Timeline of CURB Events

Supervisors  Eliminate the Requirement for an APCO Permit from the Bedford County Zoning Ordinance -- July 10, 2017

Bedford County Supervisors vote 6 - 1 in favor of removing the precondition for an APCO dock permit, before the County will issue a building permit for a dock. Understand that neither Franklin or Pittsylvania Counties require the approval of an APCO permit, so this change makes Bedford County's ordinance consistent with these other localities.

APCO's arrogance was on full display last evening. Its attorney threatened to sue if the County stopped requiring an APCO permit as a precondition for a building permit.
​ So much for cooperation. The County has an obligation under state code and constitution to regulate uses and development upon county lands. County government has no legal authority to utilize APCO’s dock permit as a precondition for a building permit. County government has no legal authority to enforce APCO’s Shoreline Management Plan or individual flowage easements. Virginia courts are the sole authority to determine and enforce private property rights.

APCO argued that the county cannot pass a zoning ordinance that violates APCO's federal license or SMP and cited a 1988 obsolete state code --15.2 -1226. This code enabled the three counties on SML to regulate docks, because APCO did not. APCO stated if the County issued a building permit, without APCO's approval, the County would violate state law. The US Fourth Circuit Court of Appeals ruled in Pressl v APCO, November 2016 that no individual or locality or state can violate the federal power act by constructing a dock because FERC only regulates APCO and no one else. Since APCO’s license doesn’t apply to the County, it would be impossible for the County to violate APCO’s license with FERC. And a 2016 ruling by the US Supreme Court stated there is no language in the federal power act that grants either FERC or its licensees (APCO) any federal power or regulatory authority over private property owners. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 136 S. Ct. 1562 (2016)

Thanks to those that attended and to those that spoke in support of the dock ordinance change. Thanks also to the six members of the Bedford County BOS for enacting this needed ordinance change.

C.U.R.B.'s 29 June 2017 Public Meeting

posted Aug 19, 2017, 6:06 AM by Site administrator

C.U.R.B.'s 29 June 2017 Public Meeting discussed why Judge Reynold's recent rulings in Pressl and Nissen were so grievously wrong and the impact these rulings could on landowners and businesses on Smith Mountain and Leesville Lakes, and local government's tax-base.  For those that were unable to attend, the notes of the meeting are available for reading or download:



Defense of Property Rights WINS the Trifecta

posted Jan 9, 2017, 7:51 AM by Site administrator

1. Pressls' WIN on Appeal to US 4th Circuit

Pressls are headed back to state court after being side-tracked for 17 months by APCO maneuvers ... "Finally, we believe that any federal interest in interpreting the flowage easement is not substantial and that asserting federal jurisdiction over cases like this would disrupt the congressionally approved federal-state balance. State courts are just as able (perhaps more able) to interpret and enforce the property rights conveyed through instruments governed by state law." Decided: November 21, 2016 Before Judge Motz, Judge Traxler and Judge Floyd.

__________________________________________________________________________________________________________________________

2. APCO Request for En Banc Rehearing in Pressl Before 4th Circuit Denied

On 5 December 2016 APCO filed for rehearing. It was APCO’s right to ask the entire court (15 justices) to rehear the case, and for the Court to decide if it will rehear. Now comes:  “The court denies the petition for rehearing and rehearing en banc. No judge requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.” Denied December 19, 2016 Before Judge Motz, Judge Traxler and Judge Floyd.

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3. NISSEN Case WON on APPEAL to 4th Circuit

 After 26 months of APCO legal maneuvering ... “Because we conclude that the district court lacked subject-matter jurisdiction, we vacate the judgment of the district court and remand.” Decided: December 19, 2016 Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

______________________________________________________________________________________________________________________________________________________________________________

 

What FERC Says About Private Property and Federal Authority ...

“The Commission [FERC] 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 state property rights.” (130 FERC ¶ 62,033, 13 January 2010) 

Translation FERC speak to English: FERC granted APCO zero legal authority to regulate 3rd party non-licensees! 

    The Commission requires every licensee to certify that the licensee holds necessary property rights sufficient to meet their license obligations. However, the Commission unequivocally accepts the licensee’s certification of rights without verification. Instead, the Commission burdens private property owners with the cost of defending their property rights against multi-billion dollar corporations. This all too convenient ‘trust but not verify arrangement,’ allows the Commission to award licenses to entities not holding the requisite property rights. 

Further Quoting FERC on Property Rights:

“Any disputes regarding property rights are not within the Commission’s jurisdiction; rather, they are matters for state courts to resolve.[1]

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.”[2]

The instruments of conveyance define the extent of the licensee’s rights; therefore, neither the Commission nor a licensee/transferee can interfere with the transferor’s retained rights.[3]

The inclusion of lands within a project boundary will not restrict landowners’ uses, since inclusion of lands within a project boundary does not itself create or alter property rights. [3]

The Commission’s inclusion of the standard land use articles, the approval and adoption of the SMP, or the approval of a project boundary in an Exhibit G map will not affect the property interests obtained. [3]

If a landowner believes that a licensee’s easement precludes certain activity, such a dispute must be resolved between the property owner and Appalachian Power in a property law action in a court of appropriate jurisdiction. [3]

If it is determined that a licensee does not have adequate rights to comply with license requirements, the Commission could require the licensee to obtain the additional rights by easement or eminent domain. [3]

Commission staff stated that “[a]ny disputes regarding property rights are not within the Commission’s jurisdiction; rather, they are matters for state courts to resolve.” ... That order was not dictating the court of appropriate jurisdiction, but merely stating that the issue of property rights is a matter of state law. [3]

As we have explained, the issuance of a hydropower license or the approval of an SMP does not give a licensee any new property rights. Rather, these approvals simply direct the licensee’s use of lands in which it holds interests. To the extent that there are disputes as to the nature of a licensee’s rights, those matters must be resolved in a court of competent jurisdiction: the Commission has no authority to resolve property rights issues.” [3]
_______________________________________
[1] 142 FERC ¶ 62,256 at P 16, n.12 (2013)
[2] Commission Chairman Cheryl A. LaFleur’s December 8, 2014 rely to Congressman Robert Hurt.
[3] 153 FERC ¶ 61,299 Appalachian Power Company Project No. 210-252, December 17, 2015

The irony here is that APCO would be in full compliance with its license if it followed the Commission’s direction, honored its flowage easement and stopped imposing SMP regulations on private landowners. However, by forcing SMP regulations on property APCO neither owns nor controls, APCO is violating the Federal Power Act and ignoring FERC direction. Go figure?
________________________________________________________________________________

Why does APCO continue to avoid state court? 

Simply, APCO cannot prevail in Virginia state court because it cannot re-write decades of easement law and erase its decades long history and practice of not regulating shorelines. APCO’s limited flowage rights will be determined on state easement law, without consideration of their federal license or shoreline management plan. Only the language of the easement, the understanding of the parties at the time of easement creation and the 45 years of custom and practice recognizing shoreline owner’s rights to construct, own and maintain docks without seeking APCO’s approval, will be considered.
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4th Circuit Heard Oral Arguments, 26 October 2016

posted Nov 21, 2016, 11:40 AM by Site administrator

                                                                                                                                                                                   United States Court of Appeals

RECORD NUMBER: 15-2348

for the

Fourth Circuit


RICHARD PRESSL AND TERRY PRESSL,

Plantiffs/Appellants.

-- v. --

             
APPALACHIAN POWER COMPANY
                                Defendants/Appellee,


                                                                                                                                  ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA AT ROANOKE


On Wednesday, 26 October, attorneys representing Rick and Terry Pressl presented oral arguments in their appeal to a three-judge panel of the US 4th Circuit Court of Appeals in Richmond. The three justices hearing the case were William B. Traxlor (SC), Diana Gribbon Motz (MD) and Henry F. Floyd (SC). The Pressls were represented by Caskie and Frost attorneys Frederick Watson and Pavlina Dirom. APCO was represented by Woods Rodgers attorneys Freidman and Pritts. Each side was allotted 20 minutes to present arguments and answer questions from the three-judge panel. 

I attended the hearing along with 12 other lake residents and CURB supporters. First and foremost, it was evident that each of the justices had read all briefs and supporting evidence and were obviously informed and familiar with the case. 

Pressls’ attorney, Frederick Watson, argued that the district court (Judge Moon) lacked federal jurisdiction to hear and rule on Pressls’ state court complaint. The determination of whether APCO possesses adequate state property rights, under its flowage easement to regulate Pressls’ use of their property, belongs in state court. He quoted from a December 2015 FERC order reiterating that APCO must obtain all necessary property rights because neither FERC nor APCO has any right to regulate the private property of others, unless APCO holds the necessary state property rights to do so. The FERC order also stated that if a court found that APCO did not possess the necessary property rights FERC “could require the licensee to obtain the additional rights by easement or eminent domain.” Mr. Watson explained that neither the award of a federal license or approval of a shoreline management plan can change property rights and that FERC also has ordered that all matters concerning property rights should be adjudicated and resolved in a court of appropriate jurisdiction (meaning state court). 

APCO’s attorneys, Friedman and Pritts, used their 20-minute allocation to plead that APCO must follow FERC orders strictly or lose their license. They discussed how the flowage easement phrasing: ‘overflow and/or affect the premises in any manner’ meant that APCO could impose its license and Shoreline Management Plan (SMP) responsibilities upon the Pressls. Both spent a great amount of time explaining that their federal license was a good thing because it saves the lake from chaos, over building of docks and excessive dredging. What they failed to do was present any legal argument why state court was not the proper court to determine APCO’s rights under the flowage easement or provide any evidence for federal jurisdiction.

Opinion – My view, based upon the questions the justices asked and resulting dialog, was the justices feel determination of rights under the flowage easement is not a federal issue and should be adjudicated in state court.  Justices began at 1:30 minutes into the arguments questioning why this matter was not before a state court, and continued to repeat this line of questioning throughout APCO’s arguments to the contrary. Therefore, I expect 4th Circuit to vacate Judge Moon’s district court ruling and direct the Pressl case be remanded to state court for trial. I’m hopeful we will see that order by early December. 

Also, all attorneys received an order from the 4th Circuit on October 27th holding the Nissen appeal in abeyance, pending its decision in Pressl v. APCO. This is extremely good news. When Pressl is won, Nissen will be won, rapidly bringing matters to an unfavorable outcome for APCO. Pressls’ complaint against APCO will be litigated in Franklin County Circuit Court and the matter of APCO’s limited rights under the flowage easement will be decided. There is a reason APCO has never sued anyone in state court – because Virginia easement law is well defined and validated by Virginia Supreme Court decisions, and those decisions do not favor APCO’s innovative contrary claim that a federal license can change an individual’s state property rights.

Nissen's Appeal to US 4th Circuit

posted Oct 29, 2016, 6:46 AM by Site administrator   [ updated Oct 29, 2016, 6:47 AM ]

RECORD NUMBER: 16-1062

   United States Court of Appeals

for the

Fourth Circuit

 APPALACHIAN POWER COMPANY,

Plaintiff/Appellee,

– v. –

WILLIAM W. NISSEN, II and LORA J. NISSEN,

Defendants/Appellants.

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA AT ROANOKE

REPLY BRIEF OF APPELLANTS FILED ON 14 June 2016

Synopsis of the Reply



I. The Threshold Issue in this Appeal is the Issue of Lack of a Federal Question Jurisdiction and the District Court Erroneously Denied the Nissens’ Rule 12(b)(1) Motion to Dismiss

The District Court’s ruling on Nissens’ Motion to Dismiss for lack of subject matter jurisdiction must be reversed, and without jurisdiction, the subsequent rulings must be vacated. Appalachian Power Company (“APCO”) dedicates a large portion of its brief to a discussion of its duty to obey Federal Energy Regulatory Commission’s (“FERC”) rules and its federal license. APCO’s duty to obey FERC and its federal license is not at issue in this case and is not being challenged. The acquisition of private property rights is, however, essential to being able to regulate what is being conducted on a private individual’s land.  That is the linchpin of this case. Neither APCO’s license nor federal law gives APCO any right to regulate activities on a private property owner’s land.  The flowage easement is APCO’s only source of any rights over the Nissens’ land.

II. Under the Well-Pleaded Complaint Rule, APCO’s Complaint Does Not Arise Under the Constitution, laws, or treaties of the United States

A district court has federal question jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331. The Court must examine the APCO’s Complaint under the well-pleaded complaint rule to determine whether the action “arises under” federal law.  The Court, in examining the complaint, must first discern whether federal or state law creates the cause of action. In this case, APCO, being the master of its complaint, engaged in artful pleading and attempted to create a federal cause of action. However, federal jurisdiction will not exist if there is no federal law which creates a cause of action.

A. The Cases Cited by APCO to Establish Federal Cause of Action Do Not Discuss or Rule on the Issue of Federal Cause of Action or Federal Jurisdiction and/or Can Readily Be Distinguished

B. Contrary to APCO’s Assertion, the Sufficiency of APCO’s Property Rights in the Nissens’ Land under the Flowage Easement Is Not a Matter of Fact and Is a Legal Issue for the State Court to Decide

III. Count II, Violation of Flowage Easement, Does Not Implicate Significant Federal Issues

In this case, the interpretation of the scope of the flowage easement does not depend on the resolution of a substantial question of federal law. What the FERC License Orders or Shoreline Management Plan state is not disputed.  This is not a case of interpretation of federal statute or law. This is a case of interpretation of the flowage easement which states that it is complete in all of its terms and provisions and represents the parties’ entire agreement.  If the state court finds APCO’s flowage easement rights insufficient to regulate the Nissens’ shoreline activities, APCO can acquire more property rights, or obtain more property rights through condemnation.

IV. APCO’s Rights in the Nissens’ Land Are Not as Broad as APCO Asserts

APCO does not own fee simple interest in the Nissens’ land below the contour the elevation of which is 800 feet.  Nevertheless, APCO goes that far,  twisting the language of the flowage easement, making an argument that it in essence obtained fee simple interest in the Nissens’ land below contour the elevation of which is 800 feet and that it was the landowners who merely “reserved” easement for their own benefit, “right to cross” said premises to reach impounded waters for recreational purposes.

APCO’s argument and position has no basis in law or facts. Reservation occurs upon grant of fee simple rights. Not only that the Nissens have not granted fee simple interest to APCO but the word “reserve” is also nowhere to be found in the flowage easement deed.  APCO has via flowage easement deed taken several sticks out of the Nissens’ bundle of rights that comprise their estate in fee. APCO was not granted a fee simple.

As argued by the Nissens in their Opening Brief, APCO was limited to flooding and/or affecting a portion of the Nissens’ land for the purpose of construction, existence, operation and/or maintenance of the dam and/or power station. Accordingly, in order for APCO to prove a violation of its easement, APCO must adduce evidence that the encroachments complained of interfere with one of the aforementioned items.

APCO’s broad interpretation of its right “to remove” and “to affect” is an argument of ownership and to regulate all uses of the easement. In any event, the flowage easement granted APCO limited rights. The determination of the extent of which rights is subject to the state court’s jurisdiction.
It is likewise incorrect when APCO states, as a matter of fact, that the flowage easement gave it the right “to regulate land within the Project boundary.” There is no such language in the flowage easement.

CONCLUSION

For the reasons set forth above, the District Court’s ruling on Nissens’ Motion to Dismiss for lack of subject matter jurisdiction must be reversed and the subsequent rulings must be vacated.

CURB Continues to Support Challenges in Defense of Our Property Rights

posted Apr 29, 2016, 10:04 AM by Site administrator


The Federal Power Act (FPA) authorizes the Federal Energy Regulatory Commission (FERC) to award and enforce licenses for hydroelectric generation. APCO was issued its original 50 year construction/operational license in 1960. Also around this time, Appalachian Power Company (APCO) acquired easement rights to flood privately owned lands to build the two dams and impound the three rivers to form Smith Mountain and Leesville reservoirs. The original license did not require the company to regulate shorelines or uses within the project. Permits were not required nor issued to property owners to build residential docks, beaches, commercial marinas, boat ramps, retaining walls, restaurants, etc. For the first 40 years FERC oversight was consistent with the original license terms, and APCO operated the project while it honored the flowage easement terms and conditions. Then in August 2003 APCO rewrote the rules with their Shoreline Management Plan.

However, the underlying flowage easements were not changed and APCO failed to purchase additional property rights needed to regulate shorelines. Virginia easement law is unambiguous--shoreline property owners retain the right to use these easement lands for any purpose so long as that use does not prevent APCO from flooding, or operating and maintaining the dam and power station.  In 1996 the Virginia Supreme Court ruled: “In determining the scope of an easement, we have repeatedly held that the owner ... retains the right to use his land in any manner which does not unreasonably interfere with the use granted in the easement.”[1]  Under Virginia property law, no owner is required to seek APCO’s permission or sign APCO’s revocable permits to build a dock, landscape their property, graze cattle, or make recreational use of the land below the 800 foot contour.  
Under Virginia law, no use can be made of an easement different from that established when the easement was created, which imposes additional burdens on the grantor of the easement. Shooting Point, L.L.C. v. Wescoat, 265 Va. 256, 266; 576 S.E.2d 497, 503 (2003); see also McCarthy Holdings, LLC v. Burgher, 282 Va. 267, 273; 716 S.E.2d 461, 465 (2011)(holding that an easement can be conveyed without limitations on use by the easement holder and remain an easement limited to the use established when the easement was created). At the time this flowage easement was executed, APCO had no obligation from FERC to control uses and occupancies in the Project and APCO did not do so until after the 1998 amendment adding Article 41. There were many docks in existence prior to the addition of Article 41 and prior to the implementation of Shoreline Management Plan without any APCO permit.  In 1960, when the flowage easement was executed, neither APCO nor the landowner grantors could have understood or contemplated that there would be any need for permitting process which would place additional duties upon the landowners, including the need to vegetate property pursuant to APCO’s requirements if they wanted to have a dock. The right to use the lake for recreational purposes was expressly preserved in the easement. The recreational uses of Smith Mountain Lake include having a dock.  Thus, under Virginia law, APCO cannot use the 1960 flowage easement to impose additional burdens on the Pressls and must either purchase additional property rights from the landowners or obtain them by way of eminent domain. Just as the FPA and FERC contemplate.

APCO’s license requires it to either own or control the lands within the project boundary, and FERC can only enforce license requirements through APCO’s legally acquired property rights. It is impossible for a property owner to violate the FPA or APCO’s license because neither applies to non-licensee property owners. Contrary to this undisputed law, APCO convinced the U.S. District Court for the Western District of Virginia that its federal license replaces private property rights and grants it regulatory authority over non-licensee property owners. The court’s position is inconsistent with the 1954 U.S. Supreme Court ruling holding that one’s “private property rights are rooted in state-law,” and determining that neither [the FPA], nor the license issued under it, expressly abolishes existing property rights.”[2]

Unfortunately the Western Virginia U.S. District Court has a history of exceeding its limited jurisdiction and reaching beyond its constitutional powers, regarding APCO’s claimed regulatory authorities. In 1977 the U.S. Supreme Court ruled: “under our federal system, property ownership is not governed by a general federal law, but rather by the laws of the several States, and further dictating that the great body of law in this country which . . . defines the rights of its [property] owners in relation to the state or to private parties, is found in the statutes and decisions of the states.”[3] By disregarding Virginia property law, this court is creating new general federal law, and in doing so, is violating constitutional and federal law.

Federal district courts have no business determining state property rights or enforcing APCO’s license responsibilities upon private property owners. The U.S. 4th Circuit Court of Appeals, to which all appeals in this region are directed, has declared: “the interpretation of easements is a matter of state-law and “’does not turn on some construction of federal law,’” and, as such, “federal-question jurisdiction under [28 U.S.C. 1331] will not lie;”[4] further reinforcing the fact that this federal district court lacks jurisdiction to adjudicate state property rights. 

The Western Virginia U.S. District Court must be constrained to uphold established law and superior court rulings. However, the court ignored this body of law when it dismissed Pressl v. APCO on October 6th. It is ironic that the very court empowered to enforce constitutional and federal law and uphold the separation of federal and state powers, blatantly disregarded its principal duty. This is why appeal to the 4th Circuit Appellate Court is absolutely justified and underway. Recreational access through dock ownership and transfer with land title is our deeded property right. APCO’s rights are limited to flooding for the purpose of hydroelectric generation. This is a protracted battle and CURB is in it for the long-haul. Our property rights must be defended.
____________________________________________________________________________________________

[1] Walton v. Capital Land, Inc. 477 S.E.2d 499 (1996) 252 Va. 324 Record No. 952244. Supreme Court of Virginia 

[2] Niagara Mohawk Power Corp., 347 U.S. 239, 250, 256 (1954), U.S. Supreme Court 

[3] State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 378 (1977), U.S. Supreme Court 

[4] Columbia Gas Transmission Corp. v. Drain, 191 F.3d 552, 558-59 (4th Cir. 1999)

Pressls' Reply Brief

posted Apr 29, 2016, 9:28 AM by Site administrator


On February 3rd 2016 the Pressls' filed with the 4th Circuit Court of Appeals their answer to APCO's Response to Pressls' appeal.  This is an excellent document to read as it takes each point of APCO's position and counters each with current and accurate case law.  APCO argued in their Response Brief that their federal license must be used to interpret Pressls' 1960 flowage easement.  
The argument is preposterous as Virginia state law requires the easement to be read under the conditions that existed when the easement was granted.  Furthermore the easement deed states "this deed sets forth the entire agreement between the parties hereto," which means that APCO's license is not needed or permitted under the law the interpret the easement.   In 1960 APCO had no SMP requirement and the original 1960 license did not require APCO to issue permits for dock construction, shoreline stabilization or vegetation removal/replacement.  The flowage easement does not require the landowner to apply for a permit/license from APCO to use the easement for recreational purposes.  In fact the flowage easement explicitly states that the landowner retains fee simple ownership and can use the easement for any purpose, so long as that use does not materially adversely impact APCO's ability to flood and/or operate and maintain the dam and power station at Smith Mountain.  

I urge you to read this brief as it provides a clear and succinct explanation of the merits and facts in this appeal.  Here is the link to: Appeal Pressl v. APCO - Reply Brief.pdf (525k)

DISMISSAL OF PRESSL V. APCO IN U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

posted Apr 9, 2016, 5:53 AM by Site administrator

APPEAL TO BE FILED IN FEDERAL APPELLATE COURT

    On 6 October 2015 Judge Norman K. Moon dismissed Pressl v. APCO. The dismissal order is appealable to the U.S. Fourth Circuit Court of Appeals in Richmond, Virginia. To understand the procedural errors and omissions in the Court’s dismissal order and the ramifications of this ruling upon shoreline property owners at Smith Mountain Lake, we begin with an overview of relevant undisputed facts.

Relevant Undisputed Facts

A. The Federal Power Act (FPA), which created the Federal Energy Regulatory Commission (FERC), granted Federal Power Commissioners the authority to award Appalachian Power Company (APCO) a license to develop and operate the Smith Mountain hydropower projects.

B. Neither the FPA, nor the FERC, nor any FERC issued license grants APCO any federal authority or police powers to regulate non-licensee shoreline property owners. The FERC’s authority to regulate its licensee does not extend past APCO and FERC can only enforce the terms of APCO’s license through legally acquired [condemnation or easement purchase] state property rights.

C. The award of APCO’s license was predicated upon the principle that APCO held the necessary state property rights to implement its original 1960 and current FERC license. APCO can only regulate the lands and waters over which it holds necessary state property rights.

D. The FPA does not pre-empt, create or supersede state property rights. APCO’s license and any amendments thereto, cannot alter state property rights. The FERC has no power to adjudicate state property rights. All property right disputes between a shoreline property owner and APCO are within the original jurisdiction of the states and their courts.

E. The judicial power of federal courts is strictly limited by the U.S. Constitution and U.S. Code to hold original jurisdiction for civil matters dealing with constitutional and federal law and U.S. treaties.

F. Federal law allows APCO to remove Pressl’s claim, originally filed in state court, to federal court, but only if the Pressls raised a federal issue/claim. However, the Court must remand all state-law claims back to the state court where Pressl’s claim was originally filed.

G. Determination of Pressl’s flowage easement is purely a state-law matter and not matters federal courts have jurisdiction to determine.


The Ruling 

    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 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.


Ramifications for Shoreline Property Owners and Grantors of Deeded Flowage Easements 

    Should Judge Moon’s ruling not be appealed to the U.S. Fourth Circuit and overturned, shoreline property owners on Smith Mountain and Leesville Lakes would be impacted as follows: 

A. Shoreline property owners and holders of flowage easements on Smith Mountain and Leesville Lakes would lose their constitutional right to have a State Court determine their property and easement rights in a jury trial;

B. Shoreline property owners would be required to surrender their deeded easement rights to APCO and accept a revocable license as a replacement;

C. Shoreline property owners could not own docks or easement improvements to access project waters and these improvements could not be covered by title insurance;

D. Shoreline property owners would be required to seek APCO’s permission to make any use of the property in the project boundary;

E. Shoreline property owners would become licensees of APCO and be bound its federal license, shoreline management plan, all future amendments and all new licenses;

F. APCO would have the right to dictate vegetation removal and replacement;

G. APCO would have the right to order dock removal when APCO determines it is no longer in the public interest for the dock to exist;

H. APCO would have the right to remove any structures in the project boundary, even those previously constructed over nearly 40 years while APCO made no attempt to limit such construction; and

I. APCO could impose permit fees and annual fees for docks and other shoreline improvements.


Conclusions 

    Judge Moon’s decision to dismiss the case rather than remand it to state court is being appealed. We do not believe the U.S. 4th Circuit Appellate Court will let this ruling stand and will order the entire case to be remanded. Please continue to financially help support the Pressl’s in their appeal by donating to C.U.R.B. 



A Federal License Gives No One Authority To Steal Our Property

posted Apr 23, 2015, 5:18 AM by Site administrator

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence." – John Adams, A Defense of the American Constitutions, 1787

"No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." -- US Constitution Bill of Rights 5th Amendment, 1791

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." -- US Constitution Bill of Rights 10th Amendment, 1791

"Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government which impartially secures to every man whatever is his own." – James Madison, Essay on Property, 1792

"Federal lawmakers cannot delegate regulatory authority to a private entity. To do so would be “legislative delegation in its most obnoxious form.” Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936).


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FERC and the Virginia Supreme Court Dispute APCO’s Claims of Regulatory AUTHORITY... 

APCO insists their Federal License gives them regulatory authority over our shoreline property. 
        A January 2010 ruling by Federal Energy Regulatory Commissioners (FERC) specified: “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 state property rights. Project boundaries are used to delineate the geographic extent of the lands ... comprising the licensed project and for which the licensee must hold the rights necessary to carry out project purposes.” [i] By order of their regulator, APCO’s Federal license grants APCO no regulatory powers beyond its state property rights. 

FERC Commissioners directed its licensees to resolve property rights disputes in State court. 
        In March 2013 the FERC ordered: “Any disputes regarding property rights are not within the Commission's jurisdiction; rather, they are matters for state courts to resolve.” [ii] In December 2014, FERC Commission Chairman LaFleur wrote: “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.” [iii] 

FERC Commissioners once again stressed that deeded rights cannot be changed by an SMP. 
        “The licensee acknowledges that a number of adjacent landowners possess certain deeded rights to access project waters ... Whatever rights an entity has in lands within the project boundary, whether conferred by deed, lease, easement, or other conveyance, will not be altered by our [FERC] action regarding this SMP.” [iv] 

     The FERC regulator granted APCO NO additional regulatory powers overtaking shoreline owners’ state property rights and ordered that all property disputes must be settled in state courts. The Virginia Supreme Court ruled:

1.  When buyers are told they have an easement to the water for recreational purposes and this access adds materially to the value of the property conveyed, reasonable use (e.g.docks, beaches, boathouses) of the easement for access to the water is necessary for the beneficial use and enjoyment of the property conveyed.[BROWN v. HALEY]

2. The flowage easement granted APCO the right to flood the easement for dam construction, operation and maintenance purposes[SML YACHT CLUB v. RAMAKER]

3. The same flowage easement retained shoreline owners' fee simple ownership of the land and these rights attach to and run with the land title [SML YACHT CLUB v. RAMAKER]

4.  Shoreline owners can exercise all rights of fee simple ownership that were unaffected by APCO's easement to flood, including the right to access to the water for recreational purposes [SML YACHT CLUB v. RAMAKER]

5.  The easement’s scope is determined by 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 [ANDERSON v. DELORE]

   
 Federal Energy Regulatory Commission licensee orders and Virginia Supreme Court rulings specific to Appalachian’s flowage easement prove how and why Appalachian Power is in violation of its license and Virginia State law. The “shadow” permitting process APCO imposed by deception and duress upon shoreline property owners with their SMP, illegally restricts or denies our recreational access and the beneficial use and enjoyment of our property, unless we agree to sign an APCO permit that takes our property rights without compensation. 
    
    AEP has no authority to deny a shoreline landowner reasonable access to the lake nor does it have the right to dictate how landowners use their property so long as it doesn't interfere with AEP's ability to flood and operate the dam. Virginia’s highest Court has ruled -- quite simply, this is why APCO uses every avoidance maneuver they can to avoid State Court and resolve property disputes.


[i] See: 130 FERC ¶ 62,033 Pacific Gas and Electric Company Project No. 2687-148, Paragraph 19 (Issued January 13, 2010)

[ii] See: 142 FERC ¶ 62,256 Project No. 2576-139 ORDER MODIFYING AND APPROVING SHORELINE MANAGEMENT PLAN PURSUANT TO ARTICLE 407 (Issued March 27,2013)

[iii] See: FERC Chairman Cheryl A. Lafleur’s December 8th 2014 response to US Congressman Robert Hurt (eLibrary No. 20141210-0070).

[iv] See: 142 FERC ¶ 62,256 Project No. 2576-139, ORDER MODIFYING AND APPROVING SHORELINE MANAGEMENT PLAN PURSUANT TO ARTICLE 407 (Issued March 27,2013)

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CURB Takes Issue with FERC Chairman

posted Mar 1, 2015, 4:56 AM by Site administrator

-- Monday, December 15, 2014 PRESS RELEASE –

C.U.R.B TAKES ISSUE WITH FERC CHAIRMAN'S COMMENTS TO CONGRESSMAN ROBERT HURT

Smith Mountain Lake, VA (15 December 2014) -- Cut Unnecessary Regulatory Burden, Inc. (CURB) was formed as a Virginia not-for-profit corporation in April 2011 to educate our Community on the importance of State property rights. On December 8th the Federal Energy Regulatory Commission (FERC) Chairman Cheryl A. LaFleur responded to a Congressional inquiry from Congressman Robert Hurt regarding the implementation of the Shoreline Management Plan (SMP) for Smith Mountain Lake, VA.

In the Commission's words: "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 state property rights. Project boundaries are used to delineate the geographic extent of the lands, waters, works, and facilities that the license identifies as comprising the licensed project and for which the licensee must hold the rights necessary to carry out project purposes." [
130 FERC ¶ 62,033 (Issued January 13, 2010)]

It is CURB’s opinion that Chairman LaFleur’s letter to Congressman Hurt is oversimplified, misleading and contradictory; however it is representative of the treatment our Community and many other Communities across our nation have endured from this Commission.  The Chairman stated: “Because the reservoir is owned by the company (as are some shoreline lands) and not by the landowners, and because project lands and waters are managed to comport with the public interest, landowners must obtain permission from Appalachian Power for any private uses of licensee-owned property, such as the construction of boat docks and Walkways.”

The Smith Mountain Project is operated by Appalachian Power, but is not exclusively owned by this licensee. In the case of Smith Mountain the licensee negotiated Flowage Right and Easement Deeds for virtually all lakefront private property circa 1960. The limited purpose of these easements was to grant the licensee the right to flood a portion of shoreline private property solely for the construction, operation and maintenance of a hydroelectric dam. In consideration for allowing a portion of the landowner’s property to be inundated, the property owner was guaranteed the right to recreational access of the waters and to possess and use this property in any manner so long as that use did not interfere with the licensee’s ability to flood, operate and maintain its hydroelectric dam and power house operation. For over four decades Appalachian Power honored its agreements and recognized that all shoreline property owners had the property right to build docks. The flowage easements are contractual in nature, flow with the land title and are to be read as in the moment of creation. Consequently, Smith Mountain shoreline property owners have no obligation to seek or acquire Appalachian’s permission to build docks to access the project waters as these rights were reserved in the circa 1960 flowage easement agreement. 

Chairman LaFluer concludes: “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."

The Commission is well aware of its licensee’s limited property rights. Yet the Commission ignores this evidence and on faith accepts the licensee’s new certification: “1. LICENSEE HAS OBTAINED ALL FLOWAGE RIGHTS NECESSARY FOR ADEQUATE OPERATION OF THE PROJECT EITHER IN FEE TITLE OR EASEMENTS. ALL PROPERTY RECORDS ARE KEPT ON FILE WITH THE LICENSEE.” The Commission can be assured that the underlying circa 1960 flowage agreements were never amended to convey Appalachian the property rights in now claims it holds in its current certification. Clearly the Commission exceeded its limited authority to require implementation of the Shoreline Management Plan without the necessary property rights. The Commission dodged the essential underlying issue of property rights and advised stakeholders if they had a property rights dispute to sue the licensee, a $16.5B corporate monopoly that possesses unlimited financial resources. This is not regulation, it is avoidance by intimidation and the Commission is complicit.

CURB requested the Commission require the Smith Mountain Project licensee to detail its State property rights and all unpermitted “encroachments” within the project boundary; and to identify those lands within the project boundary for which it does not hold sufficient State property rights to implement its license requirements. Those existing uses can then be vested and the lands removed from Shoreline Management control. Simply put, the licensee does not have the authority to restrict deeded and reasonable recreational access for shoreline property owners at Smith Mountain. CURB’s request is consistent with Commission policy at Lake of the Ozarks and other projects where the Commission required the licensee to identify private property interests and to operate within the limits of its authority.

Read: (1) Chairman Lafleur letter to Congressman Hurt, and (2) CURB's letter to the Commission.

Unite to Defeat APCO’s Bogus Claims

posted Jan 24, 2015, 2:01 PM by Site administrator


WE ARE ALL AFFECTED BY APCO's SHORELINE MANAGEMENT

    Many believe that an Appalachian Power Company (APCO) "Permitted" dock is an advantage and provides a guarantee of continued recreational use. But the opposite is in fact true, because APCO's (non-federally approved) "Permit" is revocable at APCO's discretion and limits the ways you can access the lake for recreational purposes. By signing their "Permit" you agree to become a licensee of APCO and you are obligated to follow all Shoreline Management Plan rules, all provisions of their license and all future licenses and amendments thereto. 

    When you purchase a new or existing home you are "grandfathered" against changing State and County regulations and when you sell your property you cannot be forced to comply with the latest version of regulations. APCO claims their ”rules” for your dock are different. Even if you have a valid APCO permit, they can unilaterally change their “rules” or reinterpret them and make you or your buyer tear out part or all of the dock; or APCO can decide your dock is no longer in the public interest and direct you to remove it. FERC has an outstanding order for Smith Mountain and Leesville Lakes that states: "eventually all docks will have to conform to SMP regulations," and FERC will eventually direct APCO to make it so. 

    Who would buy a house on Smith Mountain Lake if they could lose their dock because APCO changed its "rules.” But APCO insists it can change the “rules” and order you to either modify or remove a non-compliant dock. This could change a lakefront home to a lake-view home. Realtors at the lake regularly see buyers backing out of sales contracts, resulting in lower property values as a direct result of the APCO "Permit" problem. What is the risk to our land values and our property rights? Here is what attorney George Vogel II, with decades of experience in lake land issues, said in his Feb. 23, 2005 comments to FERC: 

“... Regardless of the manner in which AEP acquired the land, and the documentation regarding the ownership of the land above and below the 800 foot contour line, I believe it has been the opinion of attorneys and courts over the past 40 years that owners of property adjoining the lake have vested property rights in the land below the 800 foot contour line adjoining their property and to the use of the waters of Smith Mountain Lake.  However, the position of AEP at this time is that adjoining landowners do not have any vested property rights or easements to the land below the 800 foot contour line, but merely have a revocable license. In my opinion this conclusion is wrong and contrary to the documentation of ownership of the land below the 800 foot contour line. ... The problem with revocable licenses is that they expire upon a conveyance of the property by the owner to whom the license is issued, and at the whim of AEP can be revoked at any time. The waterfront rights on Smith Mountain Lake and the right to construct boat docks is a very important element in the value of the owners property. A lot without access to the lake, even though it may have a view, may bring $40,000.00 to $50,000.00, whereas a similar lot with lake access and the right to construct a boat dock may bring $400,000.00 to $500,000.00.... In my opinion AEP is using the Shoreline Management Plan and the licensing process to acquire rights to the property adjoining Smith Mountain Lake that they did not acquire in their purchases and condemnation proceedings 40 years ago."

    For those that think the outcome of this lawsuit will not affect them -- wait until you try to sell your property and AEP notifies you your dock or landscaping is not in compliance with its latest SMP interpretation. Recently a couple's home was foreclosed upon after AEP misclassified their waterfront as a wetland and they were denied a dock permit. Others have been forced to plant thousands of dollars of shrubs and trees and/or modify their dock to comply with the latest regulations or new interpretations before APCO would "allow" them to transfer a dock permit to the new buyer. Several have been forced to remove beaches and retaining walls that were built years before APCO began its shoreline crusade. Many more have spent thousands re-surveying their property to prove their dock was properly placed. Recently one property owner was forced to move his dock pilings two inches during construction -- yes, two inches, at an additional cost of $2,500! APCO does NOT have any federal authority or the necessary property right to demand these changes or to impact the sale of real estate. 

We are all Defendants and We Must Unite to Defeat APCO’s Bogus Claims

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