Sherwood v. Tenn. Valley Auth.

DONNA W. SHERWOOD, et al., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.

No.: 3:12-CV-156-TAV-HBG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

July 31, 2017

MEMORANDUM OPINION

This civil action is before the Court on the following motions: (1) defendant's Motion for Judgment in Plaintiffs' Favor [Doc. 378]; (2) plaintiffs' Motion for Sanctions and an Evidentiary Hearing [Doc. 397]; (3) plaintiffs' Motion for Discovery [Doc. 399]; (4) plaintiffs' Motion for Leave to File Fourth Amended Complaint and to Join Additional Plaintiff [Doc. 401]; (5) defendant's Motion for Entry of Order or Hearing [Doc. 405]; (6) plaintiffs' Motion for Approval to File FOIA Response re Woodward Instructions or Lack of Instructions [Doc. 408]; and (7) plaintiffs' Motion for Approval to File FOIA Response re TVA's Instructions to Suspend the 15-Foot Rule and/or Revert to Previous Practices [Doc. 424]. The parties filed several responses and replies in connection with the pending motions [Docs. 392, 394, 400, 404-1, 407, 410, 413-1, 414-17]. The Court held a hearing to address these motions on June 26, 2017 [Doc. 421].

For the reasons discussed herein, the Court will: (1) grant in part and deny in part defendant's Motion for Judgment in Plaintiffs' Favor [Doc. 378]; (2) deny plaintiffs' Motion for Sanctions and an Evidentiary Hearing [Doc. 397]; (3) deny plaintiffs' Motion for Discovery [Doc. 399]; (4) deny plaintiffs' Motion for Leave to File Fourth Amended Complaint and to Join Additional Plaintiff [Doc. 401]; (5) grant in part and deny in part defendant's Motion for Entry of Order or Hearing [Doc. 405]; (6) deny plaintiffs' Motion for Approval to File FOIA Response re Woodward Instructions or Lack of Instructions [Doc. 408]; and (7) deny plaintiffs' Motion for Approval to File FOIA Response re TVA's Instructions to Suspend the 15-Foot Rule and/or Revert to Previous Practices [Doc. 424].

I. Background

This litigation started in 2012, when plaintiffs sued defendant for violating the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370m-12. Plaintiffs alleged that defendant violated NEPA by not preparing and publishing an environmental impact statement ("EIS") prior to implementing a new policy, referred to in this litigation as the "the 15-foot rule." See Sherwood v. Tenn. Valley Auth., 842 F.3d 400, 402 (6th Cir. 2016). After several rounds of litigation in this Court and in the Court of Appeals for the Sixth Circuit, this matter is back before the Court on remand from the Sixth Circuit [Doc. 356]. The Court presumes familiarity with this action based on the Court's previous opinions and orders as well as the Sixth Circuit's opinions. The Court will, however, provide some background as to the most recent appeal and the issues currently pending before the Court.

When this matter was on remand before this Court after the first appeal, defendant moved to dismiss the case as moot [Doc. 232], asserting that it had suspended use of the fifteen-foot rule and reverted to the right-of-way maintenance practices that were utilizedprior to the introduction of the fifteen-foot rule [Doc. 276 p. 2]. Defendant provided the Court with declarations from Jacinda B. Woodward, Senior Vice President of Transmission and Power Supply of TVA, attesting to the suspension of the rule [Docs. 233-1, 240-1]. The Court granted defendant's motion and dismissed the case as moot [Docs. 276, 277], and plaintiffs appealed that decision to the Sixth Circuit [Doc. 286].

On this second appeal, the Sixth Circuit provided that even if defendant had formally abandoned the 15-foot rule, "evidence in the record suggests that [defendant] has not reverted back to the right-of-way practices it used before adopting the rule" [Doc. 356 p. 8]. The Sixth Circuit determined that some evidence in the record suggested that the 15-foot rule has some continuing effect and, therefore, that the case was not moot [Id. at 8-9]. In making this finding, the Sixth Circuit relied on declarations by Billy Anderson, Shiras Walker, and Anthony King, which plaintiffs submitted [See id. at 6-11]. Furthermore, the Sixth Circuit found that defendant's "promise to perform NEPA review before changing its buffer-zone maintenance policies is not an adequate assurance that its challenged conduct will not recur" [Id. at 10]. The Sixth Circuit further determined that "the record shows more than a 'mere possibility' that defendant's challenged conduct will recur (or is continuing)" [Id.]. The Sixth Circuit then remanded the case, providing that this Court should require defendant to compile an administrative record of its decision to implement the 15-foot rule [Id. at 11].

Defendant filed its administrative record on February 13, 2017 [Docs. 360-76]. On March 10, 2017, defendant filed a Confession of Judgment in Plaintiffs' Favor [Doc. 377]and a Motion for Judgment in Plaintiffs' Favor [Doc. 378]. In defendant's confession of judgment, defendant consents to entry of a judgment declaring that its implementation of the 15-foot rule violated NEPA [Doc. 377 p. 1]. Defendant also informs the Court that it has published notice in the Federal Register that it is preparing a programmatic, system-wide EIS of its transmission line right-of-way vegetation maintenance practices. One of the alternatives defendant will study in that EIS encompasses the level of tree clearing specified by the challenged 15-foot rule. Defendant also confesses judgment in plaintiffs' favor and consents to entry of judgment as requested in plaintiffs' controlling complaint. Defendant attached a proposed judgment to its motion for the Court's review [Doc. 379-1].

In response, plaintiffs argue that the initial proposed injunction, although it mirrors the relief requested in the complaint, does go far enough in light of the defendant's actions throughout the pendency of this litigation. Specifically, plaintiffs point out that defendant previously informed the Court that it had suspended the 15-foot rule and reverted to its past vegetation management practices, when it had not in fact done so. Since defendant's initial filings asking the Court to issue judgment in plaintiffs' favor, the parties have presented several versions of proposed injunctions for the Court's review. While the parties have narrowed the issues the Court must determine regarding the terms of the injunction, the parties have not agreed on several terms of the injunction.

Plaintiffs have also filed a motion to amend their complaint to add an additional plaintiff [Doc. 401], a motion for sanctions [Doc. 397], a motion for discovery [Doc. 399],and two motions for leave to file FOIA responses [Docs. 408, 424]. Defendant also filed a motion for entry of order or hearing [Doc. 405], which essentially narrows the issues regarding the terms of the injunction. The Court will first address plaintiffs' motion to amend. The Court will then turn consider the parties' arguments regarding the terms of the injunction. Finally, the Court will address plaintiffs' motion for sanction, motion for discovery, and motion to file the FOIA response.

II. Plaintiffs' Motion to Amend

Plaintiffs move to amend their complaint to add Billy J. Anderson as a plaintiff and to seek equitable relief for him.¹ Plaintiffs assert that defendant's destruction of Anderson's orchard played a central role in the second appeal in that the Sixth Circuit recognized that defendant destroyed Anderson's orchard six months after it advised this Court that it had suspended the 15-foot rule and reverted to its prior practices. Plaintiffs seek relief for Anderson in the form of a Court order requiring defendant to "re-plant Mr. Anderson's orchard with trees mature enough to bear fruit and nuts" [Doc. 402 p. 3; see also Doc. 401-1 ¶ 157].

Aside from the situations described in Federal Rule of Civil Procedure 15(a)(1), which do not apply here, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). "The court should freely give leave," however, "when justice so requires." Id. Leave is appropriate "[i]n theabsence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss." Miller v. Calhoun Cty., 408 F.3d 803, 807 (6th Cir. 2005). Pursuant to Federal Rule of Civil Procedure 20(a)(1):

Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

Fed. R. Civ. P. 20(a)(1).

Defendant argues that the proposed amendment to add Anderson as a plaintiff and seek relief on his behalf is futile because, according to defendant, the equitable relief plaintiffs seek to add for Anderson is not available under NEPA. In considering whether the Court may order defendant to re-plant Anderson's orchard, the Court is cognizant that "[u]nless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied." Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) (citation omitted). NEPA violations are "subject to traditional standards in equity for injunctive relief," andin crafting an injunction, "court[s] must balance the equities between the parties." N. Cheyenne Tribe v. Norton, 503 F.3d. 836, 842 (9th Cir. 2007). Courts must also "give due...