United States District Court, W.D. Virginia, Roanoke Division
RICHARD A. PRESSL AND THERESA M. PRESSL, Plaintiffs,
APPALACHIAN POWER COMPANY, Defendant
Richard A. Pressl, Theresa M. Pressl, Plaintiffs: Ryan
Michael Walsh, LEAD ATTORNEY, OPN Law, Roanoke, VA; Steven
Craig Wandrei, LEAD ATTORNEY, Radford & Wandrei, P.C.,
Appalachian Power Company, Defendant: Charles Carter Lee,
Matthew Patrick Warren Pritts, LEAD ATTORNEYS, WOODS ROGERS
PLC, ROANOKE, VA.
K. MOON, UNITED STATES DISTRICT JUDGE.
A. Pressl and Theresa M. Pressl (" Pressls," or
" Plaintiffs" ) filed this action in state court,
pursuant to Virginia Code, § 8.01-184. Appalachian Power
Company (" APCO," or " Defendant" )
removed the action to this Court.
action arises out of the Pressls' desire to construct a
dock on Smith Mountain Lake. Compl. ¶ 6. The
construction, APCO argues, is subject to both a flowage
easement that APCO holds on the Pressls' property and a
license order granted to APCO by the Federal Energy
Regulatory Commission (" FERC" ). Mot. to Dismiss
2. APCO claims these rights because it operates the Smith
Mountain Hydroelectric Project on the Smith Mountain and
Leesville Lakes in Southwest Virginia. Id. At the
end of the Complaint, the Pressls asked the state court for
the following forms of declaratory judgment:
C. That the Court . . . find that APCO lacks the authority to
demand that your plaintiffs relinquish without compensation
valuable property rights they and their predecessors in title
retained by under the original flowage easement.
D. That the Court further find that APCO lacks the authority
to require the plaintiffs to enter into a revocable license
agreement as a condition for accessing the waters of Smith
Mountain Lake for recreational purposes;
E. That the Court find that APCO has no regulatory authority
over the plaintiffs' property which lies below the 800
foot contour beyond those rights defined by the flowage
easement, the contemporaneous expressions of the parties, and
vested rights to build and own structures to access Smith
Mountain Lake for recreational purposes;
F. That the Court find that APCO cannot regulate the size and
type of dock that the plaintiffs may construct on their
G. That the Court find that APCO cannot regulate how the
plaintiffs stabilize the shoreline of their property by
requiring them to plant vegetation below the 800 foot
H. That the Court find that APCO cannot regulate whether the
plaintiffs may dredge in front of their property to improve
any dock which they may construct;
I. That the Court find that the Plaintiffs be allowed to use
their property in any manner not inconsistent with the
maintenance of a dam and hydro-electric
power generation plant operated by APCO.
Compl., pp. 18-19. The matter is now before me upon the
Pressls' motion to remand and APCO's motion to
dismiss. The Pressls argue that the entire case should be
remanded to the Circuit Court for the County of Franklin,
Virginia, under 28 U.S.C. § 1447(c) (" if at any
time before final judgment it appears that the district court
lacks subject matter jurisdiction" ), because the Court
lacks subject matter jurisdiction. APCO argues 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). For the reasons that follow, the Pressls'
motion will be DENIED and APCO's motion will be GRANTED.
operates the Smith Mountain Hydroelectric Project (" the
Project" ) pursuant to a license issued to it by the
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 for the
Project, thus delegating its duties and responsibilities to
APCO. FERC extended this license for an additional ten years
by an order issued on December 15, 2009. 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 (those
below 800 FMSL), and either owns them in fee or has obtained
rights of occupancy and use via flowage right and easement
deeds. According to APCO, these property rights allow it to
enforce the requirements of the FERC license.
manages the Project in accordance with a Shoreline Management
Plan (the " SMP" ), which it developed in 2003. The
SMP has been incorporated by and is now a part of APCO's
license from FERC. The SMP provides detailed guidelines for
managing development within the Project's boundaries.
Accordingly, the SMP imposes various restrictions aimed at
promoting shoreline stabilization and the protection of
aesthetic and environmental quality. Among other things, the
regulations address the location, length, height, and maximum
size of docks. The SMP further limits what can be constructed
between an elevation of 795 and 800 FMSL. Structures located
within this zone are limited 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.
Pressls own a parcel of land on Smith Mountain Lake. Their
property is located in Lakeland Park, Gills Creek Magisterial
District, Franklin County, Virginia. The Pressls'
property consists of 2.663 acres with 1/2 acre, more or less,
below the Project boundary of 800 FMSL. APCO had previously
obtained easement rights over the Pressls' property
pursuant to a Flowage Right and Easement Deed dated April 18,
1960, by and between APCO and the Pressls'
predecessors-in-title. The Flowage Right and Easement Deed
provide APCO with:
[T]he right to enter upon said premises at any time and from
time to time and, at [APCO's] discretion, to cut, burn
and/or remove therefrom any and all buildings, structures,
improvements, trees, bushes, driftwood and other objects and
debris of any and every kind or description which are or may
be located on the portion of said premises below the contour
the elevation [sic] of which is 800 feet.
[Pressls have] the right to possess and use said premises
[subject to the flowage easement] in any manner not
inconsistent with the estate rights and privileges herein
granted to [APCO], including (a) the right to cross said land
to reach the impounded waters for recreational purposes . . .
Compl. ¶ 16. Since purchasing the property, the Pressls
have sought to construct a dock to access the waters of Smith
Mountain Lake. However, APCO has informed the Pressls that it
has the ability to control how they use the property below
the 800 foot contour level of their property. Specifically,
APCO has advised the Pressls that, as a condition for the
building of the dock, they must execute an Occupancy and Use
Permit (" Permit" ). Compl. ¶ 19 (Permit
attached as Compl. Ex. G). Due to this demand and its
obligations, the Pressls filed this action seeking
a.Motion to ...