Well They’ve Gone and Done It ... Winning This Case Will Change Everything!

posted Oct 13, 2014, 5:14 AM by Site administrator   [ updated Oct 24, 2014, 3:03 PM ]

    The game is on! On October 3rd, APCo filed suit in Federal court to stop Bill Nissen from building his dock. In its legal action, APCo misleadingly claims it owns or controls this property, since it holds a standard Flowage Rights and Easement Deed. However, Mr. Nissen is the fee simple owner and his easement deed, reserved for him the right in perpetuity to cross over APCo’s easement to reach project waters for recreational purposes.APCo’s assertion it has absolute control over Bill's property has effectively eliminated Mr. Nissen’s right of access. 

    APCo filed its harassment suit, which requires Mr. Nissen to apply to APCo for a Permit and insists that Mr. Nissen must agree to the Permit’s terms and conditions. APCo’s dock Permit directly conflicts with Bill’s property rights and APCo will not allow its Permit to be modified to be consistent with Mr. Nissen’s State property rights. If Mr. Nissen signed APCo’s Permit, he would be forced to agree to the following terms and conditions: 
1. That APCo has the authority to grant permission and to regulate his dock and associated work, and 
2. He will abide by all terms of APCo’s Shoreline Management Plan, and 
3. He will abide by all current and future terms of APCo’s Federal license, and 
4. APCo can remove his dock if it determines his dock is no longer in the public interest, or 
5. APCo can remove his dock, if he violates any condition of the Permit, and 
6. He will assert no interest contrary to that held by APCo with respect to the site, and that his status shall be that of a licensee. 

    Should he sign this Permit, Mr. Nissen’s state property rights would be totally subverted pursuant to the inaccurate assertion that Appalachian’s federal license granted it this regulatory authority. In fact, its federal license requires Appalachian to obtain ownership or sufficient control of all properties within the project to implement its license. FERC is well aware that Appalachian does not hold sufficient control of project lands to implement its Shoreline Management Plan (SMP). Yet, FERC dodged this crucial license requirement when it awarded a new 30-year operational license to Appalachian. Nonetheless, Most importantly, in deference to comments and concerns of property owners and businesses on Smith Mountain Lake, FERC stated that it cannot alter property rights with the issuance of a license, and therefore any dispute between a property owner and Appalachian must be resolved in a state court of proper jurisdiction. Appalachian now argues that its federal license requires it to permit Mr. Nissen’s dock. This circular “chicken or egg” conundrum is a deliberate ruse to take Mr. Nissen’s state property rights without compensation, and both Appalachian and its regulator are complicit in this taking. This approach is destroying significant land value at Smith Mountain Lake.

    Thus, it is no surprise that Appalachian’s harassment lawsuit seeks to bypass the foundational state property rights issue, rather than prove its state property rights in the state court of proper jurisdiction. Mr. Nissen’s appurtenant Flowage Right and Easement Deed, dated September 12, 1960, was agreed to when Appalachian had no federal license or any requirement to control or permit “recreational purposes.” For 43 years, Appalachian viewed and universally conceded regulatory control to state and local zoning and construction laws regarding all dock construction and ownership as a right for all lake front property owners. In 2003, Appalachian developed its Shoreline Management Plan, which sought to unilaterally expand its license responsibilities and include its own permitting process for docks. This was the beginning of Appalachian’s attack on existing property owner rights in violation of state law. 

    CURB will assist Bill with research and monetary support to fully prosecute this case and get the FERC off our lake. WE are now asking you to open your wallets to build our War Chest in support this COURAGEOUS property owner who is about to defend OUR private property rights in Court. Stand with US against this unlawful taking and make a substantial donation today.

Read Appalachian Power's Lawsuit Filed Against Bill NIssen