Jackson County’s lawsuit against Duke Energy to seize the Dillsboro Dam and surrounding river shore through eminent domain has been kicked up to federal court.

Jackson County filed the condemnation lawsuit in state court in August, but Duke attorneys argued that federal law is in play and therefore the case belongs in federal court. While state law allows for the condemnation of land by a county to create parks and recreation facilities, Duke claims that the Federal Power Law governing utilities preempts state statutes.

The case could ultimately come down to the interpretation of both state and federal laws.

Meanwhile, the county was seeking a restraining order against Duke to keep the utility from demolishing, altering or removing any part of the dam or nearby powerhouse while waiting for the condemnation suit to be heard. Jackson County wants to transform the dam and surrounding shoreline of the Tuckasegee into a river park and promenade, replete with walking paths, benches, fishing areas and river access. The dam and powerhouse are intended as focal points and therefore must be protected through a preliminary injunction, Jackson pleaded.

But Duke says it does not plan to start demolishing the dam until January 2010.

For that reason, Jackson County’s request for a restraining order to stave of demolition is unnecessary for the time being, Judge Martin Reidinger ruled.

Jackson County can “refile such motions for a temporary restraining order as may be necessary,” Reidinger wrote in his ruling.