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)