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Stop FERC Shoreline Management 

The Federal Energy Regulatory Commission (FERC) is enforcing shoreline management rules decades after hydroelectric projects were developed. Retroactive rules are irrational, without need, or scientific basis. The burden of this regulation far outweighs any public benefit. The impact on surrounding communities cannot be exaggerated as FERC rules are discouraging private investment, lowering property values, killing jobs, limiting access to project waters, inhibiting landowner’s ability to sell, violating Federal, State and local ordinances, and trampling on private property rights.

The Federal Power Act, which empowers FERC and its licensees, includes no provision for Shoreline Management Plans (SMP aka Steal My Property). FERC administrative staff invented this regulation, without any enabling legislative action, placing this agency and its licensees in-charge of land use and development along the shoreline of major hydroelectric projects, like Smith Mountain Lake, Virginia. FERC requires its licensees to impose over-reaching regulations upon private property, over which FERC has NO authority to regulate. FERC licensees seize property via permitting scams, citing federal authority where there is none, that take property rights without compensation—in violation of the 5th Amendment.

FERC imposed regulations duplicate existing federal, state and local regulations. As one example, FERC requires its licensees to designate wetlands and to restrict development. The designation and protection of wetlands is legislatively delegated to the US ACOE, EPA, USFWS, and states. Neither FERC nor its licensees have the authority or expertise to designate wetlands. Yet under FERC’s rules we now have private electric utilities designating wetlands and regulating development on private property.

FERC records show they regulate 614 major hydroelectric projects across the US—141 are publicly owned and 473 are privately owned. It is illegal for the government to delegate regulatory authority to a for profit corporation per the US Constitution and the US Supreme Court, yet this is exactly what the FERC is doing. Please order FERC to stop its illegal shoreline management activities. This will save its licensees millions of dollars annually and restore constitutionally guaranteed private property rights to citizens. Read more at www.CURB-FERC-AEP.com.

Read the 22st Edition of CURB Update our bi-monthly newsletter.

THE GREAT CON -- For over 15 years, Appalachian Power Company and the Federal Energy Regulatory Commission, claiming federal law, methodically scammed the Smith Mountain Lake community to sign-away property rights for permission to build a dock. In December 2016, this fraud was exposed by six federal appellate justices who declared that since FERC only regulates APCO, a landowner cannot violate federal law by constructing a dock. The final battle to recover our property, invalidate fraudulently obtained APCO Permits and replace the Shoreline Management Plan with lawful regulation is underway in Franklin County Circuit Court. Every property owner, should rally to defend their constitutionally guaranteed right to own and enjoy property. It’s simply illegal to take property without paying.

Conscience is our human failsafe, preventing corrupt ideas from becoming corrupt actions. People without conscience never consider the consequences of their corrupt acts upon others. Corporations, however, are not human and consequently often commit corrupt acts, without remorse, and scapegoat employees for failure to follow vague ethics rules or law, to avoid accountability. Think of wall street bankers, mortgage brokers, or a FERC regulated power company.

Why FERC is an Existential Threat to Our Democracy 

FACT: APCO has yet to prove in a state court of appropriate jurisdiction that the flowage easement grants them rights to regulate all uses of the lands within the project boundary. Until a state court determines APCO’s flowage rights, they have no basis, other than their opinion, to demand that lake front property owners must seek APCO’s permission and sign a permit. The U.S. Fourth Circuit Court of Appeals agrees and has mandated that Judge Moon remand Pressls’ case to state court for determination of Pressls’ retained rights under the flowage easement.

The following law is irrefutable:
1. It is unconstitutional to grant federal or state regulatory authority to a private corporation;
2. The jurisdiction of federal courts is limited to constitutional issues, federal law and treaties;
3. It is unconstitutional to seize private property without compensating the owner;
4. Determination of property law is reserved for state courts;
5. The Federal Power Act (FPA) limits FERC’s regulatory authority to licensees;
6. A private property owner cannot violate the FPA;
7. The issuance of a federal license cannot change property rights;
8. A licensee has no federal authority to regulate private property without the owner’s consent.**
**APCO induced property owners to sign Permits by threatening them with federal litigation and with false claims of federal authority and state property rights.
Permits obtained in this manner are likely fraudulent and will be vacated when Pressls' state court claim against APCO is settled.

Per the Fourth Circuit’s rulings, neither case belonged in federal court and there can be no doubt that both the Commission and its licensee had the legal expertise and knowledge that the court of appropriate jurisdiction was state court. Both the Commission and APCO also knew that the Federal Power Act only applies to the FERC and its licensees, and that non-licensees cannot violate the FPA or APCO’s federal license. The Commission is as guilty as its licensee in promoting legal maneuvers to fabricate federal jurisdiction, where none exists. It is totally inappropriate for Commission to allow its licensees to raise legal arguments that conflict with the FPA, Commission regulations and policies, and waste the resources of the federal judicial system. The Commission’s indifference towards this licensee’s actions is nothing less than collusion in the extortion of property.

Pressls’ and Nissens’ experience in the defense of their property rights illustrates the legal and financial burden the Commission places upon non-licensee property owners. Legal expenses to defend private property rights in these cases now exceed $162,000, and the expense of a state court trial has yet to be realized. Justice is not free. It’s unaffordable.

This unfortunate and costly experiment in the regulation of private property by a for-profit corporation has exposed how the Commission and its licensee manipulated the public, and federal district court, to their mutual advantage – allowing the taking of private property, without compensation, to ultimately benefit this licensee’s profit margins and the Commission’s annual licensing fees. Such practice poses an existential threat to our democracy.

Federal Appellate Judges Stand Up for States Rights 

In June 2015 the Pressls filed suit in Franklin County Circuit Court asking the Court to determine if Appalachian Power Company had the right, under its flowage easement, to prevent Pressls from constructing a dock without APCO’s permission. APCO claimed the Pressls were seeking to violate the Federal Power Act (FPA) and Shoreline Management Plan by constructing a dock without APCO’s permission. After 17 months and tens of thousands of dollars in legal fees, on the 21st of November 2016, the U.S. 4th Circuit Court of Appeals ruled: 

“... since FERC regulates only APCO, the Pressls themselves could not violate the Federal Power Act by constructing a dock. ... no federal question in this case is actually disputed. ... The Pressls challenge only whether the flowage easement by its terms allows APCO to prevent them from building a dock. ... State courts are just as able (perhaps more able) to interpret and enforce the property rights conveyed through instruments governed by state law. ... The interpretation of a state conveyance is a quintessential question of state property law, and Congress has limited our jurisdiction over such cases. ... For the foregoing reasons, we vacate the judgment of the district court and remand the case [back to Franklin County Circuit Court].”

The United States Court of Appeals for the Fourth Circuit is one of twelve regional appellate courts within the federal judicial system. The court hears appeals from the nine federal district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina and from federal administrative agencies. Consequently, this ruling has both national and local significance for APCO, FERC and other FERC regulated licensees: 
(1) APCO can no longer fabricate federal jurisdiction to drag private property owners to federal court for alleged violations of the Federal Power Act, Shoreline Management Plan or its Federal License;
(2) APCO has no federal right to demand that property owners apply for permits;
(3) A Virginia court will determine Pressls' retained rights and conversely APCO’s limited rights under the flowage easement. To prevail APCO will be forced to prove how anyone’s dock violates the flowage easement and prevents APCO from flooding and operating the dam and associated power station;
(4) Permits that APCO has issued may be invalid, since those permits falsely claimed APCO held federal authority under their license to require property owners to sign its permits.

This unfortunate and costly experiment in the regulation of private property by a for-profit corporation exposed how APCO and FERC manipulated the lower federal district court to their advantage – the taking of private property, without compensation, to ultimately benefit APCO’s profit margins. Fortunately, C.U.R.B. supporters stood shoulder to shoulder with the Pressls in support of everyone’s constitutionally guaranteed right to private property. Many thanks to these advocates of this quintessential American freedom – the right to own and enjoy one’s property.
Read the 4th Circuit's Decision HERE