Environment, Public Lands, and Conservation Litigation

Kaplan Kirsch & Rockwell has successfully represented clients in a wide range of cases at all levels of state and federal courts and in administrative forums.  Many of these matters have been high-profile cases raising novel issues of environmental, land use, transportation, and constitutional law.  Our dedication to principled, zealous advocacy on behalf of our clients is seen in the diverse range of cases we have won, including cases under the United States Constitution, Federal Aviation Act, National Environmental Protection Act (NEPA), the Endangered Species Act, the Clean Water Act, Section 4(f) of the Transportation Act, the Clean Air Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Federal Land Policy and Management Act (FLPMA), and state and local laws and ordinances.

Representative Cases

Land Use and Election Litigation

Federal Cases

  • Vacation Village v. Clark County, 244 Fed.Appx. 785 (9th Cir. 2007), cert. denied 128 S.Ct. 2956 (2008)
  • City of Cleveland, Ohio v. City of Brook Park, Ohio, 893 F.Supp. 742 (N.D. Ohio 1995) (represented City of Brook Park in defense of zoning regulations controlling airport expansion)
  • Waste Systems Corp. v. County of Martin, Minn., 985 F.2d 1381 (8th Cir. 1993) (filed amicus brief on behalf of county seeking to regulate landfill by imposing composting requirement)

State Cases

  • Seherr-Thoss v. Teton County Board of County Commissioners, 329 P.3d 936 (Wyo. 2014) (represented Teton County in gravel permitting matter)
  • Colo. Dep’t of Transp. v. Board of Comm’rs of Douglas County, 2008 WL 1903523 (Colo. App. 2008) (represented Douglas County in defense of land use regulations)
  • Board of Comm’rs of Pitkin County v. Timroth, 87 P.3d 102 (Colo. 2004) (represented local land trust and other amici curiae in defense of county open space parcels created on abandoned mining claims)
  • City of Golden v. Jefferson County, Case No. 03CV3045 (Colo. Dist. Ct. 2004) (obtained injunction against construction of HDTV tower and remand to County Commission)
  • Olson v. Denver, No. 03CA1896 (Colo. App. 2004) (challenge to Denver Election Commission approval of measure to repeal local land use ordinance and injunction against placement of measure on the ballot)
  • City of Burbank v. Burbank-Glendale-Pasadena Airport Auth., 113 Cal. App. 4th 465 (Cal. Ct. App. 2003) (represented City of Burbank in prosecuting a challenge to citizen-sponsored initiative on airport development); City of Burbank v. Burbank-Glendale-Pasadena Airport Auth., 72 Cal. App. 4th 366 (Cal. Ct. App. 1999) (represented City of Burbank in defense of authority under state law to review acquisition of property for airport expansion); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 64 Cal. App. 4th 1217 (Cal. Ct. App. 1998) (represented City of Burbank in defense of transient parking tax)
  • City of Des Moines v. Puget Sound Regional Council, 988 P.2d 27 (Wash. Ct. App. 1999) (represented coalition of local governments in challenge to land use approval for new runway project)
  • City of Cleveland v. City of Brook Park, 659 N.E.2d 342 (Ohio Ct. App. 1995) (represented City of Brook Park in defense of property acquisition adjacent to airport)
  • City of Irving v. Dallas/Fort Worth Int’l Airport Bd., 894 S.W.2d 456 (Tex. App. 1995) (represented municipalities in challenge to zoning applicable to airports)
  • City of Colorado Springs v. Board of County Comm’rs of County of Eagle, 895 P.2d 1105 (Colo. App. 1994), cert. denied, 116 S.Ct. 564 (1995) (represented citizens’ group in successful defense of Eagle County’s denial of land use permit against regulatory takings and preemption claims)
  • Dallas/Fort Worth Int’l Airport Bd. v. City of Irving, Tex., 854 S.W.2d 161 (Tex. App. 1993) (represented municipalities in challenge to zoning for airport project)
  • County of Fairfax v. Fleet Industrial Park, Ltd., 410 S.E.2d 669 (Va. 1991) (represented landowners in challenge to county-wide downzoning ordinance)

Endangered Species, Wetlands, and Other Environmental Litigation

Federal Cases

  • Am. Elec. Power Co., Inc. v. Conn., 131 S.Ct. 2527 (2011) (filed amicus brief on behalf of renewable energy producers in federal common law nuisance action)
  • River Runners for Wilderness v. Martin, 2007 Westlaw 4200677 (D. Ariz. 2007), aff'd, 574. F.3d 723 (9th Cir. 2009) (successfully defended agency’s allocation of permits and management prescriptions for Colorado River through Grand Canyon National Park)
  • Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997) (challenged scope of agency’s conservation and recovery duties under the Endangered Species Act)
  • Catron County Bd. Of Comm’rs, N.M. v. Babbitt, 75 F.3d 1429 (10th Cir. 1996) (represented amicus in support of government’s critical habitat designation)
  • Holy Cross Wilderness Defense Fund v. Madigan, 960 F.2d 1515 (10th Cir. 1992) (challenged wetlands permitting process)
  • Colorado Wildlife Federation v. Turner, 23 ELR 20402, 36 Env’t Cases 1409 (D. Colo. 1992) (established citizens’ standing to enforce habitat protection provisions of Endangered Species Act)
  • Sierra Club v. Baker, 1990 WL 116845 (D.D.C. 1990) (established duty of a public international organization to comply with domestic environmental laws, overcoming various immunity claims)

State Cases

  • Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife Bd., No. 13CA1931, 2015 LEXIS 447, (Colo. App. Mar. 26, 2015) (defended client’s interest in agreement with the State of Colorado for use of state park land for a temporary installation of a public work of art)
  • Colo. Dep’t of Transp. v Board of County Comm’rs of Douglas County, 2008 WL 1903523 (Colo. App. 2008) (successfully defended Douglas County’s promulgation of regulations under Colorado Areas and Activities of State Interest Act)

CERCLA Litigation

  • Brown Group v. Hathaway et al., C.A. No. 01-AJ-0917 (D. Colo. 2001) (represented potentially responsible party in CERCLA cost recovery, contribution, and common law tort action)
  • Colorado School of Mines v. AK Steel Corp. et al., 2001 WL 34041780 (D. Colo. 2001) (represented third-party defendant/PRP in CERCLA cost recovery action)
  • U.S. v. IBM Corp., C.A. No. 01-B-1017 (D. Colo. 2001) (represented potentially responsible party in CERCLA cost recovery action)
  • Greene v. Citigroup, 215 F.3d 1336 (10th Cir. 2000) (represented interstate compact board in obtaining dismissal of action seeking declaration of compact violation)
  • Colorado School of Mines v. Teck Corp., C.A. No. 99-M-1310 (D. Colo. 1999) (represented assignor of claimant in CERCLA cost recovery and common law tort action)
  • Mathews v. Dow Chemical et al., 947 F. Supp. 1517 (D. Colo. 1996) (represented potentially responsible party in CERCLA cost recovery, contribution, and common law tort action)

NEPA and Environmental Impact Review Litigation

Federal Cases

  • Rags Over the Ark. River, Inc. v. BLM, No. 12-cv-0265-WJM, 2015 U.S. Dist. LEXIS 324 (D. Colo. Jan. 2, 2015) (defended client’s interest in permit for temporary installation of a public work of art on Bureau of Land Management (BLM) land and environmental review process for the project)
  • City of Bridgeton v. F.A.A., 212 F.3d 448 (8th Cir. 2000) (represented local government in challenge to environmental impact statement (EIS) for new runways through city parks)
  • City of Los Angeles v. F.A.A., 138 F.3d 806 (9th Cir. 1998) (represented City in challenge to EIS for new airport terminal)
  • CSX Corporation, et al.—Control and Operating Leases/Agreements—Conrail, Inc., et al., S.T.B. Finance Docket No. 33388, 3 S.T.B. 196, 1998 WL 456510 (Service Date Jul. 23, 1998) (represented City of Cleveland, Ohio, in securing mitigation of noise and other adverse environmental impacts due to rerouting of trains following proposed merger proceeding)
  • City of Grapevine, Tex. v. Dep’t of Transp., 17 F.3d 1502 (D.C. Cir. 1994) (represented municipality in challenge to EIS for airport expansion)
  • Colo. Environmental Coalition v. Lujan, 803 F. Supp. 364, 1992 WL 231020, 22 ELR 21,542 (D. Colo. 1992) (represented citizens’ organization in successful challenge to BLM’s wilderness designation process in three western states)
  • Sierra Club v. Hodel, 675 F. Supp. 594 (D. Utah 1987), aff’d and rev’d in part, 848 F.2d 1068 (10th Cir. 1988), on remand, 737 F. Supp. 629 (D. Utah 1990), aff’d, 949 F.2d 362 (10th Cir. 1991) (successfully challenged process allowing construction on right-of-way through wilderness candidate areas on federal public lands)

Clean Air Act Litigation

Federal Cases

  • South Coast Air Quality Management District v. BP West Coast Products, LLP, No. BC291876 (Cal. Super. 2003) (represented AQMD in action against oil company for repeated violations of state air quality laws)
  • U.S. v. Williams Field Services, C.A. No. 02B0199 (D. Colo. 2002) (represented defendant in negotiation of Consent Decree relating to alleged Clean Air Act violations at a gas processing plant within a Native American reservation)
  • U.S. v. Conoco Inc., C.A. No. H-01-4430 (2001) (represented buyer of oil refinery obtaining amendment to pre-existing New Source Review Consent Decree)
  • Com. of Va. v. E.P.A., 108 F.3d 1397 (D.C. Cir. 1997) (represented motor vehicle manufacturing trade association in successful challenge to Environmental Protection Agency regulations regarding motor vehicle emissions standards)
  • Conservation Law Foundation, Inc. v. Busey, 79 F.3d 1250 (1st Cir. 1996) (represented local government in Clean Air Act challenge to military base conversion)
  • U.S. v. General Motors, No. 95CV02215 (D.D.C. 1995) (represented defendant in negotiation of Consent Decree regarding pollution controls for several automobile and truck models)

Water and Hydropower Litigation

Federal Cases

  • Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251 (Colo. 1995) (established special statutory fiduciary duty affecting the Board’s proposed relinquishment of the public’s interest in instream flow water rights)
  • City of Aurora v. Bell, 799 P.2d 33 (Colo. 1990) (challenged scope and exercise of water rights in federal wilderness area)
  • Sierra Club v. Yeutter, 911 F.2d 1405 (10th Cir. 1990) (participated in complex, precedent-setting litigation establishing existence and scope of federal reserved water rights in wilderness areas)
  • Platte River Whooping Crane Critical Habitat Maintenance Trust v. F.E.R.C., 876 F.2d 109 (D.C. Cir. 1989) (challenged hydropower license under Endangered Species Act)
  • Sierra Club v. Lyng, 661 F. Supp. 1490 (D. Colo. 1987), (dismissed as unripe sub nom); Sierra Club v. Block, 615 F. Supp. 44 (D. Colo. 1985); Sierra Club v. Block, 622 F. Supp. 842 (D. Colo. 1985)