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: October 19, 2016
Decided and Filed: November 17, 2016
Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.
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.