A Federal License Gives No One Authority To Steal Our Property

Post date: Apr 23, 2015 12:18:39 PM

"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]