Absolute Authority ... we think not!

1.  APCo wants you believe that your property is subject to the terms and conditions of their Federal license. But: 

  • The Federal Energy Regulatory Commission (FERC) license is a contract between FERC and APCo, period.
  • The FERC granted APCo this license, conditioned by the sworn certification that APCo holds necessary and sufficient property rights to implement its license and Shoreline Management Plan (SMP).
  • The FERC can only direct its licensee to regulate lands APCo owns or controls consistent with its State property rights.
  • The FERC cannot delegate to APCo the authority to change a private landowner’s property rights.
  • The FERC only has the power to direct APCo to purchase/secure sufficient State property rights to implement its license.
  • The FERC has no power or authority to adjudicate private property disputes; property rights disputes are between the licensee and the landowner, which is a matter for State courts of law according to the Commission.

2.  APCo would have you believe your dock is a privilege that APCo grants under a revocable license.

    APCo drafted the Flowage Right and Easement Deed, which guaranteed the landowner and Grantor of the easement specific rights forever: (1) the right to use their land in any manner, so long as it does not impact APCo's right to flood, maintain and operate the project, and (2) to include the right of access to impounded waters for "recreational purposes."  However, APCo now cleverly reinterprets that 1960 agreement and alleges any use in the project boundary by the current owner Grantor is under a revocable license that APCo can unilaterally terminate at any time.   APCo also asserts it can reenter the easement and unilaterally remove anything, including any reasonable easement improvements for recreational purposes, whenever they choose, even if those uses do not impact APCo's ability to flood and operate the hydroelectric project.

APCo’s argument is absurd. How could an owner retain any rights, if APCo can unilaterally revoke licenses [that were never issued] and clear and remove anything in the easement?  APCo’s argument nullifies the owner's guaranteed access right -- consequently, there is no access easement under APCo's reinterpretation. The plausibility that the original landowner grantor agreed to such provisions, rather than sell their land outright, is laughable.

You decide, read the easement.  Using circular logic is of unsound legal basis. Our attorneys argue that APCo’s practices are an “abuse of discretion”, a unilateral expansion of its easement rights and potentially fraud in the inducement.  APCo uses circular logic and the false claim of federal authority to intimidate property owners to sign a permit that then gives APCo the absolute authority it claimed it held.

3.  APCo's devious Permit [which is NOT FERC approved], if you sign it, secures your agreement that: 

– APCo has the authority to grant permission and regulate your dock and associated work, and
– You will abide by all terms of the Shoreline Management Plan, and
– You will abide by all current and future terms of APCo's federal license, and
– You will remove your dock if APCo determines it is no longer in the public interest, or
– APCo can remove your dock, if you violate any condition of the permit, and
– Your status as the property owner will become that of a licensee to APCo.

If APCo truly had "absolute authority," there would be no need to seek your agreement they hold this authority, would there?  The sole purpose of APCo’s permit is to take/limit your property rights, without compensation.