Bogging Down the Courts

The fabled cranberry bogs of Shady Valley, Tennessee, were once the very image of a pastoral Ocean Spray commercial. Now mostly a faded memory, the remaining bogs are still woven into the fabric of civic pride—in the town’s welcome signs, on a big corn silo that stands at Shady Valley’s rural crossroads, and in an annual Cranberry Festival in the second weekend of October.
The cranberry bogs have become the subject of a federal lawsuit between farmers and the Nature Conservancy filed in May 2007.
The saga begins in 1964, when the Army Corps of Engineers drained the valley’s wetlands to improve its agricultural potential, and by doing so very nearly wiped out the cranberries—a crop that typically thrives only in low-lying New England coastal areas.
Starting in the late ‘70s, The Nature Conservancy stepped in to restore Shady Valley’s cranberry bogs and reinstate the native cranberries that perished at the hands of the drainage project.
In recent years the fledgling cranberry crops have not been a howling success, but then neither has the valley’s agricultural potential. The only thing that has grown like a weed has been the feud between The Nature Conservancy and the farmers of Shady Valley.

A chronology of events
It seems a group of farmers formed the Shady Valley Watershed District in 1958 and later brought in the Army Corps of Engineers. Thereafter, they became the self-appointed watchdogs of the cranberry bogs.
Watershed District officials are supposed to be able to enter private property in order to inspect water flow and clear away any brush or other blockage that appears to obstruct waterways. There are easements that say so on most of the valley’s property deeds.
But water is needed for cranberry bogs, and in the 1970s, the Nature Conservancy blocked two small tributaries for its cranberry bog project. Nobody from the Watershed District came to inspect for three decades.
Gabby Call, an Associate State Director for the private nonprofit, first realized she had a problem on her hands in March 2007.
“We have been landowners and doing work in Shady Valley since the late ‘70s,” she said, “and we have never received any indication from our friends and neighbors in Shady Valley that we were somehow having an effect on folks who own land there.”
She said that letters were received in her Nashville office “from individuals claiming to be the Shady Valley Watershed District, telling us that we essentially had a certain amount of time to clean out our ditches on our preserve in Shady Valley, which would force the drainage of our cranberry bog.”
Initially the Watershed District claimed damage to Shady Valley farms in the form of flooding and erosion. Later came talk of mosquitoes, mold, mildew, and dreaded bird-borne diseases.
Where the Watershed District was the first to hire a lawyer, The Nature Conservancy was the first to file a lawsuit.
“We felt sufficiently threatened and we felt that both our mission and our private property rights were being attacked,” Call said, “and that’s how the lawsuit came to be. There were a number of situations in which we were approached by the defendants both in writing and in person trying to make us drain the bog. Their motivation is unclear to us, and this is not something we’re used to. We’re good neighbors and we’ve been members of that community for a long time.”
Call also pointed out that the Nature Conservancy has blocked only two small tributaries that feed into Beaver Creek Dam, a main channel that cuts through the center of the valley. The tributaries flow through a Nature Conservancy area of 255 acres within the 12,000-acre watershed district.

The defense won’t rest
Erby Howard, Jr. is a named defendant in the complaint. He willingly concedes TNC’s holdings in the valley are relatively minor and their current impact fairly minimal.
“We’re only talking two out of several laterals that go into the main channel,” he said, “but they have intentions of buying all this land in here that borders the creek and the main channel. That’s their ultimate goal. Once they do that and they stop these up the flooding is going to be tremendous during a high rain.”
TNC has advanced the argument that wetlands tend to mitigate flooding, not cause it, but Howard and his co-defendants aren’t buying that.
“They say these bogs prevent flooding and actually act like a sponge,” he said. “Well, if you have a sponge sitting on a dry bowl and you fill that bowl up with water, how much more water can that sponge hold? When it’s full it’s full, isn’t it?”
Most of the defendants remember the pre-1964 floods in the valley, and they fear the worst if their drainage efforts are to be totally reversed. “Years ago before we had the watershed we had these swamps in here and we were having floods almost every year when the bogs were here. So why weren’t they working then? If an inch and three-tenths of rain came in a 24-hour period it would cause flooding here in Shady Valley. So I don’t understand why the bogs didn’t stop that flooding back in pre-1964. If it was going to be a sponge and soak up all this water, why wasn’t it doing it then?”
Speculation on TNC’s side of the issue focuses on what the real motive possibly could be behind this sudden and recent citizen uprising. Rumblings on the Shady Valley side of the argument tend to reflect a certain level of suspicion as to TNC’s real reason for invading this remote little corner of nowhere.
The dark undercurrent
“This issue is about money,” Howard said. “They’re selling these mitigation credits off land in Shady Valley where they’re creating swamps.”
The mitigation bank, operating under EPA guidelines, is intended to counter the inevitability that wetlands will be sacrificed to the march of civilization. The way it works is that for each acre of wetlands that is to be paved or developed, two acres of wetlands must be permanently preserved. This requirement may be satisfied with the purchase of mitigation credits.
“Bristol Motor Speedway bought some credits from this mitigation bank in Shady Valley,” Howard said, and he added that it is his understanding more parking lots will be needed adjacent to the speedway. He asserts that Shady Valley has been and will continue to be the sacrificial lamb for that enterprise and countless others.
“So it’s a money deal is what it’s all about,” he said. “It’s not about saving nature’s great places. And they’re also using our state and federal tax dollars through grants to purchase these lands. You can find this information on the Internet. It’s not something that came to me in a dream or anything.”
“We have not sold mitigation credits directly to the speedway,” countered Call. “The Nature Conservancy is a 501(c)(3) nonprofit organization, so it is against the law for us to make a profit on any of our activities.”
Under the Federal Clean Air Act, proceeds from the sale of mitigation credits go directly into conservation work and, in this case, have in fact flowed back to TNC. So the argument that TNC has directly benefited from a mitigation credit sale handled by Tennessee Department of Environment and Conservation would, if you’ll pardon the expression, hold water.
Call points out that the investment TNC has made in terms of property acquisitions and restoration efforts in Shady Valley by far exceeds whatever money may have been brought in through the sale of mitigation credit.

A tax quagmire
Under Tennessee law any nonprofit is entitled to 100 tax-free acres, so that is one tax advantage that automatically flows to the benefit of TNC. Then, according to Howard, “they’re paying taxes based on the green belt [tax classification], and the green belt is supposed to be for agricultural use. I’m not aware of them raising any type of agricultural crops or products.”
The property for which TNC claims the green belt credit is mountaintop property, however, high above the land from which this dispute arises. Call says that in any event a significant amount of TNC holdings in Shady Valley is well entitled to the credit.
“The Nature Conservancy actually does permit certain agricultural use of our property,” she said. “For many years we have engaged in leases and licenses for farmers to use portions of our property for cutting hay and raising cattle. And we also issue hunting permits, so we absolutely have an agricultural purpose to what we do in the valley.”
Even more to the point, TNC pays $4,000 annually in property taxes to Johnson County, an argument that, again, doesn’t seem to placate the defendants.
“They’re qualifying for tax dollars through grants, federal and state, and they’re reselling land and making money on it,” he said. “They’re a global organization to start with and they own over two million acres in the United States.”
His Internet research has revealed the allegations of a conservative columnist who contends that TNC is “an immensely wealthy private corporation (the world’s largest private landowner) with its own selfish agendas, minimal, if any, financial transparency, a checkered reputation, and minimal, if any, public accountability.”
“And I believe they want to control all our waters,” Howard added.

A sharp legal point
TNC’s complaint contends, in so many words, that the defendant does not exist.
Under Tennessee law, “a Watershed District that uses none of its corporate powers for a period of 10 years is dissolved by operation of law.” The complaint asserts the Shady Valley Watershed District has not been chartered since 1974. Therefore, “any easement rights said District may once have held over property now owned by the Conservancy have been extinguished by operation of law.”
This is, in part, how TNC was able to obtain a Temporary Restraining Order and a Preliminary Injunction.
Shady Valley farmers have filed a petition to reinstate their Charter of Incorporation but, according to TNC’s complaint, have not followed through on all the necessary procedural steps. Predictably, the defense is not impressed by these legal intricacies.
“They said we hadn’t done any work on this watershed since 1974,” Howard said. “Well, that’s not true either and that’s a fact. We took some brush off some laterals and, you know, we’ve done numerous things. We made improvements on it and we have proof of it.”
“The people of Shady Valley want to be left alone,” Howard said. “They want to live in peace and harmony and we were doing great before The Nature Conservancy came, and I don’t know of anyone who called them and asked for their help here. We want to leave our land to our children and grandchildren. Some of these farms here have been in families for 200 years.”

Major Nature Conservancy Projects in the Southern Appalachian Region

The Clinch Valley Program area encompasses the watersheds of the Clinch, Powell and Holston rivers, all part of the Tennessee River system and all harboring high rates of at-risk fish and mussel species. The TNC effort in this region includes, among other things, enrolling 20,000 private acres in a Conservation Forestry Program and creating a freshwater mussel cultivation facility at Cleveland Island Preserve to restore rainbow mussels.

TNC has been involved in a historic agreement with Alcoa Power Generating Inc. to protect 10,000 acres in the Great Smoky Mountains. The agreement will allow Alcoa to continue its hydropower activities at four dams in Tennessee and North Carolina while granting conservation easements, protective buffers, and future purchase options.
TNC purchased a 250-acre tract on Roan Mountain to add to the Cherokee National Forest.
In collaboration with Tennessee Wildlife Resources Agency, TNC helped create cutting-edge habitat-mapping software.

North Carolina
The New River headwater has been a primary focus since TNC established the Bluff Mountain Preserve in 1977. TNC currently works to protect Long Hope Creek, a tributary that feeds into the North Fork of the New River.
TNC has helped protect 70,000 acres in the Southern Blue Ridge Escarpment, an area that stretches southeast of Asheville, NC westward to the Chattooga watershed in Georgia. Among other efforts, TNC has an extensive program in place to combat invasive species, a major regional threat.

Where the Conasauga River feeds into the Oostanaula River, which eventually empties into Mobile Bay as the Coosa River, TNC has protected 50 animal species in the Conasauga’s 500,000-acre watershed. Here too the emphasis is on freshwater mussels.
In the nearby Etowah River, 15 of the original 91 fish species have disappeared due to gold mining techniques. TNC has helped protect 4,754 acres of the Etowah watershed.

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