                                UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            3
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

                                              5
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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