Case of the Day – Tuesday, November 22, 2016

AND I PROMISE TO NEVER DO IT AGAIN

The law is plenty busy enough without deciding cases where the outcome does not matter. That’s what’s behind doctrine of mootness: if a case is moot, the court will dismiss it.

Grandma tells you she’s serving hamloaf for Thanksgiving? Sue the sweet old blue hair. Demand an injunction against serving anything other than a Butterball. Sadly for you, come Black Friday, granny and her white-shoe Wall Street lawyers will move that the case be dismissed as moot. The hamloaf was served (and you had seconds in spite of yourself). A court order is not going to put a drumstick on your plate. That is mootness.

But, your attorney asks, how about Christmas? Or next Thanksgiving? What if she does it again? “It won’t happen,” her $1,000-an-hour mouthpiece tells the court. “My client promises it will be turkey, yams and stuffing from here on out. And if it isn’t, the plaintiff is welcome to sue again.”

While many judges were born at night, none of them was born last night. As a result, the courts take a very skeptical view of such promises. As the Supreme Court succinctly put it, “a defendant’s voluntary cessation of a challenged practice ordinarily does not deprive a federal court of its power to determine the legality of the practice… If it did, courts would be compelled to leave the defendant free to return to its old ways. Thus, the standard for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

All of which brings us to trees, which – after all – is why you’re reading this right now. Return with us to the thrilling days of early last August, when we told you about Donna Sherwood and her neighbors down near Rocky Top. The Tennessee Valley Authority, which since Tom Edison burned out his first lightbulb, has held easements to trim trees along its power lines, had not trimmed beyond 25 feet from the centerline. If there were mature trees located beyond about 25 feet, TVA let the homeowners deal with them.

Then came the great Northeastern Blackout of August 2003, which was caused by an overtaxed transmission line near Cleveland, Ohio, sagging in the August Ohio heat, and arcing to a nearby tree. The cascading errors and failures that followed plunged the all or part of n United States into darkness that lasted in some places for several days.

In the wake of the blackout, in 2007, the North American Electric Reliability Corporation (NERC), a government-certified industry organization that sets reliability standards for the transmission of electricity, established tougher rules for vegetation management around electric transmission lines. Electric utilities faced hefty fines if they did not vigorously maintain their rights-of-way under transmission lines. In 2012, TVA sent landowners a letter advising them that TVA would no longer allow taller, incompatible trees within its rights-of-way, even if landowners say they will control tree height, and that it would be removing, sometimes extensively, incompatible species from its rights-of-way. Any tree that could grow more than 15 feet high at maturity would go.

Donna got such a letter, and she sued. Donna argued that TVA had improperly classified the so-called 15-foot rule as routine fact exempt from Ms. Sherwood contended, the new 15-foot rule would essentially denude 260,000 acres, a square of land over 20 miles to a side. Besides, Ms. Sherwood argued, TVA didn’t have the right to remove trees in its right of-way that did not interfere with or endanger the transmission lines. TVA argued that it only proposed routine maintenance which was exempt from the National Environmental Policy Act.

The District Court threw out the case, holding that TVA had complied with the NEPA and that the easements clearly encompassed removal of timber. The plaintiffs asked the court to submit the easement interpretation issue to the Tennessee Supreme Court, a procedure known as certifying a question. The District Court ruled that it didn’t need to certify the question, because state law was well settled. The easements pretty clearly gave TVA the right to clear trees from its rights-of-way.

All of which brings us to trees, which – after all ¬– is why you’re reading this right now. Last August, we reported on unhappy rural landowner Donna Sherwood, who – along with her Volunteer State neighbors – sued the Tennessee Valley Authority. They argued that TVA had improperly classified the so-called 15-foot rule as routine maintenance which was exempt from the National Environmental Policy Act. In fact, Ms. Sherwood contended, the new 15-foot rule would essentially denude 260,000 acres, a square of land over 20 miles to a side. Besides, Ms. Sherwood argued, TVA didn’t have the right to remove trees in its right of-way that did not interfere with or endanger the transmission lines.

The District Court threw out the case, holding that TVA had complied with the NEPA and that the easements clearly encompassed removal of timber. The plaintiffs asked the court to submit the easement interpretation issue to the Tennessee Supreme Court, a procedure known as certifying a question. The District Court ruled that it didn’t need to certify the question, because state law was well settled. The easements pretty clearly gave TVA the right to clear trees from its rights-of-way.

The Court of Appeals reversed the district court, holding that the record did not show that TVA had complied with NEPA. The case went back to the district court, where TVA announced it would abandon the 15-foot rule without further litigation. Hearing that, the district court promptly threw out Donna’s lawsuit, saying that because TVA had given up the 15-foot rule, there was no longer any danger to Sherwood’s forest.

nopruning141229There was just one hitch: TVA’s claim was Pinocchio-worthy. Despite the claims of its Senior Vice President of Transmission and Power Supply that he had “completely suspended use of the ’15-foot rule’ in TVA transmission line rights-of-way,” its chainsaws were buzzing. Sherwood provided the court with affidavits from landowners that TVA was “removing all of the trees in [his] right of way, pursuant to the fifteen-foot rule. Other affidavits from property owners showed that TVA was clear cutting rights-of-way, some to 150 wide or more.

TVA responded that the cutting was necessitated by the peculiarities of the properties, and had nothing to do with the 15-foot rule. The district court bought its claim, and granted TVA’s motion to dismiss the case as moot. Without acknowledging Sherwood’s affidavits, the court held TVA had “made a genuine assurance that it has ceased use of the fifteen-foot rule and that it will conduct a NEPA review prior to either re-implementing the fifteen-foot rule or adopting some other vegetation management practice.”

Last week, the 6th Circuit Court of Appeals reversed. It said that even if TVA had abandoned the 15-foot rule, it still was cutting more vigorously than it had been before the 15-rule was adopted. Donna and the other landowners were entitled to have their claim heard that the policies were subject to the NEPA.

Because TVA has failed to prove that the fifteen-foot rule has no continuing effect, Sherwood’s claim is not moot. And the appellate court expressed considerable skepticism that TVA was being candid about its practices. “Consistency between the ‘abandoned’ fifteen-foot rule and TVA’s recent practices cannot be explained away by TVA’s argument that right-of-way specialists are merely exercising the discretion they have always had. This argument is awfully close to TVA’s assertion on the first appeal that there was no new “policy”–that TVA’s new practices were simply a continuation of its longstanding vegetation-management policies.

Plus, the Court said, even if TVA has abandoned the 15-foot rule, “the agency’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.”

Finally, the district court did not consider TVA’s expressed intent to comply, the effectiveness of TVA’s discontinuance and –in some cases – the character of the TVA past violations. If it had, the Court said, the trial judge would have found more than a “mere possibility” that TVA’s challenged conduct will recur (or is continuing).

The case – now over fours old – goes back to the trial court for Round 3.

Sherwood v. Tennessee Valley Authority, Case No. 15-6161 (6th Circuit, Nov. 17, 2016): Donna Sherwood claimed that TVA was arbitrary and capricious when it implemented a new, mandatory policy to cut down all trees capable of reaching fifteen feet within its fight of ways without conducting any environmental review, as required by the National Environmental Policy Act. On her first appeal, the Court held that TVA had not submitted an administrative record for the new policy and remanded the case so that the district court could evaluate the merits of Sherwood’s NEPA claim.

On remand, TVA asserted that it could not produce an administrative record and moved to dismiss the case as moot. In support, TVA submitted two affidavits stating that the responsible TVA official had suspended use of the policy. In response, the plaintiffs introduced evidence indicating that TVA had not abandoned the policy. Relying on TVA’s affidavits, the district court dismissed the case as moot.

Sherwood appealed.

Held: Because TVA’s challenged policy has a continuing effect, TVA had failed to prove that Sherwood’s NEPA claim is moot.

Sherwood asserted that TVA implemented a new right-of-way vegetation-maintenance policy without conducting the environmental review required by NEPA. The new policy required TVA to cut down all trees within its right of ways that are 15 feet tall or have the potential to grow to 15 feet, instead of the former policy, in which TVA right-of-way specialists had discretion over which trees to remove.

Sherwood said the 15-foot policy was a “major Federal action[] significantly affecting the quality of the human environment,” and that the agency was therefore required to issue an environmental impact statement before adopting the 15-foot rule.

After the Court remanded the case to the district court, TVA filed a motion to dismiss the case as moot. TVA said Sherwood’s NEPA claim was moot, as TVA had “suspended use of the 15-foot rule and reverted to the right-of-way maintenance practices that were utilized prior to the introduction of the 15-foot rule.” TVA offered two affidavits from one of its officials supporting its claim. The affidavits also promised that TVA would seek initiate NEPA review of any new buffer zone maintenance practices before adopting them.

Sherwood responded with an affidavit containing declarations by Billy Anderson, a landowner in Paducah, Kentucky. He reported that while before 2015, TVA had only ever trimmed one of the trees within its right of way on his property, after that time, a TVA right-of-way specialist told him that the agency would be removing all of the trees in the right of way, pursuant to the 15-foot rule. TVA ended up taking 27 trees within the right of way. The trees were between seven and sixty feet tall–the majority between seven and seventeen feet.

Sherwood also filed affidavits describing the TVA right of way in the Land Between the Lakes National Recreation Area, where the agency cleared a 31-mile stretch of right of way in the area during 2015. For the most part, “the right-of-way had been recently cleared to a width of 150 or more feet, with the buffer zones being completely eliminated.”

The district court found that TVA “made a genuine assurance that it has ceased use of the 15-foot rule and that it will conduct a NEPA review prior to either re-implementing the 15-foot rule or adopting some other vegetation management practice.” In reaching that conclusion, the court did not mention Sherwood’s supplemental evidence or question the sincerity of the Woodward affidavits. The district court rejected Sherwood’s argument that TVA had not adequately assured the court that TVA would not continue its wrongful conduct, because the Woodward affidavits promised to conduct NEPA review before changing TVA’s practices.

The district court reasoned that, because TVA had abandoned the 15-foot policy, a declaratory judgment would only “deem[] past conduct illegal,” which would be an impermissible advisory opinion. Furthermore, the court held that Sherwood’s request for an injunction was moot because, given that TVA had abandoned the fifteen-foot policy, TVA’s failure to conduct an environmental review before implementing the policy had no “demonstrable continuing effect.”
The Court of Appeals found that TVA had failed to prove that the 15-foot rule has no continuing effect, Sherwood’s NEPA claim were not moot. When a defendant claims that its voluntary cessation of the challenged activity moots a case, the Court said, it bears the burden of proving mootness. TVA was required to demonstrate that the 15-foot rule has no “demonstrable continuing effect,” before the district court could properly dismiss this case as moot.

TVA’s promises that it had abandoned the 15-foot rule did not explain away the cutting described in Sherwood’s affidavits. Plus even if TVA has formally abandoned the 15-foot policy, “evidence in the record suggests that TVA has not reverted back to the right-of-way practices it used before adopting the rule.” TVA’s pre-15-foot rule policies, included “leaving a 25-foot buffer zone on each side” of 200-foot right of ways; “leaving a 12.5-foot buffer zone on each side” of 175-foot fight of ways; cutting “[t]all-growing trees”; and giving right-of-way specialists discretion over whether to remove “[1]ow-growing trees.” Furthermore, TVA previously “made exceptions for some taller-growing trees where the landowners had said they would control tree height.” And as demonstrated by ample evidence in the record, TVA did not always strictly follow its policies, so that plenty of “tall-growing” trees remained in TVA’s fight of ways.

Sherwood’s evidence, the 6th Circuit said, “suggests that TVA’s recent practices may be more consistent with the fifteen-foot rule than with these pre-fifteen-foot-rule policies. For example, in June 2015, six months after the Woodward affidavits declared that TVA had abandoned the fifteen-foot policy, TVA cut down every tree–some as low as seven feet–from its right of way on the Anderson property, including trees in the buffer zone. TVA had historically allowed Anderson to keep his fruit trees pruned to seventeen feet. Additionally, between February and July of 2015, two to seven months after TVA claimed to have abandoned the fifteen-foot rule, the agency clear-cut its fight of way on the LBL Recreation Area, whereas it had previously left trees in this right of way’s buffer zone.”

TVA’s recent practices seemed to be close to the 15-foot rule, and “cannot be explained away by TVA’s argument that right-of-way specialists are merely exercising the discretion they have always had. This argument is awfully close to TVA’s assertion on the first appeal that there was no new “policy”–that TVA’s new practices were simply a continuation of its longstanding vegetation-management policies.”

“Finally,” the Court said, “even if TVA has abandoned the 15-foot rule, the agency’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.”

The Court of Appeals sent the case back the district court for another go-around, requiring TVA to clearly show that the 15-foot policy has no continuing effect. Clearly showing its impatience with TVA’s procedural bob-and-weave. The Court warned that this time, “the district court should require TVA to compile an administrative record of the agency’s decision to implement the fifteen-foot rule, as directed in our previous decision.”

TNLBGray140407

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