Crowell & Moring LLP

We counsel and litigate on behalf of national trade associations, multinational corporations, and smaller companies, in addition to state and local governments, foundations, and other organizations. Our clients are engaged in the mining, silviculture, agriculture, construction, and defense industries, and manufacture products as diverse as agricultural and industrial chemicals, heavy equipment, motor vehicles, engines, pharmaceuticals, food products, steel, electronics, and consumer goods.

 

We represent those clients before the courts, Congress, and agencies, including the Environmental Protection Agency (EPA), the Department of the Interior, the Department of Agriculture, and numerous other federal and state agencies. While much of our practice involves efforts to shape the development of the law, we counsel and aggressively defend our clients in a wide range of civil and criminal investigations and enforcement proceedings. Our strong record of success in litigation includes two recent victories before the U.S. Supreme Court. Yet, because we are equally at home in other forums, we consider the full range of possible administrative, judicial, and legislative solutions and select those that will be most expeditious, cost-effective, and lasting. Our problem solving is frequently aided by our Public Policy Practice and our close affiliation with C&M International, a preeminent consulting firm that provides international trade, public affairs, and government relations expertise.

 

We are proud of our commitment to client service and our creative approach to problem solving. We invite you to learn more about our many practice areas below.

 

We represent clients on a broad spectrum of issues arising from federal and state regulation of air emissions, including matters related to the control of stationary and mobile sources, climate change, permitting, strategic counseling, and enforcement, such as:

 

·    Counseling companies on a variety of Clean Air Act (CAA) issues, including new source review, prevention of significant deterioration, Title V permitting, and compliance with new source performance standards.

·    Advising clients on potential climate change issues and liability, including defending companies involved in global warming tort litigation.

·    Defending clients in CAA administrative and civil enforcement actions.

·    Counseling industrial clients regarding EPA’s development and implementation of hazardous air pollutant standards, including maximum achievable control technology and area source standards, and representing clients in EPA rulemakings to review and revise national ambient air quality standards.

·    Counseling livestock producers on the application of federal and state air pollution controls to animal feeding operations.

·    Counseling a major engine manufacturer on emissions compliance requirements for its on-road and non-road engine and vehicle products.

·    Counseling a major automobile manufacturer regarding litigation against California’s greenhouse gas regulations.

·    Advising a major automobile manufacturer regarding corporate average fuel economy requirements administered by the National Highway Traffic Safety Administration, including prospects for additional changes to existing requirements.

 

We have represented major coal suppliers in litigation and arbitration regarding coal and mineral supply agreements, lease agreements, royalty agreements, and similar energy-related contract disputes.

 

·    Representing coal suppliers in litigation against Big Rivers Electric Corporation concerning a breach of contract and gross inequities claims arising under a cost-plus coal supply agreement

·    Obtaining summary judgment for a coal supplier in litigation against Southern Indiana Gas and Electric Company to require acceptance of blended coal under a long-term coal supply agreement

·    Obtaining injunctive relief to prohibit contract termination and a favorable settlement in a suit against Seminole Electric Cooperative, Inc. arising out of Seminole's attempt to terminate a long-term coal supply agreement, and in litigation with Public Service Company of Indiana (PSI) arising out of PSI's attempt to terminate a long-term coal supply agreement because of alleged environmental restrictions on use of the coal

·    Successfully defending a coal supplier at trial in a suit brought in Indiana state court by Indiana Kentucky Electric Corporation claiming $15 million for alleged breach of contract; and successfully defending against litigation brought by Hoosier Energy seeking relief from earned royalty obligations arising under a long-term lease agreement

·    In addition, our attorneys have provided significant contract drafting and negotiation advice, particularly in the context of contract disputes that have not reached litigation, and have written and spoken extensively on all phases of energy-related contract litigation. We are the authors of the extensive chapter on coal supply contracts that appears in Matthew Bender's multi-volume treatise, Energy Law and Transactions

·    E-transactions: Coal and mineral agreements via internet and e-transactions are becoming increasingly commonplace. Our e-business lawyers are experts in the specialized legal requirements of fast-paced e-transactions.

  

Our lawyers are at the forefront of shaping the law under the Endangered Species Act (ESA), the Migratory Bird Treaty Act, and other wildlife protection laws, as described below:

 

·    Representing industry clients in the Supreme Court’s most recent ESA cases—Babbitt v. Sweet Home, 515 U.S. 687 (1995); Bennett v. Spear, 520 U.S. 154 (1997); and National Association of Home Builders v. Defenders of Wildlife, Nos. 06-340, 06-549 (2007).

·    Litigating ESA rulemakings, policies, and related agency actions on behalf of trade associations in home building, land development, silviculture, and agriculture, and defending companies against citizen suits and government prosecution for alleged ESA violations.

·    Serving as general counsel to the Endangered Species Coordinating Council, a coalition of national trade associations, companies, and labor organizations seeking legislative reform of the ESA.

·    Representing clients in all aspects of the ESA, including listing and delisting endangered and threatened species, designating critical habitat, recovery planning and species reintroductions, habitat conservation planning, and negotiating incidental take permits.

 

We have counseled and represented companies and trade associations on a broad range of environmental, health, and safety (EHS) auditing projects and management systems, including:

 

·    Compliance assurance—conducting EHS audits to evaluate compliance with applicable legal requirements, industry standards, and management practices.

·    Transactional auditing—conducting audits and site assessments as part of “due diligence” inquiries into the environmental liabilities of companies, and assisting in drafting related contractual documents.

·    Management systems—evaluating, designing and implementing EHS management systems (including ISO 14001, alternative models, and SEC/Sarbanes-Oxley components) in connection with, or in avoidance of, federal and state enforcement proceedings and suspension/debarment actions.

·    Training and strategic planning—developing and conducting training and awareness programs for EHS coordinators, plant personnel, and senior management, while developing risk analysis and management strategies with a focus on securing competitive advantage through cost-effective compliance and sustainable development policies.

 

Some representative projects have included:

 

·    Appointment by the U.S. District Court in Alaska, on the joint motion of BP Amoco and the U.S. Justice Department, to monitor the design and implementation of a nationwide environmental management system at all of BP’s oil exploration, drilling, and production facilities.

·    Assisting the American Chemistry Council in combining its Responsible Care® Program with the ISO 14001 environmental management standards to create a hybrid RC14001® program and an enhanced Responsible Care® management system.

 

Our lawyers are experienced in guiding land developers, mining and timber companies, telecommunications providers, and other clients through the complex environmental planning and historic review requirements of the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA). We also defend those planning efforts when they are challenged by citizen groups, neighboring landowners, and other entities in court. Representative projects have included:

 

·    Successfully defending a gold mining company before the Interior Board of Land Appeals against a neighboring landowner’s challenge to the adequacy of its environmental impact statement and plan of operation for a gold mine expansion in Nevada.

·    Counseling a major land developer in California regarding the applicability of NEPA to the relocation of military training routes above its property as part of settlement negotiations with the U.S. Navy.

·    Counseling clients on the application of NEPA to projects on tribal lands.

·    Counseling various clients as to the meaning of “undertaking” under the NHPA to determine whether that Act applies to land development activities on public and private lands.

·    Counseling a major city in New Mexico regarding the applicability of the NHPA and the Clean Water Act (CWA) to bridge and highway construction projects.

·    Negotiating historic preservation agreements under the NHPA for logging roads, telecommunications facilities, and other development projects on federal lands.

 

Because one-third of the land base in the United States is owned by the federal government, we assist a wide range of resource developers in obtaining access to those federal lands. We also frequently defend their interests in administrative appeals and litigation. Our efforts have included:

 

·    Securing, negotiating, defending, and litigating access across federal lands to private inholdings under the Alaska National Interest Lands Conservation Act.

·    Assisting a major gold mining company with the expansion of its mines on national forest and public lands, completing two federal land exchanges in the process, and then successfully defending those actions in administrative and judicial appeals.

·    Negotiating the largest federal/private coal land exchange in history and then successfully defending it in Northern Plains Resource Council v. Lujan, 874 F.2d 661 (9th Cir. 1989).

·    Assisting a nationwide wireless provider with locating, permitting, and installing wireless telecommunications facilities on federal lands, including in National Parks.

·    Commenting on and litigating such major rulemakings as the Interior Department’s revision of its environmental regulations for hardrock mining on federal lands and the Forest Service’s roadless area protection regulations.

·    Litigating with and against, and appearing before, the federal land management agencies to secure favorable resource planning policies and decisions under the Healthy Forests Restoration Act of 2003, the National Forest Management Act, the Federal Land Policy and Management Act, the Wilderness Act, and the Wild and Scenic Rivers Act.

 

As the global economy expands, our practice has expanded with it to meet our clients’ needs. Augmented by our London and Brussels offices and supported by our international trade affiliate C&M International, our lawyers frequently assist clients with complex legal issues arising under international law, trade agreements, and voluntary management codes, including the following representative projects:

 

·    Counseling a multinational industry group regarding the development of a new international “Cyanide Management Code” for gold production.

·    Analyzing and pursuing North American Free Trade Agreement claims arising from government actions “tantamount to expropriation” for foreign-owned mineral resource companies.

·    Providing environmental due diligence, antitrust, and related advice to midsize and large companies engaged in international joint ventures and transactions.

  

Our lawyers, including two who have served as counsel to the relevant U.S. Senate committees, have extensive experience working with Congress on environmental and natural resources legislation on behalf of our clients. Our projects have included:

 

·    Representing an industry coalition supporting responsible reform of the ESA on the bill which passed the U.S. House of Representatives in the 109th Congress.

·    Preparing and presenting testimony to the U.S. House Resources Committee opposing the adoption of vague and overly broad legislation to protect Native American sacred sites.

·    Working with Congress to protect valuable gold mining claims threatened by federal wilderness legislation and later successfully defending a company’s mine approval against appeals by tribal and environmental interests.

·    Representing mining companies in the congressional debate over reform of the General Mining Law.

·    Drafting and securing enactment of legislation raising statutory limits on acreages of federal mineral leases that companies may hold nationally and in each state.

 

We have practiced under the Comprehensive Emergency Response, Compensation & Liability Act (CERCLA) since the law was enacted in 1980, representing clients in connection with all aspects of that law, including:

 

·    Counseling potentially responsible parties at numerous National Priority List sites.

·    Defending against cost recovery actions, unilateral administrative orders, judicial enforcement, and claims for natural resource damages, while successfully pursuing pioneering theories of government liability.

·    Designing cost allocations in litigation, alternative dispute resolution, and negotiated settlements, such as in City of North Miami v. Berger, 820 F. Supp. 989 and 828 F. Supp. 401 (E.D. Va. 1993).

·    Representing owners and developers on brownfields redevelopment projects in negotiations with EPA and state and local agencies.

 

We have also counseled and defended clients in a broad range of Resource Conservation and Recovery Act (RCRA) enforcement and compliance matters, including:

 

·    Negotiating favorable settlement terms to resolve citizen suit claims of “imminent and substantial endangerment” for alleged lagoon leakage. Sierra Club v. Seaboard Farms, Inc., et al., No. CIV-00-997-C (W.D. Okla.) (consent decree lodged Dec. 20, 2002).

·    Obtaining summary judgment dismissal of RCRA hazardous waste disposal and “imminent and substantial endangerment” claims. Friends of Santa Fe County v. Lac Minerals, 892 F. Supp. 1333 (D.N.M. 1995).

·    Persuading a federal court to vacate a RCRA consent decree and refund a penalty with interest because of “extraordinary” misconduct by EPA. United States v. Envirite Corp., 143 F.R.D. 27 (D. Conn. 1991).

·    Counseling on all aspects of regulation under RCRA and corresponding state laws, including permitting, recycling projects, delisting, and rulemaking.

 

We have a broad toxic substances and pesticides practice, representing trade associations and companies on product-related matters under the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Emergency Planning and Community Right-to-Know Act (EPCRA), and related statutes. Our projects have included:

 

·    Counseling and representing companies in connection with product registration and re-registration procedures and chemical classification programs, including novel product categories such as minimum risk pesticides, treated articles, and biotechnology products.

·    Counseling on labeling and testing requirements, import requirements, marketing claims, new product development, and the applicability of new regulations and evolving agency guidance.

·    Representing pesticide registrants in the negotiation of data compensation settlements, including defending against a petition to deny registration filed by an original data submitter.

·    Participating with the American Bar Association in drafting white papers and briefing EPA’s General Counsel regarding the application of existing toxic and pesticide chemical statutes to the emerging area of nanotechnology.

·    Representing chemical interests before EPA’s Office of Pesticide Programs regarding the application of existing laws to nanoscale pesticides.

·    Counseling a trade group regarding Food and Drug Administration testing requirements applicable to agricultural commodities imported into the United States, including use of U.S. Pesticide Analytical Manual guidelines to affect minimal risk level policies in countries outside the United States.

·    Defending against enforcement actions brought by EPA and its regional offices.

·    Successfully litigating against EPA’s efforts to expand the Toxic Release Inventory program. Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000).

 

Our environmental and toxic tort practice includes trial and appellate litigation of agency enforcement cases, citizen suits, and challenges to agency actions under all of the major environmental laws, with a focus on claims for monetary damages, injunctive relief, response cost recovery, medical monitoring, and other claims involving contaminated sites and releases of hazardous substances. Our projects have included:

 

·    Representing a major heavy equipment manufacturer in defending multiple class action lawsuits alleging neurological damage from exposure to welding fumes.

·    Representing a city in Florida in litigation against a company whose improper disposal of spent solvents contaminated the city’s drinking water supply, recovering past and future cleanup costs in a four-week jury trial.

·    Representing a major defense contractor in five consolidated class actions arising out of alleged contamination from the Hanford Nuclear Reservation and resulting claims for personal injuries, property damage, natural resource damages, and other tort claims. In re Hanford Nuclear Reservation Litigation, 894 F. Supp. 1436 (E.D. Wash. 1995).

·    Defending a large airplane manufacturer in a toxic tort suit based on alleged contamination of groundwater.

 

Our water quality practice encompasses administrative and judicial enforcement proceedings, citizen suits, legislative efforts, participation in EPA rulemakings, and judicial challenges to those rules. Representative projects have included:

 

·    Formal and informal agency advocacy related to major EPA regulations and policies, such as impaired waters/TMDL regulations, general permit requirements for industrial storm water discharges, and National Pollutant Discharge Elimination System (NPDES) regulations regarding concentrated animal feeding operations (CAFOs) and pesticide application.

·    Litigation against, and in defense of, EPA regulations such as the Phase II storm water regulations, NPDES rules regarding CAFOs and pesticide application, and general permitting for construction-related storm water discharges. See, e.g., Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) (ruling EPA cannot require non-dischargers to seek NPDES permit coverage); Texas Independent Producers and Royalty Owners Association, et al. v. EPA, 410 F.3d 964 (7th Cir. 2005) (rejecting environmental groups’ challenge to construction general permit).

·    Litigating challenges to national effluent limitations guidelines, including those applicable to the livestock, steel, and mining industries.

·    Defending against administrative and judicial enforcement actions and citizen suits alleging unpermitted discharges or permit violations. Successful results include defending a major municipal wastewater treatment facility operator in a CWA criminal enforcement action, resulting in a deferred prosecution agreement that preserved the company’s government contracting ability.

·    Negotiating NPDES permits for operations in mining, livestock, hazardous waste, and other industries in permit proceedings, and defending those permits in subsequent appeals.

·    Advising numerous clients on storm water permitting and wetlands issues, including both jurisdictional questions and issues concerning nationwide and individual “dredge and fill” permits under CWA section 404.

·    Advocating favorable EPA and Army Corps of Engineers policies, and providing Supreme Court amicus briefing on the scope of CWA jurisdiction over “navigable waters” and the exemption from dredge and fill permitting for farming, silviculture, and ranching activities.

 

We are experienced in siting controversial wireless telecommunications facilities in sensitive areas such as National Parks and historic districts. We have helped wireless providers develop successful permitting strategies to balance public and law enforcement communication needs with environmental concerns ranging from alleged impacts on migratory birds to effects on unique visual resources. Our representation includes:

 

·    Guiding wireless service providers through the environmental assessments and historic preservation reviews

·    Negotiating permit terms with federal land managing agencies

·    Negotiating memoranda of agreements between the Federal Communications Commission, the National Park Service, and the Advisory Council on Historic Preservation to resolve adverse effects

·    Defending against citizen suits challenging controversial sites

·    Commenting on rulemaking and policy guidance affecting wireless telecommunications facility siting

 

For over three decades, we have represented clients regulated under the Mine Safety and Health Act (MSHA). Our clients in this specialized area include large and small mining companies, industry trade associations, synfuel plants, coal consumers, and company officials subject to personal liability. We have represented mining industry clients in counseling and litigation in every conceivable problem area, including:

 

·    Mine disasters and subsequent investigations and congressional hearings, civil and criminal investigations and enforcement, miner compensation claims, mine and workplace inspections, petitions for modification, labor relations and discrimination proceedings, and Equal Access to Justice Act claims for attorney fees.

·    MSHA jurisdictional issues and rulemakings.

·    Safety and health audits and training.

 

We have also served non-mining industry clients under the Occupational Safety and Health Act, including representing clients before the Occupational Safety and Health Administration (OSHA) to develop and revise workplace safety standards and counseling clients on the applicability of the OSHA asbestos standard for construction and redevelopment projects.

 

Our experience in this area is highlighted by our representation of industry in two of the largest safety and health cases: Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998), vacating over 3,500 civil citations alleging tampering with coal dust compliance samples, and AFL-CIO v. OSHA, 956 F.2d 962 (11th Cir. 1992), vacating 428 OSHA permissible exposure limits.

 

We represent the agricultural industry in local, regional, and national environmental litigation and rulemakings, providing regulatory compliance counseling in virtually all areas of environmental and natural resource law to growers and producers; pesticide, fertilizer, and other product manufacturers; and national trade associations. Our projects have included:

 

·    Representing multiple national trade associations in connection with revisions to EPA’s NPDES regulations for CAFOs.

·    Negotiating a novel, national-in-scope, industry-wide CWA enforcement agreement on behalf of the pork industry.

·    Advising several national trade associations on issues associated with air emissions from livestock facilities, and negotiating with EPA a unique national CAA enforcement moratorium for a variety of animal feeding operations in exchange for performing an emissions monitoring study.

·    Representing a group of national trade associations in challenging revisions to EPA’s impaired waters/TMDL regulations.

·    Representing national trade associations on issues concerning the assertion of CWA jurisdiction over the use of pesticides.

·    Representing a national agricultural chemical trade association in defense of ESA citizen suits that would enjoin the registration and use of pesticides.

·    Defending individual livestock and dairy producers in EPA and state enforcement actions and in citizen suits brought under a variety of environmental laws.

We represent trade associations, companies, and other clients in a wide array of litigation and administrative and legislative matters relating to forestry and timber management on private, federal, and state lands, including:

 

·    Securing a unanimous Supreme Court opinion establishing general lack of jurisdiction for environmental groups to bring programmatic challenges to Forest Service resource management plans in Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726 (1998).

·    Defending companies targeted by citizen suits and government enforcement actions alleging violations of environmental laws and regulations relating to their timber management activities on private lands and their purchase and harvesting of timber on federal and state lands.

·    Serving as national litigation counsel for the industry on natural resource, forest management, and timber supply matters.

·    Pursuing judicial, administrative, and legislative solutions concerning: (1) the applicability of the ESA and other wildlife laws and policies to silvicultural activities on private and public lands; (2) point source permitting, nonpoint source programs, dredge and fill permitting, and other wetland and water quality protections under the CWA; and (3) pesticide registration and application under FIFRA.

Land development activities frequently trigger complex legal issues associated with endangered species protection, wetlands-area development, storm water control, historic preservation, and environmental planning. Our lawyers are expert in developing compliance strategies under the various federal and state counterpart statutes that apply to development activities on private and public lands, including NEPA, NHPA, ESA, and CWA, and defending those strategies against government enforcement actions and citizen suits when necessary. Our work has included:

 

·    Defending a large national home builder in a nationwide enforcement action for alleged violations of EPA’s storm water program.

·    Representing the National Association of Home Builders in litigation brought by environmentalists challenging EPA’s general permit for storm water discharges, and successfully moving for dismissal of those claims on standing grounds. Texas Independent Royalty Producers & Owners Association v. EPA, 410 F.3d 964 (7th Cir. 2005).

·    Assisting the largest private landowner in California in its efforts to develop an entire city, including negotiating a habitat conservation plan and incidental take permit under the ESA.

·    Providing ESA and NEPA compliance counseling for the developer of a ski resort in Colorado, including assessing litigation strategies to overcome challenges by local environmental organizations during project implementation.

Mineral and coal extraction and reclamation activities often pose unique legal issues and challenges, for which our lawyers are uniquely qualified. For example, we have assisted mineral resource companies in acquiring and exercising rights to federally owned minerals and conducting mineral exploration and development operations on public lands. We advise and defend companies on issues arising under public lands, natural resource, environmental, endangered species, and historic preservation laws. We have also counseled and represented the coal industry in litigation under the Surface Mining Control and Reclamation Act (SMCRA) since its enactment in 1977. Our diverse experience in these areas includes:

 

·    Winning reversal of a Ninth Circuit decision before the U.S. Supreme Court, establishing that sand and gravel were not reserved to the federal government as “valuable minerals” in Nevada land patents. BedRoc Limited LLC v. United States, 541 U.S. 176 (2004).

·    Securing dismissal on behalf of 18 major mining companies of a qui tam action seeking billions of dollars in damages based on allegations that “foreign controlled” companies were unlawfully mining gold, silver, and other minerals from public lands.

·    Counseling on, and litigating, the major legal issues arising under SMCRA, such as state primacy, subsidence, valid existing rights, mountaintop mining, offsite support facilities, and hydrology. See Citizens Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003) (addressing subsidence issues in surface coal mining).

·    Resolving problems associated with the Interior Department’s Applicant Violator System (AVS), including enjoining and overturning permit blocks, assisting in ownership and control determinations, and representing the National Mining Association in litigation that set aside the regulations implementing the AVS. See National Mining Association v. U.S. Department of the Interior, 105 F.3d 691 (D.C. Cir. 1997) and 177 F.3d 1 (D.C. Cir. 1999).

·    Successfully challenging an Interior Department regulation imposing an unlawful interest rate on federal coal lease royalties in Amax v. Quarterman, 181 F.3d 1356 (D.C. Cir. 1999).

·    Defending a large mining company against CWA and Superfund natural resource damages claims.

·    Representing major coal and mineral companies in litigation and arbitration proceedings involving coal and mineral supply agreements, lease agreements, competing severed mineral interests, and similar mineral-related disputes, as well as providing contract drafting and negotiation advice in disputes that have not reached litigation.

Manufacturers of motor vehicles and their suppliers, including heavy-duty truck and engine builders, automobile manufacturers, automotive and truck component suppliers, and motorcycle manufacturers, face a variety of environmental and safety regulations applicable to their products. Our lawyers are uniquely qualified to address those issues from a product perspective, as well as on a statute-by-statute basis. For example, our lawyers have direct experience in the areas of federal and state emissions certification, vehicle safety issues under federal motor vehicle safety standards, and parts marking, parts origin, and corporate average fuel economy issues. Representative projects have included:

 

·    Advising a heavy-duty engine manufacturer on strategy associated with obtaining federal certification for new technology engines meeting more stringent 2007 emission standards.

·    Advising an equipment supplier regarding compliance with the American Automobile Labeling Act.

·    Coordinating and responding to threatened and proposed legislation rolling back ultralow sulfur diesel fuel standards drafted in response to 2005 hurricane disasters, by providing alternative legislative language and meeting with appropriate congressional staff on behalf of a heavy-duty engine and truck manufacturer.

·    Obtaining an exemption from the dual fleet provisions of the corporate average fuel economy requirements on behalf of a worldwide automobile manufacturing company.

·    Developing a comprehensive strategy for vehicle classification for a major automobile manufacturer to maximize flexibility under fuel economy requirements.

·    Obtaining favorable interpretation letters from the National Highway Traffic Safety Administration regarding application of federal motor vehicle safety standards to client products.

·    Representing major automobile manufacturers in investigations into alleged safety related defects and noncompliance under the National Traffic and Motor Vehicles Safety Act.

·    Advising and counseling automotive equipment suppliers regarding reporting requirements under the Transportation Recall Enhancement, Accountability and Documentation Act.

Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009). For a coalition of trade associations including the American Forest & Paper Association, National Association of Home Builders, American Farm Bureau Federation, and CropLife America, we prepared an amicus brief on the winning side of this Supreme Court case. The decision reduces the ability of environmental groups to obtain broad judicial review and relief against federal rules. The decision employed the standing doctrine to dismiss a challenge to certain Forest Service appeal rules.

 

Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008). C&M attorneys prepared another Supreme Court amicus brief, on the winning side, for a coalition of trade associations, including the American Forest & Paper Association, California Forestry Association, American Farm Bureau Federation, CropLife America, and the National Association of Home Builders. The Winter case was the Navy sonar case. It featured conflicting interests of military preparedness and protection of marine mammals in a National Environmental Policy Act case. The majority opinion makes it more difficult for environmental group plaintiffs to obtain preliminary injunctions, by emphasizing the four stringent prerequisites for injunctive relief.

 

BedRoc Limited, LLC, et al. v. United States, 541 U.S. 176, 124 S. Ct. 1587 (2004). C&M prevailed on behalf of the Petitioners in a long running controversy over whether private landowners owned the sand and gravel located on property granted under the Pittman Underground Water Act of 1919, where Congress reserved “valuable minerals” for the United States. The question presented in BedRoc was whether that reservation of “valuable minerals” included common sand and gravel, which had become commercially valuable in recent years. The Interior Board of Land Appeals, the Nevada district court and the Ninth Circuit had ruled in favor for the government. The Supreme Court reversed, with six justices agreeing with Petitioners that Congress did not intend to reserve the sand and gravel of Nevada when it enacted the Pittman Act in 1919. The Court concluded that sand and gravel at issue could not have been considered “valuable” minerals in 1919 because those substances had no commercial value at that time. Quoting our brief, the Court noted that “even the most enterprising settler could not have sold sand in the desert” in the early 1900s.

 

Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998). C&M represented the successful Petitioner in a unanimous victory before the Supreme Court. The Court held that environmental groups lacked a ripe controversy on their facial challenge to a broad federal land use action (adoption of a forest plan for the Wayne National Forest). Since there was no justiciable controversy, the Court vacated the Sixth Circuit’s unusual ruling that the Forest Service is inherently biased by the statutes Congress has chosen to enact and the other adverse merits rulings in Sierra Club v. Thomas, 105 F.3d 248 (6th Cir. 1997). Besides its significant ruling on justiciability, the case highlights the importance of private industry intervention: the federal government, on whose side our client had intervened below, declined to petition for Supreme Court review of the unfavorable Sixth Circuit decision, and in fact opposed the successful petition for certiorari that we filed on industry’s behalf.

 

Bennett v. Spear, 520 U.S. 154 (1997). C&M filed an amicus brief on the winning side in this case, which held business interests have standing to raise Endangered Species Act claims.

 

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). C&M represented private landowner plaintiffs in a challenge that the U.S. Fish and Wildlife Service's regulation defining “harm” for purposes of a wildlife “take” under § 9 of the Endangered Species Act was ultra vires of the Act. We succeeded in convincing the court of appeals on rehearing to set aside the regulation. 17 F.3d 1463 (D.C. Cir. 1994). On the government's petition for certiorari, the Supreme Court affirmed the legality of the regulation by a 6-3 vote, but narrowed the regulation's scope.

 

Texas Independent Royalty Producers and Owners Ass'n v. EPA, 2005 WL 1385215, ___ F.3d ___ (7th Cir. June 13, 2005). We represented the National Association of Homebuilders in persuading the court to uphold EPA's mechanism for regulating storm water discharges from construction sites pursuant to the Clean Water Act. Environmental organizations challenged EPA's general permitting scheme, claiming that each individual "Notice of Intent" (or "NOI") and Storm Water Pollution Prevention Plan must be reviewed by the EPA and made available to the public for notice, comment, and a hearing. The court rejected this claim, holding that such a process would be no different than the process for issuing individual permits. The court also rejected the environmentalists' challenge to the general permit under the Endangered Species Act, agreeing that the EPA had satisfied its duty to consult with the Fish and Wildlife Service regarding whether the general permit - and discharges authorized pursuant to it - "may affect" a threatened or endangered species. Finally, the court rejected the environmentalists' remaining challenges to the general permit under the Clean Water Act, holding that the environmentalists lacked standing to challenge the more substantive provisions of the general permit, such as those relating to impaired waters and other water quality issues. Only C&M's brief raised the standing issues to the court.

 

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2nd Cir. 2005). We represented the National Pork Producers Council in this complex litigation challenge to EPA's revised Clean Water Act regulations for concentrated animal feeding operations. We successfully argued that EPA's regulatory scheme was an unlawful interpretation of the Clean Water Act, to the extent that EPA sought to regulate parties that did not actually discharge pollutants to surface waters. In the challenged regulations, EPA codified its longstanding position that it could regulate parties based on a mere potential to discharge pollutants. The Second Circuit vacated EPA's regulations on this issue, adopted the arguments from our briefs, and held that EPA has no Clean Water Act jurisdiction over animal farms in the absence of an actual addition of a pollutant to navigable waters.

 

Heartwood, Inc. v. U.S. Forest Service, 380 F.3d 428 (8th Cir. 2004). C&M represented forest products industry intervenors in successfully defending this suit challenging a U.S. Forest Service timber management project in the Mark Twain National Forest in Missouri. The district court granted summary judgment in favor of the Forest Service and timber intervenors and the Eighth Circuit affirmed, finding no violations of the National Environmental Policy Act or the Endangered Species Act.

 

Citizens Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003). C&M intervened on behalf of the mining industry and successfully defended the Interior Department’s interpretation of § 522(e) of the Surface Mining Control and Reclamation Act (“SMCRA”) as not prohibiting subsidence from underground mining in those areas classified in SMCRA as unsuitable for surface coal mining operations. The district court had ruled that including subsidence within the definition of “surface coal mining operations” was (if you add three commas to the statute) “the more natural reading” of SMCRA. After the district judge granted NMA’s motion to stay that ruling pending appeal, the D.C. Circuit took up the case and rejected the district court’s statutory interpretation, finding that the statute is ambiguous, and that the district court erred by failing to defer to OSM’s reasonable interpretation of it.

 

Center for Biological Diversity v. Badgley, 335 F.3d 1097 (9th Cir. 2003). We prepared appellate court and district court amicus briefs on behalf of the American Forest & Paper Association in successfully defending the U.S. Fish and Wildlife Service’s decision against ESA listing of an alleged “distinct population” of northern goshawks.

 

Oxy U.S.A. v. Babbitt, 268 F.3d 1001 (10th Cir. 2001) (en banc). C&M filed an amici brief in this case on behalf of a broad client group - including the American Chemistry Council, American Petroleum Institute, Chamber of Commerce of the United States, American Tort Reform Association, National Association of Manufacturers, and Lawyers for Civil Justice - in this petition for reconsideration en banc and subsequent en banc review involving a Minerals Management Service administrative order for “underpayment” purportedly due the federal government based on retroactively increased royalties on oil production between 1980 and 1983. Reflecting arguments made for our clients, the en banc court reversed one of its panels and held that the six-year statute of limitations applying to actions brought by the government for money damages (28 U.S.C. § 2415) covers administrative orders from agencies, not just lawsuits.

 

National Mining Association v. U.S. Department of the Interior, 251 F.3d 1007 (D.C. Cir. 2001). We represented the national mining industry trade association in this appeal of a district court decision upholding Interior Department procedures and standards for cross-checking permit applicants under the Surface Mining Control and Reclamation Act with persons having outstanding violations of environmental laws. When the agency issued replacement regulations following oral argument, the court of appeals dismissed most of the claims as moot, and in the process vacated the district court rulings that were unfavorable to our client.

 

Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc). In the latest stage of this long-running environmental group challenge to U.S. Forest Service timber sales in the four National Forests in Texas, the Fifth Circuit issued an en banc ruling in our clients’ favor vacating a district court’s injunction against virtually all timber harvesting. The en banc court overturned a prior panel ruling affirming the injunction, and held that the plaintiffs could not bring a forest-wide programmatic challenge to hundreds of timber sales in a single suit, but instead could only challenge sales on a case-by-case basis.

 

Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000). We represented a gold mining company in a challenge to two EPA guidance documents detailing the metal mining industry’s reporting requirements for the Toxic Release Inventory (“TRI”) Program under the Emergency Planning and Community Right-to-Know Act (“EPCRA”). The district court granted EPA’s motion to dismiss on the grounds that the guidance documents were not “final agency action” as required by the APA and that our claims were not ripe for review. On appeal, the D.C. Circuit reversed and remanded to the district court to hear the merits of our challenge, holding that both the industry guidance document and a letter from the head of EPA’s TRI program sent to another metal mining company stated EPA’s final position on TRI reporting requirements and presented purely legal issues ripe for review.

 

Oregon Natural Resources Council v. Animal and Plant Health Inspection Service, No. 99-15398, 2000 WL 219747 (9th Cir. Feb. 24, 2000). We represented two intervening timber industry associations in defending against challenges to Agriculture Department regulations concerning pest controls on imported unmanufactured wood products. The district court granted summary judgment in the government’s and our clients’ favor, and the Ninth Circuit affirmed.

 

Amax Land Co. v. Quarterman, 181 F.3d 1356 (D.C. Cir. 1999). We represented a federal coal lessee in district court and on appeal in this action challenging the legality of the interest rate assessed by a Minerals Management Service (“MMS”) regulation on late coal lease payments under the Mineral Lands Leasing Act and other statutes. The district court invalidated the challenged rate as ultra vires. The court of appeals reversed and remanded for a determination of whether the challenged rate satisfied the criteria of MMS’s organic statutes, but affirmed and agreed with our argument that the statutes forbade MMS from using shifting interest rates and compound interest.

 

United States ex rel. Pickens v. Kanawha River Towing, Inc., GLR Constructors, et al., Nos. 98-4021, 98-4065, 1999 WL 970327 (6th Cir. Oct. 13, 1999). In this Civil False Claims Act case alleging violations of the Clean Water Act, we won a jury verdict in the district court in favor of the defendant government contractor and successfully opposed a motion for a new trial. The Sixth Circuit affirmed on both points, and also rejected the relator’s argument that he was prejudiced by the district court’s admission of allegedly late-produced evidence.

 

National Mining Association v. U.S. Department of the Interior, 177 F.3d 1 (D.C. Cir. 1999). We represented the national mining industry trade association in this appeal of a district court decision upholding Interior Department interim regulations designed to cross-check permit applicants under the Surface Mining Control and Reclamation Act with persons having outstanding violations of environmental laws. The court of appeals invalidated two provisions that had created rebuttable presumptions of ownership and control, held that the regulations were unlawfully retroactive, and invalidated another regulation that would have bypassed statutory procedural requirements for federal enforcement action in states with approved state regulatory programs.

 

National Mining Association v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999). On behalf of the national trade association of the mining industry, C&M secured a reversal of a district court decision upholding Interior Department regulations that would have imposed liability on mine operators for subsidence damage allegedly caused by their mining operations. The court of appeals invalidated a regulation establishing a presumption of causation and a related regulation. The appeal also extracted a favorable agency concession on a third regulation.

 

Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999); 110 F.3d 1551 (11th Cir. 1997). We represented timber industry intervenors in defending against an environmental group challenge to several U.S. Forest Service timber sales in the Chattahoochee National Forest. The litigation produced favorable rulings on claims under the Migratory Bird Treaty Act and Clean Water Act, but the court of appeals reversed the district court and invalidated the sales based on the Forest Service’s failure to comply with the National Forest Management Act and its implementing regulations.

 

Newton County Wildlife Association v. Rogers, 141 F.3d 803 (8th Cir. 1998). We represented the successful timber industry intervenors in defending the legality of U.S. Forest Service timber sales in the Ozark National Forest. We received favorable appellate rulings that: (1) this Administrative Procedure Act case was limited to the administrative record and that extra-record evidence by plaintiffs’ experts would be excluded; (2) the Clean Water Act does not require National Pollutant Discharge Elimination System (“NPDES”) permits for timber harvesting-related activities; and (3) the timber sales complied with the Endangered Species Act, National Environmental Policy Act, National Forest Management Act, Wild and Scenic Rivers Act, and Wilderness Act.

 

Secretary of Labor v. Keystone Coal Mining Corporation, 151 F.3d 1096 (D.C. Cir. 1998). The court rejected the enforcement position of Secretary of Labor in longstanding coal dust tampering litigation in which C&M represented over 20 coal mining companies over the past several years. Following the court’s decision, the Secretary vacated all pending dust tampering citations.

 

Amigos Bravos v. Molycorp, Inc., 47 E.R.C. 1641, 1998 WL 792159 (10th Cir. 1998). The court affirmed the district court’s ruling granting C&M’s motion to dismiss this citizen suit on grounds that the issues complained of should have been raised in the context of Molycorp’s Clean Water Act permit renewal proceeding. The court held that the exclusive avenue for judicial review was not a citizen suit, but direct review of the permit renewal decision in the court of appeals, for which the plaintiffs had long been out of time.

 

National Mining Association v. Environmental Protection Agency, No. 95-3519 (8th Cir. 1998). We successfully challenged an EPA interpretive rule under the Clean Water Act. The case settled following oral argument before the Eighth Circuit; EPA published a Federal Register clarification retracting substantial portions of the challenged interpretation of the ore mining effluent limitations guidelines. 63 Fed. Reg. 42534 (Aug. 7, 1998).

 

Edwards v. United States and Independence Mining Co., No. 96-17308, 1998 WL 22029 (9th Cir. Jan. 15, 1998). We represented a gold mining company and successfully obtained Ninth Circuit affirmance of a district court’s order dismissing a citizen challenge to an Interior Department land exchange in Nevada with our client.

 

Sierra Club v. City of San Antonio, 115 F.3d 311 (5th Cir. 1997), cert. denied, 522 U.S. 1089 (1998). We represented the City of San Antonio in obtaining a Fifth Circuit reversal of a district court injunction based on the Endangered Species Act. The injunction would have dramatically restricted the City’s use of ground water from the Edwards Aquifer and caused enormous disruption to one million local residents and numerous businesses.

 

Newton County Wildlife Association v. U. S. Forest Service, 113 F.3d 110 (8th Cir. 1997), cert. denied, 522 U.S. 1108 (1998), and Sierra Club v. Martin, 110 F.3d 1531 (11th Cir. 1997). C&M represented the successful timber industry intervenors in two cases holding that the Migratory Bird Treaty Act does not apply to federal agency actions, such as U.S. Forest Service timber sales in national forests. The Eighth Circuit’s opinion also addressed the substantive limits on the authority of the federal government, a position that was argued by C&M but not joined in by the federal government. The Eighth Circuit further held that the remedy for a late Wild and Scenic Rivers Act plan was not to enjoin timber harvesting, but simply to direct the agency to prepare the plan.

 

Energy West Mining Co. v. Federal Mine Safety and Health Review Commission [“FMSHRC”], 111 F.3d 900 (D.C. Cir. 1997). C&M represented mine operator Energy West in appeal of a FMSHRC decision upholding a withdrawal order issued to Energy West by the Federal Mine Safety and Health Administration for failing to abate a previously cited respirable dust violation of the Federal Mine Safety and Health Act. The case involved interpretation of the withdrawal order provisions of the Act by the Commission and the Secretary of Labor. The appeal was unsuccessful because the Court deferred to the Agency’s interpretation as rational and consistent with the statute.

 

Freeman United Coal Mining Co. v. Federal Mine Safety and Health Review Commission [“FMSHRC”], 108 F.3d 358 (D.C. Cir. 1997). C&M represented two coal mine company executives on appeal from a FMSHRC decision holding each of them personally liable for a knowing violation of the Federal Mine Safety and Health Act, and assessing civil penalties against them individually. The appeal was successful: the D.C. Circuit reversed the FMSHRC decision, held that neither executive had knowingly ordered, authorized or carried out the alleged violation, and vacated the civil penalty assessments. The company was separately represented and the FMSHRC decision that the company had violated the Act was upheld, along with the attendant civil penalty. The case was significant because it resulted in a new gloss on the standard of liability for individual officers, directors, and agents of mining companies which requires the agency to prove that the individual was more than negligent (even “high negligence” was held to be insufficient) to establish individual liability.

 

National Mining Association v. U.S. Department of the Interior, 105 F.3d 691 (D.C. Cir. 1997). C&M represented the mining industry’s national trade association in this 8-year-long litigation challenging Interior Department regulations designed to cross-check permit applicants under the Surface Mining Control and Reclamation Act with persons having outstanding violations of environmental laws. The court reversed the district court, agreed with our argument that the regulations were ultra vires, and invalidated the regulations in their entirety. The ruling substantially reduced the exposure of mining companies to potential accountability for violations committed by third parties years earlier.

 

American Iron & Steel Institute [“AISI”] v. Occupational Safety and Health Administration [“OSHA”], Nos. 96-60006, et al. (5th Cir. 1997). C&M represented AISI in a multi-party challenge to OSHA’s asbestos regulations, as petitioners for review and intervenors in several other consolidated cases challenging the rules, and as intervenors in support of OSHA in defending against organized labor’s challenges to the rules as too lax. After briefing was completed, OSHA agreed to settle with AISI on favorable terms for AISI, which then voluntarily dismissed its petition.

 

Wilderness Society v. Alcock, 83 F.3d 386 (11th Cir. 1996), and Sierra Club v. Robertson, 28 F.3d 753 (8th Cir. 1994). We represented the prevailing timber intervenors in these two cases. The courts dismissed facial challenges to U.S. Forest Service forest plans for lack of ripeness (Wilderness Society) and standing (Sierra Club). This set the stage for the Supreme Court’s similar ruling on ripeness grounds in Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998).

 

Davon, Inc. v. Shalala, 75 F.3d 1114 (7th Cir.), cert. denied, 519 U.S. 808 (1996). C&M represented former coal mining companies in Due Process and Takings Clause challenges to the constitutionality of the Coal Industry Retiree Health Benefit Act of 1992. That Act retroactively required the companies to fund health benefits for retired coal miners and their dependents even though the companies had not mined coal for 30-40 years. The Seventh Circuit rejected the challenges based on existing Supreme Court precedent, which strongly disfavored substantive Due Process and Takings Clause claims. However, our arguments laid the groundwork for Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), in which the Supreme Court subsequently overturned a similar ruling by another court of appeals. As a result, the Social Security Administration rescinded its assignment of beneficiaries to three of our clients, relieving them of their obligation to pay future premiums.

 

American Mining Congress v. Secretary of Labor, No. 94-1320 (D.C. Cir. 1996). We represented the American Mining Congress (“AMC”) in a petition for review of the Labor Department’s health regulations involving drill dust control at surface coal mines. The case was settled after the agency agreed to apply the challenged regulation in a manner AMC desired.

 

National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995). We represented the mining industry’s national trade association on appeal in challenging the Interior Department’s denial of the association’s petition for a rulemaking that would clarify the federal-state enforcement relationship under the Surface Mining Control and Reclamation Act. The court held that the district court lacked subject-matter jurisdiction because the challenge to the denial of the rulemaking petition was in actuality a challenge to the existing regulation, for which the association was statutorily time-barred from seeking judicial review.

 

The Texas National Forests Litigation. C&M has represented the successful timber industry intervenors in three interlocutory appeals in a long-running case concerning the four National Forests in Texas. We first convinced the court of appeals to reverse the district court and find that the timber industry was entitled to intervention of right even though the lawsuit had been filed eight years earlier. Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994). In the next appeal, the Fifth Circuit vacated a preliminary injunction against timber harvesting by even-aged methods and reversed the district court's interpretations of the National Forest Management Act (“NFMA”), as we had requested. Sierra Club v. Espy, 38 F.3d 792 (5th Cir. 1994). The Fifth Circuit later found, again in our favor, that past violations of the Endangered Species Act did not authorize a district court to run a national forest forever, and that the Forest Service’s plan for satisfying the minimum requirements of that Act is to be reviewed deferentially. Sierra Club v. Glickman, 67 F.3d 90 (5th Cir. 1995). In 1999, the Fifth Circuit upheld the district court’s ruling that enjoined future timber sales in the Texas National Forests, based on the Forest Service’s alleged failure to comply with certain of its regulations in past timber sales. That ruling was vacated when the Fifth Circuit granted our and the Forest Service’s petitions for rehearing en banc. Sierra Club v. Peterson, 185 F.3d 349 (5th Cir. 1999), vac'd on grant of petitions for reh'g en banc, No. 97-41274 (5th Cir. Jan. 21, 2000).

 

Coteau Properties Co. v. U.S. Department of Interior, 53 F.3d 1466 (8th Cir. 1995). In the first ruling of its kind by a court of appeals, C&M successfully obtained injunctive relief against federal enforcement by the U.S. Department of the Interior against a coal operator in a state that had obtained federal-approved primacy in regulating surface coal mine operations. The Eighth Circuit held that Interior improperly substituted its own judgment for the state’s and instead should have reviewed the state’s decision using the deferential “arbitrary and capricious” standard in the agency’s regulations.

 

Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995). We represented the defendant in this case, timber harvesting which alleged that timber harvesting would “take” a northern spotted owl within the meaning of Endangered Species Act § 9. We prevailed at summary judgment in the district court. Though the Ninth Circuit reversed and remanded for a trial, it also held that defendant could not be forced to apply for an Endangered Species Act § 10 incidental take permit.

 

AFL-CIO, et al. v. OSHA, 956 F.2d 962 (11th Cir. 1992). C&M represented the American Iron & Steel Institute and the American Mining Congress in this landmark case which invalidated 428 OSHA permissible exposure limits. Although there were dozens of industry petitioners in this case, C&M developed and argued the common industry positions that were adopted by the court.

 

Barrick Goldstrike Mines Inc. v. Whitman, 260 F. Supp. 2d 28 (D.D.C. 2003). C&M represented a major North American gold mining company in a challenge to two EPA guidance documents detailing the metal mining industry’s reporting requirements for the Toxic Release Inventory (“TRI”) Program under the Emergency Planning and Community Right-to-Know Act (“EPCRA”). In its guidance documents, EPA stated that toxic chemicals in waste rock were not eligible for the TRI program’s de minimis exemption, no matter how small the concentration, and must be reported as toxic chemical releases. EPA also stated that trace natural impurities in a mine’s final product must also be reported as a release of a toxic chemical. U.S. District Judge Thomas Penfield Jackson granted summary judgment for Barrick on these two issues, ruling that trace elements of toxic chemicals in waste rock should be eligible for the de minimis exemption, and also rejecting EPA’s interpretation that Barrick had to report the naturally-occurring impurities in the gold bars it produced. EPA chose not to appeal the decision and has issued new guidance to the entire mining industry as a result of this decision at www.epa.gov/tri.

 

United States v. Buena Vista Mines, Inc., et al., No. CV98-7226-SVW (C.D. Calif.) (settled by Consent Decree, November 15, 2002). In this case the United States brought an action under the federal Comprehensive Environmental Response, Compensation & Liability Act ("CERCLA"), against the defendants seeking to recover multi-million-dollar response costs for past and future response actions involving alleged mercury contamination at the site and the surrounding area. Our client, Buena Vista Mines, et al., counterclaimed against the United States and filed a motion for summary judgment asserting that the U.S. government itself was liable at the site as a past owner and operator of the site, due to its involvement authorizing and facilitating mercury mining and processing at the facility from the 1800s through the 1960s. The case was settled while that motion for summary judgment was pending, following argument, and the Consent Decree agreed to capped the defendants' liabilities at a minor fraction of the amount sought by the government and provided releases on future response cost liability. The Consent Decree also resolved the liability of San Luis Obisbo County which was a third party defendant.

 

Columbia Gas Co. v. Consolidation Coal Co. and McElroy Coal Co., No. 99-2071 (W.D. Pa.) (voluntary dismissal per settlement entered on October 9, 2001). We successfully defended the operator of a major longwall coal mine against the operator of an underground gas storage field which sought to enjoin longwall mining through the gas storage field. The case involved issues under the Natural Gas Act, the Mine Safety and Health Act, and correlative property rights of competing mineral interest owners. Under the settlement which followed a court sponsored mini-trial and mediation, longwall mining will proceed through the gas storage field.

 

Environmental Protection Information Center v. Tuttle, No. C 00-0713-SC, 2001 WL 114422 (N.D. Cal. Jan. 22, 2001). We served as co-counsel for timber industry intervenors in a suit alleging that California state officials were violating the Endangered Species Act (“ESA”) because their agency, the California Department of Forestry, was failing to regulate timber harvesting on private property in a way that would prevent unlawful “take” of ESA-listed salmon. Initially, the court denied the plaintiffs’ motion for a preliminary injunction against essentially all timber harvesting in the state, including harvesting under previously approved state timber plans. Subsequently, the court granted summary judgment to the state and the timber intervenors, holding that plaintiffs could not maintain an action to remedy past violations of federal law, and that plaintiffs’ programmatic challenge to the state’s forestry regulations was not ripe for judicial review.

 

Friends of the Earth v. U.S. Forest Service, 114 F. Supp. 2d 288 (D. Vt. 2000). We represented timber industry intervenors in this action, which challenged the U.S. Forest Service’s alleged violation of federal statutes and regulations by failing to take into account the full spectrum of economic costs and benefits associated with timber sale projects on National Forest land nationwide. After issuing an unpublished order that limited the suit to the Green Mountain National Forest in Vermont, the court dismissed the suit because plaintiffs had failed to exhaust administrative remedies before seeking judicial relief.

 

Mobil Oil Corporation v. United States, No. 99-1467-A (E.D. Va. voluntary dismissal per settlement entered Aug. 15, 2000). We represented Mobil against the United States in this Superfund contribution action involving the Stibnite Mine Site within the Boise National Forest in Idaho. Mobil alleged that the Government was liable for the Superfund response costs due to the Government’s status as former owner of the main waste disposal site, and that the Government’s activities facilitating mining during World War II rendered the Government liable as a former operator of the site. On April 28, 2000, Judge Claude Hilton announced that he had “decided in this case that summary judgment ought to be granted against the Government making them responsible as an owner . . . .” The parties then reached a settlement to provide Mobil with a 100-percent release of liability for future response costs covering the Stibnite disposal area and several thousand surrounding acres. The Government also agreed to pay Mobil $1.55 million as partial reimbursement for past response costs that Mobil had incurred.

 

West Virginia Highlands Conservancy, Inc. v. Allegheny Wood Products, Inc., No. 2:99 CV 29 (N.D. W.Va. Jan. 14, 2000). We represent the defendant in this case, which alleges that timber harvesting on private property in West Virginia would “take” four threatened or endangered species within the meaning of § 9 of the Endangered Species Act. We successfully resisted plaintiffs’ motion for a preliminary injunction against harvesting on a 250-300 acre tract, and the harvesting has proceeded.

 

National Wildlife Federation v. Westphal, 116 F. Supp. 2d 49 (D.D.C. 2000). We represented two Mississippi Levee Boards and 50 local government entities as intervenors in successfully opposing a suit by environmental groups against the U.S. Army Corps of Engineers. The plaintiffs sought to invalidate a major flood control project for the Mississippi Delta region under NEPA and the Water Resources Development Act of 1986. The court granted the Corps’ motion for summary judgment, which we supported through briefing and argument.

 

Southwest Center for Biological Diversity v. Glickman, No. C-98-3444-SBA (N.D. Cal. Sept. 21, 1999). In this suit against the U.S. Forest Service, environmental group plaintiffs alleged violations of the Forest and Rangeland Renewable Resources Planning Act and NEPA in the preparation of land and resource management plans for the National Forests. We intervened on behalf of the timber industry and filed briefs in support of the Forest Service. The court granted the Forest Service’s motion for summary judgment and dismissed the case.

 

United States v. Homestake Mining Company, No. 90-51-1 (D.S.D. Feb. 19, 1999). We represented Homestake in this Superfund action and negotiated a consent decree entered in 1991 which provided for the implementation of a remedial action relying largely on “institutional controls.” When the U.S. Environmental Protection Agency (“EPA”) sought to conduct an expansive ecological risk assessment at the site in 1997 and 1998 as part of a mandatory “five-year” review under Superfund, we obtained a 1999 ruling from the district court modifying the consent decree to permit only a “limited” risk assessment.

 

Oregon Natural Resources Council, et al. v. Animal and Plant Health Inspection Service, Nos. C 95-4066 CW, C 96-1541 CW (N.D. Cal. Jan. 14, 1999). We intervened on behalf of timber interests in this environmental group suit changeling the adequacy under NEPA of an Environmental Impact Statement (“EIS”) prepared by the Agriculture Department in conjunction with regulations governing the importation of unmanufactured wood products. Following the agency’s preparation of a supplemental EIS, the court granted our and the agency’s joint motion for summary judgment and dismissed the case. The plaintiffs’ appeal is pending in the 9th Circuit.

 

Broadened Horizons Riverkeepers v. U.S. Army Corps of Engrs., 8 F. Supp. 2d 730 (E.D. Ky. 1998). Environmental group plaintiffs in this suit alleged that the U.S. Army Corps of Engineers and the Tennessee Valley Authority had violated NEPA and the Endangered Species Act by failing to prepare Environmental Impact Statements for river dock permits allowing the transportation of timber and wood chips. We intervened on the agencies’ side on behalf of the timber industry, and won summary judgment on grounds that the plaintiffs lacked standing and that many of their claims were barred by the statute of limitations.

 

United States ex. rel. North Santiam Watershed Council, et al. v. Kinross Gold, Inc., et al., No. C-96-3673 TEH, 1998 WL 118176 (N.D. Cal. Mar. 9, 1998). In this “whistleblower” suit under the Qui Tam provisions of the False Claims Act (“FCA”), we successfully defended eighteen mining companies against charges that they had fraudulently obtained mineral rights on federal lands by failing to disclose their alleged foreign ownership in mining claim records they had submitted pursuant to the Mining Law of 1872. The court granted our motion to dismiss at the outset of the litigation on grounds of misjoinder of claims, lack of personal and subject-matter jurisdiction, and failure to state a claim upon which relief could be granted.

 

Wright, et al. v. Inman, Forest Supervisor, 923 F. Supp. 1295 (D. Nev. 1996). We represented Independence Mining Company in this NEPA litigation brought by a citizens’ group against a proposed major gold mine on National Forest lands in Nevada. The court first denied a preliminary injunction motion, and then found the EIS and related Forest Service decisions to be adequate.

 

Friends of Santa Fe County v. Lac Minerals Inc., et al., 892 F. Supp. 1333 (D.N.M. 1995). We represented Lac Minerals in defending against this citizen suit filed under the Resource Conservation and Recovery Act (“RCRA”) and the Clean Water Act. On summary judgment, the court ruled that the mining waste at issue was exempt from RCRA “hazardous waste” regulation and that the RCRA imminent and substantial endangerment claim was barred by the abstention doctrine due to the pendency of a related state administrative proceeding. The court denied the citizen group’s motion for summary judgment on the Clean Water Act claims, and the suit settled in 1996 on favorable terms.

 

United States v. Envirite Corp., 143 F.R.D. 27, 34 ERC 1613 (D. Conn. 1991). In this RCRA enforcement action, C&M persuaded the court to vacate a previously entered consent decree on the grounds of “extraordinary” misconduct by government counsel representing the EPA. The court found that material evidence of EPA’s erroneous laboratory results had been wrongfully withheld during the litigation. The court ordered the return of a civil penalty with interest and a published correction notice in EPA’s Enforcement Accomplishments Report, stating that the consent decree was vacated.