Sherwood v. Tenn. Valley Auth.

DONNA SHERWOOD, VANCE SHERWOOD,JEROME PINN, ANTHONY BILLINGSLEY,JENNIFER PEET, RICHARD WILLIAMS,GERRY WILLIAMS, FRANK OAKBERG,BONNIE OAKBERG, THOMAS WARREN, JR.,JEFFREY SEE, SHEILA BOOE, HAROLD SLOVES,and FELICITAS SLOVES, Plaintiffs-Appellants. v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee

No. 13-6004

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

October 22, 2014

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0796n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

OPINION

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

PAUL MALONEY, Chief District Judge.

The Tennessee Valley Authority (TVA) provides electric power to consumers in seven states across the Southeast. In order to reliably deliver that power, TVA maintains the vegetation under and around its power line structures. Historically, TVA has removed all trees directly under its power lines, but did not cut down all of the trees in what TVA called buffer or border zones, the edges of the easements TVA possesses. In 2012, several of the plaintiffs received notices that TVA would be removing dozens of tall, mature trees from the easements over their properties. Eventually, the plaintiffs filed this lawsuit seeking an injunction to stop the removal of the trees, andraising a claim under the National Environmental Policy Act (NEPA). In response to the NEPA claim, TVA filed an administrative record for the 2012 decisions made by its staff for the routine maintenance of its power lines. In the district court and on appeal, the plaintiffs argue that TVA did not file the correct administrative record. This Court agrees and remands the matter to the district court so that TVA can correct its error.

I.

TVA was created by Congress in 1933, 16 U.S.C. § 831, et seq. (2010), and is a "wholly-owned corporate agency and instrumentality of the United States[.]" Hill v. United States Dep't of Labor, 65 F.3d 1331, 1333 (6th Cir. 1995). TVA has the authority to acquire real estate, by purchase and by condemnation, for the purpose of constructing power transmission lines along the Tennessee River and its tributaries. 16 U.S.C. § 831c(h)-(i). Rather than purchasing the property in fee simple, TVA acquired easements, securing rights to use the property for specific purposes. TVA's easements are typically between 75 and 200 feet wide. Built within those easements are approximately 15,900 miles of power transmission lines. The easements cover some 260,000 acres.

In the Third Amended Complaint, the plaintiffs allege they each possess some ownership interest in real estate, and that TVA holds easements and rights-of-way over their properties. The plaintiffs filed six easements with the complaint. R. 170-1, 170-2, 170-3, 170-4, 170-6, and 170-7. With minor and non-material differences, in each of the easements, the then-landowners "convey unto the United States of America, a permanent easement and right-of-way, for the following purposes[.]" First, the United States is granted "the perpetual right to enter" and "to erect, maintain, repair, rebuild, operate, and patrol" electric power transmission lines and all necessary appurtenances. Second, the United States is granted the "right to clear said right-of-way" and keepthe right-of-way clear. All six easements list things that may be cleared. All six easements list "brush." Four of the six easements list "trees," while the other two list "timber." All six easements also grant the United States the right to remove danger trees located beyond the limits of the right-of-way. The plaintiffs also filed an easement created by the TVA through a declaration of taking. R. 170-8. The easement-by-taking is "for electric power transmission purposes," "together with the right to clear said right-of-way and keep the same clear of brush, trees, . . . ." Id. PgID 24511.

TVA has established a vegetation-management program for its easements. TVA maintains the easements by keeping the area beneath the transmission lines clear, while leaving a narrow buffer zone on either side of the easement. But each easement is not re-cleared every year. TVA's power transmission lines have been divided into multiple sectors, and each sector is managed by a right-of-way specialist. The sectors are on five-year cycles for tree removal and three-year cycles for mowing or spraying the undergrowth. In the 1997 and 2008 Line Maintenance Manuals, TVA states that "[t]all growing trees on TVA ROW [(right-of-way)] will be cut. Low-growing trees, shrubs, hedges, etc., may be allowed to remain on the ROW provided they are not hazardous or detrimental to maintenance." R. 50-1 PgID 1474 (2008); R. 50-3 PgID 1482 (1997). The phrases "tall growing trees" and "low growing trees" are not defined. However, the 2008 Line Maintenance Manual establishes that the minimum distance between a tree or part of a tree and a line conductor for power lines over 200 kV is 10 feet.¹ R. 50-1 PgID 1470.

Although the TVA has been maintaining the vegetation in its easements for more than seventy years, it has not removed all of the taller, mature trees located within its rights-of-way. Theright-of-way specialists have been afforded discretion in deciding which, if any, trees to remove. Budget constraints have further restricted the discretion afforded the specialists. As a result, many tall trees remain standing within TVA's easements. TVA concedes that the "low-growing trees" policy "was sometimes not strictly followed[.]" Regg Dec. R. 50 PgID 1457. TVA has also made exceptions when landowners have promised to control the height of the trees. Id. PgID 1458.

In recent years, the wisdom of allowing these taller trees to grow within electric transmission line easements was called into question. In August 2003, approximately 50 million people in the Midwest and Northeast portions of the United States suffered a power outage for up to two days. It was later determined that the blackout was caused by a tree that came into contact with power lines. This event set in motion a review of transmission line maintenance programs. According to several documents in the record, in 2007, the North American Electric Reliability Corporation (NERC), a government-certified industry organization that sets reliability standards for the transmission of electricity, established rules for vegetation management around electric transmission lines.²

According to public statements made by TVA, TVA altered its vegetation-management practices in order to comply with the new NERC rules and to avoid paying fines and penalties. Although the new rules apply only to transmission lines carrying a specific voltage and higher, TVA opted to apply the rules uniformly to all of its transmission line easements. The justification for the change, and the contents of this revised approach to vegetation management, were summarized ina March 2012 letter authored by Robin Manning, executive vice president and chief energy transmission officer for TVA.

Inadequate right-of-way maintenance activities have led to utilities being fined by NERC and FERC, typically in the hundreds of thousands of dollars, with other remediation costing millions of dollars. These additional actions are a consequence of the 2003 blackout.

In designing a transmission line vegetation maintenance program that addresses the concerns raised by NERC and FERC, TVA has implemented a program that reduces the risk of trees contacting the transmission lines, which helps maintain public safety and system reliability, and avoids potential financial penalties. Our policy requires TVA to cut down all trees 15 feet or higher or ones that have the potential to grow taller than 15 feet, to ensure power lines are not affected.

Although there are some utilities that allow the planting of taller trees within the right-of-way, it is generally not compatible with high reliability. Expensive maintenance programs are needed to manage taller-growing trees. The frequent pruning encourages rapid regrowth, and trees that need to be managed can easily be overlooked in a system as large as TVA's with almost 16,000 miles of transmission line.

It is important that TVA can be penalized, as much as $1 million for each day we allow even a single tree to encroach with in a specified distance of power lines. Therefore, TVA has adopted an aggressive vegetation management program based on the wire zone/border zone method (see attached document entitled "Understanding TVA's Transmission Vegetation Management").

• TVA may allow low-growing species (less than 15 feet at mature height) to be planted in the border zone (within the right-of-way, but not directly under transmission structures or conductors) next to transmission lines, but express TVA approval is required in each case. However, narrow rights-of-way or easements may not allow for a border zone.

• TVA no longer allows taller, incompatible (species that exceed 15 feet mature height) trees within its rights-of-way when requested, even if landowners say they will control tree height.

• TVA is removing, sometimes extensively, incompatible species from its rights-of-way.

R. 170-28 PgID 24542-43.

Other documents in the record support the conclusion that TVA recently altered its vegetation-management practices. In 2012, TVA placed a document on its website titled "Why TVA Has Changed the Way It Manages Vegetation in Its Transmission Rights of Way?" R. 29-5 PgID 510-11. When TVA made a decision to remove trees from within its easements, TVA would give the property owner a letter and would attach the same information that was posted to the website. R. 23-8 PgID 403-04. Although the two documents are formatted differently, the content of the two documents is identical, and both include language similar to that found in Manning's letter. TVA states it has "implemented a more aggressive transmission right of way vegetation management program involving removal of incompatible plants from the...