After a major fund raising effort several years ago, the CTC provided $1.7 million to buy the Rock, Possum, and Soddy Creek Gorges. By 2007, the CTC had spent four years constructing the CT in those watersheds. Volunteers from Tennessee and many other states had provided 50,000 hours of labor to build the trail.
In early 2007, the CTC learned that the section of the Cumberland Trail in the vicinity of the Deep Creek tributary to Soddy Creek was being severely damaged or destroyed by rock harvesting activities. In November 2007, the CTC General Manager at the time asked the CTC Board to help stop the rock removal. The Board contacted TDEC, which at the time was encouraging non-profit groups to sign on to an Amicus Curiae Brief that would introduce and document concerns about rock mining on these lands that had become state property.
In December 2007, the CTC Executive Committee unanimously passed the following motion:
The CTC will sign on to an Amicus Curiae Brief after a positive review of the final language by a lawyer chosen by CTC. Furthermore, the CTC is willing to pay additional expenses for the preparation of the brief up to a $50,000 limit. (cost to the CTC ended up less than $5,000)
By the end of the month, a group of non-profits had agreed to support the Brief, with the CTC was the lead group. The Board took responsibility for legal activities to stop the rock removal. Our lawyers were Greg Buppert from Dodson, Parker, Behm & Capparella in Nashville and Sarah Francisco with the Southern Environmental Law Center.
In April 2008, the Amicus Curiae Brief was filed with the Court of Appeals and was supported by 15 groups:
- Southern Environmental Law Center
- Cumberland Trail Conference
- Sierra Club
- Tennessee Citizens for Wilderness Planning
- Save Our Cumberland Mountains
- American Hiking Society
- Cherokee Forest Voices
- The Land Trust for Tennessee
- National Parks Conservation Association
- The Nature Conservancy
- Obed Watershed Community Association
- Tennessee Clean Water Network
- Tennessee Forests Council Project
- Tennessee Parks and Greenways Foundation
- Tennessee River Gorge Trust
In June 2008, the case was heard by the Court of Appeals. The CTC lawyers were encouraged by the questions and comments from the three Tennessee Appeals Court judges charged with deciding the case.
On July 31, 2008, the Appeals Court gave their opinion. Greg Buppert reported to the CTC:
As you know, the opinion of the court of appeals did not stop the mining company’s rock excavation in the park, but it did provide a clear statement of the basic principle of law that the owner of the mineral rights cannot destroy the surface unless the deeds expressly create that right. The court remanded the case to the trial court for additional proceedings consistent with its opinion, and the principle issue that now needs to be resolved is whether the company is destroying the surface of the park. There may be enough evidence already in the record to support a motion for summary judgment on this issue; otherwise, new evidence will need to be offered at a trial.
The Tennessee rules give the company sixty days to determine whether or not it will appeal the decision of the court of appeals to the Tennessee Supreme Court. If the company appeals, rock excavation will likely continue pending the resolution of the appellate process. If the company does not appeal, the case is activated in the Hamilton County chancery court on the 64th day after the issuance of the July 31 opinion.
Once the case returns to the chancery court, the amici likely have the option to file a motion requesting to be interveners in the case. We should expect that the company will challenge any attempt by the amici to join the case, and we cannot predict whether or not the trial judge will be agreeable to our participation. However, intervening would likely give the amici the greatest ability to direct the action in this case, an option that should be given careful consideration. If you decided not to move to intervene, and depending on how the attorney general proceeds with the case, there may also be an opportunity to file another amicus brief.
The attorney general’s office has not indicated how it plans to proceed if the case does go back to the chancery court in October. Various sources at the state have indicated that they are waiting out the 60-day period just as we are. We will want to coordinate our efforts with the AG and with TDEC.
After some back and forth, Greg Buppert told us the end of the case in October 2009:
Here is a bullet point outline of the proposed settlement terms that we discussed on the call yesterday.
- State acquires the mineral rights to the Soddy Creek tract, except the company reserves the right to extract oil, gas, and coal by subsurface means that do not disturb the surface of the Soddy Creek tract. The company also reserves the right of reasonably necessary access across the Soddy Creek tract to reach the company’s other properties.
- State acquires the company’s interest in rock extraction in the North Chickamauga Natural Area.
- Purchase price paid by state to the company.
- Lawsuit is dismissed and claims that could have been brought in the lawsuit are released.
One important point that we did not emphasize on the call is that these settlement terms will result in more protection to the park and other state land than what we could achieve by winning a trial. The actual issue presented in the lawsuit is whether or not the general term “minerals” in the reservation of mineral rights includes stone. That is the issue that the judge will ultimately rule on if the case goes to trial. The fact that the settlement not only prevents the rock removal challenged in the lawsuit but also prevents surface coal mining and other ground-disturbing mining and drilling, which are not at issue in the case, (and even benefits another park not at issue in the lawsuit – the North Chick area – by preventing rock removal there) makes it quite favorable.
The settlement was accepted. As a result of this issue, in 2009, then-Governor Bredesen supported legislation to regulate rock mining on any property where the state owns the surface rights. The legislation was adopted, effectively preventing rock mining on public lands by a company owning the mineral rights.
—David Reister, past CTC Board Chair