Will Wal Mart destroy an NSS Owned Cave???

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Postby ken hill » Oct 22, 2005 7:16 pm

from what I read owning the entrance does not mean that you own the entire cave. I think that is what Cheryl was saying in her post. I would take it to further mean that exploring these areas of the cave without permission or a memorandum of understanding would be trespassing under those federal statutes.


Ron,
Not in Florida and not according to two very prominent law firms, one representing the phosphate industry the other a water bottler. Remember

1. The caves are water filled and there is no overriding water law in Florida once the water is underground as to its navigation.
2. The maps of the caves are the intellectual property of the map maker. Luckily and for the most part that's the CDS.
3. There is no ability on the part of the land owner to mark the passage with a "no trespassing" sign that would meet the requirements of Florida statute.
4. The land owner does not have the right and in fact may be criminally responsible for any willful damage to a cave under his property.



I drove by another supercenter today. The was a restaurant, fast food restaurant. small bank branch, shoe store, video rental and a gas station all in the clutter around it. I wonder how many of those permits were grandfathered by the Wal-Mart permit?

We all know that there is a track record for miners, developers and others who find it easier to pay a hefty fine than to pursue compliance. It is my opinion that the NSS and the CDS have made a great mistake by not putting this matter before an attorney for review for the purpose of preserving our rights as the owners of the cave opening allowing entrance to this system.

Thanks for the support and interest.

/Ken
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Postby Ron Fulcher » Oct 23, 2005 1:08 am

Walmart obtains a permit for the entire property and that includes the eventual construction of the outlying stripmalls. Their financial resources allow them the ability to eat up the legal funds of those in opposition until your financial resources are completely gone. If the maps and data were or are available to a state or local government entity then they are probably available to the company through the freedom of information act. I think you will find that will negate the intellectual property argument. I believe we should share this information with these state agencies so that infromed decissions can be made in the application process.

Challenging their property rights under the navigable water point will only force a change that will be detrimental to continued exploration. If the property is marked above ground and you have knowledge of it and the fact that the passage you are in is located under their property then the argument will be made as to intent on both sides, so they will win there. The navigable water laws are intended for above ground use and fighting it at the state level will only compromise this gray area you are relying on to explore the cave.

Willful damage to a known cave would have to be proven by specifically monitoring the passage you can explore at the time of the compaction. Evidence has to be established by several means, seismic records and probably some form of video taping would be needed to make a case in court which may or may not result in a fine and they will present geologic testimony that to the best of their knowledge the caprock was more then sufficient to protect any underground resources even with the use of multi ton drops.

In a project area located in Kentucky a hilltop that drains into several local caves and spring sources is now being mined for coal. The approved sights for the drainage ponds that will contain several tons of harmful chemicals as a by product of this mining is all located over known karst features. We made a concerted effort to share our knowledge of this with the local population and were met with a general belief that even if the worst case scenario does happen and even though it has happened in the same valley before that their concerns would be alleviated with the import of a county water source. The local interest was not there to fight the issue and so I made a personal decision as a non-resident to let those who could be affected live with their decision to not fight the mining.

Where I do live we have mega dairies trying to locate in the township and the limestone that forms our aquifer base is 6 feet beneath the surface. Our leaders have fought the attempted construction by instituting changes to the local code that can help ease any impact that this industry might pose in both pollution and the exploitation of the water resouces. We will win this battle because we are local and united in opposition to uncontrolled industrial expansion.

We as the NSS can provide information and help the voters make a better informend decision but, the fight must be led by a majority of local voters. That is where the battle can be won in the hearts and mind of those voters who do have the power to make changes that can adversely affect the construction requirements. We the outsiders are merely guests of the population and until you can sway that majority of these voters to your side of the conservation issue Wal-Mart will win.

Ken, I surely hate to see the construction begin but, as pointed out the initial property changes are done by the property seller on contractual agreement with the future Wal-Mart owner. They employ this very tact in areas of greater environmental concern. When required they will purchase additional surrounding property to mitigate any possible future damage. I have personally watched this play out in one of their past expansions very close to me.

The only good news I can offer (in my devil's advocate position) is that their construction techniques usually exceed the regulations and the storm runoff ponds will usually contain any spills in an area where they can be dealt with efficiently. The bad news is that those great mom and pop stores will be replaced with the mega giant pushing Chinese crap on the public and calling it "good news" for the local economy. I guarantee that part of their market research already included an analysis of the NSS and the CDS possible opposition and long before the property seller even knew they might want to purchase their land.

Good Luck on fighting it but, I fear you will find another Wal-Mart as your neighbor.

Ron Fulcher
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Postby Plethodon » Oct 23, 2005 11:39 am

Ron Fulcher wrote:I thought that federal law established during the "cave wars" in Mammoth Cave region that the property rights to the above and below resources were and are controlled by the owner of the land above.


Deaar Mr. Fulcher, this is state law noot federal law. Anyone can sell off mineral rights at not the same time as surface rightss if states permit or not permit. Even federal lands. Happens all the time. State may make own laws. This laws is different than water rights laws also controlled by states unless interstate commmerce is part of rights to be considered.
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Postby Ron Fulcher » Oct 23, 2005 11:57 am

It is not a question of mineral rights and federal laws superceed local and state laws. The fight in California over the use of medical marijuana is one of the latest affirmations of this fact. That issue was finally decided in our country in 1865 and at the cost of over 600000 American lives.

In clarification as well a cave is the absence of minerals by their nature. Mineral rights purchases have been successfully challenged in both Kentucky and in West Virginia and the surface property owners have been the winners in these cases for most of these challenges. Companies strip mined the surface lands and displaced the surface inhabitants claiming they had the rights to do whatever was necessary to remove them. Landmark cases in Kentucky settled these arguments and the inhabitants won. Mountain top relocation has now become the center of the strip mning and mineral rights battle and so far again the residents are slightly successful.

My point still stands however, that to effectively combat these efforts by corporations where the environment and the local populace will be affected, you must have a majority support of those who live and vote in the neighborhood where the developement will take place.

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Postby Plethodon » Oct 23, 2005 12:30 pm

Ron Fulcher wrote:It is not a question of mineral rights and federal laws superceed local and state laws. The fight in California over the use of medical marijuana is one of the latest affirmations of this fact. That issue was finally decided in our country in 1865 and at the cost of over 600000 American lives.


You say a lawyer you are not. This is obvvious, since in kentucky Mammoth cave the land is federal land, In florida not is this the case. Federal law does not supercede local and state law in matters not covered under interstate commomerce or in casses of natural resources where local and state laws have jurisdicition. If what you say is true than no state needs any state natural resorce or not any state quality of environment departments. This is not so, not true as federal law ONLY covers matters of federal ability to oversee. Drug laws not the same thing as environment and or land use law.

Uncivil war irrelevant to mineral water rights of states. every state here be different on land not federal land.
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Postby ken hill » Oct 23, 2005 3:48 pm

Plethodon,
Your points are well taken and your debate with Mr. Fulcher leads me to believe that we have talented and knowledgeable people all over this Country that can bring a lot of positive ideas to the issue.

My point still remains that without any legal expertise, the study the AVP is conducting will result in nothing positive since without professional direction we remain forced to speculate what will happen or worse read about what is happening to the site and the cave in the newspaper.

To date we have a members report that perhaps 10 or 12 thousand cubic yards of dirt has been moved around and over the cave and we have had no official opinion from the NSS or the CDS as to whether the cave will be affected.

/Ken
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Postby Cindy Butler » Oct 28, 2005 4:59 pm

Sorry to jump in so late on this conversation. I have personally emailed the Mayor of Alachua and have been in contact with the leadership of both the NSS and the CDS. I can't say I am happy about the NSS plan and think it will be ineffective and too late. I would like to see it presented for discussion on this forum.
Mill Creek Sink Cave system is a spring cave. I believe in Florida there are supposed to be laws to protect Springs. Why they don't come into this I don't understand. The cave also has a swallow entrance that drains several acres of wetlands. The cave has been dye tested to Hornesby Springs. Any contamination of this spring cave could have wide sweeping implications. Two cities, the County of Alachua and township downstream of Hornesby Springs can be affected by any potential spills that could occur from the containment of the petroleum products that will be stored over this cave. I pointed this out to the Mayor along with noting that it is quite one thing to know that there is a potential for contamination of a water source prior to building and not do something to stop it for monetary reasons and quite another to have it happen without knowledge before hand. The potential liability to the City of Alachua for allowing this would be great.
I also pointed out that damage to the spring flow and or stoppage of the runoff from the wetlands can cause flooding. Waiting to see if it happens is just wrong and could cost the City, County and State a great deal of our tax payer money.
I have had an environmental consultant look at this land last year and he reported to me that both of the above problems can happen. He was deeply concerned that the cave will collapse. There is an area just before the downstream "terminal" room that has been pushed to 70 feet. The fissure was still going toward the surface but the diver had to turn due to decompression obligation. I emailed all this info to the Mayor last year along with a topo map of the cave. She did respond to that email and told me that the cave does indeed run under the 32 acre site that Wal Mart plans to develop. I also gave the City of Alachua a video of the cave in hopes they would see it as a valuable natural resource as I do.
I have spoken to a group of cave divers who will help with video documentation of the cave that we hope will show the cave condition now, during construction, if it happens, and after. Hopefully we will be able to save the next cave if we cannot do anything for this one.
I have not given up hope that this can be turned around. The City of Alachua has not made their final decision yet. Prior to talking legal action I would like to see a effort made with the City to prevent this Wal Mart store from going in over the cave. What dirt you see being dumped in the area is part of another development that is South East of the cave. The irony of this development is that there is good commercial land in the City of Alachua that would be just as good a site and does not have a cave under it. I have not attempted to contact Wal Mart but intend to when I get through with this.
I am sorry for inflicting the long post on you all but it was a lot of info and I wanted to update you as much as possible. Cindy Butler
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Postby David_Campen » Oct 31, 2005 12:17 pm

I believe in Florida there are supposed to be laws to protect Springs. Why they don't come into this I don't understand.

Laws don't mean anything unless there is someone - City Attorney, District Attorney, Private Attorney etc. - to insure that they are applied.

The cave also has a swallow entrance that drains several acres of wetlands. The cave has been dye tested to Hornesby Springs. Any contamination of this spring cave could have wide sweeping implications. Two cities, the County of Alachua and township downstream of Hornesby Springs can be affected by any potential spills that could occur from the containment of the petroleum products that will be stored over this cave. I pointed this out to the Mayor along with noting that it is quite one thing to know that there is a potential for contamination of a water source prior to building and not do something to stop it for monetary reasons and quite another to have it happen without knowledge before hand. The potential liability to the City of Alachua for allowing this would be great.
I also pointed out that damage to the spring flow and or stoppage of the runoff from the wetlands can cause flooding. Waiting to see if it happens is just wrong and could cost the City, County and State a great deal of our tax payer money.

The typical response of any politician or manager is to _not_ be proactive.
Being proactive means taking a risk to deal with a hypothetical problem. The typical managerial repsonse is that it is better to wait, maybe the problem won't happen and even if a problem does happen then that will be a good stage for me to demonstrate my managerial abilities.
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Postby Ron Fulcher » Oct 31, 2005 3:26 pm

I took a minute (several hours) and visited the Alachua website where they have all the past documnetation for the Wal-Mart RDC online and in .pdf format. The Geotechnical report was done specifically because of the construction sight being located in a karst region of Florida. It was completed by Universal Engineering Sciences & Geohazards Inc. and goes into extended detail about the possible sinkhole affects and implications of caves in the area. The entire study is 287 pages long but, very easy to read.

These will probably be the same folks who complete the sight study for the store as well since they are located in Gainesville and very knowledgeable with the area, both above and below ground. The first conducted an electrical resistivity and then used those results to indicate location for actual bore testing of the sight.

Key points in study:

Surface and subsurface water are seperated and no active sinkhole activity was indicated.

The construction will probably aid the property from developing future sinkhole activity.

Compaction grouting would further insulate the area from future sinkhole development.

There are no guarantees to what will really happen.

This is what you will need to argue against when this all gets into a heated argument at the planning meetings but, try and find some Mason meetings garden clubs etc. to speak at and you might be more productive. It is neat that they have made it all available on their website and indeed very relevant to your cause.

Ron Fulcher
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Postby ken hill » Oct 31, 2005 4:45 pm

The typical response of any politician or manager is to _not_ be proactive.
Being proactive means taking a risk to deal with a hypothetical problem. The typical managerial response is that it is better to wait, maybe the problem won't happen and even if a problem does happen then that will be a good stage for me to demonstrate my managerial abilities.


The irony is that Cindy, me and a few others are urging the Preserves Manger and the AVP to be "Pro-Active" and at least let Wal-Mart know there is an active opposition to their planning.

The NSS is not helping its argument by standing pat and waiting to be called as an interested party. In the interim here are a few things the NSS could do.

1. Two years ago it was suggested by a prominent and knowledgeable Florida real estate attorney to change the current zoning of the nearly 11 acre Mill Creek Sink (MCS) property from "Commercial" to one that reflects a conservation easement for the life of the property. To not do so makes the NSS look a bit hypocritical since the commercial value is a lot more than its $400k tax assessment. And duh! we could build a Wal-Mart on our property because of its current zoning.

2. The "conservation easement" would go a long way to ease any trip and fall liability and also "RED FLAG" adjoining properties and development in the area. Would a plaintiff's attorney salivate and want $400k worth of commercial real estate or not take the case if it was bound by a conservation easement?

3. The current flavor of the month (according to rumor) seems to have the MCS property treated much the same a dry cave holdings of the NSS. Conservancies had been discussed and for a water filled cave, not a good idea as it is overkill. The cave and the water within enjoy legal protections that no dry cave ever will. The result is that while there is "hand wringing" by those who are in a position to advocate positive action, Rome burns.


I want to close by thanking everyone who has contributed to this thread. Devils advocate, contrary opinion or not your ideas and the ability to add them to the debate all tend to make for a cleaner thought process in order to arrive at a working solution to whats about to happen to MCS. Pouring over the docs provided is arduous but necessary. Dynamic compaction and grout will assure a nasty fate for the cave because to mitigate sink hole concerns all the beautiful passages will be pulverized by man and machine.

Regards,
Ken Hill
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Postby Cindy Butler » Nov 2, 2005 9:31 pm

My sentiments exactly Ken, Rome is burning and no one is holding the fire extinguisher. No one has even talked to Wal Mart and let them know what they plan to build under. I am forming a letter, map, photos and video to send to the CEO of Wal Mart and their BOD. I will forward them the petition also but need help with the wording. I am far from Anti Wal Mart, I just want them off the cave!
I have several people I want to write letter to and we are forming a petition to ask that large buildings, petrol chemicals or other pollutants NOT be stored on that land. What I need to know if there are laws protecting species like the Alachua Crayfish and Springs. If I can show a precedence then at least we can worry them a little. Can you please help me out in that area?
Thanks for bring this out in the open. Cindy Butler
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Postby ken hill » Nov 3, 2005 7:50 am

Cindy,
I really do not know what the current laws are regarding protected species in a protected cave. It may be new case law in the making or there may be precedent that we can rely on.

The biologists within our ranks may be able to help. But once again its my opinion that its time for professional legal advice to steer our efforts.

/K
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Postby Buford Pruitt » Nov 3, 2005 8:59 am

Steve and I have lined up a team of land development professionals (cave surveying, hydrogeology, environmental, engineering) who have reviewed the most likely potential problems that the cave could suffer from construction and operation of the proposed super center. After some research, we believe there are viable solutions. We want to get that message across to WM super center project management while they are still in the planning and engineering stage, and are currently contacting the appropriate person at Wal-Mart to get plugged into their planning process.

We intend to work with WM technical staff in a professional manner to assure that the cave is not harmed, and if that can be accomplished we will not fight the super center. We believe that sensitivity to local opposition will encourage Wal-Mart to cooperate with us.

I am monitoring City of Alachua internet bulletin boards for notices of the promised community meetings. I’m maintaining contact with local residents including community civic leaders to help insure that I will find out in advance about the community meetings. I will attend those meetings and speak on behalf of the preserve, and suspect other team members will as well.

Protected species are protected no matter whether they are on public or private land. There are no endangered, threatened or special concern species known to occur in Mill Creek Sink Cave.
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Postby ken hill » Nov 3, 2005 8:12 pm

Buford,
I am glad that a plan has been established and hopefully it will be effective. I and others would like to help. I would also like to add some thought to the plan and perhaps you can tell me what you think.

Does the team incorporate and or integrate all the efforts Cindy has been undertaking for nearly the past year. I think that would be a great idea to see what her efforts have done or could do to help. Also if we are going to coordinate this effort it would be a good idea for you or Steve to post weekly reports on the activities and contacts of your team.

There is a lot of expertise in our membership and a lot of interest. Its a small caving world here so if you'd share with us who is on the team, what their roles are and how they can be helped that would be great. Lastly, everyone I have talked to re: Wal-Mart tells me you will run into the legal department as all matters of public issues is decided by them and not their engineering and planning people. We will need a lawyer on the team to decipher the obvious answers that could fall the other way once their legal caveats kick in.

Thanks again. /Ken
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Postby Buford Pruitt » Nov 3, 2005 9:10 pm

Ken,

I have no idea what you have been told or who told you those things or the veracity of what you have been told, but I do know from 30 years of experience in permitting land development in Florida that if one wants to have an impact on a project there are essentially three avenues: talk to the developer, talk to the permitting agencies, and sue. I intend to talk to the developer and have already begun talking to the agencies.

At the present time, I do not know whom we will eventually be talking to within Wal-Mart. Maybe it will be to a lawyer and maybe it will be with their Consumer Affairs Director for Florida. We’ll see. If it comes to legal action, heaven forbid, then I will look to the NSS for guidance and to provide legal counsel.

I have no idea what Cindy has done in Mill Creek Sink Cave. She and I are friends, I value her earnest work and she is welcome to continue sharing her information.

I have indeed tried to share with this thread’s readers what we are doing to protect Mill Creek Sink Nature Preserve. I intend to continue to check in with y’all as news arises, as tasks are accomplished and as personnel and information are needed.

I have not yet shared the names of the people who have volunteered their professional time because many of them are consultants to the land development industry and are wary of having their names bandied about at this time. Be assured that I am not a glory hound, and that all team members who want the publicity will be properly credited in due time.
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