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


    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.


    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.