C.U.R.B. is committed to informing stakeholders as to the status of the on-going legal proceeding in Franklin County Circuit Court, Case:CL17 1605 -- Appalachian Power Company v. Nissen et al.  Legal action was initiated by Appalachian Power  on 8 February 2017 seeking to remove Nissens dock.

Case 7:14-cv-00535-NKM  Appalachian Power Company v. Nissen et al.  Legal action was initiated by Appalachian Power Company on 3 October 2014 in the UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION.  Appalachian Power lost this case on Appeal from the Nissens before the U.S. Fourth Circuit  on 19 December 2017.

Documents attached below are ordered and identified as either Plaintiff (APCO) or Defendant (Nissen) initiated.  The documents are very technical and formatted to meet the strict requirements of the federal court.  Never-the-less they are completely understandable for the lay person.

What follows here is a brief synopsis of each legal filing, with CURB commentary.

  
 Supreme Court of Virginia
Nissens' Petition for Appeal



KEY DOCUMENTs

24 October 2017 -- Nissens filed their Petition for Appeal  This is a straight forward filing you should read, as it explains how Judge Reynolds erred and why his decision will be vacated and the case returned for trial--a trail APCO cannot win.


7.0 Nissen_Petition for Appeal 805913.pdf
  Franklin County Circuit Court
APCO v. Nissen




                 KEY DOCUMENTs

 16 June 2017 -- Court Transcript of 16 June 2017 Summary Judgement Hearing, Draft Orders Prepared by APCO Attorneys, Judge Reynolds Final Order


6.3 Nissen final order 7.28.17.pdf
6.2 Objection to Draft Orders 28Jun2017
6.0 Nissen_06-16-17 Transcript.pdf

 Franklin County Circuit Court
APCO v. Nissen




                 KEY DOCUMENTs
 15 June 2017 -- APCO replies to Nissens' Motion in Opposition to Summary Judgement





4.3 APCO Reply Brief.pdf 


 Franklin County Circuit Court
APCO v. Nissen



                 KEY DOCUMENTs
 8 June 2017 -- APCO Motion for Protective Order -- asking the Court for permission to not answer Nissens' Interrogatories

12 June 2017 -- Nissens' Opposition to Protective Order

5.0 APCO Motion for Protective Order.pdf 
5.3 APCO v. Nissen. Opposition Protective Order.pdf 

 Franklin County Circuit Court
APCO v. Nissen



                 KEY DOCUMENTs
 18 May 2017 -- APCO Motion for Summary Judgement

 12 June 2017 Nissens' Motion in Opposition to Summary Judgement

4.1 APCO Memo in Law For Summary Judgment.pdf 
4.2 Nissen Opposition to Summary Judgment.pdf 

 Franklin County Circuit Court
APCO v. Nissen


                 KEY DOCUMENTs
 6 June 2017 -- Nissens' 1st Discovery Request


3.1 Nissens First Interrogatories.pdf 
 Franklin County Circuit Court
APCO v. Nissen

13 April 2017

                 KEY DOCUMENTs
 APCO's Discovery Requests 



3.0 Nissen Response to APCO Interrogatories.pdf 
 Franklin County Circuit Court
APCO v. Nissen

10 March 2017

                 
KEY DOCUMENT

 Nissens file an answer to APCO's Declaratory Judgment Complaint 




2.0 Nissen Answer.pdf

 Franklin County Circuit Court
APCO v. Nissen

8 February 2017

KEY DOCUMENT
 APCO Declaratory Judgment complaint to prevent Nissen from completing his dock.



1.0 APCO v Nissen.pdf 

5.0 District Court Order Dismissing APCO v Nissen

11 January 2017



KEY DOCUMENT  
This final order from Judge Norman K. Moon's court dismisses APCO's frivolous lawsuit claiming that Nissens' violated the Federal Power Act, APCO's federal license and its Shoreline Management Plan.  Recall that APCO filed its lawsuit on October 3, 2014 -- 2 years and 3 months before the date of this order.  Recall that the Nissens' filed their motion to dismiss this case on 7 November 2014, which Judge Moon denied.  By denying Nissens' dismissal motion, Judge Moon failed to follow established law -- that Nissen could not violate the Federal Power Act, APCO's FERC license or APCO's Shoreline Management Plan.  Thanks to Judge Moon, the legal expenses incurred for defense and appeal exceed $98,000.  

5.0 Order dismissing APCO v Nissen.pdf 

4.0 US 4th Circuit Court Decision

19 December 2016

                 
KEY DOCUMENT   
This decision cites the Court's decision in Pressl v APCO and dismisses the case for lack of federal jurisdiction.  This decision shuts APCO out of the federal court system and requires the company to defend their property rights in a Virginia Court, as FERC has directed.


4.0  Nissen.Opinion_19Dec2016


 3.0 Nissen Response to APCO Reply 4th Circuit

June 14th, 2016



KEY DOCUMENT
This document provides an excellent and succinct explanation of how the District Court failed to recognize it lacked jurisdiction to hear APCO's lawsuit , misapplied case law to justify its decisions, and misinterpreted APCO's rights under the flowage easement.
A. The threshold issue is the lack of federal jurisdiction and the district court failed to dismiss APCO's case
B. APCO's complaint does not arise under the constitution, laws or treaties of the United States and therefore federal district court lacked jurisdiction to hear the case
C. APCO's right to flood and operate the dam and power station have not been violated by Nissens' actions
D. APCO lacks the property rights to regulate Nissen, or any other private property owner.
3.0 Nissen Response to APCO Reply 4th Circuit.pdf (683k)
 2.0 APCO Reply to 4th Circuit












KEY DOCUMENT
 APCO's Reply uses the same tired and factually inaccurate arguments to bolster is claims against Nissen:
A. The Project is Operated Under a Federal License
B. APCO Possesses Sufficient Property Rights
C. Nissens Violated the SMP
D. Nissens Violated the Federal Power Act (FPA) and APCO's License

APCO failed to prove:
A. That APCO's federal license imposes requirements upon Nissen
B. That the flowage easement granted APCO the right to impose SMP regulations upon Nisssen
C. That Nissens' dock limits APCO's right to flood and operate and maintain the dam and power station
D. What provisions of the FPA Nissens' violated

2.0 APCO Reply to 4th Circuit - Nissen.pdf  (352k) 
1.0 Nissen Appeal to U.S. 4th Circuit

27 April 2016




























KEY DOCUMENT
Synopsis of the Argument

The District Court erred in not dismissing APCO’s Complaint [against the Nissens] for lack of subject matter federal jurisdiction. And, not having federal question jurisdiction, the District Court erred in granting all of APCO’s subsequent motions.

The License Order is an order issued by the Federal Energy Regulatory Commission (“FERC”) to APCO for operation of the Smith Mountain Hydroelectric project. The FERC License Order and the Shoreline Management Plan, which is a part of the FERC license, regulate and impose duties on APCO, the licensee. The private property owners, such as the Nissens, are not parties to the FERC License Order or Shoreline Management Plan. Count I of APCO’s Complaint, Violation of Obligations under the FERC License Order and SMP, is thus nothing more than an attempt by APCO to manufacture federal jurisdiction.

FERC requires APCO, its licensee, to acquire and retain fee title or the right to use in perpetuity, all property necessary or appropriate to construct, maintain or operate the Project. If APCO has any regulatory power over private property owners it would be under the private flowage easement, a matter of state law. FERC does not and cannot grant or delegate to APCO any private property rights. Due to incorporation of the Shoreline Management Plan into the FERC License Order, APCO was obligated to obtain private property rights to the SMP’s Project boundary in accordance with Article 5 of said order within five years of 2009. The private flowage easement has not been modified since its execution in 1960 and makes no reference to APCO’s FERC license or Shoreline Management Plan.

APCO’s Complaint has only two counts, and Count II, Violation of the Flowage Easement, is a matter of state law. FERC directs that the private property disputes be resolved in state courts. APCO’s current Vegetation and Dock Permit obligates permittees to grant rights to APCO so that it can abide by its current FERC License Order and Shoreline Management Plan. The permits were created after the current FERC License Order and Shoreline Management Plan were enacted. This further demonstrates APCO’s knowledge that the flowage easement alone does not grant it the rights to regulate the landowner’s uses of the property. If APCO had the rights it argues it has, it would not require property owners to sign permits to convey rights the company already has. The flowage easement does not allow APCO to regulate the size and type of dock the Nissens may construct on their property. The flowage easement does not require the Nissens to re-plant vegetation and does not prohibit removal of vegetation. The Nissens are authorized to use their property below the 800 foot contour line in any manner not inconsistent with the APCO’s right to flood the Nissens’ property pursuant to the flowage easement.

APCO’s rights are limited to the ability to impound and flow waters up to the 800 foot contour and ensure that such flow is not being so impeded as to disrupt APCO’s operation of the hydroelectric dam. APCO has not and cannot prove that the Nissens’ actions have prevented APCO from operating and maintaining the dam and power station. There are thousands of docks, many commercial marinas and other encroaching structures existing below the contour 800 feet, yet, APCO continues to be able to flood, operate and maintain the dam and power station. The fact that APCO continues to “permit” additional docks to be built, goes to further demonstrate that Nissens’ dock construction does not prevent APCO from flooding or generating electricity.

The District Court did not have jurisdiction in this case, and the suit should have thus been dismissed on February 2, 2015 for lack of federal subject matter jurisdiction. Based on all of the foregoing, the District Court’s denial of Nissens’ Motion to Dismiss should be reversed. Further, because the District Court lacked subject matter jurisdiction, all of the orders following the District’s Court denial of the Motion to Dismiss must be vacated.

See: 1.0 Nissen Appeal to 4th Circuit.pdf 
19.0 Court Memorandum of Opinion

24 April 2015
On 24 April 2015 the Court issued a provisional Memorandum of Opinion regarding Defense Motions for Declaratory Judgement to determine if APCO holds sufficient property rights and to determine if a taking has occurred. This Memorandum of Opinion is "interlocutory" or provisional and may change as the parties proceed towards trial.

Quoting from the Court's provisional opinion:
  1. “Defendants’ have failed to state a plausible basis on which I could declare that APCO lacks sufficient property rights to compel them to remove the dock.” 
  2. “The plain language of the instrument forbids the grantors from refuse, waste, or other contaminating matter, such as fill, below 800 FMSL.” 
  3. “I cannot say that this same logic applies to removal of the road. It is unclear at this stage in the proceedings if the portions of the road falling below 800 FMSL qualify as a structure or improvement such that APCO possesses the right to remove it. Accordingly, there is a plausible basis to support that portion of Defendants’ request for declaratory relief.” 
  4. “Defendants’ claim that APCO lacks a property interest sufficient to compel them to undertake re-vegetation of their property, however, is plausible on its face. There is nothing in the plain language of the easement that grants APCO such a right.” 
  5. “Since APCO’s ability to regulate the Nissens’ land is limited to its rights under the Flowage Easement, there is no basis for me to determine that the FERC License Order or the SMP deprived or interfered with the Nissens’ property rights. Consequently, Defendants’ have failed to state a plausible basis on which I could declare that a taking has occurred.” 

Commentary: The Defense has more effort ahead to change the provisional opinion of the Court. CURB is confident that APCO lacks sufficient property rights under their flowage easement to require a permit or to remove a dock. 

The original 1960 flowage deed is an appurtenant easement running with the land, but critically, it does not impose recreational access restrictions. Under established Virginia easement law the landowner retains all rights that do not interfere with APCO's flowage rights. This is established property law in Virginia, as ruled upon on multiple occasions by the Virginia Supreme Court. APCO's standard practice over more than four decades was to purchase more land than needed for operation of the hydroelectric facility, and to speculate in shoreline property making millions of dollars re-selling these lands as waterfront, with no restrictions on recreational access (i.e. docks, piers, beaches, boat ramps,etc.). APCO's actions represent the true intention and meaning of the flowage easement, at the time and under the land conditions that existed in 1960.

The Court’s provisional opinion did not yet address the glaring inconsistency between the 1960 original flowage easement and APCO’s 2003 permit that adds restrictions and impairs deeded rights with a personal revocable license. However the Court recognized that neither APCO's license nor its SMP can change underlying property rights ... and this undercuts APCO claims they do. A landowner signing APCO's revocable use permit will create a taking without compensation.

CURB believes the Court’s Memorandum of Opinion is a step in the right direction, but has still not recognized that the rights APCO obtained under the original 1960 easement agreements were limited to submerging a portion of a shoreline owner’s property for “... the construction, existence, operation and/or maintenance of the aforesaid dam and/or power station.” If APCO insists on imposing additional restrictions on shoreline owners, beyond rights owners retained in the original 1960 flowage easement, then APCO must pay for them, or in the alternative, stop impairing titled dock ownership through use of its “revocable use permit” by engaging local land use authorities of the counties, state and other existing federal agencies.

10.0  Defense Motion in Opposition to Plaintiff's 8.0

27 March 2015

Defense provides additional arguments as to why APCO's motion to dismiss Defense's request for declaratory judgment should be denied.  The complete Motion is attached below.

Commentary:  APCO's argument is based on a distorted and dishonest reading of the Flowage Easement instrument.  The Va. Supreme Court (Brown v. Haley, 1987) ruled that APCO's flowage easement grants a landowner the right to access waters for recreational purposes.  Consequently the construction of “docks, bathhouses, and other facilities related to water sports and recreation” are consistent with the easement.

If APCO’s rights under the flowage easement alone were sufficient to regulate and remove docks and vegetation growth, APCO would not have to require property owners to sign and record a permit to secure those rights.

9.0 Defense Motion to Reconsider Courts 5.0 Interlocutory Ruling

26 March 2015
Defense requested the Court reconsider its interlocutory (preliminary) ruling that it has subject matter jurisdiction to hear this case.  The complete motion is attached below.

Commentary:  Defense argues the Court overlooked pertinent case law in determining it has subject matter jurisdiction over property right disputes between FERC licensees and third-party non-licensees.

  • The Order did not address significant aspects of the Nissens’ claim that this Court lacks subject matter jurisdiction
  • The Order did nothing more than quote a portion of the code and then noted that APCO brought a suit without citing any authority
  • None of the cases cited in the Order support the conclusion that the Court has subject matter jurisdiction
  • Consequently the court’s reliance on these case citations to support its determination is improper
  • The Order failed to independently examine Plaintiff’s standing in this case.
  • Alternatively, should the Court deny the Nissens’ request that it reconsider and revise its Order, the Nissens request the Court certify a direct interlocutory appeal to the Fourth Circuit.  A direct appeal to the 4th federal circuit would expedite resolution and save all parties legal costs.
8.0 / 7.0  Plaintiff's Motion to Dismiss Defense's Counter-Claim for Declaratory Judgment

6 March 2015
 Plaintiff's Motion to Dismiss Defense Counter Claim 6.0 was filed on March 6, 2015

Commentary: Plaintiff's Motion should be read and compared against Defense's 6.0 filing.  Here APCO moves to dismiss all 5 Defense Claims for Declaratory Judgement.

1. APCO claims that the Court ruled it has subject matter jurisdiction to hear APCO's case.
  
2. APCO claims that the Court ruled it has subject matter jurisdiction to hear APCO's case.
  

3. APCO claims that the sufficiency of the flowage easement to control land below the 800' contour was decided by the court in the APCO v. Arthur case of last year.  That Judge ruled, since the Arthurs (who represented themselves) did not contest that APCO held flowage rights and did not question the sufficiency of APCO's flowage rights to regulate their property ... "Thus the Court concludes that APCO has sufficient property rights with regard to the Arthur's property ... "  Hardly a precedent setting ruling!  One would have thought the Court would have at least explored the legitimacy of APCO's flowage rights claims, but it failed to do so in the Arthur case.
    APCO also argues that the Court has no jurisdiction to hear defense's argument that the flowage easement deed is insufficient.  APCO cannot have it both ways -- they argue the flowage deed is sufficient for their control and the defendant violated the easement ... but defense cannot argue that it is insufficient ... absurd.  The proper Court to determine property rights is State Court, and this Court should not be hearing this case because it lacks jurisdiction to rule on property rights claims.

4. APCO claims that since the Nissen's purchased their property after the revised SMP was approved by FERC, they have no standing to seek compensation for the taking of their rights.  APCO's argument is defective in that an SMP cannot change property rights and that Nissen's retained rights under the flowage easement are in their chain of title.  BUT has APCO conceded that the SMP is a taking of property rights?  Clearly APCO is desperately trying to avoid condemnation charges. 

"The mere designation of a project boundary, the award of a license or the approval of a Shoreline Management Plan cannot change private property rights. [www.ferc.gov/industries/hydropower/gen-info/guidelines/smpbook.pdf]

“Please note that the SMP applies only to those lands in the project boundary where Appalachian Power has property rights. The licensee has no authority to regulate construction on privately owned lands, unless the property owner has given the company those rights.” [Chairman LaFluer's letter to Congressman Hurt, December 8, 2014]

5.  APCO claims the Court has no jurisdiction to hear Defense claims concerning APCO's federal license and its adequacy to control Nissen's property.  Ironically this is exactly what APCO is arguing before the Court ... that their federal license gives them authority to impose SMP regulations on Nissen's property.  If the Court can hear APCO's claims of federal authority it surely must be able to hear Nissen's claim challenging APCO's claim of federal authority.

“The Commission has regulatory authority only over the licensee and, thus, can administer and enforce the terms of the license only through the licensee and the licensee’s property rights.” [Pacific Gas and Electric Company, 130 FERC ¶ 62,033, at *64,099 (2010).]

 
 6.0 Defendant's Answer to Complaint and Counter-Claim for Declaratory Judgment

13 February 2014
The Defendant's filed its answer to 1.0 - Plaintiff initiated legal action for a Declaratory Judgement filed on 3 October 2014.

Commentary:  Defense's answer should be read and compared against APCO's 1.0 filing.  The defense filed answers for each APCO allegation by numbered paragraph and also submitted five alternative counter claims requesting Declaratory Judgement from the Court.  The following summarizes the alternative requests for Declaratory Judgment.

1.  FEDERAL COURTS LACK SUBJECT MATTER JURISDICTION OVER MATTERS INVOLVING STATE PROPERTY RIGHT DISPUTES BETWEEN FERC LICENSEES AND THIRD-PARTY NON-LICENSEES.
--  Nissens are, for the sake of this matter, third-party non-licensees;
--  Federal court has no jurisdiction involving state property right disputes between FERC licensees and third-party non-licensees;
--  This case should be remanded to the proper Virginia circuit court.

2.  ALTERNATIVELY, IF THIS COURT ASSERTS SUBJECT MATTER JURISDICTION INVOLVING STATE PROPERTY RIGHT DISPUTES BETWEEN FERC LICENSEES AND THIRD-PARTY NON-LICENSEES, THAT THIS MATTER IS NOT YET SUBJECT TO FEDERAL QUESTION JURISDICTION.
--  A state court must first determine if the Flowage Easement is subject to the FERC License Order and SMP;
--  This case should be remanded to the proper Virginia circuit court.

3.  ALTERNATIVELY, IF THIS COURT ASSERTS SUBJECT MATTER JURISDICTION INVOLVING STATE PROPERTY RIGHT DISPUTES BETWEEN FERC LICENSEES AND THIRD-PARTY NON-LICENSEES, THE FLOWAGE EASEMENT PROVIDES PLAINTIFF WITH INSUFFICIENT PROPERTY RIGHTS TO REGULATE THE NISSENS’ PROPERTY UNDER THE FERC LICENSE ORDER AND SMP.
--  The Flowage Easement only authorizes APCO to submerge the portion of Nissens’ property below the 800 foot contour elevation in connection with the construction and operation of a hydroelectric dam;
--  The Flowage Easement only limits the Nissens’ rights to their property insofar as they may not materially impact APCO's right to flood  up to the 800 foot contour level;
--  APCO does not hold necessary or sufficient rights and, as such, the Nissens’ property is not subject to the SMP;
--  APCO utilizes its Permit as a tool to acquire the authority to regulate properties that are not subject to the SMP;
--  The Nissens are not required to obtain an APCO Permit to construct their dock and road and remove vegetation.

4.  ALTERNATIVELY, THIS COURT MUST DETERMINE THE EXTENT TO WHICH THE NISSENS’ RETAINED PROPERTY RIGHTS UNDER THE FLOWAGE EASEMENT ARE SUPERSEDED AND EXTINGUISHED BY FEDERAL REGULATIONS IMPOSED BY PLAINTIFF, A PRIVATE CORPORATION LICENSEE, UNDER THE FEDERAL POWER ACT.
--  An uncompensated taking of the Nissens’ retained property rights held under the Flowage Easement has occurred;
--  Valuation of the the taking cannot be determined by this court;
--  This case should be remanded to the proper Virginia circuit court to determine loss of value curative of this taking and condemnation of rights.

5.  PLAINTIFF COULD SATISFY ITS OBLIGATIONS UNDER THE FERC LICENSE ORDER BY INTEGRATING AND COORDINATING WITH LOCAL, STATE AND FEDERAL REGULATORY AUTHORITIES WITHOUT THE DEPRIVATION OF THE RIGHTS RETAINED BY THE NISSENS’ UNDER THE FLOWAGE EASEMENT.
-- APCO has the means to integrate with existing local, state and federal regulatory authorities to satisfy its license obligations without taking property rights;
--  No impairment of Nissen's title to property is required;
--  This case should be remanded to the proper Virginia circuit court to determine what curative measures to Nissen's property rights are required, if any.

 5.0 Court's Ruling on Defense's Motion to Dismiss

02 February 2015
 The Court denied Defense's Motion to Dismiss this case.

Commentary: Civil Procedure Rule 12b6 requires the court to take APCO's allegations at face value until otherwise disproven by the defendant. As such the case is now proceeding toward the next step for trial or decision on motions without further factual discussion.

 4.0 - Defense's Rebuttal to Plaintiff's Opposition to Dismiss

25 November 2014
 Defense argues that Plaintiff has given no thoroughly reasoned basis supporting federal subject matter jurisdiction and that Plaintiff distorts the 1960 State Law-Based easement terms at issue between Plaintiff and Defendants.

Commentary: Defense's rebuttal cites legal rationale and case law precedent that literally shreds Plaintiff's arguments and should be read in its entirety (below).

From Defendant's rebuttal motion:
    "When there is not a clear federal cause of action, the Plaintiff has not met its burden for showing federal subject matter jurisdiction. Resolution of this question, which is one of how far the flowage easement rights of Plaintiff, a private party, extend below the 800 foot contour line against other private parties such as these Defendants involves no federal question whatsoever. This dispute is purely a state law issue, does not involve any federal question between this Plaintiff and these Defendants, and does not involve analysis of any federal issues in order to reach a decision on the merits of the question between this Plaintiff and these Defendants. 

    As an additional point, Defendants contend Plaintiff simply does not possess the property rights to enforce the action that it seeks to take here. This point exists independent of any federal issue. The language of 16 U.S.C. § 825p is invoked by the Plaintiff solely to shoehorn this case into federal Court, and creates no cause of action for a private party against a non-licensee property owner for pursuit of a state law easement claim."

 3.0 - Plaintiff's Motion in Opposition to Dismiss

18 November 2014
 Plaintiff argues that his federal court has jurisdiction and the 1960 Flowage Right and Easement Deed gives them the power to remove anything within the project boundary.

Commentary: Plaintiff bears the burden of proof that its lawsuit involves a federal question, which they failed to do.  This point is restated by the District Court of the Western District of Virginia’s Pro Se Handbook, which states, “A federal question is one that alleges a violation of federal law (either a federal statute or a provision of the United States Constitution).”
  Instead APCO argues that other cases with similar circumstances have been litigated in federal courts.  Plaintiff's argument that the 1960 Flowage Right and Easement Deed grants it authority to remove anything within the project boundary is cited out of context of the easement (simply a "cherry picking" of words and phrases in the easement to support its claim of absolute authority).

 2.0 - Defendant Motion to Dismiss Lawsuit

7 November 2014
 Defense argues that the US District Court lacks jurisdiction in this matter as there is no violation of federal law, consequently there is no federal cause of action; this is simply a dispute over property rights, which must be resolved in state court.

Commentary:  Legal rationale and precedent are cited within to explain Defendant did not and cannot violate the FPA.  Defense argues that APCO's interpretation of the 1960 Flowage Right and Easement Deed is improper.   The determination of the easement’s scope “is made by reference to the intention of the parties to the grant, ascertained from the circumstances pertaining to the parties and the land at the time of the grant."  Instead APCO wants to reinterpret the easement under today's circumstances (i.e. federal license and SMP) and ignore the agreement between the parties when the deal was struck.

1.0 - Plaintiff initiated legal action for a Declaratory Judgement

3 October 2014
Plaintiff accuses Defendants of violating the Federal Power Act (FPA), APCO's Federal License and Shoreline Management Plan (SMP), and the 1960 Flowage Right and Easement Deed.

Commentary:  The Defendant is not a licensee of 
Federal Energy Regulatory Commission (FERC) and consequently cannot violate the FPA.  APCO's federal license and SMP are a part of its contract with FERC -- neither document has any bearing on the Defendants.  APCO's only authority to regulate lands within the project boundary is a function of their state property rights.  APCO lacks federal authority and the state property rights to require the Defendants (and other shoreline property owners) to sign its "permit." Neither their federal license or their SMP can change state property rights.  APCO seeks to expand its flowage rights unilaterally to ultimately deny recreational access to the project for the Defendant and eventually for all shoreline property owners.  The filing of APCO's lawsuit in federal court is a violation of their license terms and explicit (FERC) direction on how and where to resolve state property rights disputes.

    FERC officially restated this point last March in an Order, when it stated, “Any disputes regarding property rights” between licensees and non-federal landowners “are not within the Commission’s [FERC]’s jurisdiction; rather they are matters for the state courts to resolve.”
Again, this was acknowledged by a FERC spokeswoman who publicly stated last month in an October 17, 2014, published report in the Roanoke Times that “FERC has no jurisdiction over property rights and those issues are typically matters of state law.”

    Why then did APCO file in federal court?  -- quite simply to avoid the issue of state property rights and to hope for more favorable treatment of its bogus claims in a federal court.




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