Nissen's Appeal to US 4th Circuit

posted Oct 29, 2016, 6:46 AM by Site administrator   [ updated Oct 29, 2016, 6:47 AM ]


   United States Court of Appeals

for the

Fourth Circuit



– v. –





Synopsis of the Reply

I. The Threshold Issue in this Appeal is the Issue of Lack of a Federal Question Jurisdiction and the District Court Erroneously Denied the Nissens’ Rule 12(b)(1) Motion to Dismiss

The District Court’s ruling on Nissens’ Motion to Dismiss for lack of subject matter jurisdiction must be reversed, and without jurisdiction, the subsequent rulings must be vacated. Appalachian Power Company (“APCO”) dedicates a large portion of its brief to a discussion of its duty to obey Federal Energy Regulatory Commission’s (“FERC”) rules and its federal license. APCO’s duty to obey FERC and its federal license is not at issue in this case and is not being challenged. The acquisition of private property rights is, however, essential to being able to regulate what is being conducted on a private individual’s land.  That is the linchpin of this case. Neither APCO’s license nor federal law gives APCO any right to regulate activities on a private property owner’s land.  The flowage easement is APCO’s only source of any rights over the Nissens’ land.

II. Under the Well-Pleaded Complaint Rule, APCO’s Complaint Does Not Arise Under the Constitution, laws, or treaties of the United States

A district court has federal question jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331. The Court must examine the APCO’s Complaint under the well-pleaded complaint rule to determine whether the action “arises under” federal law.  The Court, in examining the complaint, must first discern whether federal or state law creates the cause of action. In this case, APCO, being the master of its complaint, engaged in artful pleading and attempted to create a federal cause of action. However, federal jurisdiction will not exist if there is no federal law which creates a cause of action.

A. The Cases Cited by APCO to Establish Federal Cause of Action Do Not Discuss or Rule on the Issue of Federal Cause of Action or Federal Jurisdiction and/or Can Readily Be Distinguished

B. Contrary to APCO’s Assertion, the Sufficiency of APCO’s Property Rights in the Nissens’ Land under the Flowage Easement Is Not a Matter of Fact and Is a Legal Issue for the State Court to Decide

III. Count II, Violation of Flowage Easement, Does Not Implicate Significant Federal Issues

In this case, the interpretation of the scope of the flowage easement does not depend on the resolution of a substantial question of federal law. What the FERC License Orders or Shoreline Management Plan state is not disputed.  This is not a case of interpretation of federal statute or law. This is a case of interpretation of the flowage easement which states that it is complete in all of its terms and provisions and represents the parties’ entire agreement.  If the state court finds APCO’s flowage easement rights insufficient to regulate the Nissens’ shoreline activities, APCO can acquire more property rights, or obtain more property rights through condemnation.

IV. APCO’s Rights in the Nissens’ Land Are Not as Broad as APCO Asserts

APCO does not own fee simple interest in the Nissens’ land below the contour the elevation of which is 800 feet.  Nevertheless, APCO goes that far,  twisting the language of the flowage easement, making an argument that it in essence obtained fee simple interest in the Nissens’ land below contour the elevation of which is 800 feet and that it was the landowners who merely “reserved” easement for their own benefit, “right to cross” said premises to reach impounded waters for recreational purposes.

APCO’s argument and position has no basis in law or facts. Reservation occurs upon grant of fee simple rights. Not only that the Nissens have not granted fee simple interest to APCO but the word “reserve” is also nowhere to be found in the flowage easement deed.  APCO has via flowage easement deed taken several sticks out of the Nissens’ bundle of rights that comprise their estate in fee. APCO was not granted a fee simple.

As argued by the Nissens in their Opening Brief, APCO was limited to flooding and/or affecting a portion of the Nissens’ land for the purpose of construction, existence, operation and/or maintenance of the dam and/or power station. Accordingly, in order for APCO to prove a violation of its easement, APCO must adduce evidence that the encroachments complained of interfere with one of the aforementioned items.

APCO’s broad interpretation of its right “to remove” and “to affect” is an argument of ownership and to regulate all uses of the easement. In any event, the flowage easement granted APCO limited rights. The determination of the extent of which rights is subject to the state court’s jurisdiction.
It is likewise incorrect when APCO states, as a matter of fact, that the flowage easement gave it the right “to regulate land within the Project boundary.” There is no such language in the flowage easement.


For the reasons set forth above, the District Court’s ruling on Nissens’ Motion to Dismiss for lack of subject matter jurisdiction must be reversed and the subsequent rulings must be vacated.