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.

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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.

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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]
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[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?
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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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