At stake is a portion of the profits Duke makes off the hydropower operation. If part of the hydropower operation extends onto tribal land, the tribe could be entitled to a portion of Duke’s profits on the dam, as well as additional mitigation. The hydropower operation includes more than the footprint of the dam, the powerhouse and the pond area behind the dam. It includes any portion of the riverbanks that could potentially be flooded if the river backs up behind the dam under rare high water conditions.
Maps initially provided by Duke showed this high water area extended onto land commonly thought of as being on the Reservation — namely all the way to Goose Creek and Birdtown. Duke’s maps did not show adjacent property owners, making the maps difficult to decipher and even more difficult to determine whether the high-water boundary extended onto tribal land. This prompted a strongly worded complaint filed with the energy commission by the Bureau of Indian Affairs .
Last week, Duke produced old deeds and maps that indicated Duke in fact does own all the land within the high-water boundary behind the dam. The town of Bryson City bought about 25 acres from the tribe in 1924 for the dam and a portion of the river behind the dam. It was later transferred to Nantahala Power and Light, and later Duke Power.
“Duke emphasizes that these conveyances provide Duke with all the EBCI (Eastern Band of Cherokee Indians) land necessary (to operate the dam) and that the boundary of the project does not extend beyond the land conveyed by the ECBI to the Town in 1924 and thus does not extend on to the Qualla Boundary,” Duke wrote in a response to the Federal Energy Regulatory Commission.
Duke also produced a 1957 agreement signed by the tribe and Nantahala Power and Light — Duke’s predecessor in the region. The agreement sets a boundary line for the hydropower operation at an elevation of 1,837 feet. In other words, if one took a topographical map and traced a line along the 1,837-foot elevation up both sides of the river, Duke would own everything between those two lines. That elevation is what Duke today claims is the boundary of the operation.
“The project boundary line is, was and always will be the exact position Duke (Nantahala Power and Light) and ECBI agreed in 1957 constituted the dividing line between Duke’s property and the Qualla Boundary: the 1,837.41 foot contour line,” Duke stated in its filing.
As a result of the old deeds and documents Duke produced, the Bureau of Indian Affairs has backed off its complaint.
It is unclear why Duke did not file these documents and maps earlier. The energy commission specifically asked Duke three years ago to file a map of the Oconaluftee hydropower project delineating each adjoining property owners.