Christopher D. Thomas Partner

Litigation and Enforcement Defense

Clean Water Act (CWA) and Similar State Water Permit Appeals

• Counsel of record for amici American Exploration and Mining Association et al. in a U.S. Supreme Court case addressing the extent of federal jurisdiction under the Clean Water Act. Sackett v. Environmental Protection Agency, No. 21-454.
• Representing Resolution Copper Mining, LLC in a third-party challenge to the renewal of its Clean Water Act National Discharge Elimination System permit by the Arizona Department of Environmental Quality. San Carlos Apache Tribe v. State, 254 Ariz. 179, 520 P.3d 670 (App. 2022), petition for review pending (definition of “new source” under Clean Water Act).
• Defending South32 Hermosa Inc. in third-party challenges to an Arizona aquifer protection permit and a state state National Pollutant Discharge Elimination System (NPDES) permit issued to facilitate its mineral exploration activities in southern Arizona. Patagonia Area Resource Alliance v. State of Arizona Department of Environmental Quality, Nos. LC2022-000250 and 259 (Maricopa County Superior Court).

National Environmental Policy Act and Related Public Lands Litigation

• Defending intervenor Resolution Copper Mining, LLC in three NEPA cases in the U.S. District Court for the District of Arizona challenging a statutorily mandated land exchange with the U.S. Forest Service, intended to facilitate copper mine development in rural Arizona. Apache Stronghold v. United States, No. CV-21-0050; San Carlos Apache Tribe v. United States, No. CV-21-0068; Arizona Mining Reform Coalition v. United States, No. cv-21-0122. Previously prevailed in a challenge to the Forest Service’s approval of data collection activities on public land. Concerned Citizens and Retired Miners Coalition v. United States Forest Service, et al., 279 F. Supp. 3d 898 (2017) (D. Ariz. 2017).

Water Rights

• Co-counsel for the City of Flagstaff in The General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, In Re: Navajo Nation, Case No. CV6417-300 (Ariz. Sup. Ct., Apache Cty.).

• Defending the Central Arizona Irrigation and Drainage District against claims by the United States and the Ak-Chin Indian Community that the district lacks authority to convey extracted groundwater through the Santa Rosa Canal. U.S. v. Maricopa-Stanfield Irrigation District, et al., No. 2:20-cv-00489-JJT.
• Co-counsel for irrigation district alleged by the United States and the Gila River Indian Community to be inappropriately pumping subflow. U.S. v. Gila Valley Irrigation District, et al., No. CV 31-00059 (aka Globe Equity Decree No. 59).

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

• Defending the City of Phoenix in CERCLA litigation in the District of Arizona brought by law firm and, previously, its client Roosevelt Irrigation District, alleging that the city and dozens of other private and public parties impacted irrigation wells it wanted to convert to drinking water use. Gallagher & Kennedy, P.A. v. City of Phoenix, et al., 2022 WL 17903905 (D. Ariz. Sept. 30, 2022) (granting partial summary judgment to defendants); Roosevelt Irrigation District v. Salt River Project, et al., 222 F. Supp. 3d 898 (D. Ariz. 2017) (plaintiff using contingent-fee lawyers did not incur CERCLA response costs).
• Handled argument for a group of industrial settling parties before the U.S. Court of Appeals for the Ninth Circuit on the level of deference owed by district courts when evaluating proposed CERCLA consent decrees negotiated by state environmental agencies, and served as counsel of record in a petition for certiorari pending in the U.S. Supreme Court. State of Arizona v. Ashton, et al., 761 F.3d 1005 (9th Cir. 2014), cert. denied, 136 S. Ct. 30 (U.S. 2015).
• Helped persuade the U.S. Court of Appeals for the Eleventh Circuit to affirm the dismissal of cost recovery claims by two corporate successors to Monsanto that had been administratively and judicially compelled to incur those costs in Solutia v. McWane, et al., 672 F.3d 1230 (11th Cir. 2012), cert. denied, 133 S. Ct. 427 (U.S. 2012), thereby resolving an issue left open by the U.S. Supreme Court in United States v. Atlantic Research, 551 U.S. 128 (2007).
• Represented the City of Phoenix in the first case to hold squarely that trustees and other fiduciaries could be held personally liable as owners under Superfund, prompting a 1996 Congressional amendment of CERCLA that is now codified at 42 USC §9607(n). City of Phoenix v. Garbage Service Co., 816 F. Supp. 564 (D. Ariz. 1993), and 827 F. Supp. 600 (D. Ariz. 1993).
• For the City of Phoenix, recovered $28.5 million from generators and transporters of hazardous substances disposed at the National Priorities List (NPL)-listed 19th Avenue Landfill. State of Arizona and City of Phoenix, Arizona v. Motorola, Inc., et al., 805 F. Supp. 749 (D. Ariz. 1992) (divisibility of harm under CERCLA); 805 F. Supp. 742 (D. Ariz. 1992) (causation under CERCLA); 774 F. Supp. 566 (D. Ariz. 1991) (CERCLA generator liability); 139 F.R.D. 141 (D. Ariz. 1991) (intervention into CERCLA consent decree proceeding).

Toxic Torts

• In a purported property damage class action alleging that numerous industrial entities caused lead and polychlorinated biphenyl (PCB) contamination in Anniston, Alabama, helped defendants withstand a petition for remand in a case that produced the first ruling in the courts of appeal on the Class Action Fairness Act’s removal provisions. Evans v. Walter Industries, et al., 449 F.3d (11th Cir. 2006).

Pro Bono

• Court-appointed counsel in a six-day jury trial over prison inmate’s civil rights claims against state prison officials. Crago v. Pitz, CV19-04532 (D. Ariz. 2022).
• Counsel for civil rights legend Jamil Al-Amin, fka H. Rap Brown, in claims arising from his detention at USP-Tucson. Al-Amin v. Howard, No. .4:21-cv-00120 (D. Ariz.).
• Representing, with the Florence Immigrant and Refugee Rights Center and American Civil Liberties Union (ACLU), civil immigration detainees seeking habeas corpus relief because of heightened COVID-19 risk.
•  Defending Iraqi, Russian, and Yemeni hunger strikers protesting immigration conditions against government efforts to compel force-feeding.

Brownfields, Facility Siting, and Counseling

Copper Mine Development

Advising Resolution Copper Mining, LLC, a joint venture between Rio Tinto and BHP, on environmental regulatory issues pertaining to its project near Superior, Arizona.

Lead-Zinc-Silver-Manganese Mine Exploration

Advising South32 Hermosa Inc. on environmental regulatory issues pertaining to its exploration project southeast of Patagonia, Arizona.

Renewable Energy Development

Helping developers of wind, photovoltaic solar, and battery storage facilities obtain necessary permits and approvals, including certificates of environmental compatibility from the Arizona Corporation Commission.

Corporate and Real Estate Acquisitions

Advising hedge fund and other investors on potential environmental liabilities associated with potential investments in mines, water and wastewater utilities, and real estate developments.

Brownfields Redevelopment

• Negotiated the first CERCLA prospective lessee agreement with the United States on behalf of the developer of a luxury resort within the former Empire Canyon mine site in Deer Valley, Utah, in a transaction that served as a pilot project for U.S. Environmental Protection Agency’s (EPA) Environmentally Responsible Redevelopment and Reuse program.

• Represented a Phoenix charter school operator on environmental issues pertaining to its successful redevelopment of a former semiconductor facility into a safe and thriving K-12 school.