Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Appalachian Power Co. v. Nissen

United States District Court, W.D. Virginia

February 2, 2015

NISSEN, et al., Defendants.


NORMAN K. MOON, District Judge.

Appalachian Power Company ("APCO, " or "Plaintiff") filed this action on October 3, 2014 pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. and the Federal Power Act ("FPA"), 16 U.S.C. §§ 791a et seq. Plaintiff alleges that William Nissen, II and Lora J. Nissen (collectively "Nissens, " or "Defendants") are erecting a dock on Smith Mountain Lake in contravention of APCO's legal rights. Specifically, Plaintiff argues that the construction of this dock violates a flowage easement that it holds on Defendants' property, as well as a license order issued to it by the Federal Energy Regulatory Commission ("FERC"). That license order delegated to APCO the duties and responsibilities that FERC held with respect to operation of the Smith Mountain Hydroelectric Project (the "Project") in Southwest Virginia. Plaintiff asks for a declaration that Defendants' shoreline construction, which was undertaken without prior approval from APCO, violates the provisions of its flowage easement and the FERC license order. Plaintiff also seeks an injunction requiring Defendants to remove fill and restore vegetation disrupted by the construction and to remove the dock itself if they are unable to obtain the appropriate permit from APCO.

The matter is now be fore me upon Defendants' fully briefed motion to dismiss. Defendants argue that the complaint should be dismissed because it fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) and because this Court lacks subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). For the reasons that follow, Defendants' motion will be DENIED.

I. Background

According to Plaintiff's complaint, APCO operates the Project pursuant to a license issued to it by FERC. The Federal Power Act ("FPA"), 16 U.S.C. § 791a et seq., vests FERC with the authority to license hydroelectric projects for the use and benefit of interstate and foreign commerce. By an order dated April 25, 1960, FERC issued a fifty-year license to APCO which delegated its Project-related duties and responsibilities. On December 15, 2009, FERC issued an order extending this license for an additional thirty years, with the license coming into effect on April 1, 2010.

The Project boundary encompasses the reservoir at Smith Mountain Lake and all lands on the shoreline of the lake lying below a specific elevation, 800 feet above mean sea level ("FMSL"). When FERC granted APCO the license, it required APCO to acquire title to or the right to use all property necessary to construct, maintain, and operate the Project. Accordingly, APCO has obtained property rights to all Project lands, that is, those below 800 FMSL on Smith Mountain Lake, and either owns them in fee or has obtained rights of occupancy and use via flowage right and easement deeds. These property rights allow APCO to enforce the requirements of the FERC license.

Plaintiff APCO manages the Project in accordance with a Shoreline Management Plan (the "SMP"), which it developed in 2003. On July 5, 2005, FERC issued an order incorporating the SMP in APCO's license from FERC. The SMP provides detailed guidelines for managing development within the Project's bounda ries. Accordingly, the SMP imposes various restrictions aimed at promoting shoreline stabilization and the protection of a esthetic and environmental quality. For example, the regulations address the placement of fill within the Project boundary as well as the location, length, height, and maximum size of docks. The SMP also establishes certain "Vegetative Cover Regulations, " which require that vegetation within the Project boundary be preserved, and that none may be removed without a permit from APCO. The SMP further limits what can be constructed between an elevation of 795 and 800 FMSL, limiting structures within this zone to those that provide access to a dock, as well as pilings or cables installed for purposes of enhancing the stability of a floating structure.

Defendants own a parcel of land on Smith Mountain Lake. Their property is located at 164 Windmere Trail, Moneta, Virginia 24121. Defendants' property consists of approximately 1.441 acres, with some of it lying above and some of it lying below the Project boundary of 800 FMSL. The parcel was conveyed to Defendants subject to all easements, restrictions, reservations and covenants of record by Deed dated April 14, 2014. Plaintiff APCO had previously obtained easement rights over Defendants' Property pursuant to a Flowage Right and Easement Deed dated September 12, 1960, by and between APCO and Defendants' predecessors-in-title. The Flowage Right and Easement Deed provides APCO with, among other things:

... the further right to enter upon said premises at any time and from time to time and, at Appalachian's discretion, to cut, burn and/or remove therefrom any and all buildings, structures, improvements, trees, bus hes, driftwood and other objects and debris of any and every kind or description which are or may hereafter be located on the portion of said premises below the contour the elevation of which is 800 feet.

Compl. Ex. C, at 2.

Plaintiff alleges that Defendants have, without obtaining permission from APCO, commenced construction of a dock, removed vegetation, placed fill, and constructed a road on the portion of their property that falls within the Project boundary. The Defendants' proposed dock, which will be located close to a neighboring lot, will measure roughly 3, 520 square feet in size, 110 feet in length, and 26 feet in height. Plaintiff alleges that this structure does not conform to the requirements of the SMP and flowage easement, as it is "oversized, too long, too high, and is located too close to the neighboring property." Compl. ¶ 31. Additionally, they contend that Defendants' road construction violated the SMP and flowage easement by destroying vegetation and placing additional fill within the Project boundary.

II. Legal Standard

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007) (internal citations omitted). A court need not "accept the legal conclusions drawn from the facts" or "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.2000). "Factual allegations must be enough to raise a right to relief above the speculative level, " Twombly, 550 U.S. at 555, 127 S.Ct. 1955, with all allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff's favor. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.