It isn’t often that a United States District Court is reversed twice in the same case, but that is exactly what has happened. The Sixth Circuit again ruled in our favor, reversing the District Court. The issues were simple. After the first appeal, TVA claimed that it had suspended the 15-foot rule (clear-cutting its entire right-of-way) and reverted to its prior practices. These prior practices included leaving its historic buffer zones at the edges of the right-of-way. We knew that TVA was not telling the truth. We knew that it was continuing with the 15-foot rule, continuing to remove the historic buffer zones and continuing to cut down virtually all of the trees in the right-of-way. For example we knew that TVA was clear-cutting its entire right-of-way at Land Between the Lakes National Recreation Area in Tennessee and Kentucky, eliminating the historic buffer zone from one end to the other. To prove the point, we hired a private plane, a pilot, and a video camera operator to fly the entire 31-mile right-of-way. The result was undeniable video evidence that TVA had clear-cut the right-of-way from one end to the other, including vast numbers of 50-100-year old trees, leaving a 31-mile path of destruction plainly visible from the air.
Here is a link to a three-minute compilation of 13 selected segments of the aerial video:
We also filed a collection of 13 “before and after” images, which correspond to the 13 segments in the three-minute video clip. The “before” images are Google Earth images made before TVA clear-cut the right-of-way, and the “after” images are taken from our aerial video. The buffer zones are seen as green on the edges of the right-of-way in the “before” images, and as a grayish-brown ribbon on the edges of the right-of-way in the “after” images. Two examples of the “after” images are shown below:
We also sent a ground crew which confirmed that the grayish-brown ribbon seen in the aerial video was a layer of mulch or shredded timber 25 feet wide and 6-14 inches deep, where the buffer zones used to be. Our ground crew also found innumerable stumps, including a number ranging from 10 to 24 inches in diameter, corresponding to trees 40-100 years old.
Unfortunately, the trial court dismissed the case, simply accepting TVA’s statement that it had suspended the 15-foot rule, and did not even comment on the massive evidence that we had filed. Although the trial court did not comment on this evidence, the Court of Appeals did, observing that the fly-over showed that the entire 31-mile right-of-way had been “clear-cut and mulched” and commenting that the ground survey showed “the buffer zones being completely eliminated.” The Court stated that the “evidence in the record suggests that TVA has not reverted back to the right-of-way practices it used before adopting the rule.” The Court then remanded the case to the trial court for further proceedings, including trial if necessary.
In the meantime, TVA has finally accepted the fact that it is going to have to make an environmental impact statement if it is to continue with its horrendous and ill-conceived plan to clear-cut the right-of-way, and has actually published the required notice in the Federal Register stating that it is going to do so. That being the case, one of the major objectives of the lawsuit has been accomplished. The public has until March 20, 2017, to comment on the proposed scope of the environmental impact statement. (Written comments are to be sent to Anita E. Masters, Tennessee Valley Authority, 1101 Market Street, BR 4A, Chattanooga, TN 37402, firstname.lastname@example.org.) Strong input from the public is the key thing that will defeat this ill-conceived policy. If you own property on the TVA right-of-way you should get involved. If you do not do something, you should assume that TVA will cut down every tree in the right-of-way.
The destruction at Land Between the Lakes was accomplished between February and July of 2015, which included the entire 2015 nesting season for most species of birds and other wildlife. TVA thus destroyed thousands of active nests of birds and other wildlife that make their nests in trees, including squirrels, raccoons, and opossums, senselessly killing thousands of baby birds and animals of various kinds. We also filed a video of what TVA does with the trees that it cuts down during nesting season: (Note that many or most of these trees contain active nests with live baby birds and other animals in them.)