Sigman v. Tenn. Valley Auth.

DENNIS SIGMAN, D.D.S., Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.

No. 1:16-0020

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE COLUMBIA DIVISION

October 21, 2016

Judge Sharp

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is a case about the future of fourteen trees. The trees are located on property owned by Plaintiff Dennis Sigman. Defendant Tennessee Valley Authority ("TVA") has evidenced the intention to cut down the trees because they allegedly present a danger to its power line which runs behind Plaintiff's home. The central issue in this case is whether the TVA's decision to remove the trees was based on the now-abrogated "15 foot rule."

A bench trial was held on Plaintiff's Complaint in Columbia, Tennessee on August 1, 2016, after which the parties were afforded the opportunity to submit proposed findings of facts and conclusions of law, and post-trial briefs. The last of those filings was made on October 6, 2016.

After reviewing the parties' proposed findings and conclusions, their arguments, the record, the exhibits received in evidence, and the testimony of the witnesses, after considering their interests and demeanor, the Court enters the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Except where the Court discusses different testimony on a specific issue, any contrary testimony on that matter has been rejected in favor of the specific fact found. Further, the Court omits from its recitation facts it deems to be immaterial to the issues presented. Finally, to the extent that a finding of fact constitutes a conclusion of law, the Court so concludes; to the extent that a conclusion of law constitutes a finding of fact, the Court so finds.

I. Findings of Fact

1. Plaintiff is a dentist who practices in Lewisburg, Tennessee, and resides at 2428 Hidden Lake Circle in Columbia, Tennessee. His residential property, a 2.2-acre wooded lot with a house and a pool, was purchased by Plaintiff in 2000 or 2001.

2. On November 23, 1939, the United States of America, for the use of the TVA, acquired an easement (or right-of-way) at the back of the property by virtue of a Grant of Transmission Line Easement.

3. The easement is properly recorded in the Deed Book in the Maury County, Tennessee Registrar's office, and was so at the time Plaintiff purchased the property.

4. The easement is 150' wide, one side of which runs along the rear of Plaintiff's property, and extends into large areas of Plaintiff's backyard. Part of the swimming pool on the property sits in the right-of-way, as does the corner of the garage.

5. The Grant of Transmission Line Easement provides

a permanent easement and right-of-way for the following purposes, namely: the perpetual right to enter and to erect, maintain, repair, rebuild, operate, and patrol one or more electric power transmission lines, and one or more telephone and/or telegraph lines, including the right to erect such poles and other transmission line structures, wires, cables, and any necessary appurtenances, the right to clear said right-of-way and to keep the same clear of brush, timber, inflammable structures, and fire hazards; and the right to remove danger tees, if any, located beyond the limits of said right-of way; all over, upon, across, and under the [150-foot wide right-of-way].

(Govt. Exh. 4 at 1).

6. Pursuant to the easement, the TVA erected a 161,000 volt electrical transmission line within the right-of-way as part of its construction of the Wheeler to Maury transmission line. The transmission line and an eighty-foot transmission tower (Tower 287) had been constructed and were in existence at the time Plaintiff purchased the property. The base of the tower sits approximately 13 feet from Plaintiff's backyard fence.

7. Three are three zones in the right-of-way. The clear-cut zone is directly below the power line and extends 50 feet out; the buffer zone is the area between 50 and 75 feet from the center line, and the danger tree zone is the area extending beyond 75 feet from the center line.

8. In 2003, TVA performed right-of-way vegetation maintenance on the property during which it clear cut all trees and vegetation in the right-of-way, including a stand of pines. The TVA also trimmed the backside of a 100-year old oak that was approximately 4 feet from the swimming pool, and topped a nearby maple tree.

9. In February 2016, Plaintiff found a tag on his front door indicating that the TVA had scheduled upcoming right-of-way maintenance on his property. Plaintiff called the TVA and asked to speak to a forester to discuss the matter.

10. On March 4, 2016, Plaintiff met with William Sanders on the property regarding vegetation maintenance. Mr. Sanders is the TVA forester responsible for the TVA Centerville section. Plaintiff claims that Mr. Sanders told him that "we're gonna have to cut everything." (Tr. Trans. at 31). No decision was made regarding removal of trees on that day, but a follow-up meeting was arranged.

11. On March 11, 2016, Plaintiff met with Mr. Sanders and his boss, John Dooley, the TVA right-of-way manager for the west service area, which includes Maury County. Also present wasAlia Nash, Plaintiff's personal assistant, and a number of neighbors who had heard about the meeting. This was the first and only time (prior to trial) that Plaintiff had spoken with Mr. Dooley.

12. The March 11, 2016 meeting was not amicable. Plaintiff claims that immediately after Mr. Dooley got out of his truck, Mr. Dooley declared that they were "going to have some ground rules here," (Docket No. 32) to which Plaintiff demurred. Things did not get better.

13. Plaintiff claims that when Mr. Dooley went into the backyard, he declared, "all these trees are over 15 feet," and "[t]hey've got to go," (id.) a statement Mr. Dooley repeated in various iterations during the course of the meeting. According to Plaintiff the 15-foot issue "was pretty much a big deal with" Mr. Dooley, (id.). Plaintiff also claims that when Mr. Dooley saw the pool with the adjacent oak tree he stated "this is all your fault," even though the pool and oak existed long before Plaintiff purchased the residence.

14. Ms. Nash was present in the backyard when Mr. Dooley allegedly made the "15 foot" statements. She claims to have asked, "are you saying that any tree that is 15 feet or larger has to be cut down?", to which Mr. Dooley responded, "that is correct." (Id.). Mr. Sanders was also in the backyard for a portion of the time, but did not hear Mr. Dooley say anything to the effect of any trees over 15 feet having to be removed.

15. Mr. Dooley concedes that he did not set the proper tone at the start of the meeting, but was taken aback by the number of people present. He does not recall telling Plaintiff that he would be applying the 15-foot rule to the trees on the property.

16. Having had the opportunity to listen to the conflicting testimony, the Court finds that, while tree heights may have been discussed during the course of the conversation between Mr. Dooley and Plaintiff, and that 15-foot may have been mentioned to provide context and perspectiveregarding the dimension of trees, Mr. Dooley did not invoke the 15-foot rule, or specify to either Plaintiff or Ms. Nash that any tree over 15 feet would have to come down. In making this finding, the Court recognizes Plaintiff's position that Mr. Dooley's testimony was at best equivocal because, in response to the question, "Did you tell Dr. Sigman that you were applying the 15-foot rule with respect to trees on his property?", Mr. Dooley replied, "Not to my knowledge." (Tr. Trans. at 115). However, the Court's finding is based upon the entirety of Mr. Dooley's testimony and his credibility.

17. It is unclear how long the meeting on March 11, 2016 lasted, but it ended when Plaintiff walked away from the discussion dissatisfied. Towards the end of the meeting, Mr. Sanders had a private conversation with Plaintiff. During that conversation, Plaintiff told Mr. Sanders that if Mr. Dooley came back to the property again, he would meet him with a Glock firearm.

18. At the time of the March 11, 2016 meeting, the TVA right-of-way boundaries had not been marked, nor had any trees been identified for removal because Plaintiff had not allowed TVA contractors access to the property.

19. A follow-up meeting was held on March 16, 2016. In attendance was Plaintiff, Mr. Sanders, and Lonnie Cable, the foreman of a tree removal contractor. Assisted by a laser range finder, Mr. Sanders marked the right-of-way with small white flags. He discussed the trees with Plaintiff and identified 24 trees in the right-of-way, or in the danger zone immediately adjacent thereto. Of those, Mr. Sanders identified 14 trees that would be cut down, and 10 trees that would remain standing. Those that would not be cut were marked by green survey tape.

20. Mr. Sanders made the initial agency decision to cut trees based upon 2008 guidelines, which, in turn, were modeled after rules promulgated in 1997. He did not use the 15-foot rule inmaking his decision, nor was he instructed by Mr. Dooley to use that rule.

21. The 2008 guidelines provide that, with regard to "161-kV transmission lines," where the TVA has "150 feet of easement, [it] will re-clear 100 feet, that is, 50 feet from centerline to outside edges, leaving a 25-foot buffer zone on each side." (Govt. Ex. 2 at 34). The guidelines also provide that "dangerous trees" off the right-of-way and "[t]all growing trees" on the right-of-way "will be cut." (Id. at 35). These, however, are the "minimum requirements" under the guidelines, and "[t]he whole easement may be re-cleared if TVA has the perpetual rights and it is the desire of management.'" (Id. at 34).

22. Plaintiff requested that the TVA reconsider the March 16, 2016 decision. Mr. Dooley, as the designated agency official, reconsidered the decision, and, as a part of the process, arranged for TVA...