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SWAIN COUNTY SETTLEMENT ACT

WEDNESDAY, SEPTEMBER 25, 1996

U.S. SENATE,

SUBCOMMITTEE ON
FORESTS AND PUBLIC LAND MANAGEMENT,
COMMITTEE ON ENERGY AND NATURAL RESOURCES,

Washington, DC. The subcommittee met, pursuant to notice, at 2:34 p.m., in room SD-366, Dirksen Senate Office Building, Hon. John Kyl, presiding. OPENING STATEMENT OF HON. JOHN KYL, U.S. SENATOR

FROM ARIZONA Senator Kyl. This oversight hearing on S. 987 of the Subcommittee on Forests and Public Land Management will come to order.

Good afternoon, ladies and gentlemen, and welcome to the subcommittee. Today's hearing will receive testimony on S. 987, the Swain County Settlement Act of 1995. This legislation was introduced by Senator Helms and Senator Faircloth to try to resolve a longstanding controversy in western North Carolina involving the National Park Service, the State, and Swain County. Today we will hear from the cosponsors of the bill, as well as from Congressman Charlie Taylor, in whose district Swain County is located. Additionally, we will hear from the Clinton administration and from both supporters and opponents of the legislation.

The controversy that this legislation seeks to address is one of extraordinary longstanding, even by the standards of those of us who still worry about the proper implementation of the 1872 Mining Law. The conflict goes to the heart of the development of the TVA's hydropower system and how local residents were treated as that system was created to help spur the development of the Southeastern United States.

It is ironic that back in the 1930's the conflict between the Federal Government and the rural communities often centered on questions about how these communities would be affected by the development initiatives originating out of Washington, D.C. Indisputably, rural sensitivities often were subordinated to a national development agenda.

Today, as we have graphically seen over the past week, rural interests are subordinated to a national preservation agenda, again emanating from Washington. Those of us representing rural States and districts still have our work cut out for us.

I will not offer a long statement since we have a lengthy list of witnesses and in particular the distinguished panel which is before us now. I want to recognize Senator Helms, Senator Faircloth, and

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Congressman Taylor. Welcome. I presume you have decided who among you will speak first. Senator Helms?

Senator FAIRCLOTH. We are going on seniority.
Senator HELMS. He's the oldest.
(Laughter.]

STATEMENT OF HON. JESSE HELMS, U.S. SENATOR

FROM NORTH CAROLINA
Senator HELMS. Mr. Chairman, thank you very much.

We have several people from western North Carolina, Swain County particularly, here. I want to tell you, sir, that that's a beautiful part of the world. Some parts of America that I've been in, you can look at the land and it's just there to hold the world together. This is, as we call it, God's country.

Now, I will also say to them that we are fortunate to have you presiding today, and I will say to them that Senator Kyl and I and Senator Faircloth work together on many things.

I sure do appreciate your scheduling this hearing and affording Senator Faircloth and Congressman Charles Taylor and me the opportunity of testifying on behalf of S. 987, which is known as the Swain County Settlement Act of 1995. I am delighted always to be with my distinguished colleagues at this table or anywhere else.

And I am particularly glad to see the folks from Swain County, and I wish you could get to know them, Mr. Chairman, like I know them, as the salt of the earth.

Now, these folks have waited for 35—no-53 years for the Federal Government to fulfill a moral and contractual obligation to Swain County and its citizens and compensate them, albeit it belatedly, for the loss of their land when Fontana Lake was created to provide power to the Tennessee Valley.

I am going to ask Wayne to put up the first of the display boards. Now, here is the commitment in writing made during wartime, and there was not any question about an absolute, flat-out commitment having been made. Now, if the Federal Government had lived up to its commitment made in writing in the 1943 formal agreement with Swain County, we would not be here today, but the Federal Government, has reneged and reneged and reneged on its obligations and its duty.

Now, I call attention to the wording, “The Department shall nevertheless construct or cause to be constructed, as a part of the Park Road, the section of road described in paragraph (d) above," and so on. Now, we are furnishing the committee the full text of that.

The terms of that 1943 agreement were, first, that the Federal Government promised—there was not any question about it. They promised to compensate the county for the loss of 44,400 acres which were flooded to create Fontana Lake, which by the way supplies hydroelectric power to the Tennessee Valley Authority.

And, two, the Federal Government pledged-there was not any doubt about this to build a road around the north shore of the lake to provide access for the citizens to visit the graves of their loved ones in cemeteries isolated by the flooding of the area to create Fontana Lake. The only access to these cemeteries for the past 53 years has been for these people--and many of them are elderly—to climb aboard a shaky boat and thereby get over to the cemetery.

Now, a lot of people do not go to the cemeteries where their relatives are buried, but these people are family people and it means something to them. And it was promised.

Now, bear in mind this was wartime, and the Federal Government's agents came down and said we need this, we need it for hydroelectric power for the benefit of the war effort, so forth and so on. They said, sure. Many of the people gave the land.

Anyway, in 1943, shortly after that formal agreement was signed, a Tennessee Valley Authority supervisor wrote to each of the families about the cemeteries saying, “The construction”—and that's in red there, Mr. Chairman of Fontana Dam necessitates the flooding of the road leading to the Proctor Cemetery located in Swain County, North Carolina, and to reach this cemetery in the future, it will be necessary to walk a considerable distance until”— until—“a road is constructed in the vicinity of the cemetery, which is proposed to be completed after the war has ended. We are informed that you are the nearest relative of a deceased who is buried in this cemetery.".

Now, that was a handshake deal, and these good folks believe a man's word, even a Federal bureaucrat, is his bond. But because of the very clear understanding in that letter, that the road would be completed shortly after World War II, families agreed to leave the graves of their deceased relatives on the land taken by the Federal Government.

Now, Mr. Chairman, only a small portion, infinitesimally small portion, of the road has been completed. In 1963, the Federal Government did build 2 and a half miles of the promised road. 2 and a half miles. That's all. In 1965, it built another 2.1 miles; in 1969, 1 additional mile, along with a 1,200-foot long tunnel, which goes to nowhere. It stops there.

That was when the self-appointed environmentalists got into the act and they managed to force a halt to further construction. They made all sorts of complaints and gave all sorts of reasons that this could not, should not be completed, none of them making sense.

The completed sections are now known formally as the “Road to Nowhere," and it is a stark reminder of the unfulfilled written commitments entered into by the Federal Government 53 years ago.

Now, the environmentalists, of course, represented by the Sierra Club, the National Parks and Conservation Association, The Wilderness Society, all of them strenuously arguing that we just cannot disturb the environment by constructing a road in the Great Smoky Mountains National Park. Well, they did not say a mumbling word about the road coming in from the Tennessee side. They got theirs. I remember the former Senator from Tennessee came there and was quite arrogant in his opposition to North Carolina getting what Tennessee had already gotten. That Senator is no longer in the Senate, by the way.

Senator FairCLOTH. He is in China?
Senator HELMs. Yes, he is learning how to speak Chinese.
(Laughter.]

Senator HELMS. Now, about the environmentalists, Mr. Chairman, all of us are environmentalists. I have got a son who is about

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the strongest environmentalist I ever saw, and he is a forester. I think of the cold winter months when he is out there sloshing around in the mud planting trees, hundreds upon hundreds of trees. He loves this environment and he protects it and he is adding to it. But these people sitting back in the comfortable, air-conditioned offices do not impress me very much with all their environmental concerns because they are always wanting to stop something, stop people from using their land, and all the rest of it. But that is neither here nor there.

Now, they would argue that we just cannot disturb that environment by constructing that road in the Great Smoky Mountains National Park. You will hear it today. I do not question their sincerity, but I say that their sincerity is sincerely wrong in causing the Federal Government to default on a very clear commitment entered into 53 years ago.

Now, according to the National Park Service, the Great Smoky Mountains National Park comprises 521,053.41 acres of land in North Carolina and Tennessee, and it is my understanding that, depending on the width of the right-of-way, the distance from the center line on each side of the road, it will take a maximum of 363 acres with a 100-foot right-of-way to construct a 28-mile road.

Now, under the 53-year-old contract, which the Federal Government signed with Swain County-and bear in mind this commitment was made to the people of Swain County—the Federal Government stipulated that a "dustless road of 20 feet in width" would be constructed. And that, Mr. Chairman, would involve even less right-of-way than we are talking about.

Now, this road would allow so many visitors to the area to enjoy the scenic beauty of the Great Smoky Mountains National Park, which you and I have already discussed. But the bottom line is that the agreement required the Federal Government to construct that road. Yet, here we are—and I have been up here a dozen times or more pleading the same case–53 years later and that road still has not been completed.

Now, the legislation that Senator Faircloth and I introduced in the Senate and Congressman Charles Taylor is pushing in the House requires the Federal Government to pay Swain County $16 million which the Federal Government owes the county for the destruction of Highway 288.

Now, the $400,000 called for in the 1943 agreement was paid to the State of North Carolina as a trustee for the county, but it was never delivered to Swain County or the citizens thereof. It stayed in Raleigh. In any case, it was small compensation to the county which lost hundreds of thousands of dollars in tax revenues as a result of the Government's having seized 267,577 acres out of a total of 345,715 acres which comprised Swain County.

Now, let us look at Graham County and Haywood County which are nearby, great counties. They have the same problem. Out of 193,216 acres in Graham County, the Federal Government has taken 138,813 acres, and out of 353,452 acres in Haywood, the Federal Government has taken 131,111. I mention these statistics for the record because I think they are very relevant to the argument. They are a measurement of the frustration that Swain County and neighboring counties have suffered because of unkept promises by the Federal Government.

Now, the payment in lieu of taxes program does not fairly compensate Swain or the other counties for lost tax revenue, nor does it compensate them for missed economic opportunities when the counties were passed over by industries that would otherwise have gladly come to that area if the Federal Government had honorably kept its promises. And that is what these people are here for.

So, Mr. Chairman, I do not want to run any longer. S. 987 recognizes the enormous contributions made by the Cherokee Indians to North Carolina and the United States. It does so by directing the Department of the Interior to erect a historical marker at Soco Gap, North Carolina.

So, Mr. Chairman, thank you again for scheduling this hearing. I know there is not much time left in this Congress, and I sure do appreciate your willingness to help the good people of Swain County. Thank you very much. [The prepared statement of Senator Helms follows:] PREPARED STATEMENT OF HON. JESSE HELMS, U.S. SENATOR

FROM NORTH CAROLINA Mr. Chairman and distinguished members of

this subcommittee, I appreciate your scheduling this hearing and affording me the privilege of testifying on behalf of S. 987, the Swain County Settlement Act of 1995. I'm pleased that Senator Faircloth and Congressman Taylor are here, along with the many citizens of Swain County, North Carolina, where the residents have waited for 53 years for the federal government to fulfill its moral and contractual obligation to Swain County and its citizens and compensate them albeit belatedly for the loss of their land when Fontana Lake was created to provide power to the Tennessee Valley.

Mr. Chairman, if the federal government had lived up to its commitment made in writing in a 1943 formal agreement with Swain County, we would not be here today. But the federal government has reneged on its obligations and duty.

The terms of that 1943 agreement were: (1) The federal government promised to compensate the county for loss of 44,400 acres which were flooded creating Fontana Lake, (which, by the way, supplies hydroelectric power to the Tennessee Valley Authority, and (2) The federal government pledged to build a road around the north shore of the lake to provide access for the citizens to visit the graves of their loved ones in cemeteries isolated by the flooding of the area to create Fontana Lake. The only access to those cemeteries for the past 53 years has been by boat across the lake.

In July 1943, shortly after that formal agreement was signed, a Tennessee Valley Authority supervisor wrote to each of the families about the cemeteries, saying:

The construction of Fontana Dam necessitates the flooding of the road leading to the Procter Cemetery located in Swain County, North Carolina, and to reach this cemetery in the future it will be necessary to walk a considerable distance until a road is constructed in the vicinity of the cemetery, which is proposed to be completed after the war has ended. We are informed that you are the nearest relative of a deceased who is buried in this

cemetery. Because of the very clear understanding in this letter—that the road would be completed shortly after World War II-families agreed to leave the graves of their deceased relatives on the land taken by the federal government.

Mr. Chairman, only a short portion of road has been completed. In 1963, the federal government did build 2.5 miles of the promised road; in 1965, it built another 2.1 miles; and in 1969, it built one additional mile along with a 1,200-foot-long tunnel. That was when the self-appointed environmentalists got into the act and managed to force a halt to further construction. The completed sections are now known as the “Road to Nowhere," a stark reminder of the unfulfilled written commitments entered into by the federal government 53 years ago.

The environmentalists, represented by the Sierra Club, National Parks and Conservation Association, and Wilderness Society, will strenuously argue that we just can't disturb the environment by constructing a road in the Great Smoky Mountains

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