Edgar B. Washburn

Senior Counsel

San Francisco, (415) 268-7860

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Education

Stanford University (A.B., 1959)
;
University of California, Berkeley, School of Law (J.D., 1962)
;
University of California, Berkeley, School of Law (LL.B., 1962)

Practices

Environmental Litigation

Environment + Energy

Land Use

Bar Admissions

California

Ned Washburn is Senior Counsel in Morrison & Foerster LLP’s Environment and Energy 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, 2008, and 2009 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.

United States ex rel. Richard Wilson and Chris Maranto v. MAXXAM Inc., et al. and State of California ex rel. Richard Wilson and Chris Maranto v. MAXXAM Inc., et al.

Obtained a favorable settlement for client in a False Claims Act case brought by two California state agency employees against MAXXAM and its principal shareholder Charles Hurwitz (former owners of Pacific Lumber Co.). The claim was based on alleged fraud related to the sale of the Headwaters Forest to the United States government. Settlement was reached after parties had completed six days of a 15-day jury trial. Final amount of settlement was a small fraction of the original damages. There was no admission of liability by either defendant. State court dismissal on Noerr-Pennington grounds (First Amendment right to petition) was the first time this doctrine had been applied to defeat a false claims act case. (2009)

Environmental Protection Information Center v. California Department of Forestry & Fire Protection, 44 Cal. 4th 459 (2008)

Defended Pacific Lumber Company and its subsidiaries against an action seeking to overturn the approvals and permits associated with the Headwaters Forest agreement based on alleged failure to comply with the Forest Practice Act, the California Endangered Species Act, the Fish and Game Code’s streambed alteration provisions, and CEQA. 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 CEQA and Endangered Species Act issues. (2008)

People v. Pacific Lumber Co., et al., 158 Cal.App. 4th 950 (2008)

Represented Pacific Lumber Company in an unfair competition action brought under California Business and Professions Code section 17200, et seq., by the district attorney of Humboldt County seeking the sum of $450 million in penalties and restitution from Pacific Lumber because of alleged fraud in the securing of a sustained-yield plan in conjunction with permits issued to the company as part of the Headwaters transaction. The case involved precedent-setting decisions concerning the application of California’s litigation privilege (Civil Code § 47) and First Amendment rights under the Noerr-Pennington Doctrine. The court upheld the trial court’s decision that both Civil Code section 47 and Noerr-Pennington applied to the quasi-judicial administrative process by which the permits were issued and that the allegations of fraud in securing those permits could not prevail against these two privileges. (2008)

Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection, 43 Cal. 4th 936 (2008)

Represented Sierra Pacific Industries in an action challenging the California Department of Forestry’s approval of Sierra Pacific’s Timber Harvest Plans (THPs) for alleged non-compliance with the California Forest Practice Act, the California Forest Practice Rules, and CEQA. This precedent-setting matter culminated in a unanimous decision by the California Supreme Court upholding CDF’s approval of Sierra Pacific’s THPs. (2008)

Environmental Protection Information Center v. Pacific Lumber Company, 257 F.3d 1071 (9th Cir. 2001)

Represented Pacific Lumber Company in an action brought by the EPIC for violation of section 7(d) of the Endangered Species Act due to an alleged commitment of resources pending final approval of Pacific Lumber’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. (2001)

Pacific Lumber Company – North Coast Regional Water Quality Control Board Proceedings

Represented Pacific Lumber Company in proceedings before the North Coast Regional Water Quality Control 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 in Humboldt County, California. (2008)

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 stormwater discharge requirements. The court of appeal invalidated the environmental groups’ jurisdictional claim 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. (2007)

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. (2006)

Coho Salmon v. Pacific Lumber Company

Successfully defended Pacific Lumber Company in litigation involving 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 Pacific Lumber’s land. (1999)

Citizens for Open Access to Sand 8 Tide, Inc. v. Seadrift Association, 60 Cal.App. 4th 1053 (1998)

Successfully defended landowners against claims that the public had acquired implied dedication easements over lands in a private residential subdivision and that 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. (1998)