PRESSL LITIGATION

 MOTION / DATE SUMMARY
  
 
21 August 2017

Key Documents

 APCO files Brief to Va. Supreme Ct. in Opposition to Appeal

Same old arguments, same old games, nothing even worthy of comment.










5.1 APCO_pressl.brief in opposition to Va S Ct.pdf 
  C.U.R.B. believes that Judge Reynolds' order in Pressl ignored procedure, legal precedent, common law and common sense 

The Pressls filed their Petition for Appeal with the Supreme Court of Virginia on August 1, 2017. The appeal seeks to overturn Judge Reynolds’ 4 May 2017 Final Order, which sustained APCO’s demurrer and improperly ruled: "Because the Flowage Easement which governs the rights of the property owners in this case is so broad - it very nearly amounts to a fee interest ... The application of the SMP through the flowage easement is a reasonable restriction ... APCO’s right to remove structures and improvements below the 800-foot elevation contour at its discretion encompasses the right to permit."

Pressls’ appeal presents the legal reasoning why Judge Reynolds’ order was in error and inconsistent with Virginia contract and property law, Va. Supreme Ct. precedent, the plain language of the Flowage Easement, and the standard of review to be applied on demurrer. Judge Reynolds’ interpretation of the Flowage Easement that APCO has the absolute authority to regulate shoreline activities on the Pressls’ property (or any property on SML), and that APCO has the authority to deny the Pressls’ (or any property owner) their right to build a dock on their property was plainly wrong. 

A recent Va Supreme Ct. ruling best summarizes Judge Reynolds errors: A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. Thus, unlike a motion for summary judgment, a demurrer does not allow the court to evaluate and decide the merits of a claim. This case is an example in which the trial court "incorrectly ... short-circuited litigation pretrial and ... decided the dispute without permitting the parties to reach a trial on the merits.” Assurance Data, Inc. v. John Malyevac, Supreme Court of Virginia. September 12, 2013.

Pressls have asked the Va. Supreme Ct. to (1) reverse the judgment of the trial court and set aside the Final Order dated May 4, 2017, and (2) order the case to be remanded for further proceedings. Or in alternative, ask that the Court to reverse the Final Order and grant final judgment to the Pressls.
 Supreme Court of Virginia

1 August 2017

Key Documents

 Pressls Filed their Petition to Appeal Judge Reynolds flawed decision to grant APCO's Demurrer with the Virginia Supreme Court.





5.0 Petition_Appeal_Pressl.pdf
 Franklin County Circuit Court
Pressl v. APCO

4 May 2017

Judge Reynolds
Ruling


KEY DOCUMENTS
Judge Reynolds dismissed Pressls suit. Judge Reynolds contradicts Virginia easement law when he says he’s certain there was no expectation of federal regulation of property rights when the parties agreed to the easement, then uses Judge Moon’s flawed rationale that APCO must follow its license, which was summarily rejected by the US Fourth Circuit of Appeals. The Fourth Circuit Federal Court of Appeals said this is an easement question first and foremost. Judge Reynolds ignores that the 1960 flowage easement’s purpose was for hydropower generation only. He acknowledged at the time the flowage easement was granted there were no APCO rules and APCO did not require permits or approve shoreline construction. Judge Reynolds erred by force feeding APCO’s 2009 license into the 1960 flowage easement. APCO’s 1960 license did not require APCO to regulate private shoreline property on SML.

In short, Judge Reynolds erred. He put the cart before the horse. No FERC license can infinitely expand and repurpose an easement. The Circuit Court must weigh the parties understanding at the time the flowage easement was created, not 40 plus years later after more restrictions were imposed under the SMP.

Pressls are appealing this decision to the Va. Supreme Court

4.0ReynoldsFinalOrder.pdf
  
4.1ReynoldsVerbalOrderTranscript.pdf

Franklin County Circuit Court
Pressl v. APCO

17 March 2017

Pressl Motion Opposing Dismissal

KEY DOCUMENT
 Pressls oppose APCO's Motion to Dismiss (Demurrer) because Virginia Code allows Courts to adjudicate flowage easements, without requiring one of the parties in the dispute to "invade the rights asserted by the other."







3.0 Pressl Motion Opposition to Demurrer.pdf 

 Franklin County
Circuit Court
Pressl v. APCO

9 February 2017

APCO Motion to Demurr (Dismiss)

KEY DOCUMENT
 On February 9th APCO filed its latest motion to avoid state court justice asking the Franklin County Circuit Court to dismiss Pressls’ complaint. Of course, APCO could have asked for a dismissal in June 2015 when the Pressls first filed their lawsuit in FC circuit court. But instead, APCO illegally removed the case to federal court, where Judge Moon improperly dismissed the case, necessitating Pressls’ successful appeal to the US 4th Circuit, followed by remand to FC Circuit Court. APCO’s actions demonstrate it has no respect for state court, is fearful of state easement law and wants to financially punish those who challenge its authority, rather than resolve the scope of their land rights under the flowage easement.





2.0 APCO Request to Dismiss.pdf

Franklin County
Circuit Court
Pressl v. APCO

2 June 2015

 KEY DOCUMENT 
 Pressl's ask the Franklin County Circuit Court to determine Pressl's property rights under the flowage easement.  





1.0 Pressl v. APCO Declaratory Judgment.pdf

 7.0 Remand Order

January 11,2017

KEY DOCUMENT
This is the final order from Judge Moon's District Court remanding Pressls case to Franklin County Circuit Court.  Recall that Pressls' Declaratory Judgment complaint against APCO was filed on June 2, 2015 -- 17 months before the date of this order.  The costs resulting from Judge moon's failure to follow superior court law resulted in legal expenses exceeding $37,600.


7.0 Order remanding Pressl case to state court.pdf 

6.0  US 4th Circuit Rehearing Denial

19 December 2016

Key Document
 The US 4th Circuit Court denies APCO's request for an en banc rehearing.




6.0 Pressl.Order.Rehearing Denial

5.0  APCO Motion to Rehear and Rehear en banc

5 December 2016

 APCO request to the US 4th Circuit to reconsider and rehear the case before all justices of the 4th Circuit Court of Appeals.



5.0APCO_En_Banc_Rehearing_Pressl


US 4th Circuit Court Opinion

21 Nov 2016

KEY DOCUMENT  
 This document is the ruling of the US 4th Circuit Court of Appeals which orders Judge Moon to vacate his order and remand the case to state court.




4.0 Pressl.APCO Opinion

3.0 Pressl Reply to APCO Response Brief

Key Document
 Pressls' answer to APCO succinctly skewers APCO's defense point by point.  This is an excellent summary of the illegitimacy of APCO's position that its Federal License grants APCO authority to take property without compensation and that state property law can be determined by a federal court without following state law.

3.0 Appeal Pressl v. APCO - Reply Brief.pdf (525k)
2.0 APCO Response Brief








Key Document
APCO's response to the Appellate Court used the same tired arguments it raised in Judge Moon's District Court.

A.  APCO Operates the Project Subject to a Federal License
B.  The Pressls Own Property Within the Project Boundary Subject to a Flowage Easement Deed Which Permits APCO to, inter alia, Affect Such Property in Any Manner in Connection with Maintenance or Operation of the
      Project.
C.  The Pressls Filed Suit for Declaratory Judgment Regarding the Extent to which APCO can Regulate the Pressls' Property and to Determine What Uses and Activities on Such Property Would Be Inconsistent With
      APCO's Operation of the Project
D.  The Same Matters at Issue in the Complaint have Been Addressed in Prior Proceedings Before FERC

See 2.0 Appeal Pressl v APCO - APCO Brief.pdf (509k
1.0  Appeal to 4th Circuit - Pressl v. APCO

18 December 2015





























Key Document

Resolution of Pressl v. APCO has moved from General District Court in Lynchburg, VA to the 4th Circuit Court of Appeals in Richmond Virginia.  Appellate Judges are being asked to consider and rule upon three principal questions:
  1. Whether the District Court erred in denying the Pressls’ Motion to  Remand and For Costs and Attorney’s Fees where Pressls’ cause of action and requested remedy are both governed by state law. 
  2. Whether the District Court was without jurisdiction in granting the Appalachian Power Company’s (“APCO”) Motion to Dismiss. 
  3. Whether the District Court erred in granting the Motion to Dismiss on substantive grounds.
SUMMARY OF THE ARGUMENT 

    The District Court erred in not remanding the case to the state court.  And, not having federal question jurisdiction, the District Court erred in granting APCO’s Motion to Dismiss.  Additionally, the District Court erred in granting APCO’s Motion to Dismiss on the ground that the Pressls failed to exhaust their administrative remedies under FERC.  FERC has no jurisdiction over the Pressls or their property, nor does it have any property rights to the Pressls’ property.   Indeed, FERC has held on numerous occasions that it did not determine the parties’ property rights and thus going to FERC for such determination would have been futile.

    Underscoring the error in its reasoning, the District Court arrived at its ‘failed to exhaust administrative remedies’ decision only after it had determined, using and interpreting only state law, that APCO had sufficient property rights under the flowage easement to require the Pressls to obtain a permit to construct a dock. The District Court’s primary justification for dismissal was thus based on the District Court’s own interpretation of the flowage easement while applying the state property and contract law without interpreting any federal law or any terms or conditions of APCO’s FERC license. Thus, not only did the District Court err in granting the Motion to Dismiss, it is also evident from the District Court’s own analysis that the District Court erred by not remanding the case to the state court.

    The District Court did not have jurisdiction in this case. The property merely lying and being in the Project area is insufficient to create the right to regulate the property owned by others and is insufficient to confer federal question jurisdiction. Neither APCO’s license from FERC nor the Federal Power Act authorize federal courts to adjudicate or interpret the sufficiency of the private property rights required by licensees of FERC. The license simply regulates the conduct of APCO, the licensee.  APCO’s right to regulate is dependent on, and subject to, the flowage easement, which is solely a matter of state law.



    I urge you to take the time to study the entire appeal.  Although it is rather lengthy, it is written in plain language using a 14 pt. type and is double spaced to meet the Court's filing requirements.  The Appeal is critical to require APCO to litigate state-law property rights in state court.  We are confident that the 4th Circuit will order Judge Moon to remand the Pressls' case back to Franklin County Circuit Court where it was originally filed on 2 June 2015.  The appeals process is both costly and time consuming.  We anticipate that the 4th Circuit will not hear Pressls' appeal before this time next year, due to its workload.

    If Pressls' appeal is successful, APCO will no longer be able to intimidate shoreline property owners with threats of federal litigation.  Any future property rights dispute will be litigated in State court -- something that APCO avoided with cunning and deceit.  APCO will no longer be able to falsely assert its federal license and shoreline management plan grants it authority or police powers over landowner's property.  APCO will no longer be able to falsely claim their license requires shoreline property owners to sign their permit, which imposes 387 pages of new requirements upon landowners.  This case obviously is very important to APCO and other FERC licensee's throughout the U.S. and we expect APCO to spare no shareholder-expense to defend its indefensible position.


See:  1.0 Appeal to 4th Circuit - Pressl v. APCO.pdf  (975k)
5.1 Judge Moon Opinion/Ruling

6 October 2015







Key Document
Judge Moon denied Pressl’s Motion to Remand the case back to Franklin County Circuit Court where it was originally filed. In doing so the Judge reached the erroneous conclusion that since APCO holds a federal license, the Court has jurisdiction over all of Pressl’s claims, including state-law property claims. To reach this conclusion the Court ignored Article III of the U.S. Constitution, U.S. Supreme Court and U.S. Fourth Circuit Court of Appeals legal precedent, and relevant U.S. Code that strictly limits this court from deciding state-law property claims. The Court further ignored the most recent U.S. Code that requires Judge Moon to remand Pressl’s state-law property claims to the state court where the claims were originally filed.

Judge Moon granted APCO’s Motion to Dismiss the case. In doing so the Judge reached two erroneous conclusions: (1) that the flowage easement requires the Pressl agree to and sign APCO’s dock permit; and (2) because the Pressl’s failed to obtain an APCO Permit, they did not exhaust all administrative remedies through FERC and are required to do so. To reach the first conclusion, the Court had to interpret the flowage easement, thus exceeding its jurisdiction. Moreover, the Pressl’s flowage easement clearly states there is no requirement for the Pressl’s to seek a revocable license from APCO for recreational purposes, which directly conflicts with the Court’s ruling. The Court failed to follow state property and easement law. The bedrock document, being the 1960 flowage easement does not require the Pressl’s or anyone else to agree to and accept the APCO Permit’s terms and conditions. APCO’s permit is not a part of their license and has not been approved by the FERC. In the second conclusion, for the Court to rule that the Pressl’s failed to exhaust administrate remedies, the court failed to recognize that established federal law prohibits FERC from adjudicating state-property rights and consequently FERC cannot hear the Pressl’s state-law property complaint. This dismissal will be appealed to the U.S. 4th Circuit Court in Richmond.


See Files 5.0 09-18-2015 Transcript and 5.1 Judge Moon Opinion/RulingBelow 
4.b. Pressl Reply in Support of Remand

25 August 2015




See File 4.b. Pressl Reply in Support of Remand Below
4.a. APCO Opposition to Remand 

10 August 2015

Key Document

APCO's principal argument against remand is they hold a federal license which gives the Court jurisdiction to hear Pressl's case..



See File 
4.a. APCO Opposition to Remand Below
4.0 Pressl Motion to Remand

10 July 2015

Key Document

This Court does not have subject matter jurisdiction over this matter and, as such, this case should be remanded back to the Circuit Court for the County of Franklin, Virginia pursuant to 28 U.S.C. § 1447(c). The face of the Pressls’ Complaint asserts what is plainly a state-law claim—specifically, the interpretation of the flowage easement that their property is subject to. The face of the Complaint does not contain or present an issue of federal question.



See File 
4.a. APCO Opposition to Remand  Below
3.b. APCO Answer to Motion to Dismiss

17 August 2015
 


See File Below
3.a. Pressl Opposition to Dismiss

30 July 2015

Key Document

The District Court lacks subject matter jurisdiction to hear state law property claims.  Neither the Federal Power Act  nor APCO's license gives it authority to regulate lands for which it does not hold the necessary property rights.  FERC cannot adjudicate or regulate state law property claims.




See File 3.a. Pressl Opposition to Dismiss Below
3.0 APCO Motion to Dismiss

2 July 2015

Key Document
APCO argues that Pressl's complaint must be heard by FERC because it questions APCO's license responsibilities. (However, FERC has no authority to adjudicate Pressl's state law property claims.) 


See File 
3.0 APCO Motion to Dismiss Below
2.0 APCO Notice of Removal

23 June 2015

Key Document
APCO argues since they have a federal license the case can be removed from State Court to Federal District Court.



See File 2.0 APCO Notice of Removal Below
1.0 Pressl v. APCO Declaratory Judgment

2 June 2015

Key Document
Pressl's ask the Franklin County Circuit Court to determine Pressl's property rights under the flowage easement. 




See File 1.0 Pressl v. APCO Declaratory Judgment Below

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