Litigation

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.