Sherwood v. Tenn. Valley Auth.

842 F.3d 400

Donna W. Sherwood; Jerome D. Pinn; Vance Sherwood ; Anthony Billingsley; Jennifer Peet ; Richard Eugene Williams; Frank L. Oakberg; Bonnie E. Oakberg; Gerry M. Williams; Harold P. Sloves; Felicitas K. Sloves; Sheila D. Booe; Thomas R. Warren, Jr.; Jeffrey G. See, Plaintiffs–Appellants,

v.Tennessee Valley Authority, Defendant–Appellee.

No. 15-6161

United States Court of Appeals, Sixth Circuit.

Argued: October 19, 2016

Decided and Filed: November 17, 2016

ARGUED: Donald K. Vowell, VOWELL LAW FIRM, Knoxville, Tennessee, for Appellants. Frances Regina Koho, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee. ON BRIEF: Donald K. Vowell, VOWELL LAW FIRM, Knoxville, Tennessee, for Appellants. Frances Regina Koho, Edwin W. Small, Maria V. Gillen, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee.

Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.^*

OPINION

ROGERS, Circuit Judge.

This case is before the Sixth Circuit for the second time. Sherwood and the other plaintiffs-appellants claim that TVA was arbitrary and capricious when it implemented a new, mandatory policy to cut down all trees capable of reaching fifteen feet within its right of ways without conducting any environmental review, as required by the National Environmental Policy Act. On Sherwood's first appeal, we held that TVA had not submitted an administrative record for the new policy and remanded the case so that TVA could compile the record, and so that the district court could evaluate the merits of Sherwood's NEPA claim. On remand, TVA asserted that it could not produce an administrative record and moved to dismiss the case as moot. In support, TVA submitted two affidavits stating that the responsible TVA official had suspended use of the policy. In response, the plaintiffs introduced evidence indicating that TVA had not abandoned the policy. Relying on TVA's affidavits, the district court dismissed the case as moot, which Sherwood now appeals. Because record evidence suggests that TVA's challenged policy has a continuing effect, TVA failed to prove that Sherwood's NEPA claim is moot.

I.

This litigation started in 2012, when Donna Sherwood and the other plaintiffs sued the Tennessee Valley Authority (TVA) for violating the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 to 4370m–12 (2012). Sherwood asserts that TVA implemented a new right-of-way vegetation-maintenance policy without conducting the environmental review required by NEPA. The new policy, referred to in this litigation as the fifteen-foot rule, requires TVA to cut down all trees within its right of ways that are fifteen-feet tall or have the potential to grow to fifteen feet, whereas TVA right-of-way specialists previously had discretion over which trees to remove, Sherwood v. TVA (Sherwood II ), 590 Fed.Appx. 451, 460 (6th Cir. 2014). Sherwood contends that this policy change is a "major Federal action[ ] significantly affecting the quality of the human environment," 42 U.S.C. § 4332(C), and that the agency was therefore required to make an environmental impact statement before adopting the fifteen-foot rule.

In the first round of litigation in the district court, TVA moved for summary judgment on the NEPA claim, arguing that it had not implemented a new policy.

Sherwood v. TVA (Sherwood I ), 956 F.Supp.2d 856, 866 (E.D. Tenn. 2013). TVA pointed out that its 2008 Right of Way Maintenance Re-Clearing Guidelines (2008 Guidelines) instruct right-of-way specialists to cut tall-growing trees but allow specialists to leave low-growing trees. Id. at 865–66. TVA asserted that its new "policy" was not a policy at all, but was merely guidance to right-of-way specialists that " ‘low-growing trees' ... are trees that will not exceed fifteen feet at mature height." Sherwood I , 956 F.Supp.2d at 866. According to TVA, this guidance was nothing more than a clarification of its longstanding practices. Id. Furthermore, TVA argued that its 2012 Categorical Exclusion (CE) documentation adequately considered this guidance's environmental impact. Id. at 866–67. The district court accepted these arguments and granted TVA's motion for summary judgment. See id. at 872. Sherwood appealed that judgment to the Sixth Circuit in 2013. On appeal, we held that TVA had created a new policy, and that the 2012 CE documentation was not TVA's administrative record for its decision to implement the fifteen-foot rule. Sherwood II , 590 Fed.Appx. at 460. We remanded the case to the district court to allow TVA to compile an administrative record of the decision and to allow the district court to evaluate the merits of Sherwood's NEPA claim. Id. at 462–63.

On remand, instead of compiling an administrative record, TVA filed a motion to dismiss the case as moot. In support of the motion to dismiss, TVA stated that it "did not create in 2012 a separate administrative record for the challenged decision." TVA asserted that an administrative record was not necessary, however, because Sherwood's NEPA claim was moot, as TVA had "suspended use of the 15-foot rule and reverted to the right-of-way maintenance practices that were utilized prior to the introduction of the 15-foot rule." The only evidence TVA offered to support this assertion consisted of two affidavits (the Woodward affidavits) containing declarations by Jacinda Woodward, TVA's Senior Vice President of Transmission and Power Supply, who is responsible for TVA's right-of-way maintenance program. TVA filed the first affidavit on December 5, 2014, and the second on December 23, 2014. Both state the same thing: "I have completely suspended use of the ‘15-foot rule’ in TVA transmission line rights-of-way. TVA has reverted to the right-of-way maintenance practices applicable to the wire and buffer zones on TVA rights-of-way that were utilized prior to the introduction of the 15-foot rule.... TVA is reviewing its practices for the clearing of trees in buffer zones of TVA rights-of-way, and will initiate a de novo NEPA review of any new buffer zone maintenance practices before adopting them."¹

Following TVA's motion to dismiss, Sherwood filed a motion for summary judgment, requesting declaratory and injunctive relief based on TVA's alleged NEPA violation and arguing that the case was not moot. The district court gave Sherwood permission to submit supplemental evidence in support of the motion for summary judgment. In response, Sherwood first filed an affidavit (the Anderson affidavit) containing declarations by Billy Anderson, a landowner in Paducah, Kentucky. In the affidavit and the attached exhibits, Anderson describes that before June 1, 2015, TVA had only ever trimmed one of the trees within its right of way on his property. Then, in 2014, a TVA right-of-way specialist told him that the agency would be removing all of the trees in the right of way, pursuant to the fifteen-foot rule. Although TVA did not end up removing the trees in 2014, on June 1, 2015, the agency cut down all twenty-seven trees within the right of way, including trees in both the wire zone and the buffer zone. The trees were between seven and sixty feet tall—the majority between seven and seventeen feet.

Sherwood also filed affidavits containing declarations by Shiras Walker and Anthony King. These affidavits and the accompanying exhibits describe the TVA right of way in the Land Between the Lakes National Recreation Area (LBL Recreation Area). Walker did a flyover of the area on July 23, 2015. Updates from the Recreation Area's website attached to Walker's affidavit indicate that TVA cleared a thirty-one-mile stretch of right of way in the area between February and July of 2015. Before-and-after photos, compiled from Walker's fly-over in 2015 and Google Earth images from 2013, show that the right of way's buffer zone was clear-cut and mulched. King surveyed several portions of the Recreation Area on foot on July 31 and August 1, 2015. King stated that, for the most part, "the right-of-way had been recently cleared to a width of 150 or more feet, with the buffer zones being completely eliminated."

In response to Sherwood's supplemental evidence, TVA submitted two affidavits containing declarations by Michael Buelow. Buelow was the right-of-way specialist who oversaw TVA's vegetation management on the Anderson property and the LBL Recreation Area. In the first affidavit, Buelow discusses the Anderson property: "In my opinion, all of the mature fruit trees in the wire zone had to be removed, but the row of younger, smaller fruit trees on the northern edge of the right-of-way could remain." Buelow also states that he authorized the crew to remove the smaller trees on Anderson's property only after Anderson himself requested that the trees come down "so that [TVA] would never have to come back." In the second affidavit, Buelow discusses the Recreation Area: "Several factors prompted me to decide to clear the right-of-way across Land Between the Lakes to its full width (150 feet)," including variable terrain, "considerable dense regrowth along the edges of the right-of-way," and the fact that "the transmission structures on th[e] line [were] older, wooden, ‘H-frame’ structures[,] which spread the conductors out over more area than more modern metal lattice or single pole structures." Furthermore, Buelow states that his decision "was not influenced by the rescinded" fifteen-foot rule.

After Sherwood submitted her supplemental evidence and TVA filed its counterevidence, the district court granted TVA's motion to dismiss the case as moot. Sherwood v. TVA (Sherwood III ), 124 F.Supp.3d 779, 786 (E.D. Tenn. 2015). The court first rejected Sherwood's argument that, even if TVA abandoned the fifteen-foot policy, the doctrine of voluntary cessation supported the existence of a live case or controversy. Id. at 785. The court found that TVA "made a genuine assurance that it has ceased use of the fifteen-foot rule and that it will conduct a NEPA review prior to...