Ghost Town in the Sky Landslide: Criminal Negligence?

Photos of the damage caused by the Ghost Town in the Sky landslide—Asheville Citizen-Times
Flyover video provided by WSPA News

Ghost Town in the Sky Landslide February 5, 2010

Ghost Town in the Sky landslide-prevention barriers did not stop the massive debris flow that sideswiped down-slope homes and blockaded Rich Cove Road. The 30-foot-high rush of mud traveled 3,000 feet from the amusement park. This is not the first Ghost Town in the Sky landslide: a similar slope failure occurred near this site in 1992. Reference: North Carolina Geological Survey.

Ghost Town Partners, LLC

The Ghost Town in the Sky mountain top amusement park was purchased in 2006 by a group of investors. Steve Shiver is currently President and CEO of the company. Ghost Town Partners, LLC filed for bankruptcy protection in March 2009.

Ghost Town in the Sky Engineer: Landslide-Prevention Retaining Walls "Unsafe"

Ghost Town in the Sky commissioned local contractors in 2007 to construct a geo-grid system of terraced retaining walls to replace deteriorating older barriers. The project was completed in 2008 at a cost of $600,000.

The Mountaineer reported on February 10, 2010 that the damage caused by the Ghost Town in the Sky landslide could have been far worse.

Pat Burgin, a contract engineer for Ghost Town, said he was asked to inspect the series of retention walls shortly after completion. “I looked at it and determined it was not done properly and was an unsafe situation," he said.

In Mr. Burgin’s assessment, the Ghost Town debris flow “would have been much worse and likely fatal” if the company had not acted to remove massive amounts of dirt from the failing site. Mr. Burgin believes that the “Present (park) owners kind of inherited a problem from the previous group of investors."

Criminal Negligence

Mr. Shiver and his co-investors knew from Mr. Burgin's engineering report that the park's retaining walls were not safe and likely to fail. As such the company had a duty to inform state and county officials that a significant life-threatening hazard existed on its property. They did not.

Developers are frequently sued for negligence in civil complaints. Rarely are they charged with criminal negligence.

The question of whether to take legal action against developers and others for a hazardous-land development disaster was raised after the September 19, 2006 Kilbuck Township, Alleghany County, Pa. landslide. In that incident Wal-Mart Real Estate Business Trust, Kilbuck Properties, L.P. and the Kilbuck Township Board of Supervisors were threatened with state charges of criminal negligence. For additional information please see The Kilbuck Township Landslide: Findings and Recommendations.

The decision to charge Ghost Town Partners, LLC with criminal negligence rests with the state. There are no reports that Attorney General Roy Cooper has opened an investigation.

Rich Cove Road Property Owners Remain at Risk

Ghost Town Partners, LLC is liable for remediating its hazardous slope conditions but the company is under bankruptcy protection. Property owners below Ghost Town in the Sky remain at substantive risk. The following is an update from the Smoky Mountain News.

Smoky Mountain News—Week of March 3, 2010—Bibeka Shrestha • Staff Writer

County reluctant to foot the bill for Maggie landslide clean up costs

Haywood County commissioners are reluctant to hand over taxpayer money to stabilize the latest landslide in Maggie Valley—even if the federal government chips in for much of the cost.

At a commissioners meeting on Monday, the Town of Maggie Valley asked the county to partner in a grant application from the federal Emergency Watershed Protection Program. If approved, the grant would pay to remove debris, reroute the natural stream channel, and most importantly, shore up the still unstable portion of the mountainside. About 12,000 to 16,000 tons of material is looming over the Rich Cove community, posing the potential for more slides.

The federal grant would cover 75 percent of the cost, while the remaining 25 percent would have to be found locally.

But lingering questions over whether the slide at Rich Cove was a natural disaster or caused by a failed retaining wall at Ghost Town in the Sky amusement park has caused county commissioners to hesitate about participating in the program.

Commissioner Kirk Kirkpatrick said the issue at hand is whether Ghost Town is at fault. If so, the company, not county taxpayers, should pay for the slide’s impact. Ghost Town has been struggling with bankruptcy for the past year, however.

Steve Shiver, CEO of Ghost Town, said he just didn’t have enough data — namely the cost of cleanup and stabilization — to make any decisions.

“At this point, we’ll just wait and see what the estimates are,” said Shiver, adding that Ghost Town has been able to repair a road that was washed out by the slide over the weekend. Road access to the top of the mountain is now restored, Shiver said.

At one point on Monday’s meeting, Commissioner Skeeter Curtis asked Maggie Valley’s town manager point blank if the town would pursue litigation against Ghost Town in the future to recoup its costs.

“Is the Town of Maggie Valley willing to enter litigation to get their 25 percent back?” asked Curtis.

Maggie Valley Town Manager Tim Barth replied the town would talk to Ghost Town about whether its owners would chip in to cover the 25 percent local match.

“It won’t get any cheaper for them, I’ll just say that,” said Barth. “If they have to fix that on their own, it’ll be 100 percent cost, and not 25 percent.”

Meanwhile, Commissioner Mark Swanger worried about setting a precedent for providing county money to clean up slides, even when they occur on private property or are caused by private companies.

“How is this one different from the ones we had in the past?” asked Swanger.

Swanger said if Maggie is going to ask for county assistance, it should also follow the county’s lead in implementing regulations for development on steep slopes.

Curtis added that local governments should begin pushing to bring landslide insurance coverage to the state, even if it is expensive.

The commissioners ultimately decided not to commit to the program before receiving a concrete dollar figure on the 25 percent match.

“Really, the bottom line is going to be the cost,” said Commissioner Bill Upton.

Town and county leaders will hold a joint meeting once the federal agency, Natural Resources Conservation Service, comes up with a proper estimate for the stabilization and clean up.

A project manager and engineer surveyed the slide this week and hope to provide a damage survey report by early next week.

Carol Litchfield, a local representative from the Natural Resources Conservation Service, said while legal complexities may arise with this particular landslide, it meets the objectives of the Emergency Watershed Protection Program, which only responds to natural disasters.

Litchfield said the main issue now is not the 25 percent, but whether the grant will be awarded given competition for the funds. Litchfield said it can cost hundreds of thousands of dollars to clean up a site, though she does not have a ballpark figure for what it would cost to stabilize the Rich Cove slide.

The agency will not cover the costs for repairing structures or homes damaged by the mudslide, she added.

The last time the Emergency Watershed Protection Program was utilized in this area was to mitigate the impact of the 2004 floods in 17 western counties, including in Haywood and Macon counties. At that time, a federal state of emergency was declared, and the state covered the 25 percent match.

With this slide, there hasn’t been enough damage to call for a state of emergency at the state or federal level, though both the county and the Town of Maggie Valley signed a disaster declaration.

For now, the threat of another slide still looms over Rich Cove with a precautionary zone that covers more than double the size of the area currently damaged by the slide.

“We got to do something,” said Greg Shuping, emergency services director for the county. “The fact remains that we have a threat.”