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Recent Cases

Read about the firm's most recent decisions and negotiated settlements. Scroll down for a listing of our wins on behalf of individuals and organizations across the country.

Sierra Club, et al., v. BNSF Railway Co., et al., C13-0967-JCC (W.D. Wa., Oct. 25, 2016) (order denying summary judgment) Recent News: Court finds coal trains are point sources under Clean Water Act.
Plaintiffs have standing to prosecute claims for discharges to waterways at trial.
Read the decision . . .

Documents in CARE and Center for Food Safety v. Cow Palace, et al.

ECF 211 - Motion for Summary Judgment
ECF 211-1 - Statement of Material Facts
ECF 226-1 - Cow Palace Livestock Nutrient Management Plan, part 1
ECF 226-2 - Cow Palace Livestock Nutrient Management Plan, part 2
ECF 237-2 - Expert Report of Dr. Byron Shaw, Ph.D.
ECF 237-3 - Expert Report of David Erickson
ECF 238 - Expert Report of Dr. Robert Lawrence, M.D.
ECF 238-1 - Dr. Shaw Rebuttal of Scott Stephen
ECF 238-2 - Dr. Shaw Rebuttal of Dr. Stewart Melvin, Ph.D.
ECF 238-3 - Dr. Shaw Rebuttal of James Maul
ECF 239 - Dr. Shaw Rebuttal of David Trainor
ECF 239-1 - Erickson Rebuttal of Trainor
ECF 239-2 - Erickson Rebuttal of Maul
ECF 281 - Opposition to Dolsen_3D Mtn for Summary Judgment
ECF 286 - Opposition Cow Palace Mtn for Summary Judgment
ECF 304 - Reply in Support of Mtn for Summary Judgment
ECF 320 - Order Granting in Part Mtn for Summary Judgment
ECF 321 - Order Unsealing Records
ECF 331 - Order Denying Interlocutory Appeal
ECF 396 - Cow Palace Consent Decree w/exhibits
ECF 246 - Bosma Consent Decree w/exhibits
ECF 169 - DeRuyter Consent Decree w/exhibits
ECF 406 - Declaration of Michael Russelle in Support of Plaintiffs’ Motion for Award of Attorney and Expert Witness Fees and Costs

CARE and Center for Food Safety v. Cow Palace, et al., 2015 WL 403178 (E.D. Wash. Jan. 28, 2015)
Shortly after the landmark decision (see below) finding that manure from industrial dairies when mishandled is a solid waste causing an immediate threat to human health, Cow Palace filed for leave to appeal the ruling. The Court denied the motion stating "[T]his Court finds the public interest in addressing current levels of contamination and minimizing any further risk of harm immeasurably outweighs any argument in favor of staying these proceedings pending appeal. As this Court determined in its previous Order, the Dairy’s operations may currently be presenting an imminent and substantial endangerment to the nearby residents who are consuming the nitrate-contaminated groundwater. Any delay in these proceedings only increases the already-present risk to the public health."    Read the Order . . .

CARE and Center for Food Safety v. Cow Palace, et al., 80 F. Supp. 3d 1180 (E.D. Wash. 2015)
This decision is the first of its kind in the country that finds that manure from industrial dairies when mishandled, as it is at Cow Palace, is a solid waste that is causing an immediate threat to human health. This facility is no different from the thousands of other animal factories across the country that are causing the same harms to the people around them. It is long past time for local, state and federal health protectors to take up the mantle and protect human health over corporate profits. Among our co-counsel was Public Justice.    Read the Decision on Summary Judgment . . .   Read the Order Unsealing Records . . .   Read recent press on the case . . .

Sierra Club, et al., v. BNSF Railway Co., et al., C13-0967-JCC (W.D. Wa., Mar. 12, 2014) (order denying motion to dismiss) Recent News: Court Denies BNSF's Motion to Dismiss for the Second Time.
Western District Court in Seattle joins Eastern District Court in denying BNSF's request to dismiss coal pollution case. Judge Coughenour found BNSF's arguments to be "absurd" and that they were "merely engaging in a game of semantics." The Plainitiffs' case will now proceed toward trial.  Read the Decision . . .

Alec L., et al., v. Gina McCarthy, et al., No. 13-5192 (D.C. Cir.)
An Amicus Brief filed on behalf of 11 climate scientists from around the world in support of a suit brough by Our Children's Trust challenging the U.S. Government's failure to take adequate action to arrest climate change.      Read the Press Release . . .      Read the Amicus Brief . . .

CARE v. Cow Palace, et al., 953 F. Supp.2d 1151 (E.D. Wash. 2013)
June 21, 2013. Federal District Court Judge Thomas Rice ruled today that CARE's and Center for Food Safety's cases against industrial dairies alleging that manure waste has caused an imminent and substantial endangerment to human health and the environment may proceed to trial. In denying the dairies' motion to dismiss, the Court found that CARE's allegations, if proven, would violate the Resource Conservation and Recovery Act (RCRA).      Read the opinion . . .      Read the Second Amended Complaint . . .

Sierra Club, et al., v. BNSF Railway Co., et al., 2:13-cv-00272-LRS (E.D. Wa. Jan. 2, 2014) (order denying motion to dismiss) Recent News: Judge Suko denied BNSF's Motion to Dismiss, allowing trial to go forward.
The Sierra Club and its partners, represented by the Law Offices of Charlie Tebbutt, have filed suit against Burlington Northern Santa Fe Railway (BNSF) and several coal companies for violations of the federal Clean Water Act. The groups have found evidence that the companies are responsible for emitting coal into waterways in many locations across Washington. By BNSF’s own figures, the four daily coal trains travelling through Washington heading to Canada or to the state’s last remaining coal plant combine to lose a staggering 120 tons of coal dust per day. Local residents and conservation groups are concerned that the problem will only worsen if coal companies receive approval to move forward with their hotly contested plan to develop five coal export sites in Washington and Oregon, which could send an additional 60 trains through Washington daily.    Read the Complaint . . .  

Chevron Corporation v. Maria Aguinda Salazar, 2011 WL 7112979
Judge Thomas Coffin, Federal District Court of Oregon, ruled that Chevron, the world's 10th-largest corporation, made "unduly burdensome" demands for potential evidence from Eugene-based ELAW - the Environmental Law Alliance Worldwide. The judge also found that Chevron's actions were "at least in part, meant to harrass" and awarded fees and costs of the burdensome, non-party discovery actions to ELAW. This subpoena is one of many in a coordinated attempt by Chevron to undermine the $18,000,000,000 judgment against it in Ecuadorian courts, a matter in which ELAW was involved only peripherally. The Ecuadorian appellate court recently affirmed the lower court judgment in its entirety. Read the full opinion . . .

Cases

Charlie has represented organizations and individuals across the country. Here are some representative enforcement cases and pollution-reducing settlement agreements.

Clean Water Act (CWA)

Friends of Mahaulepu Inc. v. Hawaii Dairy Farms LLC, (CWA) 2016 U.S. Dist. LEXIS 166853; 83 ERC (BNA) 1737 (D.Hi. 2016)(Order on Summary Judgment)

Community Ass'n for Restoration of Environment v. Nelson Faria Dairy, Slip Copy, 2011 WL 6934707, E.D.Wash., December 30, 2011 (Memorandum of Decision), Slip Copy, 2012 WL 272888, E.D.Wash., January 12, 2012 (Order on Relief) & Slip Copy, CV-04-3060-LRS, E.D.Wash., May 1, 2012 (Order Denying Stay on Appeal)(CAFO found to have "caused or significantly contributed to the excessive nitrate contamination of the local groundwater."  Monitoring of groundwater, soil and tile drains for manure related pollution required.)

Center for Biological Diversity, Inc. v. BP America, Inc. (CWA, CERCLA & EPCRA) 704 F.3d 413 (5th Cir. 2013)(citizen enforcement action as a result of the Deepwater Horizon oil spill in the Gulf of Mexico. The spill released millions of gallons of oil and other toxic pollutants into the Gulf, causing untold environmental harm. The Fifth Circuit Court of Appeals ruled that the CBD's claims requiring BP to publicly release specific information about the types and quantities of pollutants discharged into the environment were still viable, but upheld district court decision finding CWA claims were moot relying on incorrect facts that all discharges ceased when well was capped in July 2010. Failed to account for discharges from other appurtenances.)

National Cotton Council of America v. U.S. EPA (CWA & FIFRA)
553 F.3d 927 (6th Cir. 2009), reh’g denied (11 different circuit petitions filed, represented Baykeeper and 5 other groups)(invalidating Bush EPA rule exempting pesticide discharges from CWA) cert. denied, CropLife, et al., v. Baykeeper, et al., No. 09-533 and American Farm Bureau Federation, et al., v. Baykeeper, et al., No-09-547, 559 U.S. __ (Feb. 22, 2010)(pesticide industry's request to have Supreme Court reverse environmental groups' victory is denied: victory stands)

Saint John's Organic Farm v. Gem County Mosquito Abatement District (Attorneys Fees)
574 F.3d 1054, reh’g denied (9th Cir. 2009)(aerial and ground spraying of mosquito pesticides)

CARE (Community Association for Restoration of the Environment) v. WA State Dept. of Ecology (CWA & State CWA)
205 P.3d 950 (Wa. Ct. App 2009)(seeking groundwater monitoring of dairy pollution through state CAFO general permit)

Northern California River Watch v. City of Healdsburg
496 F.3d 993 (9th Cir. 2007), cert. denied 128 S.Ct. 1225 (2008)(hydrologically connected discharges from pond to Russian River)

Rapanos v. U.S. (Amicus Brief)
547 U.S. 715 (2006)(represented 20 western parties entitled “Western Organization of Resource Councils, et al.”)(waters of the U.S.)

Gem County Mosquito Abatement Dist. v. U.S. EPA (CWA & FIFRA)
398 F. Supp.2d 1 (D.D.C. 2005)(defending declaratory judgment action)

Headwaters, Inc. v. Talent Irrigation District
243 F.3d 526 (9th Cir. 2001)(unpermitted discharges of pesticides and major fish kill in Rogue River basin, Oregon)

Idaho Rural Council v. Bosma
143 F. Supp.2d 1169 (D. Id. 2001)(summary judgment on issues of waters of United States)

CARE v. Henry Bosma Dairy
65 F. Supp.2d 1129 (E.D.Wa. 1999), 2001 WL 1704240 (E.D. Wa. 2001), aff’d 305 F.3d 943 (9th Cir. 2002)(large CAFO discharges to waters of US and penalties after 5 week trial)

CARE v. Sid Koopmans Dairy
54 F. Supp.2d 976 (E.D. Wa. 1999)(summary judgment on CAFO liability, four consolidated cases)

Sierra Club v. Hyundai
23 F. Supp.2d 1177 (D. Or. 1997)(no diligent prosecution from state action)

Atlantic States Legal Foundation v. Pan American Tanning Corp.
993 F.2d 1017 (2d Cir. 1993)(CWA pretreatment violations)

Atlantic States Legal Foundation v. Eastman Kodak
933 F.2d 124 (2d Cir. 1991)(diligent prosecution on injunction issues involving continuing violations)

Atlantic States Legal Foundation v. Reynolds Metals Co.,
31 ERC 1156 (N.D.N.Y. 1990)(unpermitted discharges of PCBs)

Emergency Planning & Community Right-to-Know Act (EPCRA)

Center for Biological Diversity, Inc. v. BP America, Inc. (CWA, CERCLA & EPCRA) 2013 WL 104928 (5th Cir., Jan. 9, 2013)(citizen enforcement action as a result of the Deepwater Horizon oil spill in the Gulf of Mexico. The spill released millions of gallons of oil and other toxic pollutants into the Gulf, causing untold environmental harm. The Fifth Circuit Court of Appeals ruled that the CBD's claims requiring BP to publicly release specific information about the types and quantities of pollutants discharged into the environment were still viable, but upheld district court decision finding CWA claims were moot relying on incorrect facts that all discharges ceased when well was capped in July 2010. Failed to account for discharges from other appurtenances.)

Atlantic States Legal Foundation v. Buffalo Envelope
823 F. Supp. 1065 (W.D.N.Y. 1993)(EPCRA liability)

Atlantic States Legal Foundation v. Whiting Roll-Up Door
772 F. Supp. 745 (W.D.N.Y. 1991)(EPCRA liability)

Federal Insecticide Fungicide and Rodenticide Act (FIFRA)

Petition on behalf of Northwest Coalition for Alternatives to Pesticides, et al.
NCAP Petition and EPA Response (petition to require disclosure of hazardous inert ingredients on pesticide product labels) see also Center for Environmental Health v. U.S. EPA, C 09-2868-PJH (N.D. Cal.)

Resource Conservation and Recovery Act (RCRA)

CARE and Center for Food Safety v. Cow Palace, et al.,
80 F. Supp. 3d 1180 (E.D. Wash. 2015)(decision finding manure from industrial dairies when mishandled is a solid waste causing imminent and substantial endangerment to human health)

U.S. EPA v. Environmental Waste Control, Inc.
710 F. Supp. 1172 (N.D. Ind. 1989), aff’d 917 F.2d 327 (7th Cir. 1990), cert. denied 499 U.S. 975 (1991)(represented citizen group STOP, permanent closure of commercial hazardous waste landfill)

Sierra Club v. San Juan Coal Company, et al.
10-cv-00332-MCA-LAM (D. N.M., Mar. 28, 2012)(Consent Decree requiring utility to halt ground and surface water contamination, establish groundwater recovery system and fund additional pollution control, monitoring and restoration projects)

Right to Know (RTK)

Advocates for Effective Regulation v. City of Eugene
981 P.2d 368, 160 Or. App. 292(OR Ct. App. 1999) (defending Eugene’s right-to-know law)

Consent Decrees

Sheep Mountain Alliance v. PacifiCorp (CWA)
l1-cv-03249-WYD-CBS (D. Co. 2013)(Consent Decree - 8 MB PDF)

CARE v. DeRuyter Bros. Dairy (CWA)
CY-98-3021-EFS (E.D. Wa. 2000)(Consent Decree)

Oregon Shores Conservation Coalition v. City of Florence (CWA)
97-6267-TC (D. Or. 1999)(Consent Decree)

Montana CHEER v. Stone Container Corp. (CAA, CWA and EPCRA)
CV-96-24-M-CCL (D. Mont. 1998)(Consent Decree)

Ecology Center of Ann Arbor v. Johnson Controls (EPCRA)
91CV-60304 (E.D. Mich. 1996)(Consent Decree)

Columbia River United v. Longview Fibre (CWA)
C94-5489 (W.D. Wa. 1995)(Consent Decree)

Law Offices of Charles M. Tebbutt, P.C. • 941 Lawrence St., Eugene, OR 97401
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