A few facts



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In the early 1920’s the Forney Creek Road District was established in Swain County, North Carolina. On two occasions it issued bonds. The Forney Creek Road District used the bond proceeds to construct a road from Bryson City, N.C. to Deal’s Gap on the Tennessee line. This road was entirely on the north side of the Tuckaseegee and Little Tennessee Rivers. The road provided a route of travel from Bryson City, N.C. to Maryville , Tennessee. At the same time, it gave access to the private lands on the north side of the Tuckaseegee and Little Tennessee Rivers. The road was a primitive dirt track. It was narrow and crooked, with steep grades, and impassible in wet weather. Some of it had a corduroy surface.

By 1940 the Forney Creek Road District was in financial straits, and had defaulted on its bonds. Swain County, in a general refunding, assumed its bond indebtedness. At that time the principal and accrued interest amounted to $694,000.00.

At about the same time, the State of North Carolina agreed to assume responsibility for maintenance of the road, although Swain County continued to be responsible for the indebtedness. North Carolina designated the road as State Road No. 288, and thereafter carried out minimum maintenance on it.

At that time there was no road on the south side of the Tuckaseegee and Little Tennessee Rivers. N.C. 28 was later built on the south side of those two rivers.

Upon the completion of the Newfound Gap Road in the 1930’s most of the Tennessee traffic out of this part of North Carolina started using it. Even though State Road No. 288 may have been the shortest route to Maryville , Tennessee , it was by far the slowest. When one considers that it took three and a half hours to drive from Bryson City to Deal’s Gap on the old road, there is no question why little through traffic used it.

President Roosevelt signed an act on December 17th, 1941 which appropriated funds for the construction of Fontana Dam on the Little Tennessee River. The project was approved by the TVA Board of Directors on December 23rd, and acquisition of the land needed for the dam site and the lake began almost immediately. ALCOA had previously acquired 15,036.52 acres for its two planned dams on the Little Tennessee. It transferred that acreage to TVA for the Fontana Project in exchange for future electric power.

TVA rebuilt the portion of State Road 288 from Fontana to Deal’s Gap, for better access to the construction site.

State Road 288, on the north side of the future reservoir, upstream from the dam site, was to be flooded when the dam was closed, except for a few segments above the lake level. TVA was obligated to acquire the road, either through purchase or condemnation. At that time, State Road No. 288 was the only means of road access to the private lands on the north shore of the future reservoir. Because of the large acreage of private land served by State Road No. 288, some provision would have to be made for continued access. The first solution considered by TVA was to rebuild the road above the water line. However, the War Production Board informed TVA that expenditure of materials and manpower to reconstruct the road would be denied.

Another solution then was thought of. A tract of private lands, totaling some 44,000 acres was then serviced by State Road No. 288. Those 44,000 acres were inside the original acquisition boundary for the Great Smoky Mountains National Park , but had never been acquired due to lack of funds. TVA proposed to acquire the 44,000 acres and donate them to the Park. Acquisition of these lands would make it unnecessary to reconstruct the road, because there would no longer be any private land dependent on it for access. Economically this made sense as well, since the aggregate cost of acquiring the 44,000 acres was less than the estimated cost at that time of reconstructing the road.

That solution left one problem. Since Swain County had obligated itself to pay the Forney Creek Road District Bonds, with both accrued and current interest, it was still entitled to compensation for the taking of its road. TVA offered to pay $400,000.00 against the bond indebtedness, leaving Swain County to pay the remainder. The National Park Service, then offered to build a new road, after the end of the World War II, as part of its then planned “Around the Park” road. In that way, Swain County would eventually receive the road for which it was paying.

The Tennessee Valley Authority, the Department of the Interior, the State of North Carolina and Swain County then entered into a agreement which incorporated the solution reached, and which would permit the speedy completion of Fontana Dam, the electric power production of which was needed for the war effort. This agreement was dated July 30 th 1943. This is the 1943 agreement.

The salient points of the 1943 Agreement were as follows:

•  TVA agreed to obtain by purchase or condemnation 44,000 acres of land on the north shore of the proposed reservoir, and to convey those lands to the Department of the Interior for inclusion in the Great Smoky Mountains National Park .

•  TVA agreed to pay $400,000.00 to the State of North Carolina to be held in trust for payment on the road bonds then the obligation of Swain County .

•  The State of North Carolina agreed to contribute $100,000.00 towards acquisition of the 44,000 acres.

•  The State of North Carolina agreed to build a road from Bryson City , N.C. to the eastern boundary of the Park, to connect with the road which it was contemplated would be built by the National Park Service.

•  The Department of the Interior agreed that “after the cessation of hostilities” it would construct a road along the north shore of Fontana Reservoir , from the eastern boundary of the Park, to the Dam at Fontana , as part of its planned “Around the Park” road.

•  The new road was to be not less than twenty feet wide and to have a dustless surface.

•  Construction of the new road was “subject to and contingent in all respects upon the appropriation by Congress of all funds necessary for such construction, and failure on the part of Congress for any reason to make such appropriations shall not constitute a breach or violation of this agreement by the Department or any other party.”

TVA acquired the 44,000 acres and conveyed them to the United States of

America for inclusion in the Park. [A tract owned by Atlantic-Richfield was omitted, but has since been acquired by NPS.] The monies provided for were paid. The State of North Carolina constructed a 2.5 mile road from Bryson City to the eastern boundary of the Park. Swain County finished paying the Forney Creek Road District Bonds. The National Park Service constructed a .93 mile segment of the road at Fontana Dam, and 6.2 miles from the eastern boundary of the Park to a tunnel, where it now ends. The total length of the road was originally estimated to be 37.5 miles. Approximately 30 miles are unbuilt.

In 1962 the National Park Service suspended construction after an environmental analysis of the construction then completed indicated that there had been exceptionally bad damage, and that “continuation of such damage to natural park values is indefensible from either the standpoint of conservation or visitor use.” After that the National Park Service did not request any additional appropriations for the road.

The 1943 Agreement does not mention cemeteries, access to cemeteries, or in any other way refer to cemeteries either on the north shore of Fontana Reservoir or anywhere else. Nevertheless, in 1983 Helen Vance and others filed suit in the United States District Court for the Western District of North Carolina, on various grounds seeking to compel the TVA to lower the water level of Fontana Lake so they could use State Road 288, or alternatively to compel the Department of the Interior to complete construction of the road on the north shore of Fontana Lake. The District Court held the Plaintiffs had no more rights than any other citizen, that they were only incidental beneficiaries of the 1943 Agreement, and that they had no right to maintain their action.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of the action. The Plaintiffs then filed a petition seeking permission to appeal to the United States Supreme Court. That Court denied the petition.

The State of North Carolina some years ago built a new road on the south shore of Fontana Lake , N.C. 28. It provides a connection from US 74 to Fontana Dam, and on to Deal’s Gap on the Tennessee line. This road has been constantly improved, so that today approximately half the distance is covered by four-lane highway. Now, Bryson City has a good, direct, high-standard, high speed road connecting it with Maryville and other points in Tennessee . There is no commercial need for another road inside the Great Smoky Mountains National Park .

In 1962, without the intervention of environmental laws, the National Park Service concluded that further construction of the road inside the Park would cause unacceptable environmental damage. Since 1962, Congress has passed a number of environmental laws which today militate against construction of the road, including such laws as:

•  The Wilderness Act

•  The Department of Transportation Act

•  The Federal Highways Aid Act

•  The National Environmental Policy Act

•  The Clean Air Act

•  The Clean Water Act

•  The Endangered Species Act.

Citizens for the Economic Future of Swain County, comprised mostly of residents

of that County, have been advocating for payment of a sum of money to the County in lieu of completion of the road. It is respected contract law that where performance of a contract becomes impossible, the parties may agree upon a substituted performance. The prospect of unacceptable damage to the environment makes completion of the road today an unlikely prospect. However, payment of a lump sum of money in lieu of the original performance is a reasonable alternative. The citizens group suggests that $52 million is an appropriate figure. This sum has been arrived at by adding compound interest to the value of the road in 1940, the year Swain County assumed responsibility for the Forney Creek Road District bonds.

Considered in light of the estimated cost of $374+ million or more to complete the road, the sum of $52 million is not out of line. Moreover, the interest that could be earned on such a sum, invested in US Treasury bonds, would equal nearly one-third of the $7 million annual budget of Swain County . Compared to the relative and speculative trickle that would be contributed to the County by a completed road, a lump sum payment would manifestly be the overwhelming rational choice.

16 July 2002

Written by Claude M. Douthit and Theodore A. Snyder, Jr.