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Litigation

Litigation

A Successful Track Record Focused on Achieving Business Results

Our lawyers are skilled advocates for our clients. We have a successful track record of litigating a wide range of environmental and energy matters, and also are experienced in mediation, arbitration, and other forms of alternative dispute resolution. Whether we are working on complex multiparty proceedings or defending a permit appeal, we bring the same common sense, business-oriented approach to our work, because we know that clients want results, and that litigation is simply a tool for getting them.

Skilled in Environmental Litigation, Mediation, and Arbitration

We regularly handle cases before a variety of administrative agencies across the country. We represent clients in cases under all major federal environmental statutory regimes and state counterparts, including cost recovery and contribution actions under CERCLA and MTCA, and cases involving environmental permitting under NEPA, SEPA, Washington’s Growth Management Act, and Washington’s Shoreline Management Act. We also have handled numerous Clean Water Act citizen suits, and challenges to agency rulemakings under the Magnuson-Stevens Act, Endangered Species Act, and Administrative Procedures Act. Our attorneys routinely represent clients in federal and state administrative proceedings, including proceedings before FERC on energy-related matters, and in administrative permit appeals and enforcement actions.

Cost-Effective

We understand that litigation can be costly and disruptive. The best way to minimize that disruption is to help our clients avoid a dispute in the first place or, if a dispute is unavoidable, by making sure that our clients are positioned to obtain the best result at the lowest possible cost.

Our approach is always to outline a comprehensive strategy before commencing litigation, including a litigation budget, so that our clients can make strategic decisions regarding the dispute. We update both the strategy and the budget as the matter progresses and provide regular reports on developments in the litigation, as well as costs.

Experience

  • Appeals and Variances
  • Arbitration and Mediation
  • Citizen Suit Defense
  • Clean Water Act
  • Commercial Litigation
  • Cost Recovery/Contribution Actions
  • Defense of Enforcement Actions
  • Endangered Species Claims
  • FERC Proceedings
  • Insurance Coverage Litigation
  • Magnuson-Stevens Act Claims
  • Natural Resource Damages
  • Nuisance/Odor
  • Permitting Appeals and Enforcement
  • Real Estate and Land Use Litigation
  • Toxic Torts

Representative Client Work

Permitting and Regulatory Challenges

Represented Alaska oil and gas producers in a federal appeals court challenge to an NPDES permit applicable to their operations.
Resolved this challenge and related challenge to State of Alaska’s 401 certification decision on the permit in administrative proceedings.
Represented a major fishing and processing company in a challenge to National Marine Fisheries Service allocations for the multi-million dollar Bering Sea and Aleutian Islands Pacific Cod fishery under the Magnuson-Stevens Fishery Conservation and Management Act. Fishermen’s Finest, Inc. v. Gutierrez, 2008 WL 2782909 (W.D. Wash.).

Endangered Species Act Litigation

Lead coordinating counsel for multiple fishing industry parties in defense of a challenge under the Endangered Species Act (ESA) involving Steller sea lions by environmental groups to Bering Sea, Aleutian Islands, and Gulf of Alaska fishery management plans that threatened to shut down commercial fishing in large areas of the ocean off of Alaska. Greenpeace, American Oceans Campaign v. National Marine Fisheries Service, 237 F. Supp. 2d 1181 (W.D. Wash 2000), 106 F. Supp. 2d 1066 (W.D. Wash. 2000), 198 F.R.D. 540 (W.D. Wash. 2000), 80 F. Supp. 2d 1137 (W.D. Wash. 2000), 55 F. Supp. 2d 1248 (W.D. Wash. 1999).
This multi-year federal court litigation permanently and significantly changed how multi-million dollar trawl fisheries are conducted, but in a manner that allowed our clients to successfully continue their long-time fishing businesses.

Superfund and Cost Recovery

Represented a Washington municipality in a CERCLA and MTCA cost recovery and contribution action to recover millions of dollars in remediation costs for a drinking water well field that was contaminated by an adjacent former military base, now a federal Superfund site, and prosecuted claims against the military and its defense contractors.
Helped client obtain insurance coverage to pay for cleanup costs, and secured an unprecedented court order that allowed our client and others to help structure the cleanup.
Served as lead defense counsel in federal district court and the U.S. Court of Appeals for the Eighth Circuit for the former operator of a Missouri Superfund Site in actions against the U.S. EPA and other private parties for costs recovery and contribution under CERCLA. This complex case involved five separate lawsuits, including several environmental and cost recovery claims, insurance coverage litigation, and probate proceedings.
Successfully reached tentative agreements with EPA and private party to enter consent decree and reach settlement resulting in ability to pay settlement and ultimate closure of estate and probate. Resolution expected to result in transfer of property to local government for redevelopment.
Represented former owner of property in Seattle, Washington contaminated by multiple commercial and residential underground oil storage tanks. Pursued cost recovery action against a major oil company that formerly owned and operated a service station on the site for almost five decades.
Filed suit, conducted discovery, and successfully negotiated a settlement with the oil company that recovered almost all of the former property owner’s remedial action and litigation costs. Subsequent owner incurred costs remediating residual soil contamination on the site and made cost recovery claims against our client. Defended the former property owner against new developer’s claims and also identified several applicable insurance policies, against which we filed claims for our client. Successfully settled both the developer’s claims against our client and our client’s claims against their insurers. The insurance recovery fully covered the former property owner’s settlement with the developer.
Represented real estate developer after it purchased property for a corporate campus development that had historic legacy of contamination. We were asked to enforce the indemnity which our clients obtained guaranteeing that the property would be cleaned up.
Litigation involved assessing the contamination, defending the cleanup which was undertaken by our clients, and then prosecuting a cost-recovery action to recover those cleanup costs from the seller. After bringing a successful summary judgment motion focusing the case on the cleanup issues, the case was settled and the client obtained indemnification from the seller and recovery of its cleanup costs.
Represented service station company in the prosecution of insurance coverage litigation to recover remediation costs associated with historical contamination at some of its stations.
Currently pursuing multiple coverage actions on behalf of client’s primary and excess carriers, as well as pursuing claims for client on policies where it was named as an additional insured under insurance obtained by its service station operators.
Represented cement company in prosecution of an action in Washington State to obtain insurance coverage from the client’s insurance carriers for claims made against one of its subsidiaries. Initiated a coverage action against 48 separate carriers while company pursued similar litigation in another state.
After client settled its claims in the action in another state against many of its primary and first-tier excess carriers, we continued the action in Washington State against the remaining primary carriers and some of the remaining excess carriers, as well as bringing claims against the Washington Insurance Guarantee Association for insolvent carriers. The case is currently stayed while we proceed with settlement negotiations against those carriers.
Represented wood waste landfill company in cost recovery litigation under MTCA for remedial site investigation and future landfill cleanup and closure.
Successfully listed site in Dept. of Ecology’s voluntary cleanup program and negotiated with Ecology and Health District over site investigation standards and possible future closure.

Stormwater Litigation Defense

Defended client against severe regulatory penalties related to chemical waste accidentally deposited in stormwater facility.
Defense resulted in a reduction in the penalty by hundreds of thousands of dollars; then negotiated a settlement with the regulatory agency that successfully terminated all regulatory action.
Defended a national metal fabricator from a Clean Water Act citizen “Notice of Intent to Sue” letter claiming violations of Washington’s Industrial Stormwater General Permit.
The claims were resolved favorably without litigation by an agreement to fund an innovative Supplemental Environmental Project (SEP) and improve stormwater compliance and monitoring.
Represented international transportation corporation in five inter-related federal citizen suits under the Clean Water Act (CWA), alleging the company’s stormwater discharges to rivers and streams were violating its National Pollution Discharge Elimination System (NPDES).
Following initial discovery we successfully negotiated an agreement to consolidate and settle all of the cases as a single action. The parties then settled all of the alleged violations via a consent decree approved by Department of Justice and U.S. District Court. We then advised the company on modifying its Stormwater Pollution Prevention Plans, industrial processes, and permit coverage to reduce exposure to future citizen suits or regulatory enforcement and ensure compliance with the permits and the Consent Decree.
Defended a major national food and agriculture producer from a Clean Water Act citizen “Notice of Intent to Sue” letter claiming violations of Washington’s Industrial Stormwater General Permit.
The claims were resolved favorably without litigation by an agreement to fund a Supplemental Environmental Project (SEP) and improve stormwater compliance and monitoring.

Citizen Suits

Defended a public utility district in a SEPA lawsuit involving challenges to a power transmission project in one of the most environmentally sensitive areas of Washington State, including litigation in the trial court, before the Washington Court of Appeals and the Washington Supreme Court.
Successfully defended client against challenge; project was approved, and PUD began transmission project.
Defended property owner and developer who was the target of a citizen’s suit alleging violation of the Clean Water Act in connection with the development, permitting, and construction of a large residential development.
Defense of the case required coordination with the U.S. Army Corps of Engineers, which also was named as a defendant in the action, and included extensive number of depositions and motion practice. The issues involved wetland fill and remediation, defense of § 404 permits issued by the Corps and defense of the remediation for wetland fill that was undertaken at the time of the initial permitting and construction of the development. The case ultimately was resolved in two stages – working in concert with the Corps, we were able to get all claims against the Corps dismissed, and then obtained a summary judgment of dismissal from of the entire case against our client.
Defended a private developer in a Clean Water Act citizens’ suit involving alleged wetland fills, and then assisted client in obtaining permits for their private development on Bainbridge Island, WA, from the Corps of Engineers.
Obtained dismissal of suit; all claims dropped.
Assisted recycling client in its response to complaints of nuisance odors and stormwater issues associated with its operations.
We recently completed negotiation of an agreed order and odor mitigation plan under which client agreed to voluntarily undertake capital improvements and operational modifications in order to assure that its operations do not impact the neighboring communities.

Environmental Bankruptcy

Defended a former mining and smelting company, in the first evidentiary estimation hearing in connection with the largest environmental bankruptcy case in United States history. The hearing, at the U.S. Bankruptcy Court in the Southern District of Texas, involved a $406 million claim for response costs brought by the United States Environmental Protection Agency and the State of Nebraska.
We were able to mobilize for trial within four months, dealing with the testimony of over 20 experts. The case settled and we successfully defended the settlement. The bankruptcy court found, due to “testimonial and documentary evidence and its independent review” that the settlement agreements were reasonable, fair and equitable, and consistent with CERCLA and bankruptcy law. Shortly after the settlement, client was acquired by a company in Mexico.

Electric Power Litigation, Mediation, and Arbitration

  • Represented a client at FERC in opposing the licensing of a pumped-storage project, and in a related federal circuit court appeal.
  • Represented an Interstate Pipeline in settlement proceedings involving contested right of way on federal lands.
  • Litigated at FERC over interconnection charges, transmission study cost allocations, and transmission pre-payment obligations.
  • Engaged in mediation and arbitration of transmission disputes between utilities.
  • Represented an industrial consumer in obtaining contested interstate natural gas pipeline interconnection and in related litigation.
  • Assisted an interstate natural gas pipeline to settle threatened NEPA litigation regarding rights-of-way over U.S. Forest Service land.
  • Helped an interstate pipeline to resolve litigation contesting right of way on environmental and safety grounds.
  • Represented a consumer-owned utility over a twenty-year period in adjudicating rate cases before a state regulatory commission.

Svend A. Brandt-Erichsen

Svend A. Brandt-Erichsen

Svend Brandt-Erichsen has been an environmental lawyer for 25 years, having spent 20 years in private practice. Svend began his career on the legislative staff of Alaska’s Senator Ted Stevens and served as Regional Administrator of the State of Alaska’s Department of Environmental Conservation (ADEC). More »

Michael C. Dotten

Michael C. Dotten

Michael Dotten has practiced in the energy, environmental, and administrative law fields for over thirty years, representing utilities, energy project developers, large industrial energy consumers, and governmental agencies. He also serves as an arbitrator and mediator in complex regulatory and commercial disputes. More »

Brian K. Ferrasci-O’Malley

Brian Ferrasci-O’Malley

Brian Ferrasci-O'Malley's practice focuses on environmental and natural resource litigation, permitting, and review. He assists clients in cases arising under CERCLA, MTCA, the Clean Water Act, the Clean Air Act, and the Endangered Species Act. More »

Jessica K. Ferrell

Jessica K. Ferrell

Jessica Ferrell's practice focuses on environmental and natural resource litigation. She represents public and private clients in cases arising under the Endangered Species Act, the Magnuson-Stevens Fishery Conservation and Management Act, NEPA, CERCLA, MTCA, the Clean Water Act, and other federal, state, and local environmental laws. More »

Kevin T. Haroff

Kevin Haroff

Kevin Haroff is the managing partner of the firm’s San Francisco office. He has represented businesses, individuals, and governmental entities in civil litigation and regulatory matters for more than 25 years. More »

Jeff B. Kray

Jeff B. Kray

Jeff Kray's practice focuses on water quality, water resources, and complex environmental litigation, including Clean Water Act permitting and regulatory compliance, and CERCLA (Superfund) site remediation. He has represented public and private clients throughout the west. More »

Linda R. Larson

Linda R. Larson

Linda Larson has over 25 years of environmental law and land use experience. Over the course of her career, she has managed numerous complex litigation matters. She has successfully resolved disputes ranging from site remediation to endangered species, and has particular experience with marine resources and sediments issues. More »

Meline G. MacCurdy

Meline G. MacCurdy

Meli MacCurdy represents clients both in environmental litigation and environmental permitting and review. She has particular experience with brownfield redevelopment. She has defended cases under the Clean Water Act and the state and federal Superfund laws, and is assisting clients in fisheries matters and in issues involving climate change and energy. More »

Russell C. Prugh

Russell C. Prugh

Russell Prugh's practice focuses on environmental and natural resources litigation, and environmental permitting for facilities and projects in the Pacific Northwest and Alaska. Russell has particular experience with stormwater compliance issues, and represents clients in litigation arising under the Clean Water Act, CERCLA, MTCA, and other federal and state environmental laws. More »

Daniel L. Timmons

Daniel L. Timmons

Daniel Timmons's practice focuses on environmental permitting and compliance, energy, and natural resources litigation. He brings a strong scientific background to his legal work, and has particular experience with water resources allocation and water quality issues. More »

Alcoa Inc.: Bonneville Power and U.S. Appellate Proceedings

We represent Alcoa Inc. in its relationship with Bonneville Power Administration and in related U.S. appellate proceedings. Following Ninth Circuit Court of Appeals litigation in which we represented Alcoa, we have negotiated a contract that permits the continued operation of Alcoa's smelter in Ferndale, Washington. More »

ASARCO LLC: Largest Environmental Bankruptcy in U.S. History

We defended this former mining and smelting company in the first evidentiary estimation hearing in connection with the largest environmental bankruptcy case in United States history. The hearing, at the U.S. More »

City of Ephrata: Landfill Investigation and Remediation

The City of Ephrata owned and operated what is now the Grant County landfill from the 1940’s until the 1970’s, when it transferred operations and eventually ownership of the landfill to Grant County. More »

City of Moses Lake: CERCLA and MTCA Cost Recovery

We represented the City in a CERCLA and MTCA cost recovery and contribution action to recover millions of dollars in remediation costs for a drinking water well field that was contaminated by an adjacent former military base, now a federal Superfund site, and successfully prosecuted claims against the military. More »

Commercial Developer: Citizen Suit Defense

We defended a property owner and developer who was the target of a citizen’s suit alleging violation of the Clean Water Act in connection with the development, permitting, and construction of a large residential development. Defense of the case required coordination with the U.S. More »

ECS Refining

We represent ECS Refining, one of the nation’s largest electronics recycling companies, in connection with a range of environmental compliance and enforcement matters, including compliance with state requirements governing the management of hazardous and “universal” wastes. More »

Fishermen’s Finest, Inc.: Challenge to Fisheries Allocations

We represented a major fishing and processing company in a challenge to National Marine Fisheries Service allocations for the multi-million dollar Bering Sea and Aleutian Islands Pacific Cod fishery under the Magnuson-Stevens Fishery Conservation and Management Act. Fishermen’s Finest, Inc. v. Gutierrez, 2008 WL 2782909 (W.D. Wash.)

Ford Motor Company: Recovery of Insurance Payments Under CERCLA

Marten Law represents Ford Motor Company in connection with a complex environmental cost recovery and insurance subrogation case involving a former aeronautical manufacturing facility in Palo Alto, California. In 2011, the U.S. More »

Golden Heritage Foods

We represent Golden Heritage Foods, a major U.S. processor and packager of retail honey products, in connection with a private enforcement action brought under California’s Proposition 65 toxics enforcement and notification law. More »

Hawaii Forest Products: Permitting and Litigation

We represented a client who had provided a $30 million loan to finance the permitting, planning, and operation of a sustainable Koa harvesting operation on the Big Island in Hawaii. After the borrower failed in its first attempt to obtain environmental permits, the project was placed in jeopardy and, without the permits to allow harvesting, default on the loans was likely. More »

Missouri Superfund Site: CERCLA Defense

We served as lead defense counsel in federal district court and the U.S. Court of Appeals for the Eighth Circuit for this former operator of a Missouri Superfund Site in actions against the U.S. EPA and other private parties for costs recovery and contribution under CERCLA. More »

National Cement Company: Insurance Coverage Litigation

We were engaged by a national cement company to act as counsel to prosecute an action in Washington State to obtain insurance coverage from its insurance carriers for claims made against one of its subsidiaries. We initiated a coverage action against 48 separate carriers while the parent company pursued similar litigation in Connecticut. More »

Oil and Gas Producers: Securing and Defending NPDES Permit

We assisted Alaska oil and gas producers with renewal of the NPDES permit for wastewater discharges from their facilities. We helped the client develop a NPDES permit application, negotiate with EPA during the agency’s deliberations, and later defend a federal appeals court challenge to the permit. More »

Pattern Energy: First Utility-Scale Wind Project in Nevada

Marten Law has successfully represented Pattern Energy, the developer of the first utility-scale wind project in Nevada – the 150 MW Spring Valley Wind Project – in the Interior Board of Land Appeals, the U.S. District Court for Nevada, and the Ninth Circuit. More »

Regional Air Authority: Title V Operating Permit Challenge

We represented a regional air authority in the successful defense of a Title V air operating permit issued to Washington State’s only coal-fired power plant. The permit was challenged by environmental plaintiffs on the grounds that it fails to include limits on carbon dioxide and mercury emissions. They also sought a more stringent nitrogen oxide limit for the plant. More »

Seattle Brownfield: Cost Recovery and Insurance

Marten Law represented the former owner of property in Seattle, Washington contaminated by multiple commercial and residential underground oil storage tanks. The former property owner partially remediated the site and then sold it for urban redevelopment. More »