Tennessee Valley Authority v. Samples

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

KNOXVILLE DIVISION

TENNESSEE VALLEY AUTHORITY, )

)

)

Plaintiff,

)

3:23-CV-00050-DCLC-DCP

)

v.

)

)

CHARLES SAMPLES, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Charles Samples purchased property on the Norris Reservoir. Portions of his

property were subject to the TVA Act, 16 U.S.C. § 831y-1, which required Samples to obtain a

permit from TVA before he began any construction on his new lots. Although Samples applied

for a permit, TVA had not approved his permit before Samples began construction. And, while he

claimed he had verbal approval from two TVA employees, that is not the same as obtaining permit

approval as required by the TVA Act. Thus, TVA’s motion for Summary Judgment and for

Permanent Injunctive Relief [Doc. 35] is GRANTED. TVA’s motion for a Preliminary Injunction

[Doc. 7] is DENIED AS MOOT.

I. BACKGROUND

TVA is a federal corporate agency responsible for water control projects in the Tennessee

Valley. As part of its mission, it constructed the Norris Dam and Reservoir [See Doc. 51, ¶ 1].

This project was integral in TVA’s plan to control flooding and manage river flood stages in the

Tennessee Valley. [Id.]. Years ago, TVA acquired land “for purposes of managing the Norris

Reservoir.” [Id. at ¶ 2]. It sold a subset of this tract but retained fee ownership in all land lying

below the 1020-foot contour elevation [Id., ¶ 3]. It also possessed an easement on land below the

1044-foot contour elevation requiring landowners to obtain TVA permit approval pursuant to §

26a of the TVA Act and regulations for any new construction projects. [Id. at ¶ 6]. Samples claims

that in mid-December 2021, TVA employee David Harrell (“Harrell”) and Anne Patrick

(“Patrick”) verbally advised him he had TVA permission to begin construction [Doc. 51, ¶¶ 17–

19; 18-1, ¶ 11]. Despite having “verbal” approval, on January 4, 2022, Samples applied for a

permit for construction on two lots he owned [Doc. 51, ¶ 8]. In his application, he submitted plans

to build a shoreline riprap; a concrete launching ramp; a floating covered boat slip to include five

slips; an access walkway; utilities; and boat lifts [Id., ¶ 9].

Prior to TVA approving Samples’ permit, Samples began construction. Between January

2022 and January 2023, he built a floating cabin, two five-slip boat docks, a concrete boat ramp,

and a wood-framed building on his property [Id., ¶ 11]. His wood-framed building and concrete

boat ramp extend below the 1044-foot contour elevation, requiring TVA approval [Id., ¶ 12].

Samples’ concrete boat ramp extends onto Government property and his two five-slip boat docks,

his floating cabin, and access walkway are moored below the 1020-foot contour elevation. [Id.,

¶¶ 13–14]. TVA also claims that since the filing of this lawsuit, Samples has placed four additional

platforms in the water and attached them to the boat slips [Doc. 37, pg. 13 n. 8; see Doc. 52, pgs.

69–71].

Soon after Samples began construction, the TVA sent him a letter informing him that his

construction violated TVA’s § 26a regulations, directing him to “immediately cease and desist

from any and all unauthorized construction on TVA property” and his failure to comply “could

result in the denial of [his] pending Section 26a permit applications.” [Doc. 1-6, pg. 35]. Samples

acknowledges that he received TVA’s letter [Doc. 53-1, pgs. 2–3]. Notwithstanding TVA’s

warning, Samples continued building [Doc. 51, ¶ 11; Doc. 1-6, ¶¶ 14–15, 19].

On January 27, 2023, TVA denied Samples’ § 26a permit application. [Doc. 51, ¶ 15]. He

appealed, which TVA denied on June 30, 2023 [Id. at ¶ 16]. On February 6, 2023, TVA sued

Samples seeking injunctive relief requiring Samples to remove the unauthorized structures he had

built without compliance with § 26a of the TVA Act [Doc. 1, ¶¶ 54, 67, 75, 83]. The present

motions followed [Docs. 7, 35].

II. LEGAL STANDARD

Summary judgment is proper where “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

In ruling on a motion for summary judgment, the Court must generally view the facts contained in

the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of

material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts

to the nonmoving party to “come forward with significant probative evidence showing that a

genuine issue exists for trial.” McKinley v. Bowlen, 8 F. App’x 488, 491 (6th Cir. 2001). A mere

scintilla of evidence is not enough; the Court must determine whether a fair-minded jury could

return a verdict in favor of the nonmoving party based on the record. Id.

III. ANALYSIS

TVA asserts three bases for the Court to enter an injunction: (1) that Samples committed a

trespass on government property by building the docks, floating cabin, and a portion of the boat

ramp below the 1020-foot contour line [Doc. 37, pg. 9; see Doc. 51, ¶¶ 13–14]; (2) that Samples’

wood-framed building and concrete boat ramp interfere with TVA’s easement rights below the

1044-foot contour line [Doc. 37, pgs. 10–11; see Doc. 51, ¶¶ 12–13]; and (3) that all the structures

violate § 26a of the TVA Act because they are “obstructions” under the statute and Samples failed

to obtain TVA’s approval to build them [Doc. 37, pgs. 12–13]. The Court addresses these

arguments in turn.

A. Trespass

TVA argues that by placing the boat docks, the floating cabin, and building a portion of

the concrete ramp below the 1020-foot contour, Samples trespassed on government property [Doc.

37, pg. 9]. Under Tennessee law, a trespass claim consists of: “(1) an intentional entry or holdover

(2) by the defendant or a thing; (3) without consent or legal right.” Weatherly v. Eastman Chem.

Co., No. E202201374COAR3CV, 2023 WL 5013823, at *10 (Tenn. Ct. App. Aug. 7, 2023)

(citation omitted). Here, there is no dispute that Samples intentionally built and moored his

property below the 1020-foot contour elevation [See Doc. 37, pg. 9; Doc. 50, pg. 7]. The issue is

the third element, that of consent.

Samples claims TVA employees gave him permission to build [Doc. 50, pg. 7]. But TVA

points out the law does not allow that [Doc. 53, pg. 9]. 16 U.S.C. § 831y-1 specifically requires

Board approval of any plans and that the approval must be obtained prior to commencement of the

construction project. To obtain approval, TVA has established the § 26a permitting process. See

18 C.F.R. § 1304.1, et seq. In any event, Samples’ reliance on any verbal approval could not have

been reasonable because TVA notified Samples in writing numerous times after he began

construction that his construction project was unauthorized and he needed to proceed through the

permitting process [Doc. 1-6, ¶¶ 14, 16, 21; id. pgs. 35–36, 44–45, 48–49]. There is no genuine

dispute of material fact on this issue. TVA never approved Samples’ permit, and accordingly, his

construction was not authorized under the law. Summary judgment is due to be granted on TVA’s

trespass claim [Doc. 1, ¶¶ 76–83].

B. Interference with TVA’s Flowage Easements

TVA also asserts Samples’ wood-framed building and a portion of the concrete ramp

interfere with its flowage easement [Doc. 37, pg. 7]. “To prevail in an action for unreasonable

interference with the use of an easement, the owner of the easement must prove the following

elements: (1) the existence of the easement, (2) unreasonable interference with a legitimate use or

purpose of the easement; and (3) actual damage to the easement holder's use.” Nashboro Golf

Course, LLC v. Townhomes of Nashboro Vill., L.P., No. M201700226COAR3CV, 2018 WL

4382073, at *3 (Tenn. Ct. App. Sept. 14, 2018) (citations omitted).

There is no dispute in this case that TVA has a “flowage easement” allowing it to flood the

land below the 1044-foot contour and remove structures built below that line [Doc. 51, ¶¶ 4–6].

Samples argues his structures neither unreasonably interfere with TVA’s right to flood the land

nor cause any actual damage [Doc. 50, pg. 8]. But in addressing this issue when TVA is a party,

the term “unreasonably” has been interpreted quite broadly. In U.S. ex rel. Tennessee Val. Auth.

v. Hughes, 408 F.2d 619 (6th Cir. 1969), TVA had obtained a flowage easement from a Tennessee

landowner. The flowage easement authorized TVA to flood the property, remove obstructions,

and require the removal of unauthorized structures. Hughes, 408 F.2d at 620. The landowners

then placed two house trailers within the area of TVA’s flowage easement. Id. The Sixth Circuit

acknowledged the easement holder and landowner could not “unreasonably interfere” with one

another’s use of the land. Id. at 621. But in reversing the denial of an injunction to remove the

trailers, the Sixth Circuit held that:

It is no excuse to say that this particular obstruction is minor in nature. If [the

landowner] can continue to maintain this obstruction, there is no reason why others

similarly situated cannot do likewise; the ultimate effect being a limitation on the

usefulness of the easement.

Id. at 621. The Sixth Circuit further noted that TVA’s flood control measures could not achieve

their aims of safeguarding persons and property from harmful flooding if private dwellings stood

in the way and that submerged structures could pose navigational hazards. Id. The same concerns

apply to Samples’ wood-framed building and boat ramp, which he built on a TVA flowage

easement without approval. Samples’ construction frustrates the easement’s purpose of allowing

the TVA to protect private property from flood damage. Even if Samples’ construction is “minor

in nature,” TVA still has the authority to have it removed. Id. Summary judgment is due to be

granted on TVA’s flowage easement claim [Doc. 1, ¶¶ 68–75].

C. Violation of the TVA Act and Regulations

TVA argues that Samples violated § 26a by failing to obtain proper authorization before

installing the “Unauthorized Structures”—–i.e., the floating cabin, boat docks, boat ramp, and

wood-framed building; as well as four additional platforms and an access walkway. Section 26a

provides: “[N]o . . . obstruction . . . 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 to and approved by the [TVA] Board . . . .”

16 U.S.C. § 831y-1. “[C]ommencement of construction . . . without such approval is prohibited.”

Id. “Section 26a requires a permit before anyone may construct any ‘obstruction . . . affecting

navigation.’” Tennessee Valley Auth. v. Jones, 199 F. Supp. 3d 1198, 1203 (E.D. Tenn. 2016)

(quoting 16 U.S.C. § 831-y), aff'd, 692 F. App'x 224 (6th Cir. 2017). TVA’s approval is a

“condition precedent to the construction of any structures . . . .” Gast v. Tennessee Valley Auth.,

No. 4:10-CV-45, 2011 WL 864390, at *9 (E.D. Tenn. Mar. 10, 2011).

Samples concedes the disputed structures at his property are “obstructions” along the

Tennessee River [Doc. 50, pg. 10]. Thus, § 26a prohibited their construction unless TVA approved

them. It is undisputed that Samples failed to obtain a § 26a permit before beginning construction

in violation of the permitting process [See Doc. 51, ¶¶ 11, 15–16; Doc. 1-6, ¶¶ 13–19].

Samples again argues he had the necessary approval because he had “express and/or

implied authority” based on TVA employees’ “go ahead” [Doc. 50, pg. 10; see Doc. 18-1, ¶¶ 8–9,

11, 15–18]. But as already discussed, even assuming his recollection is accurate, his reliance on

those employees would have been unreasonable especially in light of all the letters he received

from TVA directing him to stop construction. And in any event, he failed to follow the permitting

process TVA established to obtain approval. Because Samples lacked TVA’s approval to build

the structures, summary judgment is due to be granted on TVA’s claims that Samples’ construction

violated § 26a and associated regulations [Doc. 1, ¶¶ 47–67].1

D. Injunctive Relief

TVA’s motion seeks an injunction: (1) requiring Samples to remove the Unauthorized

Structures; (2) providing that if Samples does not remove any portion of the Unauthorized

Structures, TVA shall have the right to demolish them and Samples shall be liable for demolition

costs; and (3) providing that if Samples does not remove the Unauthorized Structures, then any

personal or real property attached to or comprising the Unauthorized Structures located on

government property shall become TVA’s property, and TVA shall not be liable to Samples for

the value of or damage to the property [Doc. 35, pg. 2].2

1 Samples also claims that in addition to showing his construction was unauthorized, TVA

must additionally show that he failed to even seek approval [Doc. 50, pg. 9]. He argues he did

seek approval by applying for a § 26a permit, so TVA’s claim under § 26a fails [Doc. 50, pg. 10].

This argument presumes permission will be granted, as in “Ask and it will be given to you….”

Matthew 7:7. But following that reasoning removes the approval process. If all a landowner had

to do was ask for permission, not receive permission, to begin construction, TVA would have no

control of construction projects along the Tennessee River.

2 TVA also includes within the “Unauthorized Structures” the additional platforms Samples

Under § 26a, a district court may enter an injunction requiring the “removal or

discontinuation” of “construction, commencement of construction, operation, or maintenance of

any structures or parts thereof in violation of the provisions of this section.” 16 U.S.C. § 831y-1.

However, “[a]n injunction is a matter of equitable discretion; it does not follow from success on

the merits as a matter of course.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008).

To obtain injunctive relief, a plaintiff must show: “(1) that it has suffered an irreparable

injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate

for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant,

a remedy in equity is warranted; and (4) that the public interest would not be disserved by a

permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations

omitted). The Court examines the factors in turn.

First, TVA argues it suffers irreparable harm from Samples’ trespassing on its property and

interfering with its flowage easement [Doc. 37, pg. 15]. To be sure, Samples has committed a

trespass on TVA’s property by building structures that intrude onto government property. Courts

have found that where a trespass against the United States occurs, an injunction is the appropriate

remedy. See, e.g., Tennessee Valley Auth. v. Walcott, 611 F. Supp. 3d 1328, 1336 (N.D. Ala. 2020)

(“Injunctive relief is . . . appropriate in cases of trespass.”); United States v. Perry, 2018 WL

11356695, at *5 (S.D. Ohio Nov. 7, 2018) (“When the United States demonstrates that a trespass

has occurred, it is generally entitled to injunctive relief.”) (citation omitted).

More broadly, TVA argues Samples’ noncompliance with the § 26a permitting program

also causes irreparable harm because it threatens TVA’s regulatory authority [Doc. 37, pgs. 15–

placed in the water since the filing of this lawsuit and the access walkway Samples built without a

permit [Doc. 37, pgs. 3, 13 n. 8; see Doc. 52, pgs. 69–71]. For clarity purposes, the Court will

include all these items when referring to “Unauthorized Structures.”

16]. TVA is correct here as well. Disregarding TVA’s statutory authority constitutes irreparable

harm. Jones, 199 F. Supp. 3d at 1205 (“[A]llowing parties like Defendants to disregard TVA's

statutory authority under 26a would result in irreparable harm.”).

Samples asserts his actions do not undermine TVA’s authority because he applied for a

permit then proceeded with construction based on the “go-ahead” he claims he received from TVA

employees [Doc. 50, pg. 13]. But Samples acknowledged that he had to “receive permission to

construct and/or maintain structures through the Section 26a permitting process” and he did not

[See Doc. 18-1, Declaration of Samples, ¶ 7]. This is simply ignoring TVA’s authority to oversee

approval of construction projects that implicate its statutory interests.

Turning to the second factor, TVA argues remedies at law would fail to remedy the harms

to its property interests and regulatory scheme [Doc. 37, pg. 16]. The Court agrees. Legal

remedies would fail to address Samples’ ongoing trespass and interference with TVA’s flowage

easement. See Long, 2013 WL 387933, at *3 (explaining legal remedies would be inadequate

because “the continued existence of [the defendant’s] current structure on the reservoir would not

only undermine TVA's interest in uniform compliance[,] it would also constitute a continuous

trespass onto Government property.”). “Only prompt removal of the illegal structure[s] would

suffice . . . , as it is the only remedy that would effectively deter future violations of the regulations

at issue.” Id.

As to the third factor, TVA argues the equities favor TVA [Doc. 37, pgs. 17–18]. Samples

argues he stands to lose the investment he made in building the structures and that removing them

will be costly [Doc. 50, pg. 14]. But Samples could have avoided these losses had he complied

with the law or heeded TVA’s warning that his construction projects were not authorized. Instead,

he proceeded without obtaining the necessary permit. In doing so, he proceeded at his own peril.

See Tennessee Valley Auth. v. Jones, 692 F. App'x 224, 227 (6th Cir. 2017) (explaining that when

the defendant “chose to build the structures without a permit at all[,] . . . any hardship . . . was

foreseeable rather than undue.”).

On the fourth factor, TVA argues the public interest supports an injunction [Doc. 37, pg.

18]. Samples contends TVA’s requested injunction is not in the public interest because he claims

TVA is “selective[ly] enforc[ing]” the statute by failing to act on “numerous” other purported

§ 26a violations [Doc. 50, pg. 15; see Doc. 18-1, ¶¶ 26–28]. But TVA has significant discretion

to determine which enforcement decisions will best serve the public interest. Samples provides

no evidence TVA has abused that discretion in this case. Moreover, “[t]he public interest is served

by demonstrating that flagrant disregard for TVA's regulatory authority will not be tolerated and

by permitting TVA, a public agency tasked with protecting the public interest, to determine how

best to use the land.” Jones, 199 F. Supp. 3d at 1206. Here, TVA is better positioned than Samples

to determine which uses of government land and flowage easements will best serve the public

interest.

Samples further asserts that members of the public are using the structures at his property

for their benefit and that dismantling them would cause pollution [Doc. 50, pgs. 15–16]. That

might be true, but TVA is the party that has sought the removal of the Unauthorized Structures. It

is TVA’s judgment that Samples should never have built those structures in the first instance. And

that judgment is not subject to judicial review. TVA v. Jones, No. 1:14-cv-356, 2016 WL 7799315,

at *5 (E.D. Tenn. Mar. 22, 2016) (describing TVA’s discretion as “virtually limitless” and TVA’s

decisions regarding land use “are not amenable to judicial review under the APA.”). It is TVA’s

judgment that on balance between removal and leaving those structures in place, removal is in the

public interest. In this case, the Court agrees with TVA. In sum, because the factors weigh in

TVA’s favor, injunctive relief is appropriate.

IV. CONCLUSION

For the reasons stated herein, TVA’s Motion for Summary Judgment and for Permanent

Injunctive Relief [Doc. 35] is GRANTED. Accordingly, the Court ORDERS as follows:

1. Within thirty days after the entry of judgment, Defendant Charles Samples shall

remove the “Unauthorized Structures” which are the subject of TVA’s Motion from

below the 1044-foot contour line;

2. Provided Defendant Samples has not removed the “Unauthorized Structures”

within the time allotted in ¶ one, TVA shall have the right to demolish below the

1044-foot contour line any remaining portions of the “Unauthorized Structures,” as

well as any personal property attached thereto. Defendant Samples shall be liable to

TVA for the reasonable costs of the demolition in an amount to be determined at a

hearing to be set by the Court upon completion of the demolition project; and

3. If TVA is forced to remove the “Unauthorized Structures” on its own in the manner

described above, any personal or real property attached to or comprising the

“Unauthorized Structures” located below the 1044-foot contour line shall become the

property of TVA, and TVA will not be liable to Defendant Samples for the value of, or

damage to, such property.

TVA’s Motion for Preliminary Injunction [Doc. 7] is DENIED AS MOOT. A separate

judgment shall enter.

SO ORDERED:

s/ Clifton L. Corker

United States District Judge