Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sherwood v. Tennessee Valley Authority

United States Court of Appeals, Sixth Circuit

November 17, 2016

Donna W. Sherwood; Jerome D. Pinn; Vance Sherwood; Anthony Billingsley; Jennifer Peet; Richard Eugene Williams; Frank L. Oakberg; Bonnie E. Oakberg; Gerry M. Williams; Harold P. Sloves; Felicitas K. Sloves; Sheila D. Booe; Thomas R. Warren, Jr.; Jeffrey G. See, Plaintiffs-Appellants,
v.
Tennessee Valley Authority, Defendant-Appellee.

          Argued: October 19, 2016

         Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:12-cv-00156-Thomas A. Varlan, Chief District Judge.

         ARGUED:

          Donald K. Vowell, VOWELL LAW FIRM, Knoxville, Tennessee, for Appellants.

          Frances Regina Koho, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Donald K. Vowell, VOWELL LAW FIRM, Knoxville, Tennessee, for Appellants.

          Frances Regina Koho, Edwin W. Small, Maria V. Gillen, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee.

          Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge [*]

          OPINION

          ROGERS, Circuit Judge.

         This case is before the Sixth Circuit for the second time. Sherwood and the other plaintiffs-appellants claim 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 right of ways without conducting any environmental review, as required by the National Environmental Policy Act. On Sherwood's first appeal, we held that TVA had not submitted an administrative record for the new policy and remanded the case so that TVA could compile the record, and 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, which Sherwood now appeals. Because record evidence suggests that TVA's challenged policy has a continuing effect, TVA failed to prove that Sherwood's NEPA claim is moot.

         I.

         This litigation started in 2012, when Donna Sherwood and the other plaintiffs sued the Tennessee Valley Authority (TVA) for violating the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 to 4370m-12 (2012). Sherwood asserts that TVA implemented a new right-of-way vegetation-maintenance policy without conducting the environmental review required by NEPA. The new policy, referred to in this litigation as the fifteen-foot rule, requires TVA to cut down all trees within its right of ways that are fifteen-feet tall or have the potential to grow to fifteen feet, whereas TVA right-of-way specialists previously had discretion over which trees to remove, Sherwood v. TVA (Sherwood II), 590 F.App'x 451, 460 (6th Cir. 2014). Sherwood contends that this policy change is a "major Federal action[] significantly affecting the quality of the human environment, " 42 U.S.C. § 4332(C), and that the agency was therefore required to make an environmental impact statement before adopting the fifteen-foot rule.

         In the first round of litigation in the district court, TVA moved for summary judgment on the NEPA claim, arguing that it had not implemented a new policy. Sherwood v. TVA (Sherwood I), 956 F.Supp.2d 856, 866 (E.D. Tenn. 2013). TVA pointed out that its 2008 Right of Way Maintenance Re-Clearing Guidelines (2008 Guidelines) instruct right-of-way specialists to cut tall-growing trees but allow specialists to leave low-growing trees. Id. at 865-66. TVA asserted that its new "policy" was not a policy at all, but was merely guidance to right-of-way specialists that "'low-growing trees' . . . are trees that will not exceed fifteen feet at mature height." Sherwood I, 956 F.Supp.2d at 866. According to TVA, this guidance was nothing more than a clarification of its longstanding practices. Id. Furthermore, TVA argued that its 2012 Categorical Exclusion (CE) documentation adequately considered this guidance's environmental impact. Id. at 866-67. The district court accepted these arguments and granted TVA's motion for summary judgment. See id. at 872. Sherwood appealed that judgment to the Sixth Circuit in 2013. On appeal, we held that TVA had created a new policy, and that the 2012 CE documentation was not TVA's administrative ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.