author: GRIFFIN, Circuit Judge. KETHLEDGE, Circuit Judge,

text:
    Jennifer MASON, et al., Plaintiffs-Appellees, v. LOCKWOOD, ANDREWS & NEWNAM, P.C., a Michigan corporation; Lockwood, Andrews & Newnam, Inc., a Texas corporation, Defendants-Appellants, Leo A. Daly Company, a Nebraska corporation, Defendant.
    No. 16-2313
    United States Court of Appeals, Sixth Circuit.
    Argued: November 7, 2016
    Decided and Filed: November 16, 2016

      ARGUED: S. Vance Wittie, SEDG-WICK LLP, Dallas, Texas, for Appellants. Mark L. McAlpine, MCALPINE PC, Auburn Hills, Michigan, for Appellees. ON BRIEF: S. Vance Wittie, SEDGWICK LLP, Dallas, Texas, Robert G. Kamenec, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. Mark L. McAl-pine, Jayson E. Blake, Adam T. Schnatz, MCALPINE PC, Auburn Hills, Michigan, for Appellees.
    Before: GRIFFIN, KETHLEDGE, and DONALD, Circuit Judges.
   GRIFFIN, J., delivered the opinion of the court in which DONALD, J., joined. KETHLEDGE, J. (pp. 397-400), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

This state-law professional negligence proposed class action suit arises out of the Flint Water Crisis, a public health disaster that drew national media coverage when the City of Flint decided to supply water to its residents using the Flint River without implementing necessary anti-corrosion measures. The series of events precipitating the tragedy have little to do with the issue before us on appeal. We deal, instead, with a question of procedure: must plaintiffs litigate them claim in state or federal court? In 2005, Congress revised the contours of federal diversity jurisdiction, making it easier to remove class actions to federal court, while at the same time providing an exception for cases that are “truly local in nature,” commonly called the “local controversy” exception. The parties dispute whether plaintiffs’ claim against defendants (civil engineering companies responsible for upgrading Flint’s municipal water system) belongs in state court under this exception. Though the Flint Water Crisis captured the attention of. the nation, its infamy does not make it any less local. Because plaintiffs’ suit consists of a proposed class of more than two-thirds Michigan citizens, a significant local defendant, and injuries limited to the reach of Flint’s water system, it satisfies the statutory requirements of the local controversy exception. We therefore affirm the district court’s decision to remand this case to state court.

I.

In 2005, Congress enacted the Class Action Fairness Act (CAFA) in response to “perceived abusive practices by plaintiffs and them attorneys in litigating major class actions with interstate features in state courts.” Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1243 (10th Cir. 2009). CAFA “loosened the requirements for diversity jurisdiction,” Mississippi ex rel. Hood v. AU Optronics Corp., — U.S. —, 134 S.Ct. 736, 739, 187 L.Ed.2d 654 (2014), authorizing federal district courts to “hear a ‘class action’ if the class has more than 100 members, the parties are minimally diverse, and the ‘matter in controversy exceeds the sum or value of $5,000,000.’ ” Standard Fire Ins. Co. v. Knowles, — U.S. —, 133 S.Ct. 1345, 1348, 185 L.Ed.2d 439 (2013) (quoting 28 U.S.C. § 1332(d)(2), (d)(5)(B)). That expansion of diversity jurisdiction was with exceptions. See 28 U.S.C. § 1332(d)(3), (d)(4)(A), (d)(4)(B). One, which Congress called the “Local Controversy Exception,” S. Rep. No. 109-14 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 28, is codified at § 1332(d)(4)(A). Under this exception, “[a] district court shall decline to exercise jurisdiction .,. over a class action” if:

(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;
(II) at least 1 defendant is a defendant—.
(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any relate ed conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons[.]

§ 1332(d)(4)(A), If these four elements are present, the district court must abstain from hearing the ease, despite having jurisdiction under § 1332(d)(2).

Like all statutes, the text of CAFA controls. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); Vander Boegh v. Energy-Solutions, Inc., 772 F.3d 1056, 1060 (6th Cir. 2014). In this regard, its text must be read as a whole, not in isolation. United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984). The relaxation of normal diversity requirements is coupled with an exception for local controversies. The terms of the statute balance considerations of federalism— a balance defined by Congress, but implemented and respected by the federal courts.

II.

In April 2013, the City of Flint, Michigan, decided to switch its primary drinking water provider from the Detroit Water and Sewerage Department (“DWSD”) to the newly formed Karegnondi Water Authority (“KWA”). The KWA would not be operational for another three years, however, so Flint needed an interim source of drinking water. It decided to draw from the Flint River, which had previously supplied back-up water services to the City. Relying on the Flint River, however, posed a few problems. According to several reports, the river was a highly sensitive drinking water source that required anti-corrosive treatment in order to prevent heavy metals from leaching into the water. On top of that, these issues needed to be remedied quickly, as the City’s contract with DWSD was set to expire a year, later in April 2014.

The City turned to Lockwood, Andrews & Newnam, Inc., a Texas-based corporation that touted itself as a “national leader in the heavy civil infrastructure engineering industry,” and its Michigan-based affiliate, Lockwood, Andrews & Newnam, P.C. (collectively,, “defendants”) for assistance. On June 26, 2013, the City entered into a contract with defendants for design engineering services in connection with rehabilitating Flint’s Water Treatment Plant (“the Plant”). After confirming with City officials that they could make the necessary improvements and provide the necessary “quality control” in time for the April 2014 switch, defendants proceeded to develop rehabilitation plans for the Plant. In April 2014, the Michigan Department of Environmental Quality approved defendants’ rehabilitation plans. Notably, the plan did not include necessary upgrades for anti-corrosive treatment measures. Indeed, earlier that month, defendants and officials from the City and the Michigan Department of Environmental Quality considered the issue, but decided that more data was advisable before implementing any measures for “optimization for lead.”

On April 25, 2014, the City of Flint began supplying its residents drinking water from the Flint River, The harmful effects were as swift as. they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E..coli, a spike in deaths from Legionnaires’ disease, and worst of all, reports of dangerously high blood lead levels in Flint children. All of this resulted, according to one expert who studied the crisis, because the “water from the Flint River was 19 times more corrosive than the water pumped from Lake. Huron by the DWSD, and that without .corrosion control treatment, lead was leaching out of the lead-based service lines at alarming rates and finding its way to the homes of Flint’s residents.” In his view, -it was “predictable,” but preventable.

III.

On January 25, 2016, eight Flint residents filed suit in state court, alleging one count of professional negligence against defendants. Plaintiffs contended that defendants knew the Plant required upgrades for lead contamination treatment, yet failed to ensure such safeguards were implemented as part of the rehabilitation, resulting in widespread personal injuries and property damage. They sought relief on behalf of themselves and all other similarly situated “residents and property owners in the City of Flint” who used water from the Flint River from April 25, 2014, to the present day.

Defendants removed the action to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(d)(2). Plaintiffs filed a motion to remand to state court. They did not contest the basic requirements for diversity jurisdiction under CAFA. They argued instead that the mandatory “local controversy” exception to CAFA jurisdiction applied. Plaintiffs asserted that the class citizenship and principal injuries elements were not in dispute, citing the allegations in their complaint that the class consisted of Flint residents and that their injuries were suffered in Flint. They alsó argued that LAN, P.C., a Michigan professional corporation, was a significant defendant because it was the entity responsible under Michigan law for certifying that defendants’ work satisfied applicable standards of care. Finally, they contended that no party had filed a similar suit against defendants in the past three years.

Defendants countered that the class citizenship element was very much in dispute and that the mere allegation of residency, alone, was not sufficient to establish citizenship. Defendants also argued that the mere fact that LAN, P.C. certified the engineering plans does not establish its conduct formed a significant basis of plaintiffs’ negligence claim. Rather, LAN, Inc., a Texas corporation, was the more significant defendant since it contracted with Flint to provide the engineering services that plaintiffs alleged were negligently performed.

The district court granted plaintiffs’ motion to remand. It found that more than two-thirds of the putative class members were likely Michigan citizens. Relying primarily on the rebuttable presumption of domicile based on residency and the absence of any contrary evidence, the court also observed that the proposed class consisted of residents who, over a relatively limited period of time, experienced a continuing injury localized in Flint. The court also found that LAN, P.C.’s (the Michigan defendant’s) conduct formed a significant basis of plaintiffs’ claim because defendants’ engineering services were provided “through LAN, P.C.”

Defendants timely petitioned for permission to appeal, which this' court granted on September 20, 2016. In re Lockwood, Andrews & Newnam, P.C., No. 16-0102, at 2 (6th Cir. Sept. 20, 2016). Our order initiated a 60-day clock in which we are required to issue a decision. In re Mortg. Elec. Registration Sys., Inc., 680 F.3d 849, 853 (6th Cir. 2012).

IV.

A.

We begin our analysis on an issue that enjoys unanimity, both between the parties and among the circuits, but which is nonetheless an important starting point: the burden of proof. The parties and every circuit to have addressed this issue all agree that the party seeking to remand under an exception to CAFA bears the burden of establishing each element of the exception by a preponderance of the evi-denee. See Woods v. Standard Ins. Co., 771 F.3d 1257, 1262 (10th Cir. 2014); Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010); Greenwich Fin. Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23, 26 (2d Cir. 2010); In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 564 F.3d 75, 78 (1st Cir. 2009); Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 153 (3d Cir. 2009); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 680 (7th Cir. 2006); Frazier v. Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir. 2006); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir. 2006).

We agree with the universal wisdom of our sister circuits for two, interrelated reasons. First, the language of “local controversy” exception indicates that it is not part of the initial jurisdictional calculus. Section 1332(d)(4) provides that “[a] district court shall decline to exercise jurisdiction under paragraph (2)” if certain conditions are met. Congress’s use of “decline” is important. It necessarily implies a prior determination of jurisdiction, since “a court could not ‘decline’ jurisdiction that it never had in the first place.” Clark v. Lender Processing Sews., 562 Fed. Appx. 460, 465 (6th Cir. 2014). Second, the longstanding rule is that “whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception.” Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 698, 123 S.Ct. 1882, 155 L.Ed.2d 923 (2003). Just as nothing in CAFA alters the traditional rule that the removing party bears the burden of establishing the jurisdictional elements, see Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007), we find nothing in the statute indicating that Congress intended to upend Breuer’s traditional rule.- We therefore hold that the party seeking to remand bears the burden of establishing an exception to CAFA jurisdiction by a preponderance of the evidence.

Plaintiffs, as the moving party, must establish all four elements of the local controversy exception. But, as defendants only contest the two-thirds citizenship and “significant basis” requirements, we confine our inquiry to those elements. We take each in turn.

B.

The first element of the local controversy exception requires- the movant to show that “greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filedf.]” § 1332(d)(4)(A)(I). “Citizen” and its variant “citizenship” have acquired a particular meaning in our law as being equivalent to “domicile.” Von Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990) (“State citizenship ... is equated with domicile.”); see also N.L.R.B. v. Amax Coal Co., a Div. of Amax, 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) (“Where Congress uses terms that have accumulated settled meaning ..., a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the. established meaning of these terms.”)..Thus, although the statute speaks in terms of citizenship, a party invoking the local controversy exception is effectively tasked with establishing the domicile of the proposed class members.

According to their complaint, plaintiffs seek to represent all “residents and property owners in the City of Flint” who used water from the Flint River from April 25, 2014, to the present day, and were thereby injured by defendants’ professional negligence. Defendants contend that the district court erred in finding that, more likely than not, two-thirds of this proposed class were citizens of Michigan.

In evaluating defendants’ challenge, two long-standing propositions of law inform our analysis. The first relates to our standard of review: an appellate court will not disturb a district court’s factual findings, including those regarding the citizenship of parties, “unless the record leaves us with the definite and firm conviction that a mistake has been committed.” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (bracketing and quotation marks omitted); Cameron v. Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th Cir. 1997) (recognizing that citizenship is question of fact). The second relates to the substantive law of domicile: the law affords a rebuttable presumption that a person’s residence is his domicile. See, e.g., D.C. v, Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 86 L.Ed. 329 (1941). Taken together, these principles lead us to affirm the district court’s holding that plaintiffs satisfied the two-thirds citizenship requirement.

In elemental terms, domicile consists of (1) residence and (2) an intent to remain there. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). In practice, however, the law of domicile has long been one of presumptions. In his Commentaries on the Conflict of Laws, for example, Joseph Story listed over a dozen such presumptions, including: a person’s place of birth is presumptively their domicile; a child’s domicile is presumptively that of their parents; and, most important for our purposes, “prima facie, the place, where a person lives, is taken to be his domicil, until other facts establish the contrary.” Joseph Story, Commentaries on the Conflict of Laws, § 46 (5th ed. 1857),

In recognizing the primacy of residency in the domicile calculus, Story was simply drawing from established legal tradition. As early as 1790, England’s House of Lords declared that “[a] person’s being at a place is prima facie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence.” Bruce v. Bruce, 2 Bos. & Pull. 229, note (a). Not long after, the presumption made its way into American law. See 10 Am. & Eng. Ency. Law, Domicile, at 22 (2d ed.) (collecting early state and federal cases). In 1852, the United States Supreme Court announced that' “[w]here a person lives, is taken prima facie to be his domcil, until other facts establish the contrary.” Ennis v. Smith, 55 U.S. 400, 423, 14 How. 400, 14 L.Ed. 472 (1852). And in the 150 years since,, the rule of thumb on residency and domicile has remained fixed: “The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary,” Murphy, 314 U.S. at 455, 62 S.Ct. 303; Anderson v. Watts, 138 U.S. 694, 706, 11 S.Ct. 449, 34 L.Ed. 1078 (1891); Mitchell v. United States, 88 U.S. 350, 352, 21 Wall. 350, 22 L.Ed. 584 (1874); Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972); Walden v. Broce Const. Co., 357 F.2d 242, 245 (10th Cir. 1966); Fort Knox Transit v. Humphrey, 151 F.2d 602, 602 (6th Cir. 1945); 28 C.J.S. Domicile § 45; 39 Am. Jur. Proof of Facts 2d 587, § 8.

We emphasize the historical pedigree of the residency-domicile presumption because the district court primarily based its finding that plaintiffs met their burden under § 1332(d)(4)(A)(I) on the same. As a class that consists of Flint residents, the district court was correct, in light, of the long-standing authority charted .above, to afford plaintiffs the rebuttable presumption that each resident class member was domiciled there. Rather than rebut the presumption with evidence undermining the inference, defendants countered that merely alleging residency cannot, as a matter of law, suffice to satisfy the burden of demonstrating citizenship.

In support of their assertion, defendants point to a competing line of case law holding that “naked averment of ... residence ... is insufficient to show his citizenship.” Robertson v. Cease, 97 U.S. 646, 648, 24 L.Ed. 1057 (1878). This principle also enjoys a rich, pedigree in our law. See, e.g., Bingham v. Cabot, 3 U.S. (3 Dall.) 382, 383-84, 1 L.Ed. 646 (1798) (“str[iking] off the docket” many cases that alleged residence rather than citizenship); Steigleder v. McQuesten, 198 U.S. 141, 143, 25 S.Ct. 616, 49 L.Ed. 986 (1905) (“[I]t has long been settled ... that a mere averment of residence in a particular state is not an averment of citizenship in that state for the purposes of jurisdiction”). More significantly for defendants,, many- cases, including several from the CAFA context, have explicitly rejected the residency-domicile presumption based on the proposition that mere averment of residency cannot establish citizenship. See, e.g., Reece v. AES Corp., 638 Fed.Appx. 755, 769 (10th Cir. 2016) (stating in the CAFA exception context, “To be sure, the place of residence is prima facie the domicile. But allegations of mere residence may'not be equated with citizenship” (internal quotations omitted)); Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008) (“For purposes of diversity jurisdiction, residency is not sufficient to establish citizenship.”).

On closer inspection, however, we are not persuaded this line of cases presents compelling authority for rejecting the residency-domicile presumption in this case. The reason for this lies in the context from which the “mere averment of residency” line of cases emerged—federal subject-matter jurisdiction.

In that context, “[t]he established rule is that a plaintiff, suing in a federal court, must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction[.]” Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 70 L.Ed. 682 (1926). This long-settled principle derives from the fact that federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). As a consequence of this restriction on federal judicial power, federal jurisdiction may not be “maintained by mere averment,” McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), “inferred argumentatively,” Brown v. Keene, 33 U.S. 112, 115, 8 Pet. 112, 8 L.Ed. 885 (1834), or “supplied by inference,” La Belle Box Co. v: Stricklin, 218 F. 529, 533 (6th Cir. 1914). Put differently, and in terms'germane to the present discussion, there is a presumption against federal jurisdiction. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; Thomas v. Bd. of Trustees of the Ohio State Univ., 195 U.S. 207, 218, 25 S.Ct. 24, 49 L.Ed. 160 (1904); Vander Boegh, 772 F.3d at 1064.

The tension between the residency-domicile presumption and the presumption against federal jurisdiction came to a head in Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057 (1878). In that case, the plaintiff argued that “a general allegation of residence, without indicating the character of such residence, whether temporary or permanent, made a prima facie case of right to sue in the Federal courts.” Id. at 649. The Court rejected the contention because, “[a]s the jurisdiction of the Circuit Court is limited in the sense that it has none except that conferred by the Constitution and laws of the United States, the presumption ... is[ ] that a cause is without its jurisdiction unless the contrary affirmatively appears.” Id. at 649. From the Court’s view, in being asked to adopt the residency-domicile presumption, it was, “in effect, asked, in support of the jurisdiction of the court below, to infer argumentatively, from the mere allegation of ‘residence,’ that ... [the plaintiff] had a fixed permanent domicile in [Illinois].” Id. at 650. The Court could not accept that proposition because, under well-settled precedent defining the federal courts’ diversity jurisdiction, the facts establishing diversity jurisdiction could not “be inferred argumentatively from its averments,” id. at 650 (quoting Brown, 33 U.S. at 115), but rather must “be distinctly and positively averred in the pleadings,” id. at 649.

By tracing the origin of the “mere averment of residency” line of cases, we see that the residency-domicile presumption was not rejected because it was specious (indeed, Robertson could “not ... den[y] that there is some force in the[ ] suggestion[],” id.), but because, in the unique context of federal diversity jurisdiction, a contrary presumption of constitutional import takes precedence. See Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884) (“[T]he rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception.”); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (rooting federal courts’ limited jurisdiction in Article III of the Constitution).

• Though the residency-domicile presumption did hot prevail against the unrelenting headwinds of limited federal jurisdiction, there is no reason it should suffer a similar fate under the local controversy exception. As established at the outset of our analysis,- the local controversy exception is not jurisdictional. See also Clark, 562 Fed. Appx. at 465 (holding that “the exceptions are not jurisdictional”); Visendi v. Bank of Am., N.A., 733 F.3d 863, 869 (9th Cir. 2013) (same); Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 142 (2d Cir. 2013) (same); Morrison v. YTB Int’l, Inc., 649 F.3d 533, 536 (7th Cir. 2011) (same); Graphic Commc’ns Local 1B Health & Welfare Fund A v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir. 2011) (same). Thus, a party asserting the exception does not encounter a similar countervailing presumption that neutralizes residency’s presumptive force in establishing domicile. In this context, it would function like a rebuttable presumption does in any other setting: shifting the burden to the opposing party to rebut the inference and permitting, but not requiring, the district court to find the ■ultimate fact. See, e.g., 2 McCormick On Evid. § 342 (7th ed.).

Indeed, the residency-domicile presumption fits particularly well in the CAFA exception context, where the moving party is tasked with demonstrating a fact-centered proposition about a mass of individuals, many of whom may be unknown at the time the complaint is filed and the case removed to federal court. See Nicole Ochi, Are Consumer Class and Mass Actions Dead? Complex Litigation Strategies After CAFA & MMTJA, 41 Loy. L.A. L. Rev. 965, 1030 (2008) (“To achieve the objective of these [CAFA] exceptions, courts should grant plaintiffs a presumption of citizenship when they define their classes according to state residency.”); Stephen J. Shapiro, Applying the Jurisdictional Provisions of the Class Action Fairness Act of 2005: In Search of a Sensible Judicial Approach, 59 Baylor L. Rev. 77, 135 (2007) (advocating the same). The citizenship inquiry under the local controversy exception should not be “exceptionally difficult,” Mondragon v. Capital One Auto Fin., 736 F.3d 880, 886 (9th Cir. 2013), but instead “practical and reasonable.” Hollinger, 654 F.3d at 572. Affording the moving party a rebuttable presumption of citizenship based on residency avoids the exceptional difficulty of proving the citizenship of a class of over 100 individuals, given the nature and timing of the citizenship inquiry under the local controversy exception. See id. at 573 (5th Cir. 2011) (“[Wlhere a proposed class is discrete in nature, a common sense presumption should be utilized in determining' whether citizenship requirements have been met.”).

Those circuits that have rejected the rebuttable presumption in the CAFA context have relied on case law addressing federal subject-matter jurisdiction. See Reece, 638 FedAppx. at 769 (citing White-lock v. Leatherman, 460 F.2d 507, 514 (10th Cir. 1972) (“[Ajllegations of mere ‘residence’ may not be equated with ‘citizenship’ for the purposes of establishing diversity.”)); In re Sprint Nextel Corp., 593 F.3d at 673 (citing Meyerson v. Harrah’s E. Chicago Casino, 299 F.3d 616, 617 (7th Cir. 2002) (“[Residence and citizenship are not synonyms and it is the latter that matters for purposes of the diversity jurisdiction.”)); Preston v. Tenet Health-system, Mem’l Med. Ctr., Inc., 485 F.3d 793, 799 (5th Cir. 2007) (citing Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (“For diversity purposes, ’ citizenship means domicile; mere residence in the State is not sufficient.”)). However, these decisions extended the “mere averment of residency” principle without accounting for its underlying rationale. The sole basis for eschewing the residency-domicile presumption in Robertson Was .the countervailing, “inflexible” presumption against federal jurisdiction. Swan, 111 U.S. at 382, 4 S.Ct. 510; see Robertson, 97 U.S. at 649-50. Because the local' controversy exception is not jurisdictional, the premise of Robertson and its jurisdictional progeny is missing here. Given this material distinction, the line of cases defendants rely on provides no basis for rejecting the residency-domicile presumption in this case.

One district court in our circuit has previously rejected the rebuttable presumption of citizenship for a different, albeit equally unpersuasive, reason. In Lancaster v. Daymar Colleges Grp., LLC, the district court declined to adopt the presumption as inconsistent with the proposition that the movant bears the burden of proving citizenship. No. 3:11-CV-157-R, 2012 WL 884898, at *3 (W.D. Ky. Mar. 14, 2012). But this proves too much. Under this rationale, rebuttable presumptions would* cease to exist, since the only circumstance in which they serve any purpose is when the beneficiary of the presumption also bears the burden of proof. 1 Jones on Evidence § 4:2 (7th ed.) (“The underlying purpose and impact of a presumption is to affect the burden of proving or disproving the presumed fact.”).,There is nothing inconsistent with placing the burden of proof on a particular party and also affording them a rebuttable presumption as one way of shouldering that burden. Indeed, our law is quite familiar with the concept. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (affording Title VII plaintiff a rebuttable presumption of unlawful discrimination if she establishes a prima facie case); see also 2 McCormick On Evid. § 343 (7th ed.) (listing other popular presumptions).

In a similar vein, defendants contend that our approach was rejected by the Seventh Circuit as “guesswork. Sensible guesswork, based on a sense of how the world works, but guesswork nonetheless.” In re Sprint Nextel Corp., 593 F.3d at 674. Again, this criticism can be made about presumptions generally. Presumptions are nothing more than common sense inferences “enlightened by human knowledge and experience.” 31A C.J.S. Evidence § 204. They are, to use Sprint’s phrase, the law’s recognition of “how the world works.” Defendants’ argument constitutes a wholesale rejection of presumptions generally, a position we are disinclined to adopt in the absence of any reason to do so. Having distinguished the only line of authority .that other cases have cited to reject the residency-domicile presumption, we see no reason to close our eyes to a centuries-old inference that a person’s residence is presumptively his domicile.

The dissent takes issue with our analysis because it purportedly conflicts with the principle of abstention that we have a “virtually unflagging obligation” to exercise jurisdiction given to us. Because we have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given,” the dissent contends, “we cannot presume a fact that allows us to decline jurisdiction, any'more than we can presume a fact that allows us to find that jurisdiction exists in the first place.” (first quoting Cohens v. State of Virginia, 19 U.S. 264, 404, 6 Wheat. 264, 5 L.Ed. 257 (1821)).

The dissent’s recitation of abstention principles is accurate, but the conclusion it draws from them does not follow. The abstention doctrines the dissent invokes are judge-made exceptions to the powerful default rule that Congress alone has the constitutional authority to define the contours of federal jurisdiction. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Thus, our “virtually unflagging obligation” stems from a deep sense of prudence, if not constitutional obedience, to listen when Congress directs federal courts to assume jurisdiction over particular controversies. See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“Underlying these assertions is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds.!’). But it is because common law abstention reflects a departure from the constitutional norm that the Supreme Court placed strict rules on its use. It is for this reason that the Supreme Court has admonished that abstention is an “extraordinary and narrow exception,” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), only to be invoked in “narrowly limited ‘special circumstances,’ ” Zwickler, 389 U.S. at 248, 88 S.Ct. 391 (1967), and on only the “clearest of justifications,” Rouse v. Daimler-Chrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002) (quoting Colorado River, 424 U.S. at 819, 96 S.Ct. 1236).

But all of these common law restrictions on abstention have no place here because Congress has expressly directed courts to decline jurisdiction over local controversies. For this reason, we disagree with the dissent’s assertion that “[w]e have nothing like a clear justification for abstention here”—Congress has provided the all justification we need in § 1332(d)(4)(A). We would agree with the dissent that we have a “virtually unflagging obligation” to not decline jurisdiction when Congress’s only word on the matter is to. exercise jurisdiction. But, when Congress directs something different, our obligation remains with the Constitution and the text of the statute enacted by Congress. And here Congress directed something different. In enacting CAFA, Congress expanded diversity jurisdiction while carving out an exception for “local controversies.’-’ Read together and in harmony, CAFA’s provisions explicitly instruct federal district courts to remand class action cases that satisfy the elements of §, 1332(d)(4)(A), notwithstanding the fact that the jurisdictional requisites are met. In light ,of Congress’s explicit directive to decline jurisdiction, the dissent’s common law abstention principles—born as they were in the context of judicial insubordination toward Congress—are inapplicable.

Furthermore, we would be remiss if w¿ did not also observe that defendants drew the very same residency-domicile inference in their notice of removal. In their notice, defendants alleged that minimal diversity existed because “Plaintiffs were citizens of the State of Michigan.” And in support, defendants cited paragraph 2 of the first amended complaint, which merely alleged residency, not citizenship. Yet, defendants insist plaintiffs cannot draw the same inference when it comes to similarly situated Flint residents. Were we to take defendants’ and the dissent’s argument to its logical end point, we would be compelled— on the very authority that defendants argue requires this case remain in federal court—to conclude that defendants failed to establish the citizenship requirement of federal diversity jurisdiction.

In addition to the presumptive force of residency, there are other attributes of plaintiffs’ proposed class that bolster the inference that the putative class members, as residents of Flint, intend to remain there indefinitely. First, according to plaintiffs’ class definition, the class members have continuously resided in Flint, Michigan, for several years. Nat’l Artists Mgmt. Co. v. Weaving, 769 F.Supp. 1224, 1228 (S.D.N.Y. 1991) (listing as a relevant domicile consideration “the nature of the residence (i.e., how permanent the living arrangement appears)”); Restatement (Second) of Conflict of Laws, Chapter 2: Domicile, Topic 2 Spec. Note (1971) (“Residing for a considerable time in a place is persuasive evidence of domicil there .... ”). In this respect, the district court astutely observed, “There are no circumstances—such as a large number of college students, military personnel, owners of second homes, or other temporary residents—suggesting that these Flint residents are anything other than citizens of Michigan.” Moreover, by definition, the putative class members are property owners, another strong indicator of domicile. Edick v. Poznanski, 6 F.Supp.2d 666, 669 (W.D. Mich. 1998) (citing 1 Moore’s Federal Practice ¶ 0.74[3.3] (1991 & Supp. 1993)). Finally, it bears mentioning that Flint, Michigan, is nowhere near a state line (it lies near the crook of the thumb in the figurative “Michigan hand”), which further undermines the notion that the traditional residency-domicile inference is not appropriate in this particular case.

Against this backdrop, defendants submitted no evidence to rebut the presumption that the putative class members were citizens of Michigan. Instead, they merely relied on case law from other circuits stating that mere allegations of residency are not sufficient to establish citizenship. They did so at their peril. In light of the longstanding presumption of domicile based on residency, the additional domicile factors apparent from the class definition, and the complete absence of any evidence tending to rebut the presumption óf domicile based on residency, we hold that the district court did not clearly err in finding that, more likely than not, more than two-thirds of the proposed class of Flint residents were Michigan citizens.

C.

Defendants also contest the district court’s finding that LAN, P.C.’s “alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class.” 28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb).

We have yet to interpret this provision, but those circuits that have are in general agreement that this provision “effectively calls for comparing the local defendant’s alleged conduct to the alleged conduct of all the Defendants.” Kaufman, 561 F.3d at 156; see also Woods, 771 F.3d at 1266 (following Kaufman); Westerfeld, 621 F.3d at 825 (same). “The local defendant’s alleged conduct must be an important ground for the asserted claims in view of the alleged conduct of all the Defendants.” Kaufman, 561 F.3d at 157. After taking into account the totality of the conduct forming the basis of plaintiffs claims, we must consider, whether “the local defendant’s alleged conduct is a significant part of the alleged conduct of all the Defendants[.]” Id. at 156. If so, the “significant basis” provision is satisfied.

This case involves a single claim of professional negligence against three defendants: LAN, P.C. (a Michigan corporation), LAN, Inc. (a Texas corporation), and Leo A. Daly Company (a Nebraska corporation). The conduct underlying plaintiffs’ claim is the provision of engineering design sex-vices in connection with upgrades to Flint’s Water Treatment Plant, including drafting and implementing the engineering plans and providing “quality control” measures.

We begin with the third defendant, Leo A. Daly Company. Plaintiffs’ complaint does not allege that Leo A. Daly Company engaged in any engineering services. Instead, plaintiffs allege that Leo A. Daly Company is LAN, P.C.’s and LAN, Inc.’s corporate alter ego, thereby making Leo A. Daly Company vicariously hable for LAN’s tortious conduct. Given plaintiffs’ theory of liability, Leo A. Daly Company’s role in plaintiffs’ negligence claim is minimal at best.

That leaves LAN, P.C. and LAN, Inc. The complaint alleges professional negligence against both defendants and further alleges that all engineering work was conducted “through LAN, P.C.” More specifically, the complaint alleges that LAN, P.C. was formed to conduct LAN, Inc.’s work in Michigan, and that Flint relied on LAN, P.C.—as the LAN entity that “work[ed] with several water systems around the state”’—to “perform quality control.” The failure to provide that quality control is the very core of plaintiffs’ professional negligence claim. We therefore agree with the district court that LAN, P.C.’s conduct forms an “important” and integral part of plaintiffs’ professional negligence claim.

Defendants argue that the professional services agreement with the City shows that its professional relationship was with LAN, Inc., not LAN, P.C. Even assuming we may properly consider this extrinsic evidence, compare Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1015 (9th Cir. 2011) (limiting scope of “significant basis” inquiry to complaint), with Evans, 449 F.3d at 1167-68 (considering extrinsic evidence under “significant basis” provision), it does not alter our conclusion. That Flint formally contracted with LAN, Inc. is not inconsistent with plaintiffs’ allegation that LAN, Inc. provided its services “through LAN, P.C.” Moreover, the agreement acknowledges that LAN, Inc. would not be the only entity providing the services. It states that “all of the obligations required by [LAN, Inc.] under this Contract shall be performed by [LAN, Inc.] or by others employed by him and working under his direction and control.” This buttresses plaintiffs’ allegation that LAN, P.C., as the LAN entity that “work[ed] with several water systems around the state,” was responsible for “perform[ing] quality control,” and was the entity “through” which defendants provided, their engineering services.

Defendants also argue that, according to plaintiffs’ own complaint, LAN, P.C. conducted a majority of its business in LAN, Inc.’s Chicago office. However, the “significant basis” provision is not concerned with where the conduct occurred, but rather with who engaged in the conduct. § 1382(d)(4)(A)(i)(II)(bb) (requiring that a local defendant be a defendant “whose alleged conduct forms a significant basis for the claims_” (emphasis added)). LAN, P.C. is a Michigan corporation and its conduct—regardless of where it is carried out—is evaluated against that of the other defendants. The allegations that LAN, P.C. was responsible for quality control, in conjunction with the allegation that defendants’ engineering work in Flint was conducted “through LAN P.C.,” are sufficient to establish that LAN, P.C.’s conduct forms a “significant basis” of plaintiffs’ professional negligence claim.

V.

For the foregoing reasons, we agree with the district court that plaintiffs established the class citizenship and significant basis requirements of the local controversy exception to CAFA. It is also important that we not lose sight of the forest for the trees. The local controversy exception exists to ensure that “a truly local controversy—a controversy that uniquely affects a particular locality to the exclusion of all others”—remains in state court. S. Rep. No. 109-14, 39 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 38. By that definition, and the statutory elements Congress set forth to achieve that vision, the case before us exemplifies the quintessential local controversy. Indeed, it defies common sense to say a suit by Flint residents against those purportedly responsible for injuring them through their municipal water service is not a “local controversy.”

For these reasons, we affirm the judgment of the district court.

DISSENT

KETHLEDGE, Circuit Judge,

dissenting.

To meet a burden of proof, a party usually must provide some. Here, it is common ground that the federal courts have jurisdiction over this case and that the plaintiffs bear the burden of proving that we may lawfully abstain from exercising that jurisdiction. The plaintiffs have not met that burden, or even tried.

By way of background, the federal courts “have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Abstention is an “extraordinary and narrow exception” to that duty. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Thus, only the “clearest of justifications” will justify abstention. Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002).

We have nothing like a clear justification for abstention . here. The federal courts undisputedly have' jurisdiction over this case under the Class Action Fairness Act. See 28 U.S.C. § 1332(d). Instead the question here, broadly stated, is whether we may abstain from exercising that jurisdiction per the Act’s so-called “local-controversy exception.” For .that exception to apply—and thus for us lawfully to send the case back to state court—the plaintiffs must prove, among other things, both that more than two-thirds of the putative class-members “are citizens of the State in which the action was originally filed” (i.e., Michigan) and that the alleged conduct of the sole Michigan defendant “forms a significant basis for the claims” of the putative class. Id. § 1332(d)(4)(A)(I), (II)(bb).

The plaintiffs have proved neither. As for the first requirement, every circuit to have considered the issue—five so far— has held that “there must ordinarily be at least some facts in evidence from which the district court may make findings regarding the class members’ citizenship for purposes of CAFA’s local-controversy exception.” Mondragon v. Capital One Auto Finance, 736 F.3d 880, 884 (9th Cir. 2013) (gathering cases); see also Reece v. AES Corp., 638 Fed.Appx. 755, 769-70 (10th Cir. 2016); In re Sprint Nextel Corp., 593 F.3d 669, 674-676 (7th Cir. 2010); Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 799-801 (5th Cir. 2007); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1166 (11th Cir. 2006). Meanwhile, as the majority correctly observes, citizenship in this context equates to domicile, and domicile consists of both residence in a State and an intention to remain there. Maj. Op. at 389-90. Thus, to meet this requirement, the plaintiffs must show by a preponderance of the evidence that more than two-thirds of the putative class-members both reside in Michigan and intend to remain there. But on those points (or any other) the plaintiffs have presented ho evidence at all. Instead they merely cite the allegations in their complaint. That, per the law of every circuit to have addressed the issue, is .reason enough to conclude that we must exercise our jurisdiction in this case. .

The majority concludes otherwise by means of a presumption.- As an initial matter, the guesswork here begins with even defining the putative class, since the plaintiffs neglected to defíne it in their putative class-action complaint. But the complaint does say that the class-members are similarly situated to the plaintiffs, and that the plaintiffs are “residents and property owners in the City of Flint” who (or which, as the case may be) were exposed to water supplied from the Flint River after April 25, 2014. Complaint ¶¶ 1, 84.- Plaintiffs’ counsel also clarified during oral argument that the phrase “property owners” does not modify “residents,” but instead describes a separate group within the putative class. Thus, taking the allegations and clarification together, one can surmise that the class includes residents exposed to the Flint water supply after April 25, 2014, and property owners likewise exposed.

At this point the majority’s presumption arises. According to the majority, the plaintiffs have alleged that the class members are residents of Flint, which (in the majority’s view) creates a presumption that they are citizens as well, which in turn throws upon the defendants the burden of proving that one-third of the putative class are not citizens of Michigan. But this reasoning is mistaken both factually and legally. The factual mistake is the assertion that the plaintiffs have alleged that all the class members are Flint residents, since— per the statement of plaintiffs’ counsel at oral argument—the class includes Flint “property owners” who need not be residents of Flint (or Michigan) to be members of the class. Thus, the majority’s presumption of citizenship does not apply to “property owners”—whose numbers are anyone’s guess. Even the majority’s presumption, therefore, does not provide us with anything near what the law would regard as a proper basis to conclude that two-thirds—as opposed to one-third, or one-half, or three-quarters—of the putative class-members are Michigan citizens. We thus lack the requisite “clearest of justifications” to decline to exercise our jurisdiction here. Rouse, 300 F.3d at 715.

The majority’s legal mistake is more complicated. The majority observes, correctly, that “there is a presumption against federal jurisdiction,]” Maj. Op. at 391; which in any particular case the party asserting jurisdiction must overcome. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, the majority reasons further, the federal courts cannot presume in diversity cases—where the existence of the court’s jurisdiction depends on the parties' citizenship—that a party is a citizen of a state simply because the party is a resident of it. For in that event the court would presume that .jurisdiction exists, when instead the court must presume that it does not. But here the situation is different, the majority reasons, because in this case the federal courts already have jurisdiction; the question instead is whether to exercise it. The majority thus splits with five other circuits, and concludes that we are free to presume that a mere allegation of residency in Michigan is enough to prove citizenship there.

What the majority overlooks, however, is the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. As Chief Justice Marshall put it nearly 200 years ago: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. 264, 404, 6 Wheat. 264, 5 L.Ed. 257 (1821); see also Sprint Communications, Inc. v. Jacobs, — U.S. —, 134 S.Ct. 584, 590-91, 187 L.Ed.2d 505 (2013) (same). That means we cannot presume a fact that allows us to decline jurisdiction, any more than we can presume a fact that allows us to find that jurisdiction exists in the first place. Thus, just as we cannot presume that residency equals citizenship when determining whether jurisdiction exists, neither can we apply that same presumption when determining whether we can decline jurisdiction. And that is exactly what the majority, does here.

I would therefore dispense with all the dueling presumptions, and instead simply ask what the other circuits ask: whether the plaintiffs have produced “evidence from which the district court may make findings” that more than two-thirds of the putative class-members are citizens of the State in which the case was originally filed. Mondragon, 736 F.3d at 884. Here, the plaintiffs have not produced such evidence, or even any evidence at all. That conclusion, standing alone, means that we must exercise our jurisdiction in this case.

More briefly, the plaintiffs have likewise failed to show that the only Michigan defendant in this case—Lockwood, Andrews & Newnam, P.C. (“Lockwood P.C.”)—is one “whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class[.]” 28 U.S.C. § 1332(d)(4)(A)(II)(bb). As an initial matter, as the Ninth Circuit has persuasively explained, the statutory reference to “alleged conduct” means that (in contrast to the citizenship requirement) we look solely to the allegations in the complaint when determining whether the plaintiffs have met this prerequisite to abstention. See Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1015 (9th Cir. 2011). Our inquiry as to this prerequisite is comparative: we ask whether the in-state defendant’s conduct, as alleged in the complaint, is important when compared to the conduct of the other defendants as so alleged. See, e.g., Westerfeld v. Ind. Processing LLC, 621 F.3d 819, 825 (8th Cir. 2010); Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 156 (3d Cir. 2009); Evans, 449 F.3d at 1167.

Here, the plaintiffs’ allegations as to the Michigan defendant—Lockwood P.C.—are an enigma. The complaint alleges that the City of Flint retained a Texas corporation—Lockwood, Andrews Newnam, Inc. (“Lockwood Inc.”), , which is likewise a defendant here—“to conduct studies and reports of a new water supply that was being developed” for the City. Complaint ¶ 3. The complaint also alleges that Lockwood P.C. “was incorporated in 2008 by” Lockwood Inc. after the latter was so retained, and that Lockwood Inc. “conducted business in Genesee County, Michigan through” Lockwood P.C. The complaint then proceeds to define both Lockwood entities collectively as “LAN,” which for the remainder of the complaint is the subject of every verb describing conduct allegedly forming the basis of the plaintiffs’ claims. Thus, as in a Fifth Circuit case, “nothing in the complaint distinguishes the conduct of [Lockwood P.C.] from the conduct of the other defendants.” Opelousas Gen. Hosp. Auth. v. FairPay Sols., Inc., 655 F.3d 358, 362 (5th Cir. 2011). The complaint therefore “contains no information about the conduct of [Lockwood P.C.] relative to the conduct of the other defendants[,]” and thus does not establish that Lockwood P.C.’s conduct “forms a significant basis of the plaintiff[s’] claims.” Id. Moreover, the complaint never explains what the plaintiffs mean by their allegation that Lockwood Inc. conducted business “through” Lockwood P.C. Instead, that phrase remains an exercise in studied ambiguity. Finally, what the complaint does say about the conduct of the defendants relative to one another affirmatively suggests that the more significant actor was the remaining defendant, Leo A. Daly Company, a Nebraska corporation (which the complaint calls “LAD”). Specifically, the complaint alleges that “LAN is a subsidiary of LAD,” that “LAN exists as a separate entity from LAD in name only[,]” and that “LAN is totally reliant upon LAD for direction with regard to all critical aspects of the issues giving rise to this lawsuit.” Complaint ¶ 80. The complaint thus provides plenty of reason to conclude that LAD’s conduct was significant as compared to either of the Lockwood entities, but no basis at all to conclude that the conduct of Lockwood P.C., in particular, was significant as compared to the conduct of the other defendants. Indeed, the district court never found that Lockwood P.C.’s alleged conduct formed a “significant basis” for the claims of the putative class. Instead, the majority supplies that finding for the first time in its opinion today.

It should take a better showing than this for a federal court to cast off its unflagging duty to exercise the jurisdiction assigned to it by Congress. I respectfully dissent.


source: Caselaw Access Project

author: ROGERS, Circuit Judge.

license: Public Domain

text:
    Donna W. SHERWOOD; Jerome D. Pinn; Vance Sherwood; Anthony Billingsley; Jennifer Peet; Richard Eugene Williams; Frank L. Oakberg; Bonnie E. Oakberg; Gerry M. Williams; Harold P. Sloves; Felicitas K. Sloves; Sheila D. Booe; Thomas R. Warren, Jr.; Jeffrey G. See, Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.
    No. 15-6161
    United States Court of Appeals, Sixth Circuit.
    Argued: October 19, 2016
    Decided and Filed: November 17, 2016

      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.
    Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.

       The Honorable Paul L. Maloney, United States District Judge for the Western District of Michigan, sitting by designation.

   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 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.

I.

This litigation started in 2012, when Donna Sherwood and the other plaintiffs sued the Tennessee Valley Authority (TVA) for violating 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 this 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 Fed.Appx. 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 statement before adopting the fifteen-foot rule.

In the first round of litigation in the district court, TVA moved for summary judgment on the NEPA claim, arguing that it had 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) instruct right-of-way specialists to cut tall-growing trees but allow specialists 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 trees’ ... 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- considered 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 that TVA had created a new 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 Fed.Appx. at 460. We . remanded 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 administrative record, TVA filed a motion to dismiss the case as moot. In support of the mótion to dismiss, TVA stated that it “did not create in 2012 a separate administrative record for the challenged decision.” TVA asserted that an administrative record was not necessary, however, 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 introduction of the 15-foot rule.” The only evidence TVA offered to support this assertion consisted of two affidavits (the Woodward affidavits) containing declarations by Jacinda Woodward, TVA’s Senior Vice President of Transmission and Power Supply, who is responsible for TVA’s right-of-way maintenance program. TVA filed the first affidavit on December 5, 2014, and the 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-of-way maintenance practices applicable to the wire and buffer zones on TVA rights-of-way that were utilized prior to the introduction' of the 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.”

Following TVA’s motion to dismiss, Sherwood filed a motion for summary judgment, requesting declaratory and in-junctive relief based on TVÁs alleged NEPA violation and arguing that the case was not moot. The district court gave Sherwood permission to submit supplemental evidence in support of the motion for summary judgment. In response, Sherwood first filed an affidavit (the Anderson affidavit) containing declarations by Billy Anderson, a landowner in Paducah, Kentucky. In' the affidavit and the attached exhibits, Anderson describes that before June 1, 2015, TVA had only ever trimmed one of the trees within its right of way on his property. Then, in 2014, a TVA right-of-way specialist 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, including trees in both the wire zone and the buffer zone. The trees were between seven and sixty feet tall—the majority between 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 thirty-one-mile stretch of right 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 that the right of way’s buffer zone was clear-cut and mulched. King surveyed several portions of the Recreation 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 Michael Buelow. Buelow was the right-of-way specialist who oversaw TVA’s, vegetation management on the Anderson property and the LBL Recreation Area. In the first affidavit, Buelow discusses the Anderson property: “In my opinion, all of the mature fruit trees in the wire zone had to be removed, but the row of younger, smaller fruit trees on the northern edge of the right-of-way could remain.” Buelow 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 have to come back.” In the second affidavit, Buelow discusses the Recreation Area: “Several factors prompted me to decide to clear the right-of-way across Land Between the Lakes to its full width (150 feet),” including 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] older, wooden, ‘H-frame’ struc-turesf,] which spread the conductors out over more area than more modern metal lattice or single pole- structures.” Furthermore, Buelow states that his decision “was not influenced by the rescinded” fifteen-foot rule.

After Sherwood submitted her supplemental evidence and TVA filed its counter-evidence, the district court granted TVA’s motion 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 fifteen-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-implementing 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 TVA’s counterevidence, or question the sincerity of the Woodward affidavits. The, district court also rejected Sherwood’s argument that TVA had not adequately assured the court that TVA would 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 and 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 Sherwood’s legal interests.

After rejecting Sherwood’s voluntary-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 policy, 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 request for an injunction was moot because, given that TVA had abandoned the fifteen-foot policy, 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 renders the [cjourt unable to afford plaintiffs any meaningful relief.” Id. at 786. Sherwood now appeals the district court’s decision 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 moot. 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, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), before the district court could properly dismiss this case as moot. The Woodward and Buelow affidavits, considered in light • of Sherwood’s supplemental evidence, were not enough to establish mootness.

Even if TVA has formally abandoned the fifteen-foot policy, as the district court found it has, see Sherwood III, 124 F.Supp.3d at 784, evidence in the record suggests that TVA has not reverted back to the right-of-way practices it used before adopting the rule. TVA’s pre-fifteen-foot-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 zone on each side” of 175-foot’right of ways; cutting “[tjall-growing trees”; and giving right-of-way specialists discretion over whether to remove “[l]ow-growing trees.” Furthermore, TVA previously “made exceptions for some taller-growing trees where the landowners had said they would control tree height.” See Sherwood II, 590 FedAppx. at 454. And as demonstrated by ample evidence in the record, TVA did not always strictly follow its policies, so that plenty of “tall-growing” trees remain in TVA’s right of ways, including in the wire zone.

Sherwood’s supplemental evidence suggests that 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 declared 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 seventeen feet. Additionally, between February and July of 2015, two to seven months after TVA claimed 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” fifteen-foot rule and TVA’s recent practices cannot be explained away by TVA’s argument that right-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 Fed.Appx. 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. And although the 2008 Guidelines mandate that specialists remove tall-growing trees, in practice 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 TVA is currently removing all tall-growing and low-growing 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, the agency’s promise to perform NEPA review before changing its buffer-zone maintenance policies is not an adequate assurance that- its challenged conduct will not recur. In our first Sherwood opinion, we stated that “[historically, TVA has removed all trees directly under its power lines.” Sherwood II,. 590 Fed. Appx. at 453. The district court inferred from this language that the fifteen-foot rule had no effect on the wire zone, - as TVA already cleared the 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 historically 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 specialists 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 policy to any part of its right of ways, and TVA’s assurance that it will comply with NEPA before changing its buffer-zone maintenance policies is not enough to satisfy the court that TVA’s challenged 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, 73 S.Ct. 894, 97 L.Ed. 1303 (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 possibility” of recurrent violation. Id. at 633, 73 S.Ct. 894. The Court instructed lower courts to consider “the bona fides of the [defendant’s] expressed intent to comply, the effectiveness of the [defendant’s] discontinuance^] and[ ] in. some 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 conduct will recur (or is continuing). Because the Woodward affidavits do not state that TVA will conduct NEPA review before changing its wire-zone policies, TVA’s assertion that it will comply' 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 neither constitutionally nor equitably moot, we remand the case to the district court. If TVA seeks to prove that this case is moot on remand,- 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 create in 2012 a separate administrative record for the challenged decision” does not mean the agency does not have anything for the district 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 were 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, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Thus, it is irrelevant that TVA does not have a pre-prepared record that reviews the, environmental impact of the fifteen-foot rule. The agency must compile whatever documentation it has from its decision-making process and produce those materials in the district court proceedings on remand.

m.

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

      . The wire zone is the area directly beneath TVA’s power lines, which extends out to a buffer zone along the outside edge of both sides of TVA’s right of way.