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National Ass’n of Home Builders v. Environmental Protection Agency, __ F.3d __, 2011 WL 6118589 (D.C. Cir., Dec. 9, 2011). Representation of the National Association of Home Builders and two local associations in challenge to determination by the Army Corps of Engineers and EPA that two reaches of the Santa Cruz River in southern Arizona are “traditional navigable waters” for the purpose of determining jurisdiction under the Clean Water Act.

Save the Scenic Santa Ritas v. U.S. Forest Service, No. CV 11-0094 (D. Ariz.; case dismissed January 2012). Representation of Rosemont Copper in opposing an application for a preliminary injunction sought by environmental groups that would have prevented the release of the draft environmental impact statement for Rosemont Copper’s mining plan. The requested injunction, which was based on alleged violations of the Federal advisory Committee Act, was denied last June, and the case was ultimately dismissed with prejudice by stipulation.

Arizona Cattle Growers Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010), cert denied 131 S.Ct. 1471 (Feb 22, 2011) (No. 10-454, 10A116). Representation of the Arizona Cattle Growers’ Association in challenge to the designation of over 8 million acres of land as critical habitat for the Mexican spotted owl under Section 4 of the Endangered Species Act.

Center for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 663 (9th Cir. 2010) (decision on rehearing). Representation of ASARCO LLC in connection with challenge to adequacy of EIS and compliance with the Federal Land Policy and Management Act in connection with land exchange between the company and the Bureau of Land Management.

National Ass’n of Home Builders v. Salazar, No. CV 10-00832 (D.D.C. 2011). Representation of National Association of Home Builders in challenge to Interior Department policy interpreting the phrase “significant portion of its range” in the definitions of “endangered species” and “threatened species.” The department policy was withdrawn while the lawsuit was pending, and new policy that is largely consistent with the association’s interpretation was proposed last November.

Quechan Indian Tribe v. U.S. Dep’t of Interior, 547 F. Supp. 2d 1033 (D. Ariz. 2008). Representation of an irrigation district in opposing challenge by Indian tribe to the transfer of reclamation project works and facilities, and associated land and rights-of-way, by the Bureau of Reclamation. Claims asserted involved alleged violations of NEPA and the National Historic Preservation Act.

National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 664 (2007). Counsel for industry trade associations in an action challenging EPA’s approval of Arizona’s application to administer the NPDES program under section 402(b) of the Clean Water Act. The Supreme Court, in reversing the Ninth Circuit, held that section 7(a)(2) of the Endangered Species Act applies only in situations in which there is discretionary federal involvement or control and EPA's discretion in approving Arizona's program was limited to ensuring that the statutory criteria in the Clean Water Act were met.

Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005). Representation of real estate developer in connection with a challenge to a permit issued under section 404 of the Clean Water Act, based on alleged violations of the Endangered Species Act. The Ninth Circuit affirmed the district court’s determination that the Corps was responsible for determining whether the proposed action would affect species and that consultation was not required.

National Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003). Representation of the National Association of Home Builders and state home builders associations in an action challenging the Fish and Wildlife Service’s listing of the Arizona pygmy-owl population as an endangered species, and the agency’s subsequent designation of critical habitat for the Arizona pygmy-owl population. As a result of this litigation, the pygmy-owl was delisted in 2006.

Ariz. Cattle Growers’ Ass’n v. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir. 2001), aff’g 82 F.Supp.2d 1070 (D. Ariz. 1999). Representation of the Arizona Cattle Growers’ Association in two lawsuits challenging incidental take statements issued by the Fish and Wildlife Service that restricted livestock grazing on numerous federal grazing allotments. The Ninth Circuit affirmed the district courts’ judgments, holding that the Fish and Wildlife Service’s incidental take statements were unlawful because there was no evidence that listed species would actually be “taken” in violation of Section 9.

Current and Recent Regulatory Matters

Cactus ferruginous pygmy-owl listing determination. Representation of trade associations in connection with opposing the relisting of the pygmy-owl in response to a petition filed by environmental groups. In October. The Fish and Wildlife Service determined that listing of the pygmy-owl is not warranted.

Spikedace and loach minnow critical habitat. Representation of a mining company in connection with providing biological and economic comments on proposed critical habitat, as well as developing voluntary conservation plans to support excluding the company’s land.

ASARCO Ray Land Exchange. Representation of a mining company in connection with the development of a supplemental EIS on the impacts of a land exchange to address the deficiency identified by the Ninth Circuit Court of Appeals.

Rosemont Copper Project. Representation of a mining company in connection with obtaining permits for the development and operation of an open pit mine southeast of Tucson, including completion of an EIS and Section 7 consultation on the effects of the action on listed species and critical habitat.

The Endangered Species Act: An Overview of Current Issues and Trends, CLE International 19th Annual Conference (November 15, 2012)

Listing Species Under the ESA, presented at the Endangered Species Act Conference, Sacramento, California, CLE International (2011).

Compliance with Federal Wildlife Laws, presented at the Solar and Wind Energy Development Conference, Phoenix, Arizona (2010).

The Mexican Spotted Owl Controversy: An Example of the ESA’s Dominant Role in Federal Land Use Planning, presented at the 2010 Martz Annual Summer Conference: The Past, Present, and Future of Our Public Lands, University of Colorado School of Law, Boulder, Colorado (2010).

Critical Habitat: An Overview of How Critical Habitat Is Designated and Its Regulatory Impact, presented at Endangered Species Act Conference, CLE International (2009)

National Association of Home Builders v. Defenders of Wildlife – Limits on the Applicability of Section 7 of the Endangered Species Act, presented at Western Water Law Conference, CLE International (2008)

Section 7 Consultation and Public Citizen: Applying the Correct Scope of Analysis, presented at Species Protection and the Law, ALI/ABA (2006)

The Ninth Circuit Redefines the Scope of Section 7(a)(2) of the Endangered Species Act, presented at the Endangered Species Act, The Seminar Group (2006)

The Listing Process: Science, Politics and Pygmy-Owls, presented at Species Protection and the Law, ALI/ABA (2005)

Past Vice Chairman, Public Lands Committee, American Bar Association Section of Environment, Energy, and Resources

Past Vice Chairman, Forest Resources Committee, American Bar Association Section of Environment, Energy, and Resources

Past Vice Chairman, Hard Minerals Committee, American Bar Association Section of Environment, Energy, and Resources

Member, Water Utilities Association of Arizona

Member, State Bar of Arizona

Member, Maricopa County Bar Association

Arizona, 1981

U.S. District Court, District of Arizona, 1981

U.S. Court of Appeals, Ninth Circuit Court, 1981

U.S. Supreme Court, 2006

U.S. District Court, District of Colorado, 2007

U.S. Court of Appeals, Tenth Circuit Court, 2008

U.S. Court of Appeals, District of Columbia, 2010

J.D., University of Utah College of Law, 1981

B.A., Stanford University, 1977

Best Lawyers in America®, Energy Law, Environmental Litigation, Natural Resources Law, and Water Law 

Best Lawyers in America®, Lawyer of the Year, Litigation-Environmental, 2013

Chambers USA, Leading Lawyers for Business 

Southwest Super Lawyers®, Energy and Natural Resources Law 

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