Sherwood v. Tenn. Valley Auth.

• Decision Date: 24 August 2015
• Docket Number: No. 3:12–CV–156–TAV–HBG.,3:12–CV–156–TAV–HBG.
• Citation: 124 F.Supp.3d 779
• Parties: Donna W. SHERWOOD, et al., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

124 F.Supp.3d 779

Donna W. SHERWOOD, et al., Plaintiffs,

v.TENNESSEE VALLEY AUTHORITY, Defendant.

No. 3:12–CV–156–TAV–HBG.

United States District Court, E.D. Tennessee.

Filed Aug. 24, 2015.

Donald K. Vowell, Vowell and Associates, Knoxville, TN, for Plaintiffs.

Edwin W. Small, Frances Regina Koho, Maria Victoria Gillen, Tennessee Valley Authority, Knoxville, TN, for Defendant.

MEMORANDUM OPINION

THOMAS A. VARLAN, Chief Judge.

This civil action came before the Court upon remand by the Court of Appeals for the Sixth Circuit [Doc. 228]. On appeal, plaintiffs argued defendant Tennessee Valley Authority ("TVA") did not file the correct administrative record for plaintiffs' National Environmental Policy Act ("NEPA") claim. In reviewing plaintiffs' NEPA claim, the Sixth Circuit found TVA had implemented a new rule relating to its vegetation-management practices, specifically that TVA would remove from its easements all trees that are taller, or will mature at a height greater than, fifteen feet (the "fifteen-foot rule"). Sherwood v. Tenn. Valley Auth., 590 Fed.Appx. 451, 456 (2014). It further found that the administrative record submitted by TVA for this Court's review did not reflect consideration of the environmental consequences related to this new rule. Id. at 459. It thus remanded the action so that TVA could compile the administrative record relating to decision challenged by plaintiffs—that is, the adoption of the fifteen-foot rule—and this Court could "evaluate the decision's propriety under NEPA." Id. at 462–63.

After the action was remanded, the Court ordered that TVA compile the administrative record for the decision challenged by plaintiffs and file that record with the Court [Doc. 230]. In lieu of filing the administrative record, TVA filed a motion to dismiss the case on the ground that plaintiffs' NEPA claim is moot [Doc. 232; see also Doc. 234]. A flurry of motions followed, including plaintiffs' motion for summary judgment [Doc. 237], plaintiffs' motion to strike [Doc. 241], plaintiff's motion for leave to file a supplemental brief with respect to the motion to dismiss for mootness [Doc. 243], plaintiffs' motion for discovery [Doc. 245], and plaintiffs' motion to file TVA's FOIA responses [Doc. 255].

The Court first addresses the issue of mootness. TVA asserts that, in 2012, it did not create a separate administrative record for the adoption of the fifteen-foot rule.¹ And given the Sixth Circuit's determination that the record TVA did submit is inadequate, TVA's Senior Vice President of Transmission suspended use of the fifteen-foot rule and reverted to the right-of-way maintenance practices that were utilized prior to the introduction of the fifteen-foot rule [Doc. 233 p. 2–4]. TVA also submits it is reviewing its practices for the clearing of trees in the buffer zones of TVA rights-of-way and will initiate a de novo NEPA review of any new buffer zone clearing practices before adopting them [Id. ]. For these reasons, TVA argues plaintiffs' NEPA claim is moot.

"Courts recognize two kinds of mootness: constitutional mootness and prudential mootness."² Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.2010) (citing cases). Constitutional mootness is rooted in Article III of the Constitution, which "confines the power of the federal courts to adjudication of ‘cases' or ‘controversies.’ " Ky. Right to Life v. Terry, 108 F.3d 637, 644 (6th Cir.1997) (citations omitted). "The [constitutional] mootness doctrine ... demands a live case-or-controversy when a federal court decides a case." Id. (citation omitted).

Prudential mootness addresses "not the power to grant relief but the court's discretion in the exercise of that power." Chamber of Commerce of U.S. v. U.S. Dep't of Energy, 627 F.2d 289, 291 (D.C.Cir.1980) ; see also Greenbaum v. E.P.A., 370 F.3d 527, 534–35 (6th Cir.2004) (applying prudential mootness doctrine). In some circumstances, a controversy, though not moot in the strict Article III sense, is "so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." Chamber of Commerce, 627 F.2d at 291. The prudential-mootness doctrine "arises out of the court's general discretion in formulating prospective equitable remedies ...," Bldg. and Constr. Dep't v. Rockwell Int'l Corp., 7 F.3d 1487, 1492 (10th Cir.1993), and generally, "applies only to requests for declaratory or injunctive relief," Rio Grande Silvery Minnow, 601 F.3d at 1122 (citations omitted).

Plaintiff asserts that the doctrine of voluntary cessation, which saves a case from mootness, applies here. Generally, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case." Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation marks and citation omitted); see also United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) ; Ammex, Inc. v. Cox, 351 F.3d 697, 704 (6th Cir.2003). When a defendant voluntarily ceases the allegedly illegal conduct, the case is not moot unless two conditions are met: "(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Davis, 440 U.S. at 631, 99 S.Ct. 1379 (1979) (ellipsis, internal quotation marks, and citations omitted).

The Supreme Court has stated, "the burden of demonstrating mootness ‘is a heavy one.’ " Cnty. of Los Angeles, 440 U.S. at 631, 99 S.Ct. 1379. "[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Despite this high burden, the Sixth Circuit has noted that "cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties" and that "such self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine." Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir.1990) (citations omitted); see also Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981–82 (6th Cir.2012) ; Rio Grande Silvery Minnow, 601 F.3d at 1116 ("In practice, however, Laidlaw's heavy burden has not prevented governmental officials from discontinuing challenged practices and mooting a case." (footnote omitted)); Fed'n of Adver. Indus. Representatives v. City of Chicago, 326 F.3d 924, 929 (7th Cir.2003) (noting that the Friends of the Earth standard "is the appropriate standard for cases between private parties, but this is not the view we have taken toward acts of voluntary cessation by government officials[,]" as "we place greater stock in their acts of self-correction, so long as they appear genuine" (citation and internal quotation marks omitted)).

While the Sixth Circuit has not expressly stated whether the voluntary cessation doctrine applies with respect to constitutional or prudential mootness, the Tenth Circuit has indicated the "analysis may be an important component of the overall analysis with respect to both constitutional and prudential mootness.... Under both mootness doctrines, courts must assess the likelihood that defendants will recommence the challenged, allegedly offensive conduct." Rio Grande Silvery Minnow, 601 F.3d at 1122 (citations omitted). The Court thus turns to plaintiff's assertion that the NEPA claim is not moot because TVA voluntarily ceased use of the fifteen-foot rule.

Courts across the country consider various factors in determining whether challenged conduct will likely recur, including the reasons for the cessation, the nature of the promise not to resume the challenged conduct, and changes in external circumstances. See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., No. C–02–2708 JCS, 2006 WL 2130905, at *4–8 (N.D.Cal. July 28, 2006) (citing cases and engaging in analysis of these factors). The Court considers these and other factors in examining whether the voluntary cessation doctrine applies.

To reiterate, the Court of Appeals for the Sixth Circuit determined TVA adopted a new vegetation-management practice, namely the fifteen-foot rule, and that the record TVA submitted in support of its adoption did not reflect consideration of the environmental consequences of the rule. Admittedly having no other record to submit for review of the adoption of the fifteen-foot rule, TVA suspended its use. The timing of the cessation, however, does not bode well for TVA. TVA did not suspend use of the fifteen-foot rule until after the Court of Appeals reversed this Court's decision granting TVA summary judgment on plaintiffs' NEPA claim and this Court ordered TVA to submit the appropriate administrative record—which, it turns out, was an order TVA could not comply with. See DeJohn v. Temple Univ., 537 F.3d 301, 309–11 (3d Cir.2008) (finding that case was not moot where defendant changed challenged policy after more than a year after commencement of litigation, near the end of discovery, and less than three weeks before dispositive motion deadline and continued to defend the constitutionality of and need for former policy); United States v. Gov't of Virgin Islands, 363 F.3d 276, 285–286 (3d Cir.2004) (finding that "timing of the contract termination—just five days after the United States moved to invalidate it, and just two days before the District Court's hearing on the motion—strongly suggests that the impending litigation was the cause of the termination"). Stated differently, the decision to suspend use of the fifteen-foot rule does not appear to have...