Elaine L. Spencer
practice emphasis
Complex Litigation and administrative practice, with emphasis on Natural Resources, Land Use and Environmental litigation.
BAR ADMISSIONS
Washington, 1976
______________________________________________________________________Elaine has a broad range of successful trial experience, focused on developing issues in land use, growth management, forestry and natural resource law. Her success comes from a combination of legal skills and industry knowledge, with a strategic ability to claim the high ground in controversial matters early, and maintain that high ground to achieve the client’s objectives.
Representative matters
Forest Products Industry
Seattle Audubon v. Sutherland. Represented Weyerhaeuser in defending against a claim that it had “taken” northern spotted owls in violation of Section 9 of the Endangered Species Act in the management of its forests.
Northwest Ecosystem Alliance v. Forest Practices Board, 149 Wn.2d 67 (2003). Represented the WFPA as Intervenor-Respondent in defending a suit challenging essentially all of the substantive forest practices rules on the ground they did not adequately respond to new scientific information about endangered species. Suit dismissed based on our motion.
WEC v. Sutherland, King County Superior Court. Represented the American Forest Resource Council and various public interveners in negotiating a settlement of litigation challenging the sustainable harvest level for Western Washington trust lands and several policies that lifted owl-circle protections for the northern spotted owl on state trust lands and otherwise increased the sustainable harvest level. The settlement restored the sustainable harvest level, lifted the owl circles and sustained the other challenged policies, while at the same time achieving greater protection for the northern spotted owl.
Skagit County v. State, Skagit County Superior Court. Represents trust beneficiaries in challenging the Lake Whatcom Management Plan adopted by the state, which reduces revenues to the trusts by 50% over the 200 years of the plan.
Washington Department of Wildlife v. Washington Forest Practice Board and DNR, Thurston County Superior Court. Lead counsel for the WFPA in protecting the “500-acre rule” for the northern spotted owl, that allowed $2 billion worth of private timber to be harvested over the objections of the environmental community and the Department of Wildlife. After the trial court sustained the rule, I assisted the WFPA in developing a draft rule for the northern spotted owl based on science that is essentially the rule now in effect.
Denkmann v. International Paper Company, Louisiana State Court, Baton Rouge. Lead forestry counsel for International Paper Company in defending a suit for $90+ million in damages and termination of the remaining 45 years of the lease of 212,000 acres of forest land in Louisiana and Mississippi, based on a claim that the client had breached the obligation to be guided by good forestry practice. A 4-month jury trial resulted in a defense verdict.
Ingram v. Container Corporation, U.S. Dist. Ct., Middle District of Georgia. Lead forestry counsel for Container Corporation in suit for damages and to terminate a long-term lease of 25,000 acres of forest land based on claimed violation of duty to practice good forestry. Two week trial on the first phase resulted in a defense verdict, after which the case was favorably settled.
Two Million Acres of Stumps v. Washington Department of Natural Resources, Thurston County Superior Court 1990. Lead counsel for the Washington Forest Protection Association (WFPA) as Intervenor-Defendant in a suit seeking to apply the State Environmental Policy Act (SEPA) to all forest practice applications. Suit dismissed on motion by the WFPA.
Washington Environmental Council v. Washington Forest Practices Board, King County Superior Court. Counsel for the WFPA in obtaining dismissal of a suit to invalidate the adaptive management process mandated by the legislature for forest practice regulation.
Loomis Forest Litigation, Chelan County Superior Court. Represented a group of trust beneficiary school districts assembled by the Northwest Forestry Association, challenging DNR’s management of the Loomis Forest, in the face of a massive pine beetle epidemic.
Yakama Indian Nation v. DNR and Boise Cascade Corporation, Washington Forest Practices Appeals Board (WFPAB) Nos. 96-38, 97-11. Represented Boise Cascade in appeal of permit claimed to injure a northern goshawk and pileated woodpecker. The decision held DNR had no authority to condition or deny permits based on threat to wildlife, where the species itself was not threatened by the permit.
Yakama Indian Nation v. Boise Cascade Corporation, WFPAB, numerous. Settled a series of tribal appeals based on archeological resources (lithic scatter) by negotiating a Memorandum of Understanding that allowed the client to move forward without continual challenges by the tribe.
Natural Resources
Ocean Advocates v. U.S. Army Corps of Engineers, 167 F.Supp. 2d 1200 (W. Dist. Wash 2001), reversed 361 F.3d 1108 (9th Cir. 2004), opinion modified 402 F.3d 846 (9th Cir 2005). Represented major industrial company in at this point an unsuccessful defense of the permit for a dock expansion, issued without preparation of an EIS.
U.S. v. Washington (Phase II), 759 F.2d 1353 (1985). Wrote the Ninth Circuit amicus brief for a coalition of Washington businesses seeking reversal of the District Court’s declaratory judgment that tribes had a treaty right to control or veto development that would tend to damage fish runs for which the tribes had treaty fishing rights.
Newport Yacht Club v. City of Bellevue and King County, U.S. Dist. Ct., Western Dist. of Washington (2004). Represented the City of Bellevue in claims by landowners at the base of Coal Creek that the City had violated the Clean Water Act and the Endangered Species Act and committed nuisance and trespass as a result of sedimentation caused by the combination of urban storm water and historic coal mining along Coal Creek. Case settled to satisfaction of all parties.
Port of Tacoma v. Aetna, Pierce County Superior Court (1998). Counsel for the Port of Tacoma in recovering the cost of cleaning up Commencement Bay from its insurers.
Land Use and Growth Management
Holmes Harbor Sewer District v. Holmes Harbor Home Building. 155 Wn.2d 858 (2005). Represented developer in invalidating sewer district charges as being outside the sewer district’s statutory authority.
Sammamish Community Council v. City of Bellevue, 108 Wn.App. 46 (2001); Sammamish Community Municipal Corporation v. City of Bellevue, 107 Wn.App. 686 (2001). Represented the City of Bellevue in contentious litigation with two independent community municipal corporations over control over the City’s concurrency program and congestion management.
Represented the owners of 6,000 acres of land in Kitsap County in Bremerton v. Kitsap County, Port Gamble-Skallalam Tribe v. Kitsap County, and Alpine Evergreen v. Kitsap County before the Central Puget Sound Growth Management Hearings Board, eventually establishing that their land is not forest land of long-term commercial significance under the Growth Management Act.
Represented Island County before the Western Washington Growth Management Hearings Board in defending its designation of rural agriculture and rural forest lands.
Allingham v. Seattle, 109 Wn.2d 947 (1988). Represented the plaintiffs in the first case in Washington invalidating zoning based on a regulatory taking.
Valley View Industrial Park v. City of Redmond, 107 Wn.2d 621 (1987). Represented the property owner in invalidating the down zoning of its property from industrial to agricultural use. Trial court decision was based on regulatory taking; Supreme Court decision was based on vested rights.
Torrance v. King County, Stewart v. King County, King County Sup. Ct.; Nelson v. King County, Central Puget Sound Growth Management Hearings Board. Recovered $5.5 million in settlement of regulatory takings cases where King County attempted to preserve property that had long since passed out of agriculture as “agricultural land.”
In re City of Seattle, 96 Wn.2d 616 (1981). Represented property owner in preventing condemnation of their property for the proposed Westlake Mall project.
Represented numerous property owners before planning departments, planning commissions, and elected officials where their ability to use their property was challenged based on various environmental claims.
PRESENTATIONS AND PUBLICATIONS
Elaine is a frequent speaker and writer at professional conferences. A selection of recent articles follows:
Author, “Damages Claims: An Update on Fifth Amendment and Due Process Issues” (April, 2008).
Author, “The ESA and the New Spotted Owl Litigation in Washington: When a Blunt Instrument Simply Isn’t an Appropriate Tool” (February, 2008).
Author, “Selection and Use of Expert Witnesses” (July, 2007).
Author, “Use and Misuse of Technical Data: Telling the Scientific Story to Scientific Virgins” (June, 2006).
Author, “Practice Tips Before the Forest Practices Appeal Board” (October, 2005).
Author, “Update on the Law of Regulatory Takings” (April, 2005).
Author, “Forest Practices and the Non-Industrial Landowner in a Post-GMA, Post-Forest & Fish, Post-RMAP World” (February, 2005).
Author, “Do You Have a Plan if Disaster Strikes?” (February, 2005).
Author, “Can We Have Growth Management and Traffic Concurrency?” (April, 2004).
Author, “King County Eases Rules in Rural and Agricultural Areas to Encourage Wineries and Breweries” (February, 2004).
Author, “Ripeness and Jurisdiction: When Can You Bring a Regulatory Takings Claim?” (December, 2003).
Author, “Wetlands and the Agricultural Community: Wither Borden Ranch?” (October, 2003).
Author, “Gridlocked: What We Need to do to Solve Our Regional Traffic Crisis” (February, 2003).
Author, “After Twelve Years of Planning for Concurrency Under the GMA Why Does Congestion Keep Getting Worse?” (October, 2002).
Author, “New Challenges to Growth Management Act Compliance Possible After September 2002” (February, 2002).
Co-author, “Congress Promotes ‘Brownfields’ Redevelopment” (January, 2002).
PROFESSIONAL & COMMUNITY ACTIVITIES
Legal Committee Member, Washington Forest Protection Association
Legal Trust Committee Member, Building Industry Association of Washington
Member, Pacific Real Estate Institute
Member, Washington State Bar
Member, American Bar Association
RECOGNITION
Washington Law & Politics, "Super Lawyer," 2004-2007
EDUCATION
JD, Yale University Law School, 1976
BS, with distinction, Iowa State University, 1971
