Tennessee Valley Authority v. Long

Filing 24

MEMORANDUM OPINION AND ORDER GRANTING 10 MOTION for Summary Judgment as set out herein. Signed by Judge Virginia Emerson Hopkins on 1/18/2013. (JLC)

FILED
2013 Jan-18 PM 05:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TENNESSEE VALLEY
AUTHORITY,
Plaintiff,
v.
DAVID ERIC LONG,
Defendant.

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) Case No.: 4:12-CV-704-VEH
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MEMORANDUM OPINION AND ORDER
Before the court is a Motion for Summary Judgment (Doc. 10) filed by
Plaintiff Tennessee Valley Authority ("TVA"). Additionally, the court has considered
and evaluated the arguments made in the following documents: TVA's
"Memorandum of Law in Support of TVA's Motion for Summary Judgment" (Doc.
11), a Response (Doc. 14) filed by Defendant David Eric Long ("Mr. Long"), and
TVA's Reply Brief (Doc. 21).

For the following reasons, TVA's motion is

GRANTED.
I. Procedural History
TVA filed this lawsuit against Mr. Long on February 29, 2012, raising federal
claims under the Tennessee Valley Authority Act of 1933, as amended, 16 U.S.C. §§

831-831ee (2006 & Supp. V 2012) (the “TVA Act”). (Doc. 1). TVA alleges that Mr.
Long violated the TVA Act by beginning construction on a new boathouse along the
Tennessee River without TVA’s prior approval or permission. (Doc. 1 ¶¶ 15–26).
TVA further alleges that it has been in communication with Mr. Long about his need
for a permit but that Mr. Long repeatedly refused to apply for the permit. (Id. ¶¶
27–34). In addition to the new boathouse, TVA alleges that Mr. Long similarly is
unlawfully operating a walkway, “riprap,” and outfall draining without the necessary
permits required by the TVA Act. (Id. ¶¶ 35–42). As a result, TVA seeks injunctive
and declaratory relief against Mr. Long’s allegedly-unauthorized obstructions and
asks the court for an order requiring Mr. Long to remove the new boathouse,
walkway, riprap, and outfall draining. (Id. ¶¶ 1, 47).
Mr. Long filed his Answer and Counterclaim on March 23, 2012. (Doc. 5).
TVA filed a Motion to Dismiss Counterclaim (Doc. 8) on May 22, 2012, which the
court granted in a Memorandum Opinion and Order dated July 9, 2012 (Doc. 15). In
the interim, on June 1, 2012, TVA filed the Motion for Summary Judgment presently
under review. (Doc. 10). Mr. Long filed his Response to the motion (Doc. 14) on
July 9, 2012, to which TVA replied on July 13 (Doc. 21). On November 30, 2012,
the court ordered the parties to confer and file a Joint Status Report regarding the
possibility of settlement. (Doc. 22). The parties filed this report on December 3,
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2012, indicating that neither settlement nor mediation were likely to succeed in
resolving the case. (Doc. 23).
II. Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”) (internal quotation marks and citation
omitted); see also Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000)
(“The mere existence of some factual dispute will not defeat summary judgment
unless that factual dispute is material to an issue affecting the outcome of the case.”
(quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995))).1 The party
asking for summary judgment always bears the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the pleadings or
1

Congress amended Rule 56 in 2007 in conjunction with a general overhaul of the Federal
Rules of Civil Procedure. The Advisory Committee was careful to note, however, that the
changes “are intended to be stylistic only.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2007
Amends.) (emphasis added). Consequently, cases interpreting the previous version of Rule 56
are equally applicable to the revised version. E.g., Wooten v. Walley, No. 2:07-CV-701WKW[WO], 2008 WL 4217262, at *2 n.5 (M.D. Ala. Sep. 12, 2008).
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filings that it believes demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(c)
requires the non-moving party to go beyond the pleadings and, by its own affidavits
– or by the depositions, answers to interrogatories, and admissions on file – designate
specific facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921). Only disputes
over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A
dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. If the evidence presented by the non-moving party to
rebut the moving party’s evidence is merely colorable, or is not significantly
probative, summary judgment may still be granted. Id. at 249 (internal citations
omitted).
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d at 1112, 1115 (11th Cir. 1993) (citing Adickes v. S.H. Kress
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& Co., 398 U.S. 144 (1970), abrogated on other grounds by Celotex, 477 U.S. at 32526). If the movant bears the burden of proof on the given issue or issues at trial, then
it can only meet its burden on summary judgment by presenting affirmative evidence
showing the absence of a genuine issue of material fact – that is, facts that would
entitle it to a directed verdict if not controverted at trial. Id. (citing United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). Once the
moving party makes such an affirmative showing, the burden shifts to the nonmoving
party to produce “significant, probative evidence demonstrating the existence of a
triable issue of fact.” Id.
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16
(citing Four Parcels, 941 F.2d at 1437-38). First, the movant may simply show that
there is an absence of evidence to support the non-movant’s case on the particular
issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either
(1) showing that the record in fact contains supporting evidence sufficient to
withstand a directed verdict motion or (2) proffering evidence sufficient to withstand
a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at
1116-17 (citation omitted). When responding, the non-movant may no longer rest on
mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey,
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518 U.S. 343, 358 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992)). The second method a movant in this position may use to discharge its
burden is to provide affirmative evidence demonstrating that the non-moving party
will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this
occurs, the non-movant must rebut by offering evidence sufficient to withstand a
directed verdict at trial on the material fact sought to be negated. Id.
III. Relevant Facts
The parties appear to agree on the following relevant facts:
•

On June 1, 1937, TVA acquired a tract of land in Guntersville, Marshall
County, Alabama, in fee simple in the name of the United States, which
TVA subsequently used to help create Guntersville Reservoir.

•

On February 23, 1956, TVA sold a strip of land lying above the 600-foot
contour to one of Mr. Long’s predecessors in title, Val-Monte Shores,
Inc. It still retained fee ownership in the land between the 600-foot
contour and the waters of the Reservoir as well as the land beneath the
waters of the Reservoir.

•

On August 1, 1957, Val-Monte Shores sold a portion of the land it
purchased from TVA to Gerald R. King. Mr. King then transferred his
land to L. O. Stapp on October 1, 1959. This land is commonly known
as 3304 Wyeth Lane, Guntersville, Alabama, and constitutes Lot 117 in
the Val-Monte Shores Subdivision.

•

On October 19, 1959, TVA issued a permit to Mr. Stapp for the
construction of a 1,200 ft² “rigid boathouse” and “pier” on the
Government’s property adjacent to Lot 117.

•

Through subsequent land transfers, Mr. Long acquired Lot 117 on July
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11, 2008.
•

A boathouse and walkway existed on the Government’s land adjacent
to Lot 117 when Mr. Long acquired Lot 117.

•

Mr. Long never requested a transfer of the 1959 Permit to his name or
applied to TVA for a new permit.

•

Mr. Long removed some, if not all, parts of the old boathouse on the
property and built a new structure that involved both a boathouse and
and a new connected walkway.

•

Mr. Long also installed an outfall drain pipe that was not part of the
structure previously.

•

The new boathouse and outfall drain pipe are located entirely below the
600 ft. contour and are on Government property.

•

1200 ft.² is the maximum permissible size for any shoreline structure
under the 1959 Permit.

(See Doc. 13 ¶¶ 1-12) (“Defendant’s Responses to TVA’s Statement of Undisputed
Facts”). In turn, the parties appear to disagree on the following factual questions:
•

Whether Mr. Long removed the entirety of the old boathouse.

•

Whether – and, if so, to what degree – the new boathouse Mr. Long
constructed is larger in size than the previous one in terms of square
footage.

•

Whether the new boathouse is larger than 1200 ft.²

•

Whether the entirety of the new walkway constructed by Mr. Long is
below the 600 ft. contour that marks Government property.

(See Id. ¶¶ 9-12).
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IV. Discussion
A. Summary
Because TVA, as plaintiff, bears the burden of proof at trial on the issue of
liability, it must present affirmative evidence here that demonstrates the absence of
a genuine issue of material fact. Fitzpatrick, 2 F.3d at 1115. As stated, the
substantive law identifies which facts are material and which are irrelevant.
Anderson, 477 U.S. at 248. TVA asserts that Mr. Long violated Section 26a of the
TVA Act when he built the shoreline structure that now exists adjacent to his
property. (Doc. 1 ¶¶ 48-51). It also alleges that he simultaneously trespassed onto
its property by doing so. (Doc. 1 ¶¶ 52-57). Section 26a, among other things,
prohibits the construction of obstructions across, along, or in the Tennessee River
without seeking approval from the TVA. 16 U.S.C. § 831y-1 (2006). Under this
provision, obstructions include (but are not limited to) boat docks, piers, boathouses,
and “devices for discharging effluent.” 18 C.F.R. § 1304.1 (2012). Moreover, a
trespass is defined under Alabama law as “[a]ny entry on the land of another without
express or implied authority.” Cen. Parking Sys. of Ala., Inc. v. Steen, 707 So. 2d
226, 228 (Ala. 1997) (quoting Foust v. Kinney, 202 Ala. 392, 393 (Ala. 1918)).
Given these definitions, TVA must then offer affirmative proof that no genuine
issue of material fact exists as to the following matters: (1) whether Mr. Long’s new
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shoreline structure is an obstruction across, along, or in the Tennessee River; (2)
whether he sought approval from TVA for its construction; (3) whether the new
structure is on Government property; and (4) whether Mr. Long had either express or
implied authority to build the structure as a matter of law. Neither party disputes that
the structure Mr. Long built is such an “obstruction” as described above or that it is
on the Tennessee River. (See Doc. 1 ¶¶ 24, 26; Doc. 5 ¶ ¶ 24, 26). Additionally, Mr.
Long concedes that the structure is on Government property – apart from an
undefined portion of the new walkway that TVA does not presently seek to remove.
(See Doc. 13 ¶ 12; Doc. 21 at 2 n.1). He further admits that he did not seek or obtain
TVA approval to engage in construction. (Doc. 5 ¶ 25). Thus, TVA’s burden falls
exclusively on proving the final evidentiary hurdle identified above. It successfully
meets this burden.
B. There Is No Question That Mr. Long Lacked Legal Authority To Build
His New Shoreline Structure.
TVA argues that Mr. Long lacked legal authority to build his new shoreline
structure under the TVA Act. (Doc. 11 at 9-13). It must therefore prove the absence
of a genuine issue of material fact as to whether Mr. Long was adhering to the
provisions of the TVA Act (and its implementing regulations) in building his new
shoreline structure. TVA alleges that Mr. Long failed to do so in two ways: (1) he did

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not apply for a permit to maintain the existing shoreline structure located adjacent to
his property within sixty days of his purchase of the property, and (2) he did not
obtain permission to build a new structure that outstrips the previous one in size and
otherwise departs from the original permit standards. (Id. at 8-9).
In full, Section 26a of the TVA Act provides that:
[N]o dam, appurtenant works, or other obstruction, affecting navigation, flood
control, or public lands or reservations shall be constructed, and thereafter
operated or maintained across, along, or in the [Tennessee] river or any of its
tributaries until plans for such construction, operation, and maintenance shall
have been submitted and approved by the [TVA].
16 U.S.C. § 831y-1. Channeling its authority under the Act, see 16 U.S.C. § 831c,
TVA has issued detailed regulations outlining the permitting process for the
construction of structures, facilities, and other uses that fall under Section 26a. See
18 C.F.R. §§ 1304.1-1304.11 (2012). One of these regulations specifically addresses
transfers in ownership of private property on which a permitted shoreline structure
is located (or to which it is adjoined). See 18 C.F.R. § 1304.10(a). It dictates that the
new owner must notify TVA within sixty days of the purchase. Id. TVA will re-issue
the permit once it determines that the facilities are in good repair and consistent with
the standards in effect at the time of the original permit. Id. In fact, new owners need
not modify existing facilities to conform with the original permit standards so long
as they maintain such facilities in good repair and obtain TVA approval for any
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repairs that would “alter the size of the facility or for any new construction.” 18
C.F.R. § 1304.10(b).
Mr. Long admits that he never notified TVA of his purchase of the property at
3304 Wyeth Lane in order to secure the re-issuing of a permit for the shoreline
structure that was then attached to the property. (Doc. 5 ¶ 20). In responding to
TVA’s motion, he nevertheless argues that the attached structure has only been
“refurbished within acceptable guidelines” and that re-permitting was thus
unnecessary. (Doc. 14 ¶ I). Notably, he does not cite any legal support for this
assertion. In fact, no part of Section 1304.10 indicates that the sixty-day notification
requirement depends on whether proposed repairs to permitted structures are “within
acceptable guidelines.” On its face, the provision requires notification and repermitting upon purchase of the property regardless of any plans the new owner
might have:
When there is a change in ownership of the land on which a permitted facility
or activity is located . . . the new owner shall notify TVA within sixty (60)
days. Upon application to TVA by the new owner, the new owner may
continue to use existing facilities or carry out permitted activities pending
TVA’s decision on reissuance of the permit. TVA shall reissue the permit
upon determining that the facilities are in good repair and are consistent with
the standards in effect at the time the permit was first issued.
18 C.F.R. § 1304.10(a). The sixty-day notification requirement is self-evidently
categorical and admits of no exception. Because Mr. Long concedes he did not
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request such re-permitting within that time period, it would seem that TVA merits
summary judgment in its favor.
In response, Mr. Long submits an affidavit by a Mr. Timothy C. Gilbert, a
former TVA official. (Doc. 18-1). In the affidavit, Mr. Gilbert insinuates that repermitting was not necessary in Mr. Long’s case because the existing shoreline
structure affixed to his property upon purchase would have been “grandfathered” in
under certain TVA regulations. (Id. at pg. 4-5).2 As TVA ably demonstrates in its
Reply Brief (Doc. 21 at 3-5), there is no basis for this assertion. True, TVA
regulations allow for the “grandfathering” of certain shoreline structures that existed
prior to November 1, 1999. See 18 C.F.R. § 1304.210 (2012). But these regulations
only exempt property owners with such attached structures from conforming to
permit standards established after that date.

See 18 C.F.R. § 1304.210(b)

(“Grandfathered structures may continue to be maintained in accordance with
previous permit requirements, and TVA does not require modification to conform to
new standards.”). New property owners are specifically not absolved from the sixtyday notification requirement – even where their inherited shoreline structure might
be grandfathered under Section 1304.210. See 18 C.F.R. § 1304.211(a) (2012)

2

Mr. Long’s affidavit notwithstanding, the court will undertake to decide this purely legal

case.
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(“When ownership of a permitted [grandfathered] structure or other shoreline
alteration changes, the new owner shall comply with § 1304.10 regarding notice to
TVA.”) (emphasis added). Thus, the boathouse and dock adjacent to 3304 Wyeth
Lane when Mr. Long purchased it on July 11, 2008, were likely grandfathered under
Section 1304.210. That is, the structure probably would not have had to conform to
TVA standards announced after November 9, 1999. Yet, Mr. Long was still legally
required to notify TVA of his purchase within the mandated sixty-day period for the
purpose of re-permitting the structure. As previously noted, he admits he did not do
this. (Doc. 5 ¶ 20).
C. Conclusion
Accordingly, TVA’s motion for summary judgment is due to be granted as a
matter of law. The court need not determine whether there exists a genuine dispute
over remaining factual matters like the size of Mr. Long’s new boathouse and/or its
conformity to original permit standards. The notification requirement was a condition
precedent to any decision by Mr. Long to alter the existing shoreline structure at his
property. In light of his undisputed failure to obey that requirement, any such factual
issues are immaterial.
V. Order
For the reasons stated in this Memorandum Opinion, this day entered,
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Plaintiff’s Motion for Summary Judgment (Doc. 10) is GRANTED. Still pending
before the court is Plaintiff’s request for a permanent injunction, which will be
addressed in a separate opinion.
DONE and ORDERED this the 18th day of January, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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