Prepared a legal memorandum "researching [and analyzing] Federal Energy Regulatory Commission ("FERC") jurisdiction," including over the dam sites, and "preparing a list of actions that could be filed against the Environmental Protection Agency, PacifiCorp and FERC" to prevent dam removal.
Prepared presentation materials for use by the Clare County Michigan Farm Bureau Legislative Breakfast, re Europeanization of Michigan and the Great Lakes States' Wetland Rules (June 2017)
Prepared law review article to be published in Winter 2019-2020 Michigan State Law Review re The Europeanization of the Great Lakes' States' Wetland Laws and Regulations (At the Expense of Americans' Constitutionally Protected Private Property Rights)
Pro Hac Vice environmental defense counsel and representative (as of 2015) to a group of closely held entities operating four Federal Energy Regulatory Commission ("FERC")-licensed hydroelectric power generating earthen dams located in central Michigan before the Michigan Department of Environmental Quality ("MDEQ") and the Office of the Michigan Attorney General ("MIAG"), and before the 55th Circuit Court for Gladwin County, State of Michigan, Case No. 16-8538-CE (MDEQ v. Boyce Hydro, LLC, et al.).
Legal counsel and representative to generations-old farmers holding fee patented lands and consumptive water rights onthe Flathead Indian Reservation ("FIR") and non-consumptive rights to use the state-owned waters of the Flathead Lake and Flathead River, at U.S. Federal Energy Regulatory Commission ("FERC") administrative proceedings. These farmers and ranchers had concluded that the Flathead Joint Board of Control did not adequately represent the interests of Flathead, Mission and Jocko Valley Irrigation District members at the "confidential" nonpublic FERC settlement conference proceedings that were convened in lieu of a public hearing to address the terms and conditions for continuing to secure the low-cost block of power (deep-discounted electricity rates) long guaranteed to irrigators and other residents of the FIR by the 1930 and 1985 Kerr Dam FERC licenses. The Kerr Dam FERC license terms had apparently changed and become the subject of renegotiation following the conveyance of Kerr Dam to the CSKT during September 2015. Consequently, they chose to intervene.
Responded to MDEQ violation notices and cease and desist orders and attended administrative agency meetings seeking to resolve agency allegations of violations of Parts 31, 91, 301 and 303 of the Michigan Natural Resources Environmental Protection Act ("NREPA") at the largest of the four hydroelectric-generating dams. Drafted a counter-proposal to a proposed MDEQ Advanced Consent Agreement, and substantially assisted local counsel(s), in the drafting of pleadings and the formulation of litigation and settlement negotiation strategy, the oversight of agency inspections, the coordination of Boyce's wetland experts, the conducting of depositions of MDEQ and Michigan Department of Natural Resources ("MDNR") agency officials (here, here, here), the revising of the MIAG's proposed Consent Judgment, and in mediation/settlement negotiations.
Settled 4-year-plus litigation
Legal Counsel and representative to Western States Constitutional Rights, LLC, a Montana-based nonprofit entity the mission of which is to promote the protection of private property rights held by western United States property owners against reckless federal, state and local government laws, regulations and policies. Prepared legal memoranda and analyses evaluating the Salish and Kootenai Water Rights Settlement Act of 2016 (S. 3013), related U.S. Congressional tribal forest management legislation (e.g., S. 2012), and federal agency policies and guidelines regarding tribal treaty and reserved water rights, and shared such analyses with members of Congress. Also prepared an analysis of how "sovereign" Indian reservations located along the U.S.-Canada border pose a real and present danger to U.S. national security - i.e., genuine national security risks. All documents are available here.
Pro Hac Vice environmental defense counsel (in the U.S. District Court for the Western District of Pennsylvania) and representative (as of 2017) to a fourth-generation northwestern Erie County, Pennsylvania farming family and business the operations of which, during the past 30 years, have been severely diminished in size and value because of the U.S. Environmental Protection Agency's over-enforcement of Sections 301 and 404 of the Federal Clean Water Act ("CWA") against such entities/persons. EPA over-enforcement had been intended to preserve for "public use," without payment of "just compensation," portions of "private farmlands" designated as wetlands deemed "waters of the United States," even though these same alleged wetlands had historically been mixed agricultural lands that had been converted to croplands in accordance with the Food Security Act of 1985 ("FSA"), FSA regulations, and USDA National Food Security Act Manual ("NFSAM") guidance, and pursuant to a U.S. Department of Agriculture Soil Conservation Service ("USDA-SCS")-certified farm "Conservation Plan". The original 1990 EPA lawsuit ignored USDA-SCS's prior "converted wetland" ("CW") and "Commenced Conversion" designations of such lands under the FSA, and alleged that such conversion activities failed to meet the "normal farming activities" exemption of the CWA. Although Mr. Brace had prevailed in 1993 at the U.S. District Court, EPA successfully appealed that ruling in 1994 to the Third Circuit Court of Appeals.
The current case actually consists of two lawsuits filed by the U.S.Government only 11 days prior to the inauguration of President Trump. One suit relates to the 1990 case and seeks to Enforce a 1996 Consent Decree the USG alleges Mr. Brace violated concerning approximately 30 acres of one of Mr. Brace's three adjacent farm tracts, while the other is a new action alleging CWA Section 404 violations had been committed on an adjacent farm tract. Both actions, which derive from the same or similar activities alleged to have occurred from late 2011 through mid-2013, are currently before the U.S. District Court for the Western District of Pennsylvania, and have unsuccessfully proceeded through two levels of confidential Alternate Dispute Resolution (mediation).
Counsel, at the pre-enforcement administrative level, to the owners of an approximate 9.5-acre undeveloped lot currently bordered by a residential subdivision, an office building and pastureland, but previously farmed decades ago, who are seeking to develop their family property located on the outskirts of downtown Payson, Utah, a quickly growing community located in Utah County, approximately 50 miles south of Salt Lake City, UT. The City of Payson and its immediate surroundings are situated in the Spanish Fork quadrangle covering part of southeast Utah Valley, and within the Utah Lake and Jordan River sub-basins of the Great Salt Lake Basin. Following their submission to the local and district offices of the U.S. Army Corps of Engineers of a professonally prepared wetland identification and delineation report showing less than 1/3 acre of possiblly jurisdictional wetlands and a formal request for an Approved Jurisdictional Determination, the landowners encountered resistance from the Corps which, based on a review of remote sensing technology and an onsite evaluation, alleged "potential" unauthorized activities" had taken place on areas on the property more than 20 years ago and sometime within the last 3 years. The Corps has since opened an investigation and refused to process the AJD.
Legal counsel and representative of the Siskiyou Country Water Users Association ("SCWUA"), "representing a substantial segment of Siskiyou County water users, both agricultural and residential," significantly concerned that the Federal and State Governments' plan to remove the four Klamath River Dams without "due process of law" guaranteed by the U.S. Constitution and in contravention of the 1957 Klamath River Basin Compact enacted into federal law by Congress and former President Eisenhower would adversely impact the human health and safety and private property values of county residents.
Prepared legal memorandum analyzing the federal constitutional and statutory issues that must be addressed to successfully challenge the plan as a violation of the Compact Clause and the U.S. Constitution's 5th & 14th Amendments.
Legal counsel and representative to the members of the Klamath Irrigation District ("KID"), one of the largest districts of irrigators of the Klamath Irrigation Project ("Project"), which comprises a system of dams, canals and pumps developed by the U.S. Department of Interior ("DOI")'s Bureau of Reclamation ("BOR") long ago to supply farmers and ranchers in the Klamath Basin with irrigation water for farmlands spanning from southern Oregon to northern California. The KID Board and many district members were very concerned about the ongoing cooperative clandestine efforts of the BOR, the DOI's Fish & Wildlife Service ("FWS"), the Federal Energy Regulatory Commission ("FERC"), the U.S. Department of Commerce ("DOC")'s National Oceanic and Atmospheric Administration ("NOAA") and National Marine Fisheries Service ("NMFS"), the Fish & Wildlife and Natural Resources Departments of the States of Oregon and California, the Klamath, Hoopa Valley, Karuk and Yurok Tribes, and Warren Buffet's PacifiCorps to diminish the use of irrigation in the Klamath Basin. This collaborative effort sought to curtail agriculture (and agriculture-related irrigation) in the Klamath Basin by: 1) removing four perfectly operational dams in the Lower Basin (John C. Boyle, Copco 1, Copco 2 and Iron Gate); 2) transferring to the BOR full title and control to two other dams in the Upper Basin one of which provides water to the KID which may potentially be curtailed; 3) recognizing the time-immemorial priority of reserved tribal water rights at the expense of irrigator water rights; and by 4) saddling the KID and its members with an exorbitantly high debt burden incident to the KID's forced undertaking of maintenance/replacement of a key Project-related structure known as the "C Canal Flume." All documents are available here.
Legal counsel and representative to the County of Siskiyou located in north central California along the border with Oregon, which had sought assistance in preventing the implementation of the then recently (March 2016) Amended Klamath Hydroelectric Settlement Agreement ("Amended KHSA"), "a dam removal pact supported by the Department of the Interior, Oregon and California, and the dams' owner, PacifiCorp" that did not require Congressional approval. The lower portion of the federal Klamath Irrigation Project encompasses the Tulelake Irrigation District ("TID") which is located in Siskiyou County. TID, a quite influential and forceful member of the Klamath Irrigation Project, had taken a contrary and adversarial position against the County of Siskiyou concerning the removal of three federally regulated dams located in Siskiyou County - the Copco 1 and Copco 2 Dams and the Iron Gate Dam, each of which is owned by Warren Buffett's PacifiCorp. In addition, PacifiCorp agreed to remove a fourth dam it owned located in southern Oregon - the John C. Boyle Dam. PacifiCorp had agreed to facilitate dam removal and to promote the execution and implementation of the Amended KHSA without regard to Congress' role in the process, in exchange for being legally "saved harmless" from all possible prospective liability claims raised by third parties. These included inter alia legal claims arising as the result of human health and safety damages resulting from dam deconstruction and the release of the decades'-worth of highly toxic substances residing at the bottom of the dam reservoirs which (had been ignored by USEPA and the Interior Department during the Obama administration) which arguably would render the reservoirs as "point-sources" rather than "non-point sources" of pollution in the Klamath River Basin within the meaning of Section 402 of the Federal Clean Water Act (and possibly Superfund cites under CERCLA that would strip FERC of jurisdiction), and from the significant loss of property values of homes located along the dam reservoirs as they are drained to prepare for their deconstruction and removal.
The grand plan these federal, state and private actors had developed to curtail irrigation in the Klamath Basin featured the execution and implementation of a complex panoply of new and existing overlapping federal-state-tribal agreements, including the Klamath Basin Restoration Agreement ("KBRA") (2010), the Upper Klamath Basin Comprehensive Agreement ("UKBCA") (2014), the Klamath Hydroelectric Settlement Agreement ("KHSA") (2010), and the new Klamath Power and Facilities Agreement ("KPFA") (2016) accompanied by proposed congressional legislation (the Merkley-Wyden bill), which individually and collectively overlook, ignore and expand upon the 1956 Klamath Basin River Compact ("KBRC"). Although the KBRA expired on January 1, 2016 when Congress refused to authorize it, the UKBCA and KHSA continue to live on, with the federal, state, tribal and private actors noted above endeavoring to insert amendments that would enable the implementation of these agreements without Congress' approval, and despite the failure of the scientific, engineering and economic studies supporting these agreements - i.e., the "Secretarial Determination Studies" to meet the rigorous peer review standards imposed by federal law - the Information Quality Act.
Pro Hac Vice environmental defense counsel (in the U.S. District Court for the Eastern District of Pennsylvania) and representative (as of 2017) to the family of a former Hungarian freedom fighter and his immigrant wife in a 32-year civil CWA Section 404 wetlands violation action initiated in 1988 by the U.S. Army Corps of Engineers and EPA. These agencies have long denied the couple, and, since 2011, the indigent widow, of the beneficial use and occupancy of 12 of approximately 14.25 acres of a vacant lot she and her deceased husband had purchased in southeastern Pennsylvania in 1987. Although the lot had been unofficially used as a municipal dump site for decades before her and her husband's purchase of it, and had been used by the surrounding municipalities as a municipal stormwater "sink," the Corps and EPA alleged, without credible scientific evidence, that 12.5 of the 14.25 acres constituted a "wetland," and that her husband had "filled" a wetland without a CWA 404 permit when he removed thousands of tires, concrete and steel from the property in 1987 and 1988 and then leveled it with sand. The Corps and EPA also falsely imputed to her husband all of the "fills" that had preceded the couple's acquisition of the property. Based on the court's acceptance and issuance of a contempt order against the Pozsgais premised on such false information, the agencies have since endeavored to have most, if not, all of the property remediated, including by third persons. Recent Pozsgai filings with the Corps and the court have been made to ensure the Corps must first reaffirm its jurisdiction over the property before proceeding forward with any further remediation.
Since the irrigators ended their intervention effort, the actions taken by the FJBC’s Washington D.C. Counsel at the FERC public hearing proceedings have, once again, caused major concern among Flathead irrigators. These concerns focused, in particular, on the FJBC D.C. Counsel’s failure, in her May 2015 petition, to call for the broadest scope of administrative law judge review possible of Kerr Dam license Article 40(c) issues. These issues concern both the value of the LCB and corresponding irrigator non-consumptive water rights, as well as, the right of the United States to remain the exclusive provider of electricity on the Flathead Indian Reservation, and the terms and conditions of such electricity delivery to reservation irrigator and non-irrigator households, schools, religious institutions, municipalities and businesses, as set forth in a specially prepared legal memorandum.
Assessed redrafted and secured substantial (USD$750K) asset-backed lending facility for private U.S. solar energy leasing client to permit aggressive home solar installations in chosen market.
Settled strategically threatening minority shareholder action to protect private U.S. software developer client's ability to secure a new round of investor financing for commercialization of advanced software technology.
Thwarted an alleged design patent infringement claim filed against private U.S.-based textiles products importer-exporter to avoid significant liability and treble damages; assured the preparation of new patent design applications to enable client to secure substantial market share.
Reduced regulatory risks posed to coal-based assets of U.S. public chemicals and energy extraction and refining company facing onerous U.S. regional and state-level climate change, environmental/chemicals regulations, renewable portfolio standards, and non-financial reporting requirements, by reeducating decision-makers via congressional and administrative agency briefings and preparation and publication of an internationally referenced peer-reviewed legal monograph accompanied by numerous expert commentaries.
Identified and reduced environmental, health and chemical safety-related regulatory risks for public and private U.S. chemicals/ pesticides manufacturers facing higher formulation and production costs due to U.S. congressional and administration efforts to amend federal environmental and chemicals laws and regulations incident to the proposed U.S. accession to the UN Convention on the Law of the Sea ('UNCLOS'), by delivering congressional committee briefings, participating in robust panel discussions at the Reserve Officers Association and National Defense University, and publishing internationally referenced legal peer-reviewed and other analyses of the environmental, technological, economic and national security implications of said treaty, thereby permitting informed, cognizant congressional consideration in lieu of pursuing UNCLOS accession/ ratification.
Advised a U.S.-based multinational apparel and footwear manufacturer concerning revised U.S. Department of Defense ('DOD') product procurement processes and procedures implementing such agency's reinterpretation of longstanding defense department procurement legislation putatively updated to provide statutory derogations reflecting U.S. outsourced manufacturing trends; developed unique strategic and tactical administrative approach, in light of the agency's numerous intra-organizational challenges, enabling the DOD Defense Logistics Agency to reclaim from Non-appropriated Funded Instrumentalities ('NAFIs') central product procurement responsibilities for U.S. designed and manufactured higher technology dual-use products without client's immediate resort to potentially antagonistic congressional intervention in DOD affairs.
Prepared and filed at the Supreme Court of the United States, on behalf of the nonprofit organization, ITSSD, at the cert petition stage, anAmicus Curiae Brief supporting Petitioners in the case of Chamber of Commerce of the United States of America, State of Alaska, and American Farm Bureau Federation v. Environmental Protection Agency, Docket No. 12-1272, one of twelve separately filed cases previously consolidated by the United States Court of Appeals for the District of Columbia Circuit in the case of Coalition for Responsible Regulation, et al. v. Environmental Protection Agency, 684 F.3d 115 (D.C. Cir. 2012). Amicus’ interest in this case stems from EPA’s disregard for the procedural due process requirements intended to ensure the quality of agency-disseminated third-party-developed scientific data that served as the basis for EPA’s Final Greenhouse Gas Endangerment Findings and subsequent promulgation of economically significant regulations governing mobile and stationary source GHG emissions.
Legal counsel and representative of a community of generations-old privately held family agricultural, ranching and business interests operating on fee patented lands located on and appurtenant to the Flathead Indian Reservation in northwestern Montana ("Plaintiffs" and similarly situated persons), whose economically valuable land and water rights, constitutional rights of equal protection and due process of law, administrative right to open public hearings (guaranteed by statute and regulation) and, most recently, their right to personal safety, have been seriously threatened by years of ongoing arbitrary, capricious and illegal and deceptive U.S. federal government agency (Federal Energy Regulatory Commission (FERC) and Department of Interior Bureau of Indian Affairs (DOI-BIA) and Fish and Wildlife Service (DOI-FWS)) regulatory practices and procedures failing to honor the rule of law, and U.S. federal tribal self-governance/self-determination and sovereignty policies, and by the State of Montana's ceding of aboriginal time-immemorial instream flow rights to State waters to the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation (CSKT) pursuant to the Hellgate Treaty of 1855 and the recently executed CSKT Water Compact ("CSKT Water Compact") entered into between the State of Montana, the U.S. Department of Interior and the CSKT. These state and federal government practices, policies and actions collectively have enabled the CSKT to diminish Plaintiffs' exercise of and access to their legally and validly held water rights via unilateral assumption of actual control of ALL physical infrastructure (dams, reservoirs, irrigation pumping systems and canals paid for by Plaintiffs, including the large Kerr Dam (a "black start" "category 3" high safety risk dam exclusive ownership, control and management of which was turned over to the CSKT on 9/5/15) located above and on the Reservation.
Keenan v. Bay, Civil Action No. 1:15-cv-01440 (filed in U.S. District Court for the District of Columbia, partially on national security grounds, in an effort to temporarily suspend the prior FERC licensee's conveyance of Kerr Dam to the CSKT).
As Co-counsel, prepared a portion of the Amicus Curiae Brief filed at the Supreme Court of the United States, at the cert petition stage, on behalf of two nonprofit organizations, CERF/NYFBA, supporting Petitioner, in the case of State of Washington v. United States of America, et al., Docket No. 17-269. Amici's interest in this case was solely to add the perspective that the Constitution should apply to all persons in the United States, that the United States government should be promoting the interests of all of its citizens on an equal basis, and that the Ninth Circuit's expansion of the federal reserved rights doctrine in this case exceeds the role of judicial review under the Constitution.