Will Wal Mart destroy an NSS Owned Cave???

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Will Wal Mart destroy an NSS Owned Cave???

Postby ken hill » Oct 14, 2005 9:12 pm

The NSS is the owner of Mill Creek Sink (formerly known as Alachua Sink)whose water filled cave flows under a site where a Wal Mart Super Center is being built.

The NSS Management Plan clearly binds the NSS to action in order to protect the spring.

The Mill Creek Sink property is owned by the National Speleological Society (NSS), and managed by the Cave Diving Section of the NSS (NSS-CDS). Because of the nature and complexity of the underwater cave system, access to the cave will be permitted to only the highest qualified cave divers. The goal of the management plan is to allow continued access to Mill Creek Sink for cave diving and to protect this valuable resource so that future cave divers can visit and appreciate a cave in near pristine condition. To this end, a management committee will be put in place and diving will only occur under conditions set forth by this committee. In addition, fences and gates will be installed as necessary to prevent unauthorized visitation to the site.

Equally important is the protection of the surrounding property and connected water resources due to development in the region. Mill Creek Sink is located within the City of Alachua and is adjacent to I-75. As with most of Florida, development is occurring at a rapid rate. By educating and working with local officials, we hope to minimize the impact of growth in the area on the cave system.



Help is needed at the Florida Grass roots level to see what can be done to stop the construction. There is "slight of hand" suspected since Wal Mart had earlier agreed to build somewhere else, but didn't. Wal Mart relies on a 2002 dated geological report that had no input from cave divers who are the first hand investigators of the system.

This issue has to be dealt with on an urgent basis. I would ask the NSS to get the CDS competent legal help and to do so quickly. At a minimum a Temporary Restraining Order should be sought to determine possible damage or if destruction to the system has or will occur..


Other On-line references

http://cavediver.info/phpbb2/viewforum. ... 14344c4c94

Super Wal-Mart/Alachua Sink
[ Goto page: 1 ... 3, 4, 5 ]

http://www.gainesville.com/apps/pbcs.dl ... /1078/news

http://www.cityofalachua.com/index.asp? ... BASIC&SEC={1FA093DF-CB85-461A-B0B1-4AF99282B2E0}
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Postby Cheryl Jones » Oct 14, 2005 10:28 pm

Ken, have you discussed possible NSS action/involvement with Buford Pruitt (Preserve Committee Chairman) and Steve O., NSS AVP? They're the folks who can get the NSS wheels moving.

This forum is a good place to get info out to cavers and rally support, but can be a slow way to rouse official investigation and action from the NSS.

Just trying to help.....

Thanks for being on top of this.

Cheryl
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Postby kelly » Oct 15, 2005 4:16 am

Cheryl Jones wrote:Ken, have you discussed possible NSS action/involvement with Buford Pruitt (Preserve Committee Chairman) and Steve O., NSS AVP? They're the folks who can get the NSS wheels moving.

This forum is a good place to get info out to cavers and rally support, but can be a slow way to rouse official investigation and action from the NSS.

Just trying to help.....

Thanks for being on top of this.

Cheryl


I forwarded this information to Buford and Steve within a day of finding out about it. The NSS should be aware of what is occuring and the problems that could arise from dynamic compaction over a cave system,and problems that could arise due to altered water drainage characterisitics of the area. We hope that other NSS members will take an interest along with their leadership.
Thanks.
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Postby ken hill » Oct 15, 2005 7:18 am

Cheryl,
Hi and good morning. I understand that the facts surrounding Mill Creek had been reported to Ormeroid and to Buford Pruitt, over the past several months. so I did not contact them.

I wish I could say I have been on top of this but I haven't. In the past several days I've come to learn there are a lot of members frustrated about what has happened. Some are now looking for the NSS to make a decision to fight to protect Mill Creek and hopefully get results.

I would ask that the NSS provide some leadership as well as competent legal advice with the aim of temporarily restraining Wal-Mart from further construction that may damage the cave. Once that's done, to participate in future hearings that will decide if the Super Center can be built without destroying the cave.

Thanks for your attention and help. /Ken
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Postby Dan Sullivan » Oct 15, 2005 9:02 am

Cheryl Jones wrote:This forum is a good place to get info out to cavers and rally support, but can be a slow way to rouse official investigation and action from the NSS.


Cheryl's right, so let's rally up some support. Give us a name and address to write letters to, E-mail and/or snail mail. I'll gladly write a friendly protest letter if I know where to send it. Public opinion can go a long way if the timing is right and enough people stand up and voice their objections.
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Postby Lynn » Oct 15, 2005 10:37 am

Ken, Also if you have not done so contact/notify the NSS Cave Conservation and Management Section.

(Email addresses are listed in The Cave Conservationist)

NSS Cave Conservation and Management Section
http://www.caves.org/section/ccms/
http://www.flickr.com/groups/cavers CAVERS, CAVES & CAVING PHOTOS
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Postby ken hill » Oct 15, 2005 3:40 pm

Folks,
In my humble opinion we need to restrain Wal-Mart from construction techniques that will destroy the cave. The construction must stop and that can be accomplished by immediate legal action ie: obtaining a Temporary Restraining Order. Once that is done and hearings are set that will be the time and the platform for the merits of the NSS and CDS conservation arguments to be presented and heard.

It appears that the CDS BoD no longer permits email correspondence that would or could deal with a crisis such as this. Instead it appears they are waiting for the matter to be dealt with as a BoD agenda item. This type of delay is not acceptable nor is their lack of competent legal resources to litigate acceptable.

What is frustrating is that this matter has been brought to the attention of NSS and the CDS by many grassroots cave divers that were and are frustrated that its urgency was not recognized. Therefore, when asked to help, my best judgment tells me to publicly ask the Preserves Manager to make the appropriate requests to the NSS AVP or others for the necessary legal assistance and to do so forthwith.

Regards and thanks to all.
/Ken
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Resources?

Postby David_Campen » Oct 15, 2005 8:49 pm

Practically, what do you expect that the NSS can do? Do you feel that the NSS can and should commit many thousands, perhaps tens of thousands, of dollars litigating this?
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Re: Resources?

Postby Steven Johnson » Oct 15, 2005 8:53 pm

David_Campen wrote:Practically, what do you expect that the NSS can do? Do you feel that the NSS can and should commit many thousands, perhaps tens of thousands, of dollars litigating this?


Well... in theory, yeah, actually.

If we can't afford it, well, we can't afford it.

But in that case we should at least try to attract attention to the issue. Maybe an organization with enough cash to do something about it would notice.
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Postby ken hill » Oct 15, 2005 9:32 pm

David,
Mill Creek is owned by the NSS and the CDS is its steward. As a Life CDS and NSS member I see this issue as one that will have profound effect on the NSS should it allow a developer to destroy one of its assets without a fight.

Without pointing any fingers, it appears that there has been too much "hand-wringing" already. The NSS should have made the decision months ago to protect its asset. In this 11th hour there may remain a chance to prevent the caves destruction. That will be through legal challenge to the developer.

To state, as posted by an NSS Officer on another forum, that there is a Committee looking into it makes no sense at all. Let's have a lawyer look into it and report back what can be done. This is a sensible small investment to protect a major asset.

Regards,
/Ken
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Postby Cheryl Jones » Oct 15, 2005 10:17 pm

ken hill wrote:David,
Mill Creek is owned by the NSS and the CDS is its steward. <snip>will have profound effect on the NSS should it allow a developer to destroy one of its assets without a fight.


The NSS only owns the entrance to Mill Creek Sink, and the cave that lies under our property. Cave passages belong to the owner/s of the surface above them. Granted, these passages are important to the cave's value to the NSS and cave divers, however they don't belong to us.

It seems that the aquifer conservation group/s in FL would want to be, or could be convinced to be, involved in an effort to protect the cave and most importantly, the quality of the water resource. Perhaps the state department of conservation as well. And Wal-Mart may not want their store to fall into a cave, so could be interested in seeing a map.

Before we get too wound up, jump to conclusions, and pass judgement, it would be good to hear from the CDS BoD, and from the preserve manager.

Given that lots of money is involved, and a large corporation, local officials, developers, and construction companies would all stand to benefit from the proposed Wal-Mart, I suspect that the issue is pretty complicated and touchy, with lots of local city and county politics. :evil: I bet that the CDS BoD and the preserve manager could give us some insight.

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Postby Jep » Oct 16, 2005 7:38 am

Cheryl et al. Maybe we should do some brain storming in Albany. There was a Wal-Mart incident here in Lewisburg WV, but George Dasher would be a better source for the facts in that case. Jep.
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Postby ken hill » Oct 16, 2005 8:51 am

Cheryl,
Several years ago there was an effort to try and stop the CDS from diving in a cave passage below an owners property. That effort failed.

Cave passages belong to the owner/s of the surface above them. Granted, these passages are important to the cave's value to the NSS and cave divers, however they don't belong to us.


At that time several of Florida's top law firms that specialize in water law could not confirm any owner rights to the cave below them, other than the entrance covered by state trespass statute. Water and caves are protected in Florida under various state statutes. Water filled caves have yet to be codified nor have their been precedent court cases. Therefore, as far as I know there is no law in Florida that states who the owner is of the water filled cave passage. If it has changed we'll know when an attorney is hired to look into the issue.

I have been told the destructive land preparation techniques and perhaps subsequent fines may be just a cost of doing business. The importance of this cave and the loss of its waters journey through the Floridan aquifer is a conservation risk we can ill afford to gamble on.

Thanks for the reply. /Ken
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Postby Cheryl Jones » Oct 16, 2005 10:18 am

ken hill wrote:At that time several of Florida's top law firms that specialize in water law could not confirm any owner rights to the cave below them, other than the entrance covered by state trespass statute. Water and caves are protected in Florida under various state statutes.

Then it sounds like the state needs to be taking the lead in protecting the water resources, or at least involved, perhaps through the Dept. of Environmental Protection. The FL cave protection law protects water-filled and air caves alike.
http://www.caves.org/section/ccms/bat2k/index.htm

At that time several of Florida's top law firms that specialize in water law could not confirm any owner rights to the cave below them, other than the entrance covered by state trespass statute.

Interesting that a water-filled cave evidently is considered a water course, like a river. If this is the case, then the NSS doesn't own the section of Mill Creek Sink that lies under its property. Or does it just not own the water?

The FL cave protection law refers to the "written permission of the owner," which is needed to damage or pollute a cave. And "owner" is defined as " a person who owns title to land where a cave is located, including a person who holds a leasehold estate in such land; the state or any of its agencies, departments, boards, bureaus, commissions, or authorities; or any county, municipality, or other political subdivision of the state."

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Postby ken hill » Oct 16, 2005 1:15 pm

Interesting that a water-filled cave evidently is considered a water course, like a river. If this is the case, then the NSS doesn't own the section of Mill Creek Sink that lies under its property. Or does it just not own the water?

Cheryl,
With regard to your statement, in 2002, two attorneys, one representing the phosphate industry the other representing a water bottler both agreed that the law is unsettled about pretty much your exact statement. The NSS owns the entrance and the right to access the water and has the right to limit access as any landowner has. But unlike water laws of Florida the State has no authority over the navigability of the water once underground only the usage.

Since the law is not set I think it would be prudent to have a lawyer look at this issue because when the protection of cave and water laws are combined the threat of the destruction of this cave may be stopped.

As I understand it. Once under another property line, the adjoining owner(s) have the right to the water, per usage criteria set forth by the Florida's Water Management Districts and local ordinance. That owner cannot enforce any trespass within the cave they have no access to from access points they do not have a legal right to. Nor can the adjoining owner(s) contribute to the deterioration of the water quality. The adjoining owner(s) cannot intentionally destroy the cave they know lies beneath them. In this instance the CDS has the overlay of the street and topos and cave map which will show the cave to be beneath the property and in jeopardy.

On the other hand, should a cave passage become a naturally occurring sink hole on any land and a hazard, then the sinkhole laws allow the landowner to fill it with cement if necessary. Or should the landowner unknowingly build over a cave or sink as in the Eagle Ridge Mall, Polk County Fl, then they can remedy the settling of the land by filling it with cement.

Again as I understand it, the key is to legally notice the builders, owners and planners of the site. To do this in a timely manner since construction is commencing is essential. A Temporary Restraining Order is required forthwith to allow all parties to investigate and or litigate the merits of the building plan vs. the potential damage to a naturally formed cave and its contents.

Thanks Cheryl.

/Ken
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