A lawsuit filed against Kituwah LLC that was initially dismissed is heading back to court after the 11th Circuit Court of Appeals ruled last month that the tribally owned corporation waived its sovereign immunity.

A restless autumn wind ripples through the valley, passing over green fields, across turned-up garden plots and through tall rows of dried corn stalks. Their raspy skeletons rustle in the breeze, which exits the field to send a few glimmering strands of gossamer sailing over the gravel path that leads past Kituwah Mound. 

It was an hour and a half after sunrise, and the day’s first rays had not yet touched Judaculla Rock, hidden away in a hollow near Caney Fork in Jackson County. 

“I would encourage you to come back at different times,” T.J. Holland, cultural resources supervisor for the Eastern Band of Cherokee Indians, told the group assembled around him. “It’s one of these fascinating things — time of the year, time of day, weather all affects how this looks, and I’ve not been here twice that I’ve not seen something different.”

Birding buddy and former subcontractor for my Forest Service point-count survey, Kirk Gardner, was in town for the holidays and managed to cobble together a group of birding buddies for a bit of birding. 

It was a century ago that Beverly Kiohawiton Cook’s relative was taken from his family and shipped off to Carlisle Indian School in Pennsylvania. Those years at school, days of travel away from family and forbidden to use native dress and speech, were traumatic.

This year was the 15th annual Great Backyard Bird Count, a citizen-science project created by Cornell Lab of Ornithology and National Audubon Society. The count took place between Feb. 17 and Feb. 20. For the past seven or eight years I have used the Great Backyard Bird Count (GBBC) as an excuse to visit my old stomping grounds in Northeast Louisiana. I would go over, spend the weekend visiting friends and take one day to count birds at Black Bayou Lake National Wildlife Refuge in Monroe. This year I couldn’t make the trip over due to a change in work schedule and a few too many logistical speed bumps. I could, however, squeeze a few hours of birding in this past Saturday afternoon so I slipped away to Kituwah for a little avian accounting.

Kituwah is about 300 acres along the Tuckasegee River in Swain County. It was purchased by the Eastern Band of Cherokee Indians in 1996 and is the historic site of the Band’s revered mother town. Tribal members farm small plots on the site and it is open to the public from sunup to sundown.

I was walking along the railroad tracks at Kituwah, moments after arriving, when a dry raspy “kehesch!” made me think I had stepped through a portal to my Louisiana home. I turned in time to see the robin-sized, brown and white projectile catapult straight up above the winter-brown grasses, poop and zigzag outta there like a NASCAR driver after a tire change. Another step, another kehesch! and then another till five Wilson’s snipe had popped up and taken off like a band of drunken banshees trying to decide which way to go. The erratic zigzag flight probably evolved as a way to deter aerial predators but it has been a boon to Winchester and other ammunition makers as rattled hunters, with shotguns wagging this way and that blast away into empty space.

Used to be a snipe was a snipe was a snipe, and all were considered subspecies of the common snipe, Gallinago gallinago, the European and Asian version. But recently the Wilson’s snipe, Gallinago delicata, of the America’s was split and elevated to species status.

Now you don’t have to go south to find Wilson’s snipe in the winter. A few overwinter in the northern tier of states and there is a resident West Coast population that reaches into Canada. However, they are more common in the South in the winter and some migrate all the way to South America. They are common winter residents in the marshes, farmlands and rice fields of Louisiana.

I encountered two other species that could have easily been recorded at Black Bayou. In one wet thicket near the main canal that traverses Kituwah I flushed an American woodcock. This whirling dervish popped up like it was ready for blast off – then just as abruptly changed its mind and floated back down to earth on the other side of the thicket. I hope I get a chance to take the girls over one evening soon and catch this species’ amazing aerial courtship display.

The third marshy species I found at Kituwah was a northern harrier – the “marsh hawk” of my Louisiana youth. This buoyant flier glides effortlessly a few feet above ground over marsh and/or farmland to suddenly pounce or fall from the sky, on unsuspecting prey like small rodents or birds.

The northern harrier has a more rounded or disc-shaped face than most hawks that is owl-like in form and function. The feathers around its face help direct sound to its ears allowing the harrier to hear its prey much like owls do.

Females and immatures are brown with a large white rump patch. The male is an exquisite slate-gray leading to its colorful colloquial moniker – the gray ghost.

All in all it was a wonderful and relaxing GBBC. Not high numbers – 37 species – but not bad for a few winter hours. Sparrows ruled the day as far as species, they included song, swamp, chipping, field, fox, white-crowned, white-throated and savannah.

After nearly eight months of wrangling with the Eastern Band of Cherokee Indians, Swain County leaders and a vocal citizens group, Duke Energy agreed to relocate an electrical substation from a controversial location — one that would loom over a Cherokee spiritual site and mar views of a rural farming valley.

Despite putting money into the site work and grading, Duke announced this week it would move from the location.

While Duke and the tribe have hailed the move as a sign of cooperation between the two entities, a citizens group fighting the substation and a major upgrade to electrical lines associated with the project stopped short of calling it a victory.

In November 2009, Duke Energy began work on a knoll in the picturesque valley located between Ela and Bryson City as the site of the new substation, which incidentally overlooked Kituwah, a sacred Cherokee site that historically served as the tribe’s political and spiritual center.

Swain County leaders imposed a moratorium on new utility projects in March of this year, partly due to the public outcry and partly because the county was miffed Duke had started grading the site without informing the county of its plans.

Along the way, citizens filed a complaint before the North Carolina Utilities Commission while lengthy negotiations played out between Duke and the tribe, which had hinted at the possibility of legal action.

Throughout those negotiations, Duke maintained that one of the principal reasons for the line upgrade and, consequently, the substation was the need to provide more power to Harrah’s Cherokee Casino, which is in the midst of a $600 million expansion project.

Duke’s announcement that it will move the substation to one of two alternative sites by the end of the year solves the point of conflict with the tribe over the cultural impact on Kituwah.

Michell Hicks, principal chief of the Eastern Band of Cherokee Indians, used Duke’s announcement as an opportunity to reinforce the tribe’s intent to vigorously protect Cherokee cultural sites.

“It is my honor and responsibility to protect our land base and our Cherokee culture,” Hicks said in a release prepared by Duke and the tribe. “The land of Kituwah, our mother town, is central to our identity as a tribal nation and I will do everything in my power to ensure this sacred site is protected.”  

But Hicks also reinforced his appreciation of Duke’s efforts to work with the tribe regarding the issue.  

“I appreciate Duke Energy’s understanding of these sensitive issues and their hard work to identify alternate locations for the electrical station,” Hicks said. “We are pleased that through the cooperation with Duke Energy, we will continue to have reliable electricity and the landscape around Kituwah will be protected.”

New substation site

Duke Energy has offered Swain County $400,000 for a 13-acre site in the county industrial park. In addition to the $400,000 price tag, Duke Energy would give the county $1.1 million  to help defray the cost of relocating the county IT building, which has been in the development stages for nearly a decade.

Swain County commissioners voted unanimously on Monday to grant Duke a six-month property option on the site for $15,000.

Duke has another site under consideration as well in the Sheppard’s Creek area. Duke announced that it would decide between two alternative sites by the end of the year.

Should Duke move forward with the purchase of the site in the industrial park, the company would have made up for its lack of communication with the Swain County board that led to the imposition of a county-wide moratorium on utility projects.

Line upgrades still at issue

With the county and the tribe appeased, Duke still has the citizens group to deal with, however.

Katy Travitz, spokesperson for Citizens to Protect Kituwah Valley, said her group will continue to pursue a complaint before the North Carolina Utilities Commission that alleges Duke Energy broke the law by not filing the proper paperwork for their line upgrades.

“I don’t see it as a victory,” Travitz said. “I think they made a smart decision, and there’s still work for them to do.”

The new substation is part of a massive upgrade of Duke’s West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing 66kv line mounted on wooden poles with a 161kv line mounted on 120-foot steel towers and constructing new substation facilities to accommodate the increased amount of power.

A complaint filed by Citizens to Protect Kituwah Valley is still playing out before the state utility commission. It essentially alleges that Duke Energy intentionally misrepresented its project as an upgrade when it is actually a new infrastructure project that should have triggered a long list of requirements including public hearings.

“We believe Duke broke the law, because they didn’t file for the certificate to do the work,” Travitz said. “Moving the substation doesn’t satisfy the complaint, and we intend to stay the course.”

The citizens group represents both enrolled tribal members with a cultural interest in protecting Kituwah, as well as Swain County residents whose properties are directly affected by the line upgrade.

But other citizens have been a part of the discussion, too. Nate Darnell, a farmer in Swain County who appealed to the board of commissioners to implement the moratorium, said moving the substation from the site near Kituwah to an alternative location over the hill in Shepard’s Creek doesn’t solve the problem that drew him into the debate.

Darnell saw the issue from the perspective of the impact it had on the environment and the agri-tourism businesses in the valley.

“I like the idea that they’re looking at the industrial park,” Darnell said. “You got to have this stuff and if you’re going to have it, you need to localize it so you can regulate it more easily and consolidate the impact it’s going to make.”

Cultural site views saved

If there is a clear winner in the scenario, it’s the Eastern Band, which preserved its cultural legacy without jeopardizing the supply of power to its growing casino complex.

The tribe’s historic preservation officer, Russ Townsend, said Duke’s willingness to negotiate over a cultural viewshed sets an important precedent.

“I hope it’s an example to other agencies that we deal with that our concerns are legitimate and there are often alternatives to finish a project without undermining our cultural concerns,” Townsend said.

Townsend said the concept of viewscapes and cultural landscapes have been a part of regulatory discussions dealing with the way federal agencies approach cultural sites like the Gettysburg battlefield, but they’ve never been a part of discussions with private companies.

“I think if there’s a precedent set it’s that there wasn’t a federal agency that made Duke come to the table,” Townsend said.

Duke’s narrative of the events in the release announcing the company’s intent to move the substation acknowledges the cultural issues raised by the tribe, but it also defends the line upgrade as a necessary attempt to meet the needs of its customers.

“Initially, a new electric tie station was planned at a site within view from Kituwah, an ancient and sacred gathering place of the Cherokee people that is adjacent to the Tuckaseegee River, east of Bryson City, N.C.,” the company’s statement read. “After hearing concerns from the Cherokee people about the initial site, the company worked for several months with tribal and other community leaders to identity alternate locations.”  

Brett Carter, president of Duke Energy Carolinas, stated the company’s position succinctly.

“Our customers expect and rely on Duke Energy to provide the electricity that powers their homes and businesses,” said Carter. “Finding a new location for this important infrastructure allows us to deliver on our commitment to customers, without impacting the landscape around Kituwah.”

Duke Energy wants an option to buy land at the Swain County Industrial Park with the intention of using it as the alternate site for an electrical substation, which was originally slated for the Ela area.

According to Jason Walls, Duke’s spokesperson, the company has offered to pay the county $15,000 to reserve an option to buy the 13-acre site of the proposed Swain County IT building at a price of $400,000. The option would give Duke six months to consider whether to follow through with the purchase.

In addition to the $400,000 price tag, Duke Energy would give the county $1.1 million in community development grant money to help with the cost of relocating the IT building, which has been in the development stages for nearly a decade.

“It’s part of our commitment to continue to work towards an alternate site,” Walls said. “We haven’t settled on an alternate site, but we continue to examine a few sites very closely.”

Duke has been in negotiations with the Eastern Band of Cherokee Indians and Swain County over relocating the substation after both entities voiced their disapproval of the current site.

The substation project is part of a massive upgrade of Duke’s West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing 66kv line mounted on wooden poles with a 161kv line mounted on 120-foot steel towers and constructing new substation facilities to accommodate the increased amount of power.

Duke began work on a substation on a hill near the Kituwah mound in the picturesque valley of Ela between Cherokee and Bryson City in November 2009, but this March, Swain County imposed a moratorium that halted the project after both the EBCI and a citizens group opposed it. Protests by citizens are also playing out before the state utility commission.

Should Duke follow through with the purchase of the land and the relocation of the substation, it would signal a monumental compromise between the energy company, the tribe and the county over a sensitive cultural preservation issue.

A coalition of Cherokee and Swain County residents have stepped up the pressure on a proposed Duke Energy substation in the vicinity of the sacred Cherokee mothertown, Kituwah.

Last week, a coalition of more than a dozen people filed a formal complaint with the N.C. Utilities Commission asking the regulatory body to halt the project. According to critics, the substation and related transmission lines would mar views of a rural valley between Cherokee and Bryson City and alter the character of the nearby Cherokee ceremonial site.

Natalie Smith, a member of the Eastern Band of Cherokee Indians, has been an outspoken critic of the substation and has spearheaded a grassroots effort to move it away from Kituwah. Smith is the only named complainant in the case, but says the coalition includes a mix of county residents, property owners, business owners and tribal members.

“This wasn’t started or formulated for the Eastern Band’s interest,” Smith said of the challenge. “It’s for all the citizens of Swain County and all Cherokee people.”

The coalition’s complaint alleges that Duke Energy began work on the substation without state approval required for projects that exceed a certain capacity and that the project will have significant adverse impacts on residents.

Duke Energy spokesperson Jason Walls released a written statement reiterating the company’s willingness to work in conjunction with tribal leaders to resolve the issue.

Duke is considering alternative sites for the substation suggested by the tribe. It is also looking for ways to reduce the visual impact should it stay in its proposed location, Walls said.

Smith expressed her concern that the tribe has not taken any legal measures to stop the project, even after the tribal council authorized legal action in February.

“I’m curious as to exactly why they haven’t, and I suspect that it is politics,” Smith said. “If it proves to be politics, then I think our leaders need a major recalibration of their priorities, because Kituwah is the heart and soul of our people. It’s beyond any individual or political status.”

The utilities commission has the power to issue an immediate injunction on the project pending resolution of the complaint, but the project has already been halted.

Last month, Swain County commissioners passed a moratorium that put a stop to the project for 90 days, enough time for the county to create an ordinance regulating substations and cell towers.

The setting may have been humble –– a nondescript meeting room in a county administration building –– but the Swain County commissioners’ vote to pass a moratorium on communications and utility projects may prove monumental. The vote could force utility giant Duke Energy to the negotiating table, and it was a bona fide act of solidarity with the Eastern Band of Cherokee Indians on the part of the county.

Last week, four Swain County commissioners –– Genevieve Lindsay, Steve Moon, Phil Carson, and David Monteith –– voted unanimously to pass a 90-day moratorium on all telecommunications and utility projects that require a county building permit.

The moratorium could prevent Duke Energy from moving forward with a controversial electrical substation project near the sacred Cherokee site Kituwah.

After the vote, a small but energetic crowd of Swain County residents –– some enrolled EBCI members –– applauded loudly.

“We don’t often get applauded,” said a smiling Commissioner Genevieve Lindsay, who chaired the meeting in the absence of County Chairman Glenn Jones.

Judging by the crowd, Lindsay should not have been surprised by the applause.

Nate Darnell, whose family operates Darnell Farms, an agri-tourism business in the same valley as the Kituwah mothertown site, expressed his support for the moratorium.

“I want people to come to our farm and say, ‘Wow, this place is unscathed by development,’” Darnell said. “We have to take a stand and say some things are more valuable than power.”

Darnell’s family has leased the farmstead since 1984 and is the most recognizable business in the valley below the proposed Duke Energy substation project at Hyatt Creek, between Ela and Bryson City.

“I’m not a conservationist. I’m a preservationist,” Darnell said. “I don’t want the land locked up, I want it used wisely.”

Natalie Smith, a Swain resident and Cherokee business owner who has led a citizens’ group that opposes the substation project, also spoke in support of the moratorium.

“I am so relieved to see Swain County take the reins. It is overdue. This could be an historical event,” Smith said. “I feel as if Swain County has taken many punches over the decades from big conglomerates and continues to suffer from them. Finally, we are standing up for ourselves and acknowledging our assets.”

Smith’s citizen action group has announced its intent to bring suit against Duke over the project.

“The coalition is organizing and we are going legal, but we can’t discuss any details until the case is in court,” Smith said.

But it was the Swain County commissioners themselves who had the final say on the moratorium, which will be in effect for 90 days. During that time the county will develop an ordinance regulating the construction of telecommunications and utility facilities. New ordinances can’t be adopted until a public hearing is held, meaning Swain citizens will get the opportunity to address the proposal before it becomes law.

“You can’t stop progress, and we don’t want to,” said Commissioner Steve Moon. “But it would be a shame if they were allowed to continue to desecrate that site. Let’s see if the project can be located in a place that would be less visible and less detrimental.”

Moon said he felt the need to stand up for the Cherokee residents of Swain County, in part, because his wife Faye is an enrolled EBCI member who feels strongly about the issue.

“They’re our friends, our relatives and our neighbors,” Moon said.

Commissioner Phil Carson said his vote was prompted by his experience at a meeting last month between Duke Energy’ and the EBCI to which the Swain commissioners were invited.

“I felt like it was a real eye-opener,” Carson said. “We were really just observers and weren’t considered as part of the solution to the problem. Working together for all our people is the common goal.”

While it’s not entirely clear whether the moratorium will stop Duke’s progress on the 300-by-300-foot substation on a hill overlooking the Kituwah site, Fred Alexander, Duke’s regional director, was clearly concerned by the vote.

“Quite frankly what Duke is trying to do is find an alternative that will meet the needs of our customers in Swain and Jackson counties that gets us off of that mountain,” Alexander said.

Renissa Walker, another enrolled member of the EBCI who resides in Swain County, confronted Alexander after the meeting, asking him to consider the issue from the perspective of a tribal member.

“Stand on top of the mound under a full moon and do a 360-degree turn making a full circle, and you’ll see that Kituwah is protected by all of those mountains and you’ll see the genius of why our ancestors put it there,” Walker said.

The EBCI Tribal Council passed a resolution last month clearing the way for the tribe to take legal action against Duke. So far, the tribe has not filed any suits in court or with the state utilities commission, preferring instead to hold ongoing negotiations focused on locating alternative site locations and considering options for mitigating the visual impact of the project.

The Swain moratorium poses the first legal hurdle to the project, but much depends on what kind of ordinance the county produces during the moratorium period. Duke needs a county building permit for the project and does not have one.

Alexander, while communicating Duke’s desire to resolve the conflict with the tribe and the county, was careful to reiterate the company’s stance so far on the issue.

“On the other hand, we’re not in a position to say, ‘No, we can’t be where we are today,’ because we have a responsibility to serve our customers,” Alexander said.

Both Swain County and the EBCI have offered alternative locations, and Alexander said Duke would continue to evaluate its options before making a decision on whether to relocate its substation.