Thomas R. Lundquist, Counsel Washington, D.C.
tlundquist@crowell.com
Phone: +1 202.624.2667
1001 Pennsylvania Avenue NW
Washington, D.C. 20004-2595

Thomas R. Lundquist is a counsel in the firm's Environment & Natural Resources Group. Tom focuses on federal wildlife law, public land law, and natural resources litigation. Over his 35-year career, Tom has litigated more than 50 cases involving the Endangered Species Act (ESA), Administrative Procedure Act, Federal Insecticide, Fungicide, and Rodenticide Act, Migratory Bird Treaty Act, Mineral Leasing Act, National Environmental Policy Act, and National Forest Management Act. He has litigated cases before the U.S. Supreme Court, a majority of the courts of appeal, and many federal district courts.

Tom also provides strategic counseling to a wide range of land development, mineral development, pesticide manufacturer and other clients on ESA compliance and federal rulemaking issues. Tom's clients have included CropLife America, California Forestry Association, Edison Electric Institute, Barrick Gold, DuPont, Syngenta, American Farm Bureau Federation, American Forest & Paper Association, and the Pennsylvania Independent Oil and Gas Association.

Representative ESA Cases:

  • Center for Biological Diversity v. EPA, __ F. Supp. 3d __, 2015 WL 2342394 (D.D.C. 2015). This decision dismissed, for lack of jurisdiction, ESA § 7 compliance claims concerning EPA’s registration of the pesticide cyantraniliprole. The ENR Group represented successful intervenor-defendants DuPont and Syngenta.
  • Northwest Coalition for Alternatives to Pesticides v. EPA, No. 2:10-cv-01919 (W.D. Wash.). This ongoing case is one of a series of cases where the ENR Group represents pesticide intervenors in suits alleging that EPA has not complied with the ESA in registering pesticides under FIFRA. The NCAP case involves claims that authorized uses of six pesticides are jeopardizing listed salmon in violation of ESA § 7 and are taking salmon in violation of ESA § 9.
  • Center for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013). This decision found ESA compliance in the federal authorization of broader use of Roundup Ready Alfalfa.  Tom filed an amicus brief on the winning side for two trade associations.
  • In re Polar Bear Endangered Species Act Listing And § 4(d) Rule Litigation, 818 F. Supp. 2d 214 (D.D.C.  2011).  This decision upheld a favorable ESA § 4(d) rule providing that facilities emitting greenhouse gases outside the range of the threatened polar bear could not be sued for ESA incidental take.  The ENR Group represented trade associations which had intervened on the side of federal defendants, and which prevailed in the case.
  • Animal Welfare League v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540 (D. Md. 2009). In this first-ever case on whether a wind energy project would unlawfully cause an ESA § 9 "take" of an Indiana bat, an ENR team defended energy developer Beech Ridge and its parent Invenergy.
  • Center for Native Ecosystems v. Cables, 509 F.3d 1310 (10th Cir. 2007). For the National Association of Home Builders, Tom prepared an amicus brief in this case concerning critical habitat issues under the ESA.
  • Spirit of the Sage Council v. Kempthorne, 511 F. Supp. 2d 31 (D.D.C. 2007). Plaintiffs challenged the legality of the No Surprises assurances that the Services offer as an incentive for the private sector to enter into habitat conservation plans and obtain incidental take permits under ESA § 10. The district court rejected that challenge. Tom prepared briefs for the successful intervenor-defendants in preserving cost assurances that make HCPs and ITPs more attractive to the private sector.
  • Center for Biological Diversity v. Badgley, 335 F.3d 1097 (9th Cir. 2003). Tom prepared appellate court and district court amicus briefs on behalf of the American Forest & Paper Association. Those briefs assisted in the successful defense of the U.S. Fish and Wildlife Service's decision against ESA listing of an alleged "distinct population" of northern goshawks.
  • National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), and Bennett v. Spear, 520 U.S. 154 (1997). In the Supreme Court's most recent ESA decisions, Tom authored amicus briefs on the winning sides for coalitions of trade associations. The Home Builders decision limited the situations where ESA § 7 consultation is required on federal agency actions. Bennett v. Spear provided ESA-regulated industries with equal access to the courts.
  • Defenders of Wildlife v. Kempthorne, 2006 WL 2844232 (D.D.C. Sept. 29, 2006). This case challenged the ESA counterpart rules that federal agencies adopted for more timely completion of ESA § 7 compliance on projects implementing the National Fire Plan. On behalf of intervenor-defendants, Tom prepared a brief that assisted in obtaining an opinion affirming those rules.
  • Environmental Protection Information Center v. Tuttle, 2001 WL 114422 (N.D. Cal. Jan. 22, 2001). Tom served as co-counsel for timber industry intervenors. The suit alleged that California State officials are legally-culpable causes of ESA "take" of wildlife because they were failing to adequately regulate timber harvesting on private property. The district court initially denied plaintiffs' motion for a preliminary injunction, and then dismissed the suit as a programmatic challenge that is not ripe for judicial review. Tom has been involved in other litigation concerning the alleged vicarious liability of State regulators for ESA § 9 "take" as a result of regulated private actions. E.g., Seattle Audubon Soc'y v. Sutherland, 2007 WL 2220256 and 2007 WL 1300964 (W.D. Wash. 2007).
  • Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). Tom and his ENR colleagues represented the landowner plaintiffs in challenging the U.S. Fish and Wildlife Service's regulation including land-use activities within the regulatory definition of "harm" for purposes of an ESA § 9 "take" of listed wildlife. We convinced the court of appeals on rehearing to set aside the regulation. 17 F.3d 1463 (D.C. Cir. 1994). The Supreme Court construed the "harm" rule narrowly and, based on that narrowing construction, affirmed the legality of the rule by a 6-3 vote. After the Sweet Home decision, lower courts have imposed greater burdens on environmental group plaintiffs attempting to enjoin proposed projects as allegedly causing ESA § 9 "take" of listed wildlife.

Representative Cases on Other Natural Resources Matters:

  • Minard Run Oil Co. v. U.S. Forest Service, No. 12-4160 (3d 2013); 670 F.3d 236 (3d Cir. 2011), 2012 WL 3877625 (W.D. Pa. 2012), and 2009 WL 4937785 (W.D. Pa. 2009). In this case, Tom was part of a litigation team which successfully overturned Forest Service attempts at greater regulation of private oil and gas estates within the Allegheny National Forest. The team obtained a preliminary injunction against a moratorium on new oil and gas development, the set aside of a sweetheart settlement agreement between the Forest Service and environmental groups, and a declaratory judgment on the dominant private mineral rights retained when the federal government acquired surface estates under the Weeks Act.
  • Summers v. Earth Island Institute, 555 U.S. 480 (2009), and Winter v. Natural Resources Defense Council, 555 U.S. 37 (2008). In these two Supreme Court cases, Tom prepared amicus briefs on the winning sides for coalitions of trade associations. The Summers decision used standing doctrine to reduce the scope of judicial review and relief available in environmental group challenges to broad agency actions. This continues a trend that Tom and the firm first started in Ohio Forestry Association v. Sierra Club , 523 U.S. 726 (1998). The Winter decision makes it more difficult to obtain injunctions in environmental cases.
  • U.S. Forest Service v. Pacific Rivers Council, 133 S. Ct. 2843 (2013)This case was one of several suits challenging the Forest Service’s 2004 Sierra Framework.  Tom served as counsel to intervenor-defendant California Forestry Association in the Framework cases.  In the decision cited above, the Pacific Rivers Council took the unusual step of dismissing its complaint rather than risking an adverse Supreme Court ruling on environmental group standing.
  • Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011), opinion on remand, 951 F. Supp. 2d 1100 (E.D. Cal. 2013). These cases also concerned challenges to the Forest Service's Sierra Framework. In the above-cited decisions, courts denied broad injunctive relief for a NEPA defect.
  • Allegheny Defense Project v. U.S. Forest Service, 423 F.3d 215 (3d Cir. 2005). Tom represented a coalition of local interests as intervenor-defendants. They successfully defended, at the district court and appellate levels, some decisions allowing portions of the Allegheny National Forest to be managed for production of cherry wood.
  • Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc). Representing the American Forest & Paper Association, Tom helped to secure a ruling that the ripeness doctrine prevented environmental group plaintiffs from bringing a forest-wide challenge to timber harvesting in the four National Forests in Texas. This reversed a district court injunction against virtually all timber harvesting, which had been affirmed by a split panel.
  • Oregon Natural Resources Council v. Animal and Plant Health Inspection Service , 2000 WL 219747 (9th Cir. Feb. 24, 2000). This case concerned challenges to Agriculture Department regulations on pest controls on imported wood products. Tom represented intervening timber industry associations in successfully defending those rules and their NEPA compliance at the district court and Ninth Circuit levels.
  • Amax Land Co. v. Quarterman, 181 F.3d 1356 (D.C. Cir. 1999). Tom represented a federal coal lessee in district court and on appeal in this action. The action challenged the interest rate assessed by a Minerals Management Service regulation on late coal lease payments under the Mineral Leasing Act and other statutes. A victory at the district court, and a partial victory and remand before the D.C. Circuit set the stage for a settlement favorable to the client.
  • Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998).  Tom and his ENR colleagues represented the prevailing petitioner.  This unanimous Supreme Court decision found that environmental groups lack a ripe controversy when they bring a facial challenge to a federal land-use plan (a national forest plan).
  • Newton County Wildlife Association v. Rogers, 141 F.3d 803 (8th Cir. 1998), and 113 F.3d 110 (8th Cir. 1997). Tom represented the successful timber-industry intervenors. We received favorable appellate rulings that: (1) "take" under the Migratory Bird Treaty Act does not include timber harvesting that may incidentally injure protected birds; (2) this Administrative Procedure Act case was limited to the administrative record and that extra-record evidence by plaintiffs' experts would be excluded; (3) the Clean Water Act does not require National Pollutant Discharge Elimination System ("NPDES") permits for timber harvesting-related activities; and (4) the timber sales complied with the Endangered Species Act, National Environmental Policy Act, National Forest Management Act, Wild and Scenic Rivers Act, and Wilderness Act.


Affiliations

Admitted to practice: District of Columbia, U.S. Supreme Court, most U.S. appellate courts (D.C., 3rd, 5th, 6th, 8th-11th), U.S. District Court for the District of Columbia.



Publications

  • "Developments in ESA Citizen Suits and Citizen Enforcement of Wildlife Laws," ABA Section of Environment, Energy, and Resources, Vol. 29, No. 3 (Winter 2015). Co-Authors: Kirsten L. Nathanson, Thomas R. Lundquist, and Sarah Bordelon.
  • "The Migratory Bird Treaty Act: An Overview," (2013). Co-Authors: Thomas R. Lundquist, John C. Martin, and Sarah Bordelon.
  • "The Endangered Species Act: An Overview," (2013). Co-Authors: Thomas R. Lundquist, John C. Martin, and Sarah Bordelon.
  • "Land Use Activities and the Section 9 Take Prohibition," Chapter 8 of Endangered Species Act: Law, Policy, and Perspectives (Baur & Irwin eds., 2d ed., American Bar Association 2010). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "The Endangered Species Act and Greenhouse Gas Emissions -- Species, Projects, and Statute At Risk," Proceedings of the 55th Annual Rocky Mountain Mineral Law Institute (2009). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Chapter 1: The Endangered Species Act: Protecting Species at Risk, Risking Land Uses," 27 Energy & Mineral Law Institute ch. 1 (2007). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Taking Stock of 'Take'," Endangered Species & Wetlands Report (January 2003). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Critical Habitat: Current Centerpiece of Endangered Species Act Litigation and Policymaking," Proceedings of The 48th Annual Rocky Mountain Mineral Law Institute (2002). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Chapter 12. When Do Land Use Activities 'Take' Listed Wildlife under ESA § 9 and the 'Harm' Regulations," Endangered Species Act: Law, Policy, And Perspectives, American Bar Association (2002). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "The Endangered Species Act of 1973: Origins, Requirements, and Issues," 16 Natural Resources & Environment No.2, ABA's Section on Environment, Energy and Resources Journal (Fall 2001). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "The Pronounced Presence and Insistent Issues of the Endangered Species Act," lead article in special wildlife law issue of the ABA journal, 16 Natural Resources & Environment 59 (Fall 2001). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "The Supreme Court Restricts the Availability of Forest-Wide Judicial Review in Ohio Forestry Ass’n v. Sierra Club," 28 Environmental Law Reporter 10621 (1998). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Sweet Home and The Narrowing of Wildlife Take Under Section 9 of the Endangered Species Act," 26 Environmental Law Reporter 10003 (1996). Co-Authors: Steven P. Quarles, John Macleod and Thomas R. Lundquist.
  • "The Law of Access Across Federal Lands," The Natural Resources Law Manual, American Bar Association (1995). Co-Authors: Steven P. Quarles, Thomas R. Lundquist and Rebecca Thompson.
  • "Providing the Timber Supply from National Forest Lands," Natural Resources Law Manual, ABA (1995). Author: Thomas R. Lundquist.
  • "Providing Timber Supply from National Forest Lands," The Natural Resources Law Manual, American Bar Association (1995). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "The Unsettled Law of ESA Takings," 8 Natural Resources & Environment 10 (1993). Co-Authors: Steven P. Quarles, John Macleod and Thomas R. Lundquist.
  • "Access Across and Trespass on Federal Lands," Public Land Law, Mineral Law Series, Vol. 1992, No. 4, Rocky Mountain Mineral Law Foundation (1992). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Chapter 6. National Forests and Forestry," Natural Resources Law Handbook, Government Institutes, Inc. (1991). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "You Can Get there From Here: The Alaska Lands Act’s Innovations in the Law of Access Across Federal Lands," 22 Land & Water Law Review 347 (1987). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "The Alaska Lands Act’s Innovations in the Law of Access Across Federal Lands: You Can Get There From Here," 4 Alaska Law Review 1 (1987). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.
  • "Federal Land Exchanges and Mineral Development," Proceedings of the 29th Annual Rocky Mountain Mineral Law Institute, Rocky Mountain Mineral Law Foundation (1984). Co-Authors: Steven P. Quarles and Thomas R. Lundquist.


Client Alerts & Newsletters



In the News

  • Crowell & Moring Client Fights to Build Wind Farm
    October 22, 2009 — The Washington Post

    Crowell & Moring LLP client Invenergy Wind LLC is featured for its fight to build a wind farm in Greenbrier County, WV. The first of its kind case presents important issues of first impression for the Endangered Species Act (ESA) and its relationship to wind energy projects on private lands. Crowell & Moring defended Invenergy in a four-day bench trial in federal court in Greenbelt, MD that concluded on October 29. The ruling is forthcoming. The trial team included partners Clifford J. Zatz and Kirsten L. Nathanson, associates Jessica A. Hall, and Antonio Gonzalez Mendoza, with support from ESA attorneys Steven P. Quarles, J. Michael Klise, and Thomas R. Lundquist.



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