Appalachian Power Co. v. Nissen

151 F.Supp.3d 683

Appalachian Power Company, Plaintiff,

v.William w. Nissen II, and Lora J. Nissen, Defendants.

Civil No. 7:14-cv-000535

United States District Court, W.D. Virginia, Roanoke Division .

Signed December 18, 2015

Charles Carter Lee, Matthew Patrick Warren Pritts, Woods Rogers PLC, Roanoke, VA, for Plaintiff.

Bart Steven Fisher, Ross Alan Fisher, The Law Office of Bart S. Fisher, Washington, DC, Compton M. Biddle, Mark Daniel Kidd, Osterhoudt Prillaman Natt Helscher Yost Maxwell & Ferguson, Ryan Michael Walsh, OPN Law, Roanoke, VA, for Defendants.

MEMORANDUM OPINION

NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

I. Introduction

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 constructing a dock on Smith Mountain Lake that violates APCO's legal rights. The construction and related changes made to the land, Plaintiff argues, violate both a flowage easement that APCO holds on Defendants' property and a license order granted to APCO by the Federal Energy Regulatory Commission (“FERC”). Compl. ¶ 34. Plaintiff holds these rights because it operates the Smith Mountain Hydroelectric Project on the Smith Mountain and Leesville Lakes in Southwest Virginia. Id. ¶ 7. Plaintiff seeks the following: (1) a declaratory judgment that the Defendants are in violation of its easement; (2) an injunction requiring Defendants to repair some of the alleged damage caused by the dock's construction; and (3) an injunction to remove the dock if Defendants fail to obtain a permit from APCO approving its construction. Compl. ¶¶ 34, 38. Despite Defendants efforts to muddy the waters, this case is a simple one: APCO seeks to determine if Defendants' construction violates the terms of its FERC License and, if so, whether the flowage easement grants it sufficient property rights to halt the construction and undo certain changes made to the land.

The matter is now before me upon Plaintiff's motion for summary judgment. In its motion, APCO asks this Court enter judgment upon its request for declaratory relief. More specifically, APCO asks me to determine that: (1) it has the authority to regulate the use and occupancies of the project lands; (2) the Nissens have constructed a dock in violation of APCO's rights; (3) the Nissens have removed vegetation in violation of APCO's rights; (4) the Nissens have constructed a road in violation of APCO's rights; and (5) the Nissens have engaged in unauthorized fill activity in violation of APCO's rights. Furthermore, APCO requests that summary judgment be entered for it on the Nissens' request for declaratory relief. The Nissens object to these requests. However, they have not moved for summary judgment on their own behalf. As this opinion will explain, I will grant APCO's motion for summary judgment on every item, except I will deny APCO's request that this Court require the Nissens to act affirmatively. Such a requirement would contravene the plain language of the Flowage Easement.¹

The Court will also grant a permanent injunction in favor of APCO to prevent future violations as explained further below.

II. Background

Plaintiff APCO operates the Smith Mountain Hydroelectric Project (“the Project”) pursuant to a license issued to it by the Federal Energy Regulatory Commission (“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 simple or has obtained rights of occupancy and use via flowage rights and easement deeds. At dispute in this case is whether the property rights acquired on Defendants' property allow APCO to enforce the requirements of the FERC license.

Plaintiff manages the Project in accordance with a Shoreline Management Plan (the “SMP”), which was developed in 2003. This plan was developed through community input and FERC approved the plan. Since approval, 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 on landowners 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 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. 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.

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, 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 the Flowage Right and Easement Deed (“Flowage Easement”) dated September 12, 1960, by and between APCO and Defendants' predecessors-in-title. The Flowage Easement provides APCO with:

[T]he 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, bushes, 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.

Flowage Easement 1. The Flowage Easement also reserves certain rights to the Grantor:

Grantors shall have the right to possess and use said premises in any manner not inconsistent with the estate, rights and privileges herein granted to Appalachian, including (a) the right to cross said land to reach the impounded waters for recreational purposes and for obtaining their domestic water supply and water for their livestock and (b) the right to extend and maintain necessary fences across said land and into the impounded waters for a sufficient distance to prevent livestock from wading around said fences.

Flowage Easement 2.

Defendants have, without obtaining permission from APCO, commenced construction of a dock, removed vegetation, and constructed a road, all 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, approximately 110 feet in length, and over 26 feet in height. Plaintiff APCO alleges that the proposed dock does not conform to the requirements of the FERC License Order and integrated SMP, as it is “oversized, too long, too high, and is located too close to the neighboring property.” Compl. ¶ 31. Additionally, Defendants' road construction violated the SMP by destroying vegetation and placing additional fill within the Project boundary.

III. Flowage Easement Excerpt

NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other valuable considerations in hand paid by Appalachian to Grantors, the receipt of which is hereby acknowledged, Grantors hereby grant, bargain, sell and convey with covenants of general warranty, unto Appalachian forever the right to overflow and/or affect so much of said premises as may be overflowed and/or affected, continuously or from time to time in any manner whatsoever, as the result of the construction, existence, operation and/or maintenance of the aforesaid dam and/or power station, the impounding of the waters of said river and tributaries and/or the varying of the level of the so impounded waters by reason of the operation of said power station, including any pumping as part of such operation.

ALSO, for the above mentioned considerations, Grantors hereby grant to Appalachian 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, bushes, 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 ....

Grantors shall have the right to possess and use said premises in any manner not inconsistent with the estate, rights and privileges herein granted to Appalachian, including (a) the right to cross said land to reach the impounded waters for recreational purposes and for obtaining their domestic water supply and water for their livestock and (b) the right to extend and

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