By Tate Mikkelsen
The Rockbridge Area Conservation Council plans to file an appeal Friday of a judge’s ruling that would make the group give up partial management of House Mountain, the group’s attorney said.
RACC, a private environmental group in Rockbridge County, has been in a legal battle with the Virginia Outdoors Foundation, a state-created land conservation organization, since 2015.
That’s when VOF began the process of trying to exit two agreements with RACC, negotiated in 1988 and 1989, over the management of House Mountain, a Rockbridge County landmark.
In March, Circuit Judge David Carson overturned a unanimous jury decision reached in December that required VOF to abide by the agreements.
“The judge’s decision to overturn the verdict is extraordinary and outside of his power,” said Jared Jenkins, RACC’s attorney.
The disagreement centers on dueling interpretations of a portion of the 1989 agreement that creates a process for VOF and RACC to discuss amending the agreement every four years.
The term of this agreement shall be four (4) years. In the event that no changes are deemed necessary by the parties, this agreement shall continue in effect for additional four year terms. If either party find changes to be needed, notice of such proposed changes shall be provided to the other party at least (60) days prior to the expiration of this agreement.
Jason McGarvey, communications outreach manager of VOF, said the foundation told RACC in 2012 that it wanted to change terms about the agreements.
“We discussed other types of agreements. They weren’t receptive to anything we were proposing,” he said.
A management committee has overseen House Mountain for the last 29 years. It is comprised of three RACC representatives, two VOF representatives and one representative each from Washington and Lee University and Virginia Military Institute.
RACC wants the management committee to continue maintaining House Mountain, said RACC executive director Barbara Walsh.
“[VOF’s] goal is to continue managing the property on behalf of the public interest,” McGarvey said.
In September 2013, VOF notified RACC that it wanted to end the relationship when that particular four-year term ended, he said.
The clause at issue requires the approval of both parties before changes are made to the relationship, Walsh said.
The conservation organization sued VOF for breach of contract in 2015.
In December 2017, the circuit court jury unanimously ruled in favor of RACC and ordered VOF to reinstate the agreements.
According to court documents, the jury found that the original parties did not intend to allow VOF or RACC to leave the agreements at the end of the four-year term – even if the two parties could not agree on renewal terms.
“The jury’s advisory verdict … [was] contrary to the evidence presented at trial and … a plain deviation from right and justice,” Judge Carson wrote.
Jenkins, RACC’s attorney, said the issue needs to be resolved by the state Supreme Court.
“The point of having a jury is to be bound by their verdict on legal matters,” he said. “The jury’s verdict on the legal issue of whether or not the contracts were breached is binding. The jury’s recommendation for how to remedy that breach is advisory.”
McGarvey, VOF’s communications manager, said the judge could overturn the jury’s verdict because the jury was advisory.
“The judge had to weigh what the jury came up with,” he said. “And what the judge ultimately came up with is that the jury’s decision [was] not consistent with the law.”
Walsh said the tension between the two organization stems from when VOF first expressed interest in cutting down trees in 2013.
“The Virginia Outdoors Foundation wanted to monetize this property, and they looked for weaknesses in the agreement, and that’s how they proceeded,” she said. “Nobody who testified at the trial who was originally involved in the project had any doubt that this was to be permanent and in perpetuity.”
McGarvey said VOF proposed to clean up trees that had fallen after a derecho storm in 2012 and wanted to use the wood to generate revenue. He said the group did not want to cut down healthy trees.
In 2014, McGarvey wrote an article on the VOF website that said cutting down trees could generate revenue.
“VOF feels strongly that a careful, low-impact timber harvest, in combination with other forestry practices … would not only improve ecological health of the mountain but also provide a modest stream of revenue that can be reinvested back into the management of the property,” McGarvey wrote in the article called “Investing in House Mountain’s Future.”
John Knox, an emeritus professor of biology at Washington and Lee University who worked with RACC on the court case, said RACC wants to conserve House Mountain’s biological diversity.
“Just leave the forest alone,” said Knox. “We are in a mass extinction driven by humans. … A lot of biological diversity lives in standing wood.”
The Rockbridge County Board of Supervisors expressed its “clear and unambiguous support” for RACC last week.
“This is another example of government overreaching their authority,” said David Hinty, the board’s chairman. “They’re trying to do away with agreements that they set up with localities and trying to take something that isn’t theirs.”
Walsh said RACC used donations to pay $180,000 of the $325,000 price tag when VOF and RACC purchased House Mountain from David White, then the owner of White’s Truck Stop, in 1988.
She said the next step for RACC is to figure out how to raise money to pay for the appeal. She said she hopes to raise between $25,000 and $30,000.
“The cost of appeal is unclear at this point,” Jenkins, RACC’s attorney, said. “There’s multiple stages. It could go very smoothly or there could be a lot of roadblocks.”