Sherwood v. Tenn. Valley Auth.

• Decision Date: 19 February 2013
• Docket Number: No. 3:12–CV–156.,3:12–CV–156.
• Parties: Donna W. SHERWOOD, et al., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

925 F.Supp.2d 906

Donna W. SHERWOOD, et al., Plaintiffs,

v.TENNESSEE VALLEY AUTHORITY, Defendant.

No. 3:12–CV–156.

United States District Court, E.D. Tennessee.

Feb. 19, 2013.

Sheila Marie Needles, Donald K. Vowell, Vowell And Associates, Knoxville, TN, for Plaintiff.

Brent R. Marquand, Edwin W. Small, Richard E. Riggs, David D. Ayliffe, Tennessee Valley Authority, Knoxville, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN, Chief Judge.

This civil action is before the Court on the following motions: defendant's Motion to Dismiss Counts I, III, and IV of the Second Amended Complaint [Doc. 65],¹ Plaintiffs' Motion to Certify Question of State Law to the Tennessee Supreme Court [Doc. 81],² Plaintiffs' Motion for Leave to File Third Amended Complaint and to Join Additional Plaintiffs [Doc. 83],³ and defendant's Motion to Dismiss Count I of the Second Amended Complaint for Lack of Subject Matter Jurisdiction [Doc. 132]. ⁴ The Court has considered the relevant filings with respect to each motion as well as the relevant law, and for the reasons that follow, the Court will GRANT defendant's Motion to Dismiss Counts I, III, and IV of the Second Amended Complaint [Doc. 65], DENY Plaintiffs' Motion to Certify Question of State Law to the Tennessee Supreme Court [Doc. 81], GRANT IN PART AND DENY IN PART Plaintiffs' Motion for Leave to File Third Amended Complaint and to Join Additional Plaintiffs [Doc. 83], and DENY defendant's Motion to Dismiss Count I of the Second Amended Complaint for Lack of Subject Matter Jurisdiction [Doc. 132].

I. Background⁵

Plaintiffs commenced this action on or about April 3, 2012, as a result of TVA's allegedly new vegetation management policy, which plaintiffs submit requires the removal of all trees, by cutting or using herbicide, that have a mature height of fifteen feet or taller within its 15,900 mile transmission line right-of-way [Doc. 1].⁶ Plaintiffs are citizens and residents of Knox, Hamilton, and Hamblen County, Tennessee [Doc. 62 ¶ 1]. Some plaintiffs—Donna W. Sherwood, Vance Sherwood, and Jerome Pinn—are homeowners in a residential subdivision in Knox County known as Westminster Place [ Id. ¶¶ 1, 4]. Plaintiffs Anthony Billingsley and Jennifer Peet are homeowners in the Spring Valley residential subdivision in Hamilton County [ Id.]. Defendant Tennessee Valley Authority (“TVA”) “maintains high voltage electric transmission lines to conduct electricity from sites where the electricity is generated to sites where the electricity is consumed, throughout a seven state region[,] including Tennessee[,]” Alabama, Mississippi, Kentucky, Georgia, North Carolina, and Virginia [ Id. ¶¶ 6, 11].

Plaintiffs allege that TVA maintains the transmission lines on both public property as well as private property pursuant to easements [ Id. ¶ 6]. In particular, plaintiffs claim “predecessors in interests of the Westminster Place” granted TVA an easement in 1937 that allows TVA “to use the right of way across Westminster Place for the sole purpose of maintaining and operating an electric power transmission line and telephone/telegraph lines” (the “1937 Easement”) [ Id. ¶ 7]. A similar easement was executed with respect to the Spring Valley property in 1963 (the “1963 Easement”) [ Id. ¶ 8]. According to plaintiffs, the easement agreements allow TVA “to clear timber on the subject properties, but only for purposes related to constructing, maintaining and operating an electric power transmission line or telephone line” [ Id. ¶ 10].

Plaintiffs allege that TVA has recently adopted a new policy, pursuant to which it will “cut, clear and/or remove any and all trees on its easement/rights of way that are 15 feet or tall or taller, or might grow to be more than 15 feet tall, throughout the seven state region that it serves” whether or not they “interfere with or pose a danger to the transmission lines” [ Id. ¶¶ 11–12]. According to plaintiffs, this new policy will “effectively result in a clear-cut of all trees in the TVA rights-of-way, because there are very few naturally occurring trees in the 7 state region that reach a mature height of no more than 15 feet” [ Id. ¶ 32]. They submit that TVA will cut down “millions of trees” pursuant to the new policy [ Id. ¶ 36]. Plaintiffs allege this is in contrast to a policy in place since 1933, pursuant to which TVA allowed property owners to trim or prune their trees to maintain a safe distance between them and the transmission lines, and if the property owners did not do so, TVA would remove them [ Id. ¶ 55].

With respect to plaintiffs' properties in particular, plaintiffs assert that TVA intends on removing approximately 135 trees in Westminster Place, including 89 trees located near a “shaded pond ecosystem[,]” as well numerous other trees [ Id. ¶¶ 13, 15]. It is alleged that none of these trees pose a present danger to the transmission lines, and any danger could be “eliminated by reasonable trimming” [ Id. ¶¶ 17–20; see also id. ¶¶ 25–26, 33, 38–39]. Also, plaintiffs state that many of the trees subject to the new policy have been present for decades [ Id. ¶ 39].

Plaintiffs claim the effect of the new policy will be to diminish the utility and value of their property [ Id. ¶¶ 27–29]. They also claim the removal of trees will destroy natural barriers or buffers between residential neighborhoods and businesses and “noisy or intrusive man-made structures” [ Id. ¶ 34]. According to plaintiffs, TVA has no plans on replanting any trees or remediate, except where required by law, and so the burden to do so will fall on the landowners [ Id. ¶ 40].

In addition, plaintiffs claim that the use of herbicides to clear the trees will be damaging in that the herbicides will “find their way into the Tennessee River Valley water table” and could cause birth defects [ Id. ¶ 43]. The removal of trees, according to plaintiffs, will also destroy “hundreds of thousands, if not millions, of birds' nests” and have an adverse effect upon migratory birds [ Id. ¶¶ 44–50]. Likewise, the implementation of the alleged new policy will damage the ecosystem at Westminster place and other wetland areas [ Id. ¶¶ 51–52]. Plaintiffs further claim the cutting of trees will “lead to a material increase in carbon dioxide (CO2) in the atmosphere, doing damage to the environment” and damage the groundwater ecosystem because forests “provide natural filtration and storage systems that process nearly two-thirds of the water supply in the United States” [ Id. ¶¶ 58–59].

In light of these allegations, plaintiffs bring four claims, designated as “counts”: an injunction based upon common law (easements, trespass, conversion of property, and taking of property without compensation) (“Count I”); declaratory and injunctive relief based upon defendant's failure to make the environmental impact statement required by the National Environmental Policy Act (“NEPA”) prior to implementing the new policy (“Count II”); declaratory and injunctive relief under the Administrative Procedure Act (“APA”) for defendant's failure to engage in notice and comment rulemaking (“Count III”); and declaratory and injunctive relief under the APA for arbitrary and capricious action (“Count IV”) [ Id. ¶¶ 94–125]. Plaintiffs also seek to certify their claims as a class action [ Id. ¶¶ 126–136].

II. Defendant's Motion to Dismiss Count I of the Second Amended Complaint for Lack of Subject Matter Jurisdiction [Doc. 132]

In Count I of the second amended complaint, plaintiffs claim that TVA's “ ‘new policy’ and proposed cutting of the trees at the plaintiffs' properties, and any common areas ... exceeds the scope and purpose of the easement, violates the plaintiffs' rights, and would constitute a trespass, a private nuisance, conversion of property, and a taking of property without compensation” [Doc. 62 ¶ 94]. Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, TVA moves the Court to dismiss Count I for lack of subject matter jurisdiction [Doc. 132]. As grounds, TVA contends that Count I was not, but should have been, brought under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a (2006), and even if it had been, it would be barred by the QTA's twelve-year statute of limitations [ Id.].

A. Standard of Review

A complaint may be dismissed pursuant to Rule 12(b)(1) for lack of jurisdiction. SeeFed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1), a motion to dismiss based on lack of subject matter jurisdiction “may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). “A facial attack is a challenge to the sufficiency of the pleading itself” and “the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994) (alteration in original) (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). “A factual attack, on the other hand, is ... a challenge to the factual existence of subject matter jurisdiction.” Id. at 598 (alteration in original). With a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citation omitted). In reviewing factual motions, “a trial court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). Regardless of the type of attack, plaintiff bears the burden of proving that jurisdiction exists. Gorno Bros., 410 F.3d at 881;Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).

B. Analysis

TVA asserts that this Court does not have jurisdiction with respect to Count I because it “constitutes a challenge...