1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0274p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

D ONNA W. S HERWOOD ; J EROME D. P INN ; V ANCE S HERWOOD ; A NTHONY B ILLINGSLEY ; J ENNIFER P EET ; R ICHARD E UGENE W ILLIAMS ; F RANK L. O AKBERG ; B ONNIE E. O AKBERG ; G ERRY M. W ILLIAMS ; H AROLD P. S LOVES ; F ELICITAS K. S LOVES ; S HEILA D. B OOE ; T HOMAS R. W ARREN , J R .; J EFFREY G. S EE , Plaintiffs-Appellants ,

v

.

T ENNESSEE V ALLEY A UTHORITY , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 15-6161

Appeal from the United St ates District Court for the Eastern District of Tennessee at Knoxville. No. 3:12-cv-00156—Thomas A. Varl an, Chief District Judge. Argued: October 19, 2016
Decided and Filed: November 17, 2016
Before: ROGERS and KETHLEDGE, Circ uit Judges; MALONEY, District Judge. 

_________________ COUNSEL

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.

 The Honorable Paul L. Maloney, Unite d States District Judge for the We stern District of Michigan, sitting by designation. 

### >No. 15-6161 Sherwood, et al. v. TVA Page 2

_________________ 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 dow n 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 Sherw ood’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 cour t could evaluate the meri ts 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, T VA submitted two affidavits stating that the responsible TVA official had susp ended use of the policy. In res ponse, the plaintiffs introduced evidence indicating that TVA ha d not abandoned the policy. Relying on TVA’s affidavits, the district court dismissed the case as moot, wh ich Sherwood now appeals. Because record evidence suggests that TVA’s ch allenged 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 violati ng 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 th is 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 stat ement before adopting the fifteen-foot rule.No. 15-6161 Sherwood, et al. v. TVA Page 3

In the first round of litigati on in the district court, TVA moved for summary judgment on the NEPA claim, arguing that it ha d 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) inst ruct right-of-way specialists to cut tall-growing trees but allow speci alists 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 tree s’ . . . 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 consider ed 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 th at TVA had created a ne w policy, and that the 2012
CE documentation was not TVA’s administrative record for its decision to implement the
fifteen-foot rule. Sherwood II , 590 F. App’x at 460. We remande d the case to the district court to allow TVA to compile an administrative record of the decision and to allow the district court
to evaluate the merits of Sherwood’s NEPA claim. Id. at 462–63.
On remand, instead of compiling an administ rative record, TVA filed a motion to dismiss
the case as moot. In su pport of the motion to dismiss, TVA stated that it “did not create in 2012 a separate administrative reco rd for the challenged decision.” TVA asserted that an administrative record was not necessary, howev er, because 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 introdu ction of the 15-foot rule .” The only evidence TVA offered to support this asse rtion consisted of two affidav its (the Woodward affidavits) containing declarations by Jaci nda Woodward, TVA’s Senior Vice President of Transmission and Power Supply, who is responsible for TVA’s right-of-way maintenan ce program. TVA filed the first affidavit on December 5, 2014, and th e second on December 23, 2014. Both state the same thing: “I have completely suspended use of the ‘15-foot rule’ in TVA transmission line rights-of-way. TVA has reverted to the right-o f-way maintenance practices applicable to the wire and buffer zones on TVA rights-of-way that were utilized prior to the introduction of theNo. 15-6161 Sherwood, et al. v. TVA Page 4

15-foot rule. . . . TVA is reviewing its practices for the clearing of trees in buffer zones of TVA rights-of-way, and will initiate a de novo NEPA review of any new buffer zone maintenance practices before adopting them.” 1

Following TVA’s motion to dismiss, Sher wood filed a motion for summary judgment, requesting declaratory and injunc tive relief based on TVA’s alle ged NEPA violation and arguing
that the case was not moot. The district court gave Sherwood permission to submit supplemental evidence in support of the moti on for summary judgment. In response, Sherwood first filed an affidavit (the Anderson affidavit) containi ng declarations by Billy Anderson, a landowner in Paducah, Kentucky. In the affidavit and the attach ed exhibits, Anderson describes that before June 1, 2015, TVA had only ever trimmed one of the trees within it s right of way on his property. Then, in 2014, a TVA right-of-way sp ecialist told him that the agency would be removing all of the trees in the right of way, pursuant to the fifteen-foot rule. Although TVA did not end up removing the trees in 2014, on June 1, 2015, the agency cut down all twenty-seven trees within the right of way, incl uding trees in both the wire zone and the buffer zone. The trees were between seven and sixty feet tall—the majority betw een seven and seventeen feet.
Sherwood also filed affidavits containing declarations by Shiras Walker and Anthony King. These affidavits and the accompanying exhibits describe the TVA right of way in the
Land Between the Lakes National Recreation Area (LBL Recreation Area). Walker did a flyover of the area on July 23, 2015. Updates from the Recreation Area’s website attached to
Walker’s affidavit indicate that TVA cleared a thir ty-one-mile stretch of ri ght of way in the area between February and July of 2015. Before-and- after photos, compiled from Walker’s fly-over in 2015 and Google Earth images from 2013, show th at the right of way’s buffer zone was clearcut and mulched. King surveyed several portions of the Re creation Area on foot on July 31 and August 1, 2015. King stated that, 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.”
In response to Sherwood’s supplemental evidence, TVA submitted two affidavits containing declarations by Mich ael Buelow. Buelow was the right-of-way specialist who

1 The wire zone is the area directly beneath TVA’s po wer lines, which extends out to a buffer zone along the outside edge of both sides of TVA’s right of way.No. 15-6161 Sherwood, et al. v. TVA Page 5

oversaw TVA’s vegetation management on the A nderson property and the LBL Recreation Area. In the first affidavit, Buelow discusses the A nderson property: “In my opinion, all of the mature
fruit trees in the wire zone had to be remove d, but the row of younger, smaller fruit trees on the northern edge of the right-of-way could remain.” Bu elow also states that he authorized the crew to remove the smaller trees on Anderson’s property only after Anderson himself requested that the trees come down “so that [TVA] would never ha ve to come back.” In the second affidavit,
Buelow discusses the Recreation Ar ea: “Several factors prompted me to decide to clear the rightof-way across Land Between the Lakes to its full width (150 feet),” incl uding variable terrain, “considerable dense regrowth along the edges of the right-of-way,” and the fact that “the transmission structures on th[e] line [were] ol der, wooden, ‘H-frame’ structures[,] which spread
the conductors out over more area than more modern metal lattice or single pole structures.” Furthermore, Buelow states that his decision “w as not influenced by the rescinded” fifteen-foot
rule.
After Sherwood submitted her supplemental ev idence and TVA filed its counterevidence, the district court granted TVA’s mo tion to dismiss the case as moot. Sherwood v. TVA ( Sherwood III ), 124 F. Supp. 3d 779, 786 (E.D. Tenn. 2015). The court first rejected Sherwood’s argument that, even if TVA abandoned the fi fteen-foot policy, the doctrine of voluntary cessation supported the existence of a live case or controversy. Id. at 785. The court found that TVA “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-imple menting the fifteen-foot rule or adopting some other vegetation management practice.” Id. at 784. In reaching that conclusion, the court did not mention Sherwood’s supplemental evidence or T VA’s counterevidence, or question the sincerity
of the Woodward affidavits. Th e district court also rejected Sherwood’s argument that TVA had not adequately assured the court that TVA woul d not continue its wrongful conduct because the Woodward affidavits promise to conduct NEPA review before changing TVA’s buffer-zone practices but not TVA’s wire-zone practices. Id. The court reasoned that Woodward’s
distinction between the buffer zone and the wire zone was “immaterial” because “under previous vegetation-management practices . . . TVA could a nd did clear virtually all of the trees in the wire zone (just as under the fifteen-foot rule).” Id. Thus, any change to TVA’s wire-zone practices would not impact Sh erwood’s legal interests.No. 15-6161 Sherwood, et al. v. TVA Page 6

After rejecting Sherwood’s vol untary-cessation argument, the district court held that Sherwood’s NEPA claim was constitutionally moot. Id. at 785. The court reasoned that, because TVA had abandoned the fifteen-foot pol icy, a declaratory judgment would only “deem[] past conduct illegal,” which would be an impermissible advisory opinion. Id. (quoting ACLU of Mass. v. United States Conference of Catholic Bishops , 705 F.3d 44, 53 (1st Cir. 2013)). Furthermore, the court held that Sherwood’s requ est for an injunction was moot because, given that TVA had abandoned the fifteen-foot polic y, TVA’s failure to conduct an environmental review before implementing the policy had no “demonstrable continuing effect.” Id. at 785–86. The court also held, in the alternative, that Sherwood’s NEPA claim was prudentially moot, noting that “the change in circumstances render s the [c]ourt unable to afford plaintiffs any meaningful relief.” Id. at 786. Sherwood now appeals the dist rict court’s decisi on to dismiss the

case as moot.

II.
Because TVA has failed to prove that the fifteen-foot rule has no continuing effect,
Sherwood’s NEPA claim is not mo ot. When a defendant claims that its voluntary cessation of the challenged activity moots a case, it bears the burden of proving mootness. United States v. Dairy Farmers of Am., Inc. , 426 F.3d 850, 857 (6th Cir. 2005). Thus, TVA was required to
demonstrate that the fifteen-foot rule has no “demonstrable continuing effect,” Spencer v.
Kemna , 523 U.S. 1, 18 (1998), before the district court could properly dismiss th is case as moot. The Woodward and Buelow affidavits, consid ered in light of Sh erwood’s supplemental evidence, were not enough to establish mootness.
Even if TVA has formally abandoned the fift een-foot policy, as the district court found it has, see Sherwood III , 124 F. Supp. 3d at 784, evidence in th e record suggests that TVA has not reverted back to the right-of-way practices it us ed before adopting the rule. TVA’s pre-fifteenfoot-rule policies, pursuant to the 2008 Guidelines, included “leaving a 25-foot buffer zone on each side” of 200-foot right of ways; “leaving a 12.5-foot buffer z one on each side” of 175-foot right of ways; cutting “[t]all-growing trees”; an d giving right-of-way sp ecialists discretion over whether to remove “[l]ow-growing trees.” Furt hermore, TVA previously “made exceptions for some taller-growing trees where the landowners ha d said they would c ontrol tree height.” SeeNo. 15-6161 Sherwood, et al. v. TVA Page 7

Sherwood II , 590 F. App’x at 454. And as demonstrated by ample evidence in the record, TVA did not always strictly follow its policies, so that plenty of “ta ll-growing” trees remain in TVA’s right of ways, includi ng in the wire zone.
Sherwood’s supplemental evidence suggests th at 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 declar ed 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 seve nteen feet. Additionally , between February and July of 2015, two to seven months after TVA clai med to have abandoned the fifteen-foot rule, the agency clear-cut its right of way on the LBL Recreation Area, whereas it had previously left trees in this right of way’s buffer zone.
This consistency between the “abandoned” fi fteen-foot rule and TVA’s recent practices cannot be explained away by TVA’s argument that ri ght-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. See Sherwood II , 590 F. App’x at 456–57. As on the first appeal, this argument does not stand. Although specialists previously had discretion (on paper) over whether to remove low-growing trees, in practice the agency left low-growing trees before it implemented the fifteen -foot rule. A nd although the 2008 Guidelines mandate that specialists remove tall-growing trees, in pr actice specialists left many tall-growing trees in TVA’s right of ways before the agency adopted the fifteen-foot policy. There is evidence in the record that T VA is currently removing all tall-growing and lowgrowing trees from its right of ways, consistently with the fifteen-foot rule and inconsistently with its prior practices. This evidence indicates that the fifteen-foot policy has some continuing effect, and therefore the case is not constitutionally moot.
There is a second reason why Sherwood’s NEPA claim is not constitutionally moot: even if TVA has abandoned the fifteen-foot rule, th e agency’s promise to perform NEPA review before changing its buffer-zone maintenance polic ies is not an adequate assurance that itsNo. 15-6161 Sherwood, et al. v. TVA Page 8

challenged conduct will not recur. In our first Sherwood opinion, we stated that “[h]istorically,
TVA has removed all trees dir ectly under its power lines.” Sherwood II , 590 F. App’x at 453. The district court inferred from this language th at the fifteen-foot rule had no effect on the wire zone, as TVA already cleared th e wire zone under its previous practices. However, there is ample evidence in the record that TVA has often left trees in the wire zone, which proves our
factual statement in Sherwood II wrong. Rather, the agency has hist orically left trees in the wire zone of some of its right of ways. So the agency’s decision to implement the fifteen-foot policy—which mandates that right-of-way special ists remove all trees capable of reaching
fifteen-feet tall—affected trees in the wire zone . It follows, then, that TVA must conduct NEPA review before reapplying the poli cy to any part of its right of ways, and TVA’s assurance that it will comply with NEPA before changing its bu ffer-zone maintenance policies is not enough to satisfy the court that TVA’s ch allenged conduct will not recur.

Furthermore, the district court abused its discretion to the extent it relied on a “prudential,” or equitable, mootness doctrine to dismiss Sherwood’s NEPA claim. The doctrine is based on the Supreme Court’s opinion in United States v. W. T. Grant Co. , 345 U.S. 629 (1953). In W. T. Grant Co. , the Court reasoned that, when a case is not constitutionally moot, a court may still refuse to enjoin the defendant’s illegal conduct as a matter of equitable discretion if there is only a “mere possibi lity” of recurrent violation. Id. at 633. The Court instructed lower
courts to consider “the bona fides of the [defendant’s] expr essed intent to comply, the effectiveness of the [defendant’s ] discontinuance[,] and[] in so me cases, the character of the [defendant’s] past violations.” Id. Applying these principles, the record shows much more than a “mere possibility” that TVA’s challenged conduc t will recur (or is con tinuing). Because the
Woodward affidavits do not state that TVA will conduct NEPA review before changing its wirezone policies, TVA’s assertion that it will co mply with NEPA does not appear adequate. Furthermore, Sherwood’s supplemental evidence suggests that the agency has not completely abandoned the fifteen-foot rule, or that the abandonment has not been fully implemented.
Because Sherwood’s NEPA claim appears ne ither constitutionally nor equitably moot,
we remand the case to the district court. If TVA seeks to prove that this case is moot on remand,No. 15-6161 Sherwood, et al. v. TVA Page 9

it must clearly demonstrate that the fifteen-foot policy has no continuing effect. Fully fleshing out any future mootness claim may require jurisdictional discovery.
On remand 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.
The fact that “TVA did not crea te in 2012 a separate administra tive record for the challenged decision” does not mean the agency does not have anything for the distri ct court to review. Under § 706 of the Administrative Procedure Act, 5 U.S.C. § 706, the administrative record for judicial review consists of all materials that we re before the agency when it made the challenged
decision. Sierra Club v. Slater , 120 F.3d 623, 638 (6th Cir. 1997). If the agency does not turn over any such material, the court may order the agency’s decision-maker to testify about the agency’s rationale. Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 420 (1971). Thus, it is irrelevant that TVA does not have a pre-prepar ed record that reviews the environmental impact of the fifteen-foot rule. The agency must compile whatever documentation it has from its decision-making pro cess and produce those mate rials in the district court proceedings on remand.

III.
The judgment of the district court is revers ed, and the case is remanded for proceedings consistent with this opinion.