossing.
“There’s a lot of people who don’t have crossing insurance,” Stephenson said, “and they want me to maintain a $2 million policy and make them the beneficiary.”
The agreement would also stipulate that the crossing is non-transferrable, so when he property passes to his daughter or the next owner, they wouldn’t have the right to use the crossing without entering into a separate, new agreement with the railway.
Stephenson said he has no intention of signing the agreement, but he also knows that the cost of taking the railroad to court over the issue might be cost prohibitive.
“You’re fighting everybody fighting the railroad,” said Stephenson, “but it’s like paying a toll to get to my property, and every month I’ve got a payment to make, whether I can get to it or not.”
When asked for their take on the dispute, Great Smoky Mountains Railway General Manager Kim Albritton responded only that she was “not interested in discussing it with you.” Subsequent calls and e-mails to the railroad’s management were unreturned.
When Stephenson got nowhere in his negotiations alone, he tried bringing the issue before the Swain County Commissioners, who pledged that they would attempt to mediate the situation.
But, said County Manager Kevin King, the county was similarly stonewalled.
“We basically called the train and wanted to discuss that issue with them and they indicated that this is a legal dispute and at this point they would not sit down and talk to the board,” said King. “We asked for a meeting, they declined, and that’s all we can do.”
But even if he tries to fight the railroad, Stephenson will likely have a long and difficult road ahead of him, and there is a chance that the law might not be on his side.
“North Carolina case law generally grants railroads broad discretion to regulate the use of their rights of way by others,” wrote Raleigh attorney Jeffrey Bandini in an explanation of railroad real estate laws called Railroad Property. “This control is justified to ensure safe travel on the rights of way and to protect the physical integrity of the facilities built on the rights of way and the land upon which the facilities are located. Accordingly, whether a railroad company owns its right of way in fee simple or easement, third parties must obtain permission from the railroad company to enter the right of way for any purpose.”
Plainly speaking, that means that Stephenson will have a hard time countering the agreement, since the state has long given railroads a great deal of license in how to use their own rights of way.
Stephenson, however, isn’t averse to a crossing agreement, but feels that what the railway is putting forward is beyond unreasonable.
He said he’d be happy to pay his part for the upkeep of the crossing, but thinks that $3,000 a year is slightly exorbitant, given that his taxes are barely $800.
“I’m not trying to be hard,” Stephenson said, “I just need to get to my property. “
On Monday morning, Haywood County commissioners listened as one citizen after another came up and blasted a change to a health board rule that has been on the books since 1970.
About 40 people stood up to express their opposition to the rule when one speaker asked for a show of support.
Citizens accused the commissioners of backhandedly reviving a nuisance ordinance that had already been stamped out by public outcry.
“You asked the health board to do your dirty work,” said Lynda Bennett at the meeting. “This is a very, very unpopular ordinance.”
The rule that’s now in question chiefly deals with safely storing garbage that can attract disease-carrying pests. Its most controversial aspect is a measure that allows the health director to step onto private property in the case of an imminent hazard — something that is already permitted under state law.
Another component of the ordinance that’s up for debate is the maximum penalty for a Class 1 misdemeanor for not storing garbage safely and creating a health risk for others — another issue that’s been set by the state, according to Chip Killian, Haywood County attorney.
“The statues are there, we need to enforce them,” said Commissioner Skeeter Curtis.
Haywood’s health board was ready to vote on the amendment with little ado in January when a crowd of 75 showed up to voice strong opposition.
After months of addressing citizens’ concerns and altering wording on the rule, the health board is now ready to vote on the amendment on Tuesday, Aug. 10.
Citizens rallied together once more Monday to express their fury concerning the measure, which they see as an unconstitutional violation of property rights.
“My only concern right now is our freedoms,” said Catherine Jones. “Little by little and on all levels, our freedom is being chipped away.”
Some speakers pointed out that commissioners up for re-election this year might feel their objections come fall, unlike the many health board members who are appointed, not elected.
“They cannot be held accountable at the ballot box like you can,” Bennett added.
Responding to certain concerns, the Haywood health board already amended its amendment to the rule to say the health director must always try to get a search warrant before entering property unless there is an imminent threat.
Commissioner Mark Swanger, who serves on the health board, said to his knowledge, no one has ever been arrested, fined or had their property entered without a warrant in the 40 years the health board rule has been in effect.
“Now what more can anybody ask for?” said Swanger.
Later, Swanger gave an example of when the rule would come in handy. He pointed out that trucks carrying nuclear waste constantly pass through the county on Interstate 40. If one should get in an accident, run off the road and spill toxic waste on private property, health authorities should be allowed to enter and abate that threat immediately.
“I see people smirking,” said Swanger. “If it were your backyard, you would wish they would help you.”
Commissioner Kirk Kirkpatrick added that this was in no way an attempt to violate people’s constitutional rights. He had his own example for the rule’s utility.
If a child gets sick playing in a filthy yard with feces and other health risks, there would be little health authorities and law enforcement could do without the rule. A worried mother’s only recourse would be to pursue expensive legal action.
“You guys can say it’s farfetched, but it’s certainly possible,” said Kirkpatrick. “Without this particular rule, there’s nothing the county can do.”
Kirkpatrick also emphasized the difficulty of penalizing violators with a Class 1 misdemeanor. He said such cases are extremely difficult to prosecute and the last thing Haywood County wants to do is spend money to enforce the rule. The health department will instead cooperate with violators right off the bat.
The Haywood County health board will vote on the controversial amendment to its solid waste rule at 6 p.m. on Tuesday, Aug. 6, at the county health department.
A federal judge in San Francisco told the Bush administration on March 30 that it didn’t have the right to bypass property owners when making decisions regarding their lands. Back in early 2005 the administration decided unilaterally to change the rules and regulations regarding the maintenance and care of more than 1.7 million acres without consulting the property owners.