Friends of Tims Ford v. Tennessee Valley Authority

• Decision Date: 06 November 2009
• Docket Number: No. 08-5706.,08-5706.
• Parties: FRIENDS OF TIMS FORD, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY; James H. Fyke, in his official capacity as Commissioner, Tennessee Department of Environment and Conservation, Defendants-Appellees, City of Winchester, Tennessee; Rec Development, LLC; Parcel 71-1 Dock Association, LLC; Twin Creeks Development, LLC; Rocky Top Lakeshore Development, LLC; Winchester Marina, LLC; Donald Minor, Intervening Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

585 F.3d 955

FRIENDS OF TIMS FORD, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY; James H. Fyke, in his official capacity as Commissioner, Tennessee Department of Environment and Conservation, Defendants-Appellees City of Winchester, Tennessee; Rec Development, LLC; Parcel 71-1 Dock Association, LLC; Twin Creeks Development, LLC; Rocky Top Lakeshore Development, LLC; Winchester Marina, LLC; Donald Minor, Intervening Defendants.

No. 08-5706.

United States Court of Appeals, Sixth Circuit.

Argued: June 17, 2009.

Decided and Filed: November 6, 2009.

ARGUED:

Gregory D. Buppert, Dodson, Parker, Behm & Capparella, P.C., Nashville, Tennessee, for Appellant. Harriet A. Cooper, Tennessee Valley Authority, Knoxville, Tennessee, Elizabeth P. McCarter, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellees.

ON BRIEF:

Gregory D. Buppert, Dodson, Parker, Behm & Capparella, P.C., Nashville, Tennessee, Joe W. McCaleb, Joe W. McCaleb and Associates, Primm Springs, Tennessee, Frank M. Fly, Bullock, Fly and Hornsby, Murfreesboro, Tennessee, for Appellant. Harriet A. Cooper, John E. Slater, William T. Terrell, Tennessee Valley Authority, Knoxville, Tennessee, Elizabeth P. McCarter, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellees. Clifton N. Miller, Henry, McCord, Bean, Miller, Gabriel & LaBar, PLLC, Tullahoma, Tennessee, for Intervenors.

Before: KEITH, COLE, and WHITE, Circuit Judges.

OPINION

DAMON J. KEITH, Circuit Judge.

Plaintiff-Appellant Friends of Tims Ford ("FTF") appeals from the district court's dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners' associations, who own property adjoining the Tims Ford Reservoir ("Reservoir") or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority ("TVA") and James H. Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation ("TDEC"), for alleged violations of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4331, et seq., by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan ("LMDP"), based on the Final Environmental Impact Statement ("FEIS") prepared by TVA and TDEC, and for violations of the TVA Act of 1933 ("TVA Act"), 16 U.S.C. § 831c(k)(a) and 16 U.S.C. § 831y-1, in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC. Id. Because we find that FTF has failed to demonstrate standing to bring this case, we AFFIRM the district court's decision to dismiss this action without prejudice.

I. BACKGROUND

A. Facts

TVA completed the Reservoir in 1970 for purposes of flood control, hydroelectric generation, recreation, and economic development. Over the years, transfers and sales of land for various commercial, industrial, residential and recreational uses resulted in government ownership of 6,453 acres of land at the 11,183-acre Reservoir, of which 1,854 acres were owned by TVA and 4,599 acres were owned by TDEC. In 1998, TVA and TDEC agreed by contract to create an LMDP to determine specific uses of the Reservoir. The FEIS/LMDP at issue in this case is in fulfillment of that agreement.

FTF specifically challenges the decision by TVA and TDEC to choose as its preferred alternative for development of the Reservoir, as outlined in the FEIS/LMDP, "Alternative B-1, Balanced Land Development with Conservation Partnership," which FTF asserts was not revealed nor discussed in the draft EIS ("DEIS") prepared and circulated for public comment. Alternative B-1 "was developed by modifying B," which was presented in the DEIS, "to reflect further analysis and public comment" on the DEIS. In relevant part, it created a new allocation zone, Zone 8, and opened up nine additional shoreline miles for consideration of requests for community docks. The TVA Board adopted the LMDP, as described in Alternative B-1, on August 29, 2000, and the Tennessee State Building Commission adopted the plan on September 14, 2000. TVA issued its record of decision on the LMDP on October 28, 2000, and it was published in the Federal Register on November 8, 2000.

FTF also challenges the implementation of the FEIS/LMDP in the disposition of State property. After soliciting development proposals based on a series of conservation development goals outlined in the "Concept Plan Book, Fanning Bend Conservation Development, Tims Ford Reservoir-Winchester Tennessee" ("Concept Plan Book"), TDEC disposed of a particular tract of land, Fanning Bend, for private residential development. In the Quitclaim Deed transferring Fanning Bend to the private developer, TDEC imposed certain restrictive covenants, such as prohibiting the construction of "individual or private water-use facilities" on this parcel, enforceable by the State of Tennessee, as Grantor, upon the private developer, its successors and assigns. In the instant action, FTF challenges the decision by TVA and TDEC to transfer land to a private developer and then to issue permits allowing the private developer to build nine community boat dock facilities. FTF also challenges TVA's decision to grant permits for marinas and community boat docks on Parcel 79B in violation of the zoning requirements in the LMDP/ FEIS and the TVA Act.

In sum, among numerous specific allegations, FTF alleges TVA and TDEC violated NEPA, the TVA Act, and its own rules in transferring land for permanent residential development to the benefit of private developers; implementing a procedurally deficient FEIS/LMDP; failing to create a mandatory supplemental EIS in light of the Fanning Bend development project; and granting permits for the construction of a marina, boat dock, pier and boat slips on land specifically prohibited from such use. FTF also alleges that TVA failed to supplement the FEIS/ LMDP after receiving significant new data from a "Recreational Boating Capacity Study" prepared and completed by TVA in 2002.

In support of FTF's assertion that it has standing to pursue these claims, two FTF members, Robert Taylor ("Taylor") and Steve Hammond ("Hammond"), filed affidavits alleging they are directly affected by the failure of TDEC to enforce the restrictive covenants in the deed to the developer of Fanning Bend and in the placement of two large community boat docks in Willis Lake Cove. Taylor and Hammond allege that these boat docks add significant boat traffic resulting in impaired boating safety, significantly more bank erosion, and degraded water quality. Taylor alleges that normal activity on these boat docks adds water pollution and significantly more noise, and that the docks themselves obstruct the view of the wooded shoreline.

In its request for relief, FTF seeks: (1) a preliminary injunction prohibiting TVA and TDEC from proceeding with any additional development warranting community boat dock approvals and/or permits or transfers of land for residential or commercial development on the Reservoir pending the litigation of this action; (2) a declaratory judgment stating that TVA and TDEC's implementation of the FEIS/ LMDP violates NEPA, the TVA Act, and TVA's own regulations and guidelines; (3) a declaratory judgment finding unlawful TDEC's covenant with the Grantee of the Quitclaim Deed for the Fanning Bend development in violation of the TVA Act; (4) an order requiring TDEC to enforce the restrictive covenants in the Quitclaim Deed; (5) a temporary injunction prohibiting TVA and TDEC from proceeding with any additional development of lake front property on the Reservoir until they have prepared and circulated for public and intragency comment an adequate supplemental draft and final EIS identifying and discussing in detail the environmental impacts from the proposed development of marinas, community boat docks, boat slips, increased boat traffic on the Reservoir, and permanent residences which allegedly were not anticipated in the FEIS/LMDP; and (6) costs and fees incurred in this action.

B. Procedural History

FTF initiated this lawsuit by filing a complaint on October 27, 2006 against TVA and TDEC, which the district court granted leave to amend on November 6, 2007. On March 23, 2007, the City of Winchester, Tennessee; Donald Minor; Parcel 71-1 Dock Association, LLC; REC Development, LLC; Rocky Top Lakeshore Development, Inc.; Twin Creeks Development, LLC; and Winchester Marina, LLC (the "Intervenors") filed a motion to intervene, a memorandum in support of the motion to intervene, and an attached intervening counter-complaint, alleging that FTF's lawsuit has "resulted in the stoppage and delay" of approved projects at the Reservoir and the permitting processes for the docks and other developments of interest to the Intervenors. The Intervenors further alleged in their counter-complaint that FTF's actions were "not brought in good faith and are carried out solely and intentionally for the purpose of interfering with the contractual rights of the Counter-Plaintiffs." The Intervenors sought compensatory damages from FTF in addition to attorneys' fees and costs. The motion to intervene was granted on July 5, 2007. FTF filed objections on July 19, 2007.

On May 9, 2007, TDEC filed a motion to dismiss FTF's case for lack of standing. After receiving an extension of time, FTF filed a response to TDEC's motion on June 19, 2007. On June 20, 2007, TDEC replied.

On January 14, 2008, the district court entered an "Order to Show Cause," requiring FTF to demonstrate why the instant action should not be dismissed for lack of standing. The parties (FTF and all of the defendants) were...