4th Circuit Heard Oral Arguments, 26 October 2016

posted Nov 21, 2016, 11:40 AM by Site administrator
                                                                                                                                                                                   United States Court of Appeals


for the

Fourth Circuit



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                                                                                                                                  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.