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U.S. Supreme Court

• Basin Cooperative Power v. Environmental Protection Agency, 136 S.Ct. 998 (2016); Chamber of Commerce v. EPA, Docket No. 15A787 (U.S.). We represented the National Rural Electric Cooperative Association in the successful effort by the challengers of the Clean Power Plan to obtain an extraordinary Supreme Court stay of that rule pending review by the D.C. Circuit. When the case returned to the D.C. Circuit on the merits, we were the principal author of one of the two industry merits briefs in the case, and we presented a portion of the oral argument for industry during the marathon, seven-hour argument before the 10-judge en banc court on September 27, 2016.
  
  
• Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013). We prepared amicus briefs in support of certiorari and on the winning side on the merits for a coalition of national and state forestry trade associations.  The majority opinion held that an earlier version of EPA's Phase I Stormwater Rule, as permissibly interpreted by the Agency, exempts stormwater runoff from logging roads from permitting under Clean Water Act Section 402. 
  
  
• 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). Crowell & Moring 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.
  
  
• National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). Crowell & Moring attorneys prepared amicus briefs on the winning side for two national trade associations (the American Farm Bureau Federation and CropLife America) in litigation brought by activist groups that challenged the Environmental Protection Agency's lack of consultation under § 7(a)(2) of the Endangered Species Act when it transferred Clean Water Act permitting authority to the State of Arizona.
  
  
• BedRoc Limited, LLC, et al. v. United States, 541 U.S. 176, 124 S. Ct. 1587 (2004). Crowell & Moring 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). Crowell & Moring 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). Crowell & Moring 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). Crowell & Moring 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.

Federal Appellate Courts

• Chevron Mining Inc. v. United States, ___ F.3d ___, 2017 WL 3045887 (10th Cir. July 19, 2017). The Tenth Circuit held that the U.S. government is jointly liable for remedial costs as a former “owner” with C&M client Chevron Mining, Inc. under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) at the Questa molybdenum mine in New Mexico. The ruling found that the U.S. was more than a passive owner and actively was involved in facilitating the mine development and waste disposal activities from the 1950s through the 1970s. The CERCLA remedial costs at issue are in the range of $1 billion. The precedential ruling is the first of its kind involving hardrock mining on federal lands under the 1872 Mining Law. It reversed the lower New Mexico district court, and departed from adverse district court rulings rendered over the past 15-plus years in Colorado, Idaho, and California. The C&M team developed the legal theory and evidentiary basis for the claims through extensive fact investigation and discovery. Sidley Austin LLP and Modrall Sperling in New Mexico were co-counsel.
  
  
• United States v. EME Homer City Generation, L.P., EME Homer City, 727 F.3d 274 (3d Cir. 2013). We represented General Electric Capital Corporation (GECC) in a Clean Air enforcement action brought by EPA and the States of Pennsylvania, New York, and New Jersey, alleging New Source Review violations at the Homer City Power Generation facility. Homer City is one of the largest power plants in the U.S. In October 2011, the federal district court dismissed the action in its entirety, holding, among other things, that GECC, the current owner of the plant, could not be liable for alleged violations of prior owners.  The Third Circuit affirmed the district court decision in August 2013. The decision represents a major defeat to EPA's national Clean Air Act enforcement initiative against power plants. We also represented GECC in a class action lawsuit filed in the same federal district court and based on the same allegations.  The class action was brought on behalf of two residents of Homer City, Pennsylvania, and all other residents living "downwind" of the plant who alleged that they were injured by emissions from the plant.  The class action was dismissed in October 2011. 
  
  
• Ecological Rights Foundation v. Pacific Gas & Electric Co. and Pacific Bell Telephone Co., 713 F.3d 502 (9th Cir. 2013). We defended Pacific Bell Telephone Company in a first-of-its-kind lawsuit alleging that the use and maintenance of telephone poles throughout the San Francisco Bay Area resulted in violations of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA). Specifically, plaintiff Ecological Rights Foundation (ERF) contended that, as a result of storm water runoff, wood preservatives in telephone poles escape into the environment and contaminate nearby water bodies, including the San Francisco Bay. The lawsuit implicated over 300,000 telephone poles installed throughout the San Francisco Bay Area with potential penalties of $32,500 per day and per pole. It also had far-reaching national implications, given the EPA's estimate that there are over 36 million treated wood poles currently in use across the United States. We obtained dismissal with prejudice in the Northern District of California, and on April 3, 2013, the Ninth Circuit affirmed, holding that storm water runoff from the utility poles does not constitute a point source discharge associated with industrial activities, as required to support ERF's claim under the CWA. The court also rejected ERF's RCRA claim.
  
  
• Montana Env. Info. Ctr. v. Stone-Manning, 766 F.3d 1184 (9th Cir. 2014). Crowell & Moring represented Western Energy Company, Westmoreland Resources, Inc., Natural Resource Partners L.P., the Crow Tribe of Indians, and the International Union of Operating Engineers, Local 400 in successfully defending against this citizen suit attacking the State of Montana's regulation of coal mining under the Surface Mining Control and Reclamation Act (SMCRA). The district court had dismissed the case, ruling that plaintiffs' claims were barred by the Eleventh Amendment's doctrine of sovereign immunity. A unanimous panel of the Ninth Circuit affirmed the decision without reaching the Eleventh Amendment issue and, instead, determined that the case was not justiciable.  The Court accepted Crowell & Moring's argument that, in the absence of a decision from the state agency concerning the cumulative hydrologic impacts of the proposed mining operation, the federal court could not exercise its jurisdiction over the case.  Accordingly, the Court of Appeals affirmed the district court's dismissal of the case. 
  
  
• Minard Run Oil Co. v. U.S. Forest Service, 670 F.3d 236 (3d Cir. 2011). We represented the Pennsylvania Independent Oil & Gas Association challenging an April 9, 2009 U.S. Forest Service Settlement Agreement with the Sierra Club and a contemporaneous Forest Service drilling ban directive requiring a Forest-wide environmental impact statement under NEPA before the Forest Service could process oil and gas well drilling proposals on private oil and gas estates within the Allegheny National Forest in the Marcellus Shale region. On December 15, 2009, following a three-day evidentiary hearing, the district court granted a preliminary injunction barring implementation of the Settlement Agreement and drilling ban. The Third Circuit affirmed and held that substantial economic injuries and interference with real property rights constituted the irreparable injury needed for an injunction, and further, that "granting the injunction would vindicate the public's interests in aiding the local economy," protect "the property rights of mineral rights owners," and ensure "public participation in agency rulemaking as required by the Administrative Procedure Act." On September 6, 2012, the district court vacated the Settlement Agreement and converted the preliminary injunction into a final declaratory judgment on the merits. Minard Run Oil Co. et al v. U.S. Forest Service, et al, 894 F. Supp.2d 642 (W.D. Pa. 2012). Then, on September 26, 2013, the Third Circuit unanimously affirmed the September 2012 final judgment from the district court. Minard Run Oil Co. et al. v. U.S. Forest Service et al., 2013 WL 5357066 ( 3d Cir. Sept. 26, 2013)( recovery of $530,000 in partial attorney's fees from U.S. Justice Department, per settlement agreement, dated May 16, 2014). In the FT US Innovative Lawyers 2013 report (at. P. 8) (Nov. 21, 2013), Financial Times commended Crowell & Moring for this litigation in the Marcellus Shale region, ranking it as among the most innovative litigation in the USA.  
  
• National Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. Mar. 15, 2011). We represented the National Pork Producers Council, the American Farm Bureau Federation, and other farm groups in this challenge to EPA's most recent Clean Water Act regulations for concentrated animal feeding operations. EPA issued these regulations in response to the Second Circuit's decision in Waterkeeper Alliance, Inc. v. EPA, in which we successfully challenged EPA's earlier regulatory scheme. Again, EPA attempted to expand its jurisdiction to regulate entities that do not actually discharge pollutants to surface waters. Again, we successfully convinced a federal appellate court that EPA does not have such authority. The Fifth Circuit vacated as ultra vires the provisions of EPA's regulations that would have required any operator that "proposed" to discharge to obtain a Clean Water Act permit. It also held that the statute does not allow EPA to impose liability for failure to apply for a permit.
  
  
• Biodiversity Conservation Alliance v. BLM, 608 F.3d 709 (10th Cir. 2010). We represented a coalition of intervenor-defendants in successfully defending BLM's Final Environmental Impact Statement and Proposed Plan Amendment for the Powder River Basin Oil and Gas Project. Our clients currently conduct oil and gas development, including coal bed natural gas development, pursuant to the Plan Amendment. We successfully defended BLM's decision against a host of National Environmental Policy Act challenges in federal district court in Wyoming. On appeal in the Tenth Circuit, the groups appealing the district court's decision narrowed the basis of their challenge to a single issue: that BLM should have considered phased development. We argued that phased development was inappropriate given the distinct land ownership pattern and long history of existing development in the Wyoming portion of the Powder River Basin and that the argument was moot because much of the development anticipated under the plan has already taken place. The Tenth Circuit affirmed the decision of the district court, upholding BLM's decision.
  
  
• Northern Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir. 2007). Our lawyers were lead counsel for a group of natural gas companies who operated in Montana's Powder River Basin. When ENGOs and an Indian Tribe challenged an Environmental Impact Statement (EIS), the district court upheld virtually all aspects of the EIS. For the portion that was decided against BLM, we were able to convince the district court that the companies should be allowed to proceed with their planned operations. The ENGOs and Tribe appealed the decision arguing, inter alia, that all of the natural gas operations should be suspended until after completion of a Supplemental EIS. A panel of the Ninth Circuit rejected plaintiffs' arguments and affirmed the lower court decision.
  
  
• Texas Independent Royalty Producers and Owners Ass'n v. EPA, 410 F.3d 964 (7th Cir. 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 Crowell's brief raised the standing issues to the court.
  
  
• Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d 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). Crowell & Moring 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). Crowell & Moring 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 the Endangered Species Act (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). Crowell 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, Crowell 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). Crowell & Moring 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 Crowell & Moring 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.
  
  
• 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). Crowell & Moring 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. 
  
  
• 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. Crowell has represented the successful timber industry intervenors in three interlocutory appeals in a long-running ESA and National Forest Management Act 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, 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.
  
  
• AFL-CIO, et al. v. OSHA, 965 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.

U.S. District Courts

• Moncrief v. U.S. Department of the Interior, 339 F. Supp. 3d 1 (D.D.C. 2018). Crowell & Moring successfully challenged the cancellation of an oil-and-gas lease on federal land issued over 30 years prior. The court ordered reinstatement of the lease, ruling both that the cancellation was arbitrary and capricious, and that Moncrief was a bona fide purchaser protected from such action, in any event (appeal pending).
  
  
• National Parks Conservation Ass’n v. U.S. Forest Service and Elkhorn Minerals LLC, 177 F. Supp. 3d 1, 2016 WL 1273190 (D.D.C. March 31, 2016), representing the gravel project developer on severed mineral estates within the Dakota Prairie Grasslands near the Theodore Roosevelt National Park. The district court first denied the plaintiff’s motion for a temporary restraining order to block the project and then denied a preliminary injunction motion, and thereafter granted summary judgment against the plaintiff, upholding the adequacy of the Environmental Assessment under NEPA, ruling in part that: “Elkhorn Minerals held valid mineral rights that predated the Forest Service’s acquisition of the surface; the acquisition was explicitly subject to existing mineral rights; the existing mineral rights are dominant over surface rights under North Dakota law; and the views of Congress mandate that such mineral rights be respected.”
  
  
• Florida Wildlife Federation Inc. et al. v. Jackson et al, 853 F. Supp. 2d 1138 (No. 4:08-cv-00324, N.D.Fla. Feb 2012). In December 2010 the U.S. Environmental Protection Agency issued numeric water quality criteria for nitrogen and phosphorus in the lakes and streams of the State of Florida -- a step that replaced Florida's own narrative criteria for those substances, and preempted Florida's process for developing its own numeric criteria. The Fertilizer Institute retained Crowell & Moring to challenge EPA's action in federal district court in Florida. Suits challenging the rule were filed by many other parties; Crowell & Moring played the lead role in coordinating the joint brief and we argued the winning position at the hearing before the court. The court invalidated EPA's numeric water quality criteria for nitrogen and phosphorus in Florida waters under the Clean Water Act. 
  
  
• United States v. Brigham Oil & Gas L.P., 840 F.Supp. 2d 1202 (D.N.D. 2012). Crowell & Moring won dismissal of criminal action under the Migratory Bird Treaty Act in a far-reaching decision which rejected strict liability enforcement of the MBTA for oil and gas operations.
  
  
• The General Electric Company and United Nuclear Corporation v. United States of America, U.S. Department of the Interior, U.S. Bureau of Indian Affairs, U.S. Department of Energy, and The U.S. Nuclear Regulatory Commission, No. 1:10-CV-00404-MCA-RHS (D.N.M., Sept. 6, 2011) (Order approving Partial Consent Decree and Judgment.). Representing GE and UNC in a CERCLA cost recovery and contribution claims against the U.S. arising from the former uranium mine known as the Northeast Church Rock Mine in northern New Mexico. The mine was operated on land owned by the U.S. from the 1960s through the early 1980s. The CERCLA claims sought to hold the U.S. liable as a facility owner and arranger of waste disposal, given that the U.S. expressly authorized uranium mining on this site in 1959 in accordance with a national program coordinated by the U.S. Atomic Energy Commission under the Atomic Energy Act to create and expand a domestic uranium mining industry in the U.S. The partial consent decree approved by the court allocated 30 to 33% of the CERCLA liabilities to the U.S. government.
  
  
• Elk Run Coal Co., Inc. v. U.S. Department of Labor, 804 F. Supp. 2d 8 (D.D.C. 2011). In June 2010, Crowell & Moring filed suit in federal court in the District of Columbia on behalf of six underground coal mine operators alleging that the U.S. Department of Labor's Mine Safety and Health Administration (MSHA) had engaged in a pattern and practice of violating the operators' due process rights by the manner by which MSHA reviewed and acted, or refused to act, upon the operators' mandatory ventilation and dust control plans. The U.S. moved to dismiss on two grounds, arguing first that the court lacked jurisdiction over the lawsuit, and that any grievance the operators had with MSHA had to be taken up with the Federal Mine Safety and Health Review Commission (Review Commission), an independent administrative tribunal created to resolve mine enforcement disputes. The U.S. argued second that, in any event, the operators had failed to state a claim. In a landmark decision for the mining industry, the court ruled on August 18, 2011 that (1) mine operators are not barred from seeking declaratory relief against the U.S. for arbitrary conduct giving rise to violations of due process, and (2) the plaintiff operators had in fact properly pled a claim that MSHA had engaged in a pattern and practice of denying them due process. The case ultimately settled on terms favorable to the mine operators.
  
  
• Pennaco Energy, Inc. v. United States EPA, 692 F. Supp. 2d 1297 (D. Wy. 2009). We represented a coalition of companies that discharge slightly saline "produced water" from the production of coal bed natural gas into watercourses in Wyoming, through which the water may eventually reach the Powder, Little Powder or Tongue Rivers, all of which flow into Montana. In 2003 Montana adopted, and in 2006 dramatically tightened, its water quality standards for these rivers, aiming to curtail discharges by coal bed natural gas producers in Wyoming. EPA approved these new standards under the Clean Water Act. As a result of the EPA approval under federal law, Montana claimed that Wyoming was bound by the Montana standards and could not permit discharges in Wyoming that would have any appreciable water quality impacts in Montana. We sued EPA in federal court, arguing that EPA's approval of the standards was procedurally and substantively defective. We argued that EPA had failed to consider the entire administrative record, that the standards were unjustifiably stringent and lacked scientific basis, and that interstate application of the standards was contrary to the Clean Water Act. The court found for the plaintiff coal bed natural gas producers, invalidated EPA's approval, and remanded the standards to EPA for further proceedings.
  
  
• American Petroleum Inst. v. Johnson, 541 F.Supp.2d 165 (D.D.C. 2008). Our lawyers argued a challenge to EPA's spill prevention regulations on the ground that the EPA had exceeded its jurisdictional authority under the Clean Water Act. EPA advanced a series of procedural arguments and attempted to defend the regulations. The D.C. District Court ruled in our client's favor holding that EPA's definition of "navigable waters" had exceeded authority under the Clean Water Act and that the spill prevention regulations must properly be confined to instances where a discharge would affect jurisdictional waters of the United States as interpreted by recent Supreme Court decisions.
  
  
• Barrick Goldstrike Mines Inc. v. Whitman, 260 F. Supp. 2d 28 (D.D.C. 2003). Crowell & Moring 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.
  
  
• Mineral Policy Center v. Norton, 292 F. Supp.2d 30 (D.D.C. 2003), representing the National Mining Association as an intervenor defending against ENGO challenges to the U.S. Interior Department hardrock mining regulations involving issues under NEPA and federal public land statutes. Decision upheld Interior's 2001 rescission of "mine veto" authority regulation and mineral exploration activities without NEPA procedures.
  
  
• 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 represented the defendant in this case, which alleged 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 National Forest Management Act and the National Environmental Policy Act 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 challenging 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.
  
  
• 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 the National Environmental Policy Act 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.