VA Timberline, L.L.C. v. Appalachian Power Company , 343 F. App'x 915 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1248
VA TIMBERLINE, L.L.C.,
Plaintiff - Appellant,
v.
APPALACHIAN POWER COMPANY; FRANKLIN REAL ESTATE COMPANY,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:06-cv-40026-jct-bwc)
Submitted: August 20, 2009 Decided: August 31, 2009
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
James F. Watson, Pavlina B. Dirom, CASKIE & FROST, Lynchburg,
Virginia, for Appellant. Frank K. Friedman, William B. Poff,
Matthew P.W. Pritts, WOODS ROGERS, PLC, Roanoke, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
VA Timberline, L.L.C. (“Timberline”) appeals from the
district court’s order granting summary judgment in favor of the
Defendants, Appalachian Power Company (“APCO”) and Franklin Real
Estate Company (“Franklin”). Finding no error, we affirm.
The uncontested facts are as follows: APCO operates
the Smith Mountain Hydroelectric Project under a license issued
to APCO in 1960 by the Federal Power Commission, now the Federal
Energy Regulatory Commission (“FERC”). The boundary of the
project at Leesville Lake reaches 620 feet above mean sea level
(“fmsl”). The FERC license requires APCO to obtain and retain
title to the project lands in fee or retain rights to the lands
sufficient to operate the project.
APCO originally obtained rights to the land at issue
in 1962 pursuant to an easement in which it obtained the right
to flood the land below the 620 fmsl contour line and the right
to enter upon the 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 . . . and other
objects . . . below the contour the elevation of which is 620
feet.” At that time, the original owner transferred the
property above and below the contour line by deed to Franklin.
The transfer of ownership was explicitly made subject to APCO’s
rights under its easement.
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Franklin transferred ownership of the property above
the contour line to a third party and in the deed granted an
express easement allowing the construction and maintenance of
boat docking and mooring facilities below the contour line. The
easement was expressly made subject to “the terms and conditions
of that certain license issued by the Federal Power Commission
to [APCO] under date of April 25, 1960, and any amendments
thereof or supplements thereto, authorizing the construction,
operation and maintenance of [APCO]’s hydro electric development
known as the Smith Mountain Combination Project.” In addition,
APCO joined the deed for the purpose of quitclaiming its rights
to remove, in its discretion, any and all structures located
below the 620 fmsl contour line. The easement granted in the
deed stated that APCO’s consent, i.e. APCO’s release of its
rights, also was subject to the terms and conditions of its FERC
license. Subsequently, Timberline obtained ownership of the
land above the contour line transferred by Franklin in this
deed.
In 1998, FERC delegated to APCO the authority to grant
permission for certain uses of project lands, including the
construction of residential boat docks without first obtaining
FERC approval. In 2005, FERC approved a Shoreline Management
Plan (“SMP”) submitted by APCO that divided the shoreline in the
project boundaries into designated zones and detailed what
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construction would be permissible in each zone. In its order
approving the SMP, FERC incorporated the plan into APCO’s
license.
In March of 2005, Timberline applied to APCO for
permission to build boat docks on the land below the contour
line, owned by Franklin and on which Timberline had an easement
allowing for the construction of docks. APCO denied permission
because Timberline’s proposed construction was inconsistent with
the SMP. Timberline then filed an action seeking a declaratory
judgment construing the rights under the deeds in the parties’
chains of title and under APCO’s federal license. See
Appalachian Power Co., 112 FERC ¶ 61,026 (FERC 2005).
After both parties moved for summary judgment, the
district court granted summary judgment in favor of the
Defendants, concluding that APCO’s release of its rights under
its easement was expressly subject to the terms and conditions
of its federal license and, therefore, that APCO had retained
sufficient rights to maintain control over the project lands
through its license.
On appeal, Timberline contends that APCO does not have
the authority to regulate the proposed construction because APCO
failed to retain sufficient property rights to control the
project lands when APCO quitclaimed its rights to remove any and
all structures below the contour line. We disagree.
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We review de novo a district court’s order granting
summary judgment. Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). Under the Federal
Power Act, FERC has the power to issue licenses to private
parties to construct and operate dams and similar projects. See
16 U.S.C.A. § 797(e) (West 2000 & West Supp. 2009).
Furthermore, FERC may delegate its responsibility to ensure that
the uses of the project lands are consistent with the public
interest to the licensees. See Union Electric Co., d/b/a
AmerenUE, 90 FERC ¶ 61,249, at *61833 (FERC 2000). Here, FERC
delegated the regulation of the project lands at issue to APCO
in 1998 and further delegated its responsibilities to APCO when
FERC adopted the SMP.
However, FERC’s authority to regulate through the
licensee is also conditioned upon the licensee obtaining and
maintaining sufficient property rights over the project lands to
be able to accomplish these goals. See id. at *61833, n.5(noting that FERC requires all licensees to acquire and retain
all necessary ownership of or rights to project property,
through standard Article 5 of each license); see also
Appalachian Power Co., 112 FERC ¶ 61,026, at *61,189 (APCO’s
license requires APCO to retain “all interests in non-federal
land and other property necessary or appropriate to carry out
project purposes”). Here, APCO retained sufficient property
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rights over the project lands. The deed in which APCO
quitclaimed its right to remove any and all boat docking from
the land below the contour line made clear that APCO’s release
of its rights was subject to the terms of its federal license.
Therefore, APCO’s release of its rights was limited by its
responsibility under its federal license to retain sufficient
property rights in the project lands to be able to regulate the
uses of the lands. The quitclaim, therefore, merely clarified
that the construction of some structures on the land was
permissible, to the extent such construction was consistent with
APCO’s federal license. *
Accordingly, we affirm the district court’s grant of
summary judgment for the Defendants. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
*
Since we conclude that APCO did retain sufficient property
rights to manage the project, we need not reach the question of
whether APCO’s flowage easement alone is a sufficient property
interest to regulate the land.
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