Ned Washburn is a senior partner in Morrison & Foerster LLP’s Land Use and Environmental Law Group. Since 1978, his practice has focused upon natural resource, energy, environmental, water, and real property law. His clients include large energy companies, timber companies, resource developers, title insurance companies, landowners, developers, and public entities.

Ned maintains an active administrative law practice advising clients concerning permitting and development issues with local, regional, and state land use agencies. He frequently appears before these agencies in administrative proceedings relative to permit approvals, development entitlements, and compliance issues with various federal and state statutes. His administrative practice includes wetlands, waterfront development, water pollution, water rights, timber, endangered species and waste disposal, as well as matters concerning the preservation and securing of rights on federal lands.

Ned’s litigation practice consists primarily of environmental, real property, land use, energy, and natural resource litigation. He has been lead attorney in over 100 trials and 40 appeals in state and federal courts and has appeared before the United States Supreme Court.

Additionally, Ned has been included in the 2007 and 2008 editions of The Best Lawyers in America in the areas of natural resources law and timber law and has been listed by San Francisco Magazine as one of Northern California’s Super Lawyers.

Representative Cases

• Environmental Protection Information Center v. California Department of Forestry & Fire Protection and United Steelworkers of America v. California Department of Forestry & Fire Protection, 44 Cal. 4th 459 (2008). Represented The Pacific Lumber Company (“Pacific Lumber”) in actions seeking to overturn the Endangered Species Act and California Forest Practice Act permits and entitlements issued to the Company in the historic Headwaters Transaction. The Company sold its old-growth redwood forest to the federal government and State of California in the Transaction in return for entitlements intended to assure predictable harvesting on the Company’s remaining lands. The trial court invalidated the permits, but was reversed by the court of appeal, which upheld virtually every aspect of the permits. The California Supreme Court generally affirmed the court of appeal in a
• decision resolving numerous California Environmental Quality Act and Endangered Species Act issues.
• People of the State of California v. Pacific Lumber Co., et al., 158 Cal. App. 4th 950 (2008). Represented Pacific Lumber in a Business and Professions Code section 17200 action brought by the Humboldt County District Attorney. The action sought to recover $450 million predicated upon alleged fraud in the submittal of certain studies associated with securing permits in the Headwaters Transaction (see EPIC v. CDF and USWA v. CDF, above). The matter was dismissed by the trial court after granting Pacific Lumber’s demurrer without leave to amend. The trial court decision was affirmed by the court of appeal in a decision based upon California’s litigation privilege and the Noerr-Pennington Doctrine.
• Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection, 43 Cal. 4th 936 (2008). Successfully represented Sierra Pacific Industries in the California Supreme Court in an action challenging CDF’s approval of timber harvesting plans for alleged non-compliance with the California Forest Practice Rules and the California Environmental Quality Act (CEQA).
• Environmental Protection Information Center v. Pacific Lumber Co. (2001-2008). Represent Pacific Lumber in an action brought by EPIC asserting that silvicultural activities constitute point source discharges governed by section 402 of the Clean Water Act, notwithstanding the Environmental Protection Agency’s regulations defining silviculture as a nonpoint source. The matter is pending before the U.S. District Court for the Northern District of California.
• Environmental Protection Information Center v. Pacific Lumber Co., 257 F.3d 1071 (9th Cir. 2001). Represented Pacific Lumber in an action pending in the U.S. District Court for the Northern District of California, brought by EPIC for violation of section 7(d) of the Endangered Species Act due to an alleged commitment of resources pending final approval of the Company’s Habitat Conservation Plan (HCP) under section 10 of the Endangered Species Act. The matter was dismissed as moot following approval of the HCP and issuance of incidental take permits. Plaintiff’s claim for attorneys’ fees is pending on remand, following a favorable decision from the Ninth Circuit Court of Appeals.
• Pacific Lumber Company – North Coast Regional Water Quality Control Board Proceedings (1997-2008). Represented Pacific Lumber in proceedings before the Regional Water Board seeking to impose waste discharge requirements, cease and desist orders, total maximum daily load (TMDL) requirements, and other limitations upon Pacific Lumber’s timber operations on its lands in Humboldt County, California.
• San Francisco Bay Keeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007). Successfully represented Cargill Salt in a citizen suit brought by various environmental groups for alleged violations of the Clean Water Act’s storm water discharge requirements. The court of appeals invalidated jurisdictional claims asserted by the environmental groups (and endorsed by the district court) that a pond that collected rainwater used by migratory birds was a water of the United States under the Clean Water Act and that ponds adjacent to a navigable water are covered by the Clean Water Act.
• Pacific Lumber Company et al v. California State Water Resources Control Board, 37 Cal. 4th 921 (2006). Represented Pacific Lumber in an action that considered the interrelationship of the Forest Practice Act and the Porter-Cologne Water Quality Act.
• Environmental Protection Information Center v. U.S. Fish & Wildlife Service, et al., 35 Env’tl L. Rep. 200 (2005). Represented Pacific Lumber in an action brought by EPIC asserting that the Company’s multi-species HCP and its implementation violates the National Environmental Policy Act, the Clean Water Act, and the federal Endangered Species Act, as well as California Business and Professions Code section 17200. On summary judgment, all but two claims were dismissed; those claims were then voluntarily dismissed.
• Center for Biological Diversity v. California Department of Fish and Game (2005). Represented Pacific Lumber in an action brought by the Center for Biological Diversity challenging the Department of Fish and Game’s consistency determination that the Company’s multi-species HCP violated the California Endangered Species Act and the California Environmental Quality Act (CEQA).
• United States v. Cargill Salt Division (1998-2002). Successfully represented Cargill Salt in an action brought by the United States in the U.S. District Court for the Northern District of California claiming violations of the federal Clean Water Act on the ground that Cargill’s disposal site, which collects rainwater, constituted a water of the United States and that runoff from the salt deposits constituted an illegal discharge of pollutants. This case is related to San Francisco BayKeeper v. Cargill Salt Division.
• Wrigley, et al. v. Hurwitz, et al. (1997-2002). Represented Pacific Lumber and related entities in an action brought in Humboldt County Superior Court by landowners with property adjoining the Elk River. The suit maintained that timber operations on Pacific Lumber’s lands resulted in property damage through flooding, deterioration of water quality, and the like. The action included claimed violations of RICO and Business and Professions Code section 17200.
• Rollins, et al. v. Hurwitz, et al. (1997-2001). Represented Pacific Lumber and related entities in favorable resolution of an action brought in the Humboldt County Superior Court by more than 40 landowners who claimed their properties were damaged by a landslide allegedly resulting from Pacific Lumber’s timber operations on lands above their properties.
• Mateel Environmental Justice Foundation v. Pacific Lumber Co. (1998-1999). Successfully defended Pacific Lumber in a Humboldt County Superior Court Business and Professions Code section 17200 action claiming that violations of the Forest Practice Act and Forest Practice Rules constituted unfair business practices.
• Coho Salmon v. Pacific Lumber Co. (1997-1999). Successfully defended Pacific Lumber in citizen suit litigation brought in the U.S. District Court for the Northern District of California. The suit involved the alleged taking of coho salmon under section 9 of the federal Endangered Species Act, due to timber harvesting operations on 200,000 acres of land owned by Pacific Lumber.
• Cargill Salt Division. Represented Cargill in various cases filed in the U.S. District Court for the Northern District of California concerning challenges to the solar salt operations with respect to impacts under the federal Endangered Species Act on the salt marsh harvest mouse, the clapper rail, and the least tern.
• Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Association, 60 Cal. App. 4th 1053 (1998). Successfully represented landowners in a proceeding before the Interior Board of Land Appeals and the U.S. District Court for the Eastern District of California against claims that the public had acquired implied dedication easements over lands in a private residential subdivision. The suit claimed the lands had not been properly patented or confirmed into private ownership by the federal government. The landowners’ motion for judgment on the pleadings was granted on the first day of trial and upheld on appeal.
• Alaska Production Tax Litigation (1992-1994). Selected by the State of Alaska to serve as lead trial counsel in complex litigation involving production tax and crude oil valuation issues against British Petroleum. The case was settled by the payment of $1.4 billion to the State of Alaska.
• State of California v. Superior Court (Lovelace), 11 Cal. 4th 50 (1995). Successfully represented landowners in litigation arising from a dispute over accretions caused by hydraulic mining on the Sacramento River in the late-1800s. The landowners prevailed in the trial court, the court of appeal and the California Supreme Court.
• Cargill, Inc. v. United States, 700 F. Supp. 476 (N.D. Cal. 1988); 896 F.2d 354 (9th Cir. 1990); 55 F.3d 1388 (9th Cir. 1995). Successfully represented Cargill, Incorporated (formerly Leslie Salt Co.) in litigation concerning the extent of the ability of the Environmental Protection Agency and the U.S. Army Corps of Engineers to regulate seasonally-ponded lands under section 404 of the Clean Water Act.
• Sylvester v. United States Army Corps of Engineers, 882 F.2d 407 (9th Cir. 1989). Successfully represented the developer in litigation concerning claims asserted by environmental groups with respect to the U.S. Army Corps of Engineers’ NEPA regulations.
• Mobil Oil Corp. v. Coastal Petroleum Co. (1980-1988). Represented the Mobil Oil Corporation in related cases in the U.S. District Court for the Northern District of Florida and various Florida state courts with respect to claims involving more than $2 billion asserted by the State of Florida and its mineral lessee, Coastal Petroleum, to phosphate and uranium mined by Mobil from lands along 26 miles of the Peace River in central Florida.
• Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988). Represented amicus American Land Title Association in this proceeding before the U.S. Supreme Court involving the test of navigability to be applied to tidally-affected, but non-navigable waterbodies.
• Orange County Foundation for Preservation of Public Property v. The Irvine Co., No. 31-06-20 (Orange County Super. Ct. 1987). Successfully defended The Irvine Company and its title insurer in claims asserted by a number of environmental groups that three islands in Newport Bay had been illegally sold to the Company’s predecessors by the State of California. The issues involved the validity of private title to most of the lands bounding or located on islands in Upper Newport Bay.
• Fogerty v. State, 187 Cal.App.3d 224 (1986). Represented landowners around Lake Tahoe concerning the test to be applied in locating the ordinary high watermark on a regulated lake.
• United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). Represented the private landowners before the United States Supreme Court in proceedings concerning the jurisdictional reach of the U.S. Army Corps of Engineers’ authority over wetlands under section 404 of the Clean Water Act.
• Summa Corporation v. City of Los Angeles, 466 U.S. 198 (1984). Represented amicus curiae California Land Title Association before the U.S. Supreme Court in a matter involving the title to vast areas of land granted by the Mexican government within California prior to the acquisition of California by the United States. The State claimed that all water bottoms within such grants were subject to a pervasive state interest.
• United States v. Aranson, 696 F.2d 654 (9th Cir. 1983). Represented the landowners for the better part of a decade in a dispute involving claims made by the States of California and Arizona, the Colorado River Indian Tribes and the United States to lands along the Colorado River.
• California v. Superior Court (Fogerty), 29 Cal.3d 240 (1981); California v. Superior Court (Lyon), 29 Cal.3d 210 (1981). Represented the landowners in two companion cases through the trial courts and the California Supreme Court concerning the respective rights of the State of California and private riparian owners on all non-tidal navigable lakes and rivers in California.
• Berkeley v. Superior Court, 26 Cal.3d 515 (1980). Represented the landowners in a case involving the validity of land grants bordering San Francisco Bay including vast portions of downtown San Francisco.
• Wilson v. Omaha Indian Tribe, 441 U.S. 468 (1979). Represented a number of title insurance companies appearing as amicus curiae in an action in the United States Supreme Court relating to the validity of grants of land bordering the Missouri River that were being challenged by various Indian Tribes.
• Leslie Salt Co. v. Froehlke, 578 F.2d 744 (9th Cir. 1978). Represented Leslie Salt Co. (now Cargill Salt) in litigation concerning the extent of the U.S. Army Corps of Engineers’ authority to regulate lands bordering San Francisco Bay under section 10 of the Rivers and Harbors Act of 1899.
• Eureka Waterfront Litigation (1972-1978). This litigation consisted of challenges by the State of California to the ownership of the entire waterfront of the City of Eureka on Humboldt Bay in northern California. The litigation proceeded over a period of nine years and was finally resolved after a six-month trial successfully represented the landowners.
• A.H. Robins Co. v. Department of Health Services, 59 Cal.App.3d 903 (1976). Represented A.H. Robins in pharmaceutical pricing litigation against the State of California.
• Kaplan v. Great Western Ranches, Inc. (N.D. Cal. 1974). Successfully represented a large title insurance and escrow company with respect to a $50 million claim predicated upon violation of the securities laws.
• Willard v. First Church of Christ Scientist, 7 Cal.3d 473 (1972). Represented the landowner concerning the interpretation to be given reservations in deeds.
• Bank of Marin v. England, 385 U.S. 99 (1966). Represented the successful Bank of Marin in the United States Supreme Court in a case involving the construction to be applied to the “automatic adjudication” provisions of the Bankruptcy Act, as applied to checking accounts upon which valid checks had been written prior to notice of bankruptcy.

Professional Memberships

• State Bar of California-Sections on Litigation and Real Estate
• American Bar Association-Sections on Litigation, Natural Resources and Real Property
• Bar Association of San Francisco
• Ninth Circuit Judicial Council Ad Hoc Committee on Environmental Litigation.

Lectures & Presentations

• “Current Status Of The 404 Regulatory Program: A Review Of Recent Developments,” Wetlands Law & Regulation, ALI-ABA Course of Study, Washington, DC (2001)
• “Constitutional and Takings Developments With Respect to Wetlands and Endangered Species Legislation,” Institute for Planning, Zoning & Eminent Domain, Southwestern Legal Foundation, San Francisco, CA (2000)
• “The Year In Review- 1999-2000 Developments in Wetlands Law and Regulations,” Wetlands Law & Regulation, ALI-ABA Course of Study, Washington, DC (2000)
• “The Year In Review- 1998-1999 Developments In Wetlands Law and Regulations,” Wetlands Law & Regulation, ALI-ABA Course of Study, Washington, DC (1999)
• “Civil Litigation Under Section 404 of the Clean Water Act,” Wetlands Law & Regulation, ALI-ABA Course of Study, Washington, DC (1998)
• “An Overview of Federal Wetland Regulations,” California Wetlands Conference, CLE International, Los Angeles, CA (1997)
• “Enforcement and Litigation: Criminal, Civil, Citizen Suit and Takings Update,” Wetlands Law & Regulation, ALI-ABA Course of Study, Washington, DC (1997)
• “Wetland Jurisdiction and Litigation Under the Section 404 Program,” California Wetlands Conference, CLE International, San Francisco, CA (1996)
• “California Wetlands-Civil and Criminal Strategies,” CLE International Conference Publication (1995)
• “Boundary Law in California,” National Business Institute Conference Materials (1991)
• “Real Property Remedies,” California Continuing Education of the Bar Course Materials.

Publications

• “Courts Go Too Far In Allowing Environmental Citizen Suits,” with Christopher J. Carr, Washington Legal Foundation (August 2001)
• “Private and Public Rights in the Beach and Shore in California,” with Bruce S. Flushman, 2 California & the World Ocean ‘97 (March 1997)
• “The United States Supreme Court Examines the ‘Floating Toothpick’ Test of Navigability,” Title News (April 1988)
• Ogden’s Revised California Real Property Law Supplement (1982 & 1987)
• “The Federal Navigational Servitude and the California Public Trust for Commerce, Navigation and Fishing: An Overview of Federal and State Legislative Schemes for Identifying Lands Subject to These Navigational Servitudes,” Western State Law Review (1986)
• “Summa Corporation v. California: A Title Insurer’s and Landowner’s Perspective,” Western Natural Resource Litigation Digest (1984)
• “Locating the Boundary of Navigable Lakes and Rivers,” American Bar Association, Real Property, Probate and Trust Journal (1983)

Education

• Stanford University, B.A. 1959
• University of California, Boalt Hall School of Law, L.L.B. 1962