good afternoon please call first case fifteen six point six one donna share what at all vs tennessee valley authority arguments not to exceed fifteen minutes per side mr s supposedly had suspended the the new policy and reverted to the prior practices so i would like to talk about three or four things first you know what were these progress actresses that they have reverted to supposedly secondly have they really reverted to them third what about their explanation that's the declaration of this forester that kind of did it and then fourth if time allows i'd like to take a moment to talk about the these millions of trees that the trial court ruled did not exist so the first issue you know i don't know if this made its way to the court but i have a little hand out there it's from the record and you know the t v s says the prior practices were in these guidelines that the court talked about last time so if that's true i thought we would maybe should just take a look at it and right here it says that  leaving twenty five foot buffer on buffer zone on each side it says that three times and i guess that's on page one of this thing this document came before this fifteen foot rule it out it came in maintain the buffer zone and of course they would cut down trees if they posed a hazard to the lions and also you know i think you have to figure in the vegetarian practice you know how much money were they spending this quarter noted last  the the budget dramatically increase so when they had think we're probably familiar with the evidence that you suggested should have been considered about about how the trees have been taken down i want to ask a little bit  about the nature of the arguments that you're making in bringing this case basically you originally brought this case to seek judicial review of the  decision to institute the fifteen foot rule whatever the const whatever the change was and that the thrust of the judicial review was that they didn't and if you had one on that you would have obtained some sort of an validation of the rule right or an injunction or was an injunction that they not apply the rule until they did an environmental impact say so it would just be an injunction against the and i'm not saying that we would but if we were degree with you then in your conception of what that means that would mean that it would go back to the district court in the district court with them have the judicial review of the agency action before at the end of which if if they will in your favor would be an injunction not to follow the rules until until they comply with that how the strike that's how its structure exactly or you could stated in another way that central decision maker where is this prior practice and there you don't have an administrative record for the prior practice and so we you know why don't we just remain in this case to forget the real administrative record that i didn't think it was exactly i didn't think that was the real administrative record so you know the corps in the court said well we're going to remain and for you to compile the administrative records for this decision because this is clearly not the administrative record for the decision to implement the fifteen foot rule so as soon as they got back to the trial court they filed papers that said look we don't have an administrative or we don't have any further administering only administrative record we had and so we hereby suspend the fifteen for room or we have suspended the fifteen for room and we have reverted to our prior practices you know therefore the case is moot and should be dismissed understand what they are inching that is not being supported by the facts exactly exactly and to understand that we have to know a little bit about what the previous  zones to landowners can trim or prune their own trees three of course they cut down trees that were dangerous to the lions and for what was the level of spending so that's two three and four weren't limited to the buffer zone but include the wires on yes i think there was some confusion at somewhere someplace along the line as to what exactly the previous situation was i think there's some confusion i don't know what's the surface a truck or if it's the lawyer cliff lawyers but it's one way of thinking of it is that this case is just about buffer zones but it's not your contending with something more than just buffer zones right exactly but i'm asking what support where in the record would we find that  were inclined to agree with well the record is really scant as to what were the prior practices and that's that's why i have just pieced together those four elements of what the prior practices were it would be the difference between policy  practice here of what was written down in the ninety seven and overweight documents and what actually t v a was doing on the ground and if there was a difference does that make a difference for this case  very there could be some differences because what was written i mean this is the god what was written that we didn't follow up question is there meaning in the area of forestry because you're writing on a blank slate here with this judge anyway there's tall growing trees or low growing trees carry any special meaning in that discipline i don't think so and there's certainly nothing in the record about that right while the ninety seven and zero eight documents say that the growing trees on the right away will be cut and that's i think on the same page is this it says we're going to leave the buffer zones i think i think it's the well the yes but it says tall growing trees on the right of way the right away got written somewhere i'm just looking as a practical these two examples that you have investigated found out one is the orchard one is the land between the lakes was that do they show trees in the buffer zone or in the do they owe those examples at length between the lakes to the best of my ability to figure out it was only the buffer zones only the buffer zone left trees in the wires on it i know there were there really weren't any trees in the wires down as far as far as i know at land between the lakes in the lots of other places there were for example at the orchard you know this is this is mr anderson's orchard right here all of these trees in the wires and that's just one example of what i understand and i think what they're going are you asking about it is that they have reverted to what was the status quo ante the way it was before this new policy whatever it was came into effect in the previous policy was one that allowed a lot of discretion and when you have discretion some things happen that you don't like as an exercise of that discretion but it's still consistent with the old policy how do you respond to that but as a name you come in with evidence that look the new policy is still being applied even though they say they've stopped it right for the new if you don't want to call it a policy procedure or be correct it's the new practice  as has continued but if the same facts on the ground could result from the old practice and the new practice and your evidence does not really counteract the well the thing of the policy if it  does then it does i mean that's what i'm asking about but they can't really be the same because this is the old practice for thirty years mr emission was allowed to print histories and the court noted last time that it has to be that you have a new administrator or nobody who wants to be tough for something when you have all kinds of discretion well in his this new guy if you will he didn't give a reason he said i decided all the fruit trees should a discretionary policy to do things that you haven't done before you know it certainly could be but if you have a reason then if you're going to change the practice i guess you need a reason to do that and he didn't give one for that mr orchard does it change your practice have any implication for the requirements of the this any way they do because they knew it's a  major federal action includes policies practices and here we have my goodness we have a humongous federal practice these buffer zones millions of trees would you agree that the question whether they have in fact suspended the fifteen foot rule is a question of fact and that so would and you have sought discovery on these issues correct and you've been denied that discovery was correct and so you're somewhat ham strong in your ability to spell some of these things out but you have come forward with with some affidavits that either it's strong coincidence that all of a sudden they're you know leveling everything for thirty one mile stretch or or maybe you know there's there's they it stopped doing it across the  board and so the district court i guess did not address your evidence concerning the anderson property and concerning land of the lakes right all current in the district court i mean you moved  for discovery is that right and was that actually denied by the district and if you can just remind me what was the basis of the district court's denial of the discovery  he said i think you know and i think he said because you didn't really know their request or something i think that may have may be maybe it was in one of the orders but we raised it you know a number of times ok that that helps me out and i'm going to want to confirm that with the t v but thank you your welcome i think my time is probably that we don't have a crowded docket this afternoon directors i wanted to start with something that you addressed about the the fact that reverting back to the two thousand and eight guidelines it's essentially reinstates a very  discretionary policy and you asked a question kind of getting at whether in practice the discretionary policy even might on certain tracks of t v s rights of way look somewhat like the application basis but when you have a policy to clear it all and then that policy is stopped and then there's a fairly large scale action that looks more consistent with the stop policy than it looks consistent with the previous policy it's conceivable but it looks it gives you pause right and i understand that that how do you respond to that well i think like the district court just ignored it well i think that first of all to get to get to the point that the plaintiff's counsel is asking the panel which is to say that these two instances demonstrates that something is being done on fifteen thousand nine hundred and miles a transmission line you have to pres and would you agree that we would the court should resolve this as it would any other question of fact namely if there is evidence that suggests an allegation is correct or you know i guess  aren't they entitled to discovery about whether what you're saying is true well i mean i would i would i would point out that t v has the burden to establish neatness so whether whether the plaintiffs should get a bit of discovery made why should they have all the discovery they want on this i mean first of all we're in round two which is another subject but they have said t v s continue the policy they've come forward with evidence that is certainly consistent with the continuation of mr anderson gets a notice in two thousand and fourteen we're going to take them all down or whatever year was the fifteen foot and then all of a sudden they show up in his backyard and take it all down i mean it's not only insistent with it and it looks like it's pursuant to given the line of communication with mr anderson we have the land of the lakes thirty one miles it's all clear it's mul forty to one hundred year old trees if so facto had not been taken down earlier now they're taken down why isn't that enough not withstanding the two affidavits to entitle them to discovery about whether in fact this is happening well if i could clarify a few things about the andersen declaration ok but only between the legs just make sure you answer that describe that question about the discovery proper sure and if i could just clarify about it and mr anderson so in twenty fourteen when someone came and said we're cutting all these down the fifteen foot rule was admittedly in place so that's the reason for that statement when mr bute bulow came back and he did say he was he decided he was going to cut the trees in the wire zone but the buffer zone that are there were six buffered the trees that he said could remain if in fact the fifteenth there are only six trees do we know in the buffer zone period i posed to they're going to let you keep these six two inch diameter trues i'm honestly not sure how many trees total you think we need to be ok more sure about all this stuff before we prune what seems to be a fairly significant matter well i think i think that i think that if if the if the panel is uncertain about this then the correct procedure would be to send it back down to the district court for further factual findings because i don't know that you cannot make the finding that the plaintiffs want you to make based on the record as it exists so i would be in the dischord made the finding that the t v a advocated which is that it stopped and they're saying well i'm not sure if they're saying as a matter of law it hasn't stopped or it's sort a you know so to speak genuine issue of material back to entitle to discovery but as to my question specifically about discovery do you would you agree that they are entitled to discovery hold discovered the way you have been a civil case not sort of a grudging discovery but fold discovery as to whether in fact the fifteen foot rule has been suspended as t v is represented to the courts well i don't know if i don't know if right off the bat full discovery would be warranted i think that that t v a should be allowed to put forward some additional evidence first and then if whatever questions are remaining i think mr vowel could make a request but  i think he's had some specific prequel i would point out that the discovery that he states before this court that would be helpful for him was not what he requested in the district court and he in his motion for court if we did send the case back it would be reversing judge arlen's grant your motion to dismiss yes the first thing on judge marlon's plate when if we sent it back would be your motion to dismiss i think that's correct or you could do what we sent back for last time which is to compile the administrative record in all honestly we don't have an administrative i know you compile one when you don't have one but it's how things work with respect if you don't if you have there is a decision right was it a totally oral decision and then it popped out of some administrators mouth all of a sudden and was there any paperwork i believe it was largely a budgetary decision so they were is it our budgetary decisions made in the back of someone's mind and pop out fully formed or do you have a process for coming to that there is a process there and so when you asked to compile a record you compile the record of the process and then you look at it to see whether they complied with the procedural requirements that's how administrative law works you can't just say there is no administrative record so we refused to compile  i must say one week when the court of appeals tells the agency to compile administrative record and they just don't do that it's it's not contempt maybe but it's gotten right up to the house i mean to started implementing the policy that that is the current that's correct and i forget in the first appeal but did did t b a agree in the first appeal that this action would be subject to need and yes i mean this and so i mean one thing that seriously troubles me about where we're at in having this case here again is i remember the argument last time being well you know something about the checked sort of checklist but if if t v a understands that this is a major action that requires and the review for its effect upon the environment in t v a knows that it has not done such a review why were we arguing in the first appeal about whether the check list and so on satisfies twelve vegetation maintenance which was a particular portion of its right of way system it was viewing it through the lens of the checklist the c e sees that it does and it was it considered that that was the environmental review that it did and that's about the d with this court in the first round of litigation and and so we say come up with the administrative record and then the t v a goes down to the district judge and says well actually there isn't one in which case why didn't the t v s say that earlier and save the first round a litigation and allow the t v s actions to come into compliance with a lot sooner than it has and i do think that an from the transmission people's perspective they essentially viewed what they were doing as the saying they got more money and they thought they were doing what we could have done  know that the optics of that are not good but i don't think that it was it was an effort to be disingenuous it was that my perspective is similar but not the same as together and i don't speak for my colleagues but it seems to me what we did was ask you to compile a record that supports or lead to the decision that was being reviewed whatever it might be whatever that situation is whatever's in the record i mean every record if it's if it's  scrap paper or emails or whatever it is that record should be compiled and the only excuse for compiling and not compiling it is to say that the case is moot but mootness is not just we've is eliminating the consequences of what we did so even if the policy was erased at some level if there are people on the ground who are acting like the policy is still the policy then it's not moot because there's a fax from this decision which our job is to review we can't review it until you give us the record to review it and if there is no record the supreme court says we can get the decision makers before the court and ask them but the supreme court says don't do that till you've tried to get the record right aren't so you try to get a record we try to get the record and then there's this well let's move but it's kind of questionable whether it's intent to be disrespectful of the process there that t v s you would have to have so much discovery to try to figure out what's going on and you knew what the agency was doing and you see supposed to proceed with regularity in their public agencies on behalf of the government they got to proceed with regularity and we've got to be well it's a court reviewing it to make sure it's legal we got to see what you did right and it shouldn't have to be hidden or or subsumed and superseded and all of  see if there's a record and if there isn't we're done i think i mean i think that what we were saying and perhaps with judge drives is getting at in the first appeal or first decision was not simply produce a record that is compliant with nepa but produced the record of your decision period and the courts will then determine whether it's compliant and we haven't gotten that record in our opinion is still there and if this goes back i mean speaking for myself here the t v a better produce that record produce the record in whatever i mean it's sort of you go back and you find the documents relevant to the decision and you presented to the district court i think that's what we were saying last time and it's it's troubling that it hasn't happened in you know i mean it puts you in a tough spot because you're trying to you know speculate an you've reverted to the policy in the office one of them i think says in the book they're not clearing trees in the buffer zone i guess so so the we've reverted back to the two thousand and eight  which have the minimal clearing standards for the buffer zones but i would point out that it does say that that is a minimum in that it's management's wish the full width can be very clear so there's that and then that also has the the tall growing trees in the right of way and that covers the entire right of way will be cut so it's the two thousand i believe that document fifty one i think that some of the documents we've seen in the second so that's that seems to be part of what's factually uncertain to at this point and maybe we are court we might have thought in the first appeal that the practice the fifteen foot rule was already being implemented i mean there was already the prior practice in the wires that it was an extension to the buffer zone but it seems likes based on some of the evidence here that actually the fifteen foot rule was not being applied in the wire zone either well maybe that's part of what needs to get cleared up here i think that you know directives always under the prior and the prior guidelines counsel kind of extrapolate from certain areas but there are treaties that have remained in the wires and i think that if you look at the communications and in two thousand and twelve from various t v executives i think the focus was on the rhetoric was we're reclaiming the full with it we're widening so the focus i think was on the buffer zones but would that have applied to treaties that worked color than fifteen feet or could said that it was being his objective standard for troops and i think that i'm not exactly sure where the fifth fifteen feet i think that may be something that is in various forestry guidelines and they thought it would be a clear communicator to the public here is here something we can say to you that let's you know so it's true that tall growing trees are and are no were defined in any of the documents right that is true i guess the last thing i would add is that it seems to be common ground that the fifteen foot rule as originally proposed or implemented would be subject to need that the agency has not done the analysis that need her requires and moreover the agencies representing that it's not following the fifteen foot rule now they dispute that but given the common ground i just described i personally really hope this case does not come back to us with any indication that the t v is continuing to do this fifteen foot rule from this point forward i not i can issue a stay or something it's not my place but i just hope that when it comes back to us that that is not the situation that would be a bad situation i completely understand scotland's thank you thank you makes sense for you to do that thank you