Cases, Battles, and Blessings of a Lifetime

Copyright © 2022 R. Timothy McCrum.

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Archway Publishing rev. date: 05/09/2023

CONTENTS

Acknowledgements

Prologue

1.May 22, 1981: A Grand Wedding and Life Really Starts to Hum

2.Studying and Working as Newlyweds in the Northwest

3.Heading Back East

4.Interior Department Days

5.The Mining Claim Forfeiture Case: United States v. Locke, 471 U.S. 84 (1985)

6.The Stillwater Mine Opinion: Apex & Extralateral Rights Issues Raised by the Stillwater Mineral Patent, Solicitor’s Opinion M-36955, 93 I.D. 369 (April 18, 1986)

7.The Independent Mine Rule Case: Schlosser v. Pierce, 92 IBLA 109, 93 I.D. 211 (1986)

8.The Granite Rock Preemption Case: California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987)

9.The Oil Shale Case: Tosco Corp. v. Hodel, 611 F. Supp. 1130 (D. Colo. 1985)

10.The Conoco/Consol Coal Leasing Case: Conoco, Inc. v. Hodel, 626 F. Supp. 287 (D. Del. 1986)

11.Moving on: Leaving the Interior Department and Becoming a Father

12.Life Begins in the Big D.C. Law Firm

13.The U.S. EPA Extraordinary Misconduct Case: United States v. Envirite Corp., 143 F.R.D. 27, 22 ELR 20887, 34 E.R.C. 1613 (D. Conn. 1991)

14.The Landmark OSHA Rule Case: AFL-CIO et al. v. OSHA, 965 F.2d 962 (11th Cir. 1992)

15.Paternity Leave at the Law Firm in the 1990s

16.The Coal Dust Tampering Case: Secretary of Labor v. Keystone Coal Mining, 151 F.3d 1096 (D.C. Cir. 1998), and In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819 (1995), and 15 FMSHRC 1456 (1993)

17.Unusual Spiritual Interludes in the Late 1990s

18.A Multi-Billion Dollar Case for the Hardrock Mining Industry: North Santiam Watershed Council v. Kinross Gold et al., 1998 WL 118176 (N.D. Cal. Mar. 9, 1998)

19.Sundays Became Family Days, Family Skits Become a Tradition, and Andrea Launches the St. Patrick’s Home School!

20.The Battles for Wireless Communications in the D.C. Area National Parks

21.The Stibnite Mine CERCLA Case: Mobil Oil Corp. v. United States, No. 99-1467-A (E.D. Va. voluntary dismissal per settlement, entered Aug. 15, 2000)

22.The Buena Vista Mercury Mine CERCLA Case: United States v. Buena Vista Mines, et al., No. CV 98-7226-SVW (C.D. Cal., settled by Consent Decree, Nov. 15, 2002)

23.May 22, 2001: A 20th Wedding Anniversary Trip to Rome to See Pope John Paul II

24.The Underground Coal Mining and Gas Storage Field Case: Columbia Gas Co. v. Consolidation Coal Co. and McElroy Coal, No. 99-2071 (W.D. Pa., voluntary dismissal per settlement entered, Oct. 9, 2001)

25.The BedRoc Mineral Law Case at the U.S. Supreme Court: BedRoc Limited, LLC, et al. v. United States, 541 U.S. 176 (2004)

26.The Blessings of Deerfield: If You Build It, They Will Come!

27.The Battles for the Chi Phi Fraternity

28.The Battle for Barry’s Magic Shop

29.The Odyssey of Glamis Gold, Part One, Including the Attacks of September 11, 2001

30.Glamis Gold Part Two: A Hard Fall and a Great Awakening!

31.Glamis Gold Part Three: My Encounter with the Holy Spirit!

32.The Pennsylvania Oil and Gas Drilling Ban Case: Minard Run Oil Co., et al. v. U.S. Forest Service, et al., 2009 U.S. Dist. Lexis 116520 (W.D. Pa. Dec. 15, 2009), aff’d, 670 F.3d 236 (3d Cir. 2011), and 894 F. Supp.2d 642 (W.D. Pa. 2012), aff’d, 2013 WL 5357066 (3d Cir. 2013)

33.July 4, 2014 — Independence Day and a Joyous McCrum Wedding!

34.The Church Rock Uranium Mine Cases in New Mexico

35.June 27, 2015 — The Blessing of Another Wedding Day

36.The Environmental Harm Mine Backfill Case: Montana Environmental Information Center v. Montana Dep’t of Environmental Quality and Golden Sunlight Mines, 365 P.3d 454 (Montana Supreme Court 2016)

37.The Case of the Gravel Pit Near Teddy Roosevelt’s Dakota Ranch: National Parks Conservation Association v. U.S. Forest Service and Elkhorn Minerals LLC, 177 F. Supp.3d 1 (D.D.C. March 31, 2016)

38.The Federal Oil and Gas Lease Cancellation and Reinstatement Case: Moncrief v. U.S. Department of the Interior, 339 F. Supp. 3d 1 (D.D.C. 2018)

39.February 3, 2018: A Grand Wedding for Our Daughter Megan Renee and Michael Gerardi

40.The U.S. Government CERCLA Liability Case at the Questa Molybdenum Mine: Chevron Mining Inc. v United States, 863 F.3d 1261 (10th Cir. 2017), on remand, Order Allocating 30% Liability to the U.S., No. 1:13-cv-00328 -PJK-JFR (D. New Mexico, June 28, 2022)

41.The Case of the Escobal Silver Mine in Guatemala: 2017 to 2018

42.Sharing Our Catholic Faith with Young Engaged Couples in the Washington, D.C. Area

43.The Mining Law Mill Site Case: Earthworks, et al. v. U.S. Department of the Interior, et al., 496 F. Supp.3d 472 (D.D.C. October 26, 2020)

44.First Quarter 2021: Time to Move On, Time to Get Going!

45.Wrestling Dreams: I Could’a Been a Contender!

46.In 2021, It Was a Very Good Year

47.The Best Is Yet to Come!

Postscript

About the Author

ADVANCE REVIEWS OF CASES, BATTLES,

AND BLESSINGS OF A LIFETIME

"If you have ever wondered what a high-level environment, energy and natural resource lawyer’s practice is like, then Tim’s interesting memoir will fit the bill. His tales of dealing with federal trial lawyers, behind-the-scenes government policy-making, and litigation intrigue, while simultaneously trying to meet client demands on multi-million-dollar cases, provides both an education and entertainment to the reader."

Thomas L. Sansonetti, former U.S. Interior Department Solicitor, and U.S. Department of Justice, Assistant Attorney General, Environment & Natural Resources Division; Partner, Holland & Hart LLP

"Tim is a masterful and detailed storyteller which is an art and rare skill for sure. His writing freedom brings life to the pages. His love-faith drills deep with his wife, children, and grandchildren, and all comes under the authority of God. Throughout his book, he connects his head-knowledge-wisdom with his heart, and then he sprinkles a little music and magic within his stories – delightful!"

Stan Zeamer, NCAA All-American Wrestler (1969 and 1970), and Wrestling Coach Emeritus, Franklin & Marshall College; Board of Governors Member, National Wrestling Hall of Fame.

"A splendid chronicle of a professional, personal and spiritual journey guided by a north star forged from faith, family and friends."

Harold Hal P. Quinn, President Emeritus, National Mining Association

"A fascinating memoir of a tenacious lawyer who was ‘in the arena’ defending the mining industry as it met resistance from newly empowered environmental groups over the last four decades. For the natural resource lawyer, it offers a glimpse back at several significant cases and insight into how a sophisticated D.C. lawyer constructs a case to persuade and win – the strategy, the team, and skillful use of the tri-part levers of Congress, the agencies and the courts. For the young lawyer, it is a vivid story of how you build a practice and reputation over the years – what to do and not to do. For all of us, it is a strong reminder of the long-term value of family and friends, and the necessity (and reward) of intentional efforts to sustain those ties."

Rebecca Watson, former Assistant Secretary for Land and Minerals, U.S. Department of the Interior; past President, Rocky Mountain Mineral Law Foundation; Special Counsel, Welborn, Sullivan, Meck & Tooley, P.C.

"A Washington lawyer credits his family, faith and grit as he tells the back-stories and explains the issues in important public lands, mining and environmental law cases he litigated – and won – in the federal courts."

Timothy M. Biddle, Founding Partner (retired), Crowell & Moring LLP

To Andrea, my greatest blessing from God

ACKNOWLEDGEMENTS

I want to thank Michael Klise for his patient and excellent work in editing these lengthy memoirs. It is a blessing to have a trusted partner and friend who edits like an angel! Thanks also to Tim Biddle who became an assistant editor along the way.

I must again thank Karen Parsons for her incredible, talented, dedicated, and trusted assistance over most of my legal career.

Thanks to my daughter Colleen for designing the cover page for this memoir, for marketing assistance, and for her fantastic poem!

Thanks to my son-in-law Michael Gerardi for technical computer assistance, especially on the photos. That Notre Dame electrical engineering degree still comes in handy.

Thanks to Andrea for her loving support for over 41 years of our marriage together, and thanks for saying that you would marry me long ago, which was like saying that you would Fly Me to The Moon! Also, thanks for many suggestions for improvements to these memoirs!

I want to thank the Holy Spirit for enabling me to fill these many pages with the memories of a lifetime.

PROLOGUE

These memoirs focus upon my family life during nearly four decades in the practice of law, based in Washington, D.C. For most of this time, I practiced law with a major law firm battling the U.S. Government and radical environmental activist groups at all levels of the federal courts around the nation, including the U.S. Supreme Court. In many of these cases, I was seeking to preserve jobs and industries developing natural mineral resources which are vital to human life in the United States and the world.

My wife Andrea has been my life partner on this great adventure. As the years have gone by, we have been joined in our growing family by Megan, Kelsey, Brian, Colleen, and Shane, who became part of our life, eventually with their spouses, followed by 11 wonderful grandchildren … so far! Along the way on this lengthy journey, I surprisingly was reawakened to my long-dormant Roman Catholic faith and returned to Christendom. What an amazing adventure it has been.

1

May 22, 1981: A Grand Wedding and Life Really Starts to Hum

On a beautiful Friday evening on May 22, 1981, in the Mt. Lebanon suburbs of Pittsburgh, I married Andrea Renee Nourie. The wedding took place in a Catholic Mass at the cathedral-like St. Bernard’s Church with our family and friends present. Andrea was beautiful and wonderful. How could I be so lucky? It was the happiest day of my life

Having just finished my first year of law school, I had no full-time job, and no tangible prospects in the law business. Andrea made a leap of faith to marry me at that time. We both were in love and filled with optimism.

My parents Bob and Gertrude McCrum attracted the attention of the wedding reception crowd, dancing to Mack the Knife, as several of my Chi Phi fraternity brothers clicked their fingers to the song which was a favorite at the old Chi Phi House back at Franklin & Marshall College, where I had just graduated in 1980. I looked up from the dance floor and saw Tony the barber playing in the traditional swing band. His barber shop was located in Castle Shannon borough near St. Anne’s school where I had attended elementary school with the Sisters of Divine Providence. Looking back on it now, Divine Providence was at work in this wedding and in my life, but I was very far from realizing that at the time.

In the wedding party was Jim May, my roommate from college, Chi Phi fraternity brother, and fellow wrestler. Also attending the wedding from the F&M wrestling team was Steve Reynolds, who remarked to me at the reception, "That church was like being in Rome, man!" Other Chi Phi brothers attending included Rusty Keith, Joe Short, Mike Sobel, Jim Davis, and F&M football player, John Sieber.

Steve Dillon, Scott Phillips, Bruce Kenworthy, and Tom Hohman were there as my longtime buddies from Boy Scout Troop 284 and Mt. Lebanon High School. Our friend Glenn Cummings, 1976 class president of our 3,000-student high school, was there as well.

Steve had been my close friend since 2nd grade. When Andrea and I visited him on the Notre Dame University campus, he pulled me aside and said to me approvingly that "Andrea has strong motherly instincts." Steve was absolutely right about that, as time would tell, but I was not focused primarily on those attributes of Andrea in my senior year of college.

Scott Phillips had been a close friend since 3rd grade, and we were performing magicians for several years in Pittsburgh, in a partnership known as the Magicians of Mystery, together with our friend Dave Jackson. We had worked our way up from the $15 birthday party circuit, eventually to the more lucrative country club circuit at $100 for a 30-minute show. What we lacked in refined skills, we made up for with marketing instincts and bold entrepreneurial enthusiasm. These instincts helped me unexpectedly years later in the law business.

Dr. George Popper was there with his wife Phyllis as well. George was my geologist supervisor on a summer geology job with Bendix Field Engineering, under contract with the U.S. Department of Energy, after my junior year in college. While prospecting for uranium deposits in sedimentary rocks in central Pennsylvania, we had bonded on our 10-day field trips over that summer when I was dating Andrea in Pittsburgh during breaks between the trips.

All my family was there at the wedding and reception, including my brother James who sang at the wedding Mass and sang Danny Boy at the reception in his Irish tenor voice. My brother Dennis and sister Mary Ann attended, along with several cousins from Erie, Pennsylvania. This included my mother’s first cousin, Mary Agnes Grant, and her husband William Bill Grant.

Ever since I was a young boy Mary Agnes always had been vivacious and friendly to me, as she was earlier on that sunny day in May in our home backyard at 24 Roycroft Avenue. However, earlier that day, I was taken aback when Mary Agnes suddenly was quite stern with me as she looked me in the eyes and said, "Timmy, you know that this marriage is forever, don’t you? I stumbled a bit in response and said, Ah …, yes, yes, … I know that …." I nonetheless appreciated and remembered her strongly delivered advice.

I never could have imagined then that 28 years later my cousin Mary Agnes would provide me with insights about a federal judge in Erie, Sean McLaughlin, who would render major decisions in a case of a lifetime that would arise in federal court in Erie in 2009, involving oil and gas, geology, the U.S. Forest Service, and the Sierra Club. However, that is a story for much later.

Andrea’s family was there as well of course, including her sister Rhonda who was a bridesmaid, and her brother Jeff who was a groomsman. Her brother Steven read one of the Bible readings at the Mass.

Andrea’s parents, Tom and Alice Nourie, hosted the grand wedding reception at the Mt. Lebanon Women’s Club, following the Mass. Since this was Pittsburgh, Rolling Rock beer from nearby Latrobe was served, along with a full bar and plenty of food. Tom and Alice understandably were initially quite reluctant to have their 21-year-old daughter get married when she was still only a junior in college. Their reluctance was further heightened because I was just starting law school and far from securing any job as a lawyer to provide for Andrea and a future family.

When we had become engaged several months earlier in August 1980, our pre-wedding circumstances were remarkably similar to the picture vividly portrayed in the 1974 song Rosalita (Come out Tonight), by Bruce Springsteen. As described in the words of the raucous song: "now you’re sad, your momma’s mad, and your papa says he knows that I don’t have any money"— this was all too true! Yet, as in the song, I told Andrea that … "I’m coming to liberate you, confiscate you, I want to be your man. Happily, Andrea said yes, and over time, all the wedding plans came together. Everyone was filled with best wishes on that night of May 22, 1981. As the passage in the song says, someday we’ll look back on this and it will all seem funny.…" Fortunately, that part came true in due time as well.

I was age 22 at the wedding, and Andrea at age 21 was making her own bold and risky decision to marry me. Fortunately, she didn’t view it that way. No one in my immediate family had been a lawyer. There were doctors in our Mt. Lebanon neighborhood, but I frankly did not know anyone in Pittsburgh who was a lawyer. I was attending Lewis & Clark law school, far away in Portland, Oregon. I was focusing upon the relatively new field of environmental and natural resources law, hoping that my B.A. degree in geology would prove useful in the future practice of law. Fortunately, it did!

There would be no parental subsidies for the young newlyweds, nor did we expect them. We would get ourselves through law school and Andrea’s remaining college semesters with student loans and part time jobs. I would finish the next two-and-a-half years of law school going to night school, working four days per week. I had a lot of energy back then!

Andrea believed in me, and I believed in her. We were deeply and passionately in love with each other. After a wonderful one-week honeymoon at my parents’ modest two-bedroom cabin on a beautiful lake in the mountainous woods of Pennsylvania, we hopped on a jet plane in Pittsburgh and headed to the far northwest of Oregon. We left our family and friends to make our new life together, not knowing where the paths would lead.

We never could have envisioned that 24 years later we would build our own five-bedroom log vacation home named Deerfield, complete with a prayer chapel, for our family of five children (and their spouses, plus grandchildren) on that same Pennsylvania lake where we had honeymooned. However, there is much to tell before getting to those blessings.

May 22,1981: Born to Run!

2

Studying and Working as Newlyweds in the Northwest

Andrea and I lived in a quaint one bedroom cottage in the Lake Oswego area of Portland, less than two miles from the Lewis and Clark Law School. We shared one small car together. Our bank account balance typically fluctuated between $100 and $400, and our house rent was $250 per month. In more recent years, my monthly rent for a parking space at 1001 Pennsylvania Avenue, N.W., in Washington, D.C., exceeded that house rent amount. You could say that we were living on love, and we were. They were happy days. In many ways, they were mostly stress-free days.

As I continued with law school, Andrea was finishing her undergraduate degree in education at Portland State University. She taught at a pre-school, and she also enjoyed working as an aerobic dance instructor. She was fantastic leading the classes of women students. When Andrea’s grandparents came out to visit us in Oregon, her 84-year-old grandfather Francis Xavier Weiss observed her dance class and said: "She’s really got something there!" Earlier in her college days, she had been a dance major, before changing to education. Because we both were students, we routinely studied together at the law library. This resulted in much more studying and better grades for both of us!

During the summer of 1981, after completing my first year of law school, I had secured a job with the U.S. Geological Survey’s Water Resources Division, in Portland, working on a study of groundwater depletion in eastern Oregon. I had held a similar job with the U.S. Geological Survey (USGS), an agency of the U.S. Interior Department, in Pittsburgh the prior summer, working on a study of underground coal mining effects upon groundwater in Greene County, in southwestern Pennsylvania.

I had landed these plum summer jobs with the USGS by doing well in 1978 as a student at the Yellowstone Bighorn Research Association, which was the required summer geology field camp course affiliated with Franklin & Marshall College. The field camp in Red Lodge, Montana, was run primarily by F&M and Princeton University, and I had received a modest scholarship to attend it tuition free.

After my first year of law school, I asked the USGS if I could work four days per week with the agency, because I had just started a one day per week job as a law clerk for a solo practicing lawyer in Portland named William B. Murray. Mr. Murray was in his mid-70s and well past his prime, but I learned a good deal from him. He looked quite a bit like Lionel Barrymore, who played Mr. Potter in the movie, It’s A Wonderful Life, though he was much nicer. He was the only lawyer in Portland, Oregon, specializing in federal mining law.

He had small business clients engaging in mineral exploration for precious metals and associated mining activities on federal lands in Alaska, California, Nevada, and Oregon. His clients included the California Mining Association and the Alaska Miners Association. He knew quite a bit about mining and the federal Mining Law, and he passed much of it on to me. I still possess the 1914 three-volume treatise, Lindley on Mines, which came from Mr. Murray. The U.S. Supreme Court has cited that treatise many times, and I would use it often in my 37-year law career.

He carried out his law practice with the indispensable help of his wife, Katherine Duniway Murray, who descended from an early Oregon pioneer woman, Abigail Duniway. As William B. smoked and covered himself with ashes, Katherine diligently typed his legal briefs and filed them in the federal district courts, the U.S. Court of Appeals for the Ninth Circuit, and the Oregon state courts. Mr. Murray had pending cases in the federal courts, typically against the U.S. Department of the Interior and the U.S. Forest Service, during the early 1980s when I worked with him.

Mr. Murray lost a good number of cases in the 1970s and early 1980s, but in so doing he set several useful published precedents that I would cite years later in my law practice. He also won some nice victories in the 1980s, including one for which I helped draft parts of the appeal briefs in the Oregon Court of Appeals. The case was Elliott v. Oregon International Mining Co., 654 P.2d 663 (Or. App. 1982), which held that an ordinance of Grant County, Oregon, prohibiting mining on federal mineral estates reserved under the Stock-Raising Homestead Act of 1916 was preempted by the federal Mining Law, and thus invalid. I never had imagined back then that in 22 years I would argue a case before the U.S. Supreme Court about the scope of reserved federal mineral estates under that 1916 Act and a similar 1919 law.

Another court victory that Mr. Murray had achieved (posthumously) was a ruling by the Ninth Circuit federal court of appeals that Oregon sunstone gemstones in basalt formations could be located as valuable mineral discoveries under the Mining Law. This case was Rodgers v. Watt, 726 F.2d 1376 (9th Cir. 1984), reversing the Interior Department decisions holding the mining claims invalid after an evidentiary hearing.

The mining claimant’s case was supported by the expert testimony of Dr. Frederick Pough, who the Ninth Circuit noted was an eminent mineralogist. Indeed, Dr. Pough was the curator of Geology and Mineralogy at the Smithsonian Museum of Natural History, and author of A Field Guide to Rocks and Minerals (Houghton Mifflin, 4th ed. 1976). I met Dr. Pough in the Murray law offices as the case was progressing. This case was an early lesson in the importance of having the best expert witness available on a case.

The author John McPhee had written the 1977 book, Coming into the Country, about the conflict between natural resource development and preservationist interests in Alaska. The book originally appeared in The New Yorker magazine, and then was published as a book by Farrar, Straus and Giroux. One of the figures in that book was Henry Hank Speaker, who was a hydraulic gold placer miner near Fairbanks, Alaska. In the book (at p. 327), a local gold miner says, Henry Speaker has a lawyer in Portland. He’s up in his years, but he’s good. He specializes in mining laws and defends small miners. That was a reference to William B. Murray, and I know this, in part, because I met Henry Speaker, the hydraulic gold placer miner, in Mr. Murray’s offices in downtown Portland.

I also drafted parts of Henry Speaker’s mineral patent applications under the federal Mining Law of 1872 to be submitted to the U.S. Department of the Interior to obtain patent (that is, full land title) for his gold placer mining claims on Harrison Creek in the Circle Mining District near Fairbanks, Alaska, where Mr. Speaker carried out his annual summer placer mining operations.

I was glad to be helping people like Henry Speaker carry out small scale placer gold mining operations on federal lands in Alaska. The truth, still somewhat embarrassing for me, is that when I first went to Lewis & Clark Law School at the age of 21 in 1980, I had environmentalist political leanings. Up until then, I had been apolitical most of my life, but during my senior year in college I became attracted to environmental preservationist views. It was misguided youthful thinking on my part, which I turned away from relatively soon.

Of course, we all like National Parks such as Yellowstone, which I visited as a college geology student, and the Grand Canyon, among many others. Yet, most of our lands cannot be set aside for permanent preservation as National Parks. Most lands must be available for use in productive activities to support businesses, residential areas, factories, farms, lumbering, transportation systems, and in relatively isolated cases, mineral development for energy, industrial minerals, aggregates, and valuable metals. This was true in 1872 and before, and it remains true today.

Almost everything in our modern high technology world requires minerals, ranging from our cars, highways, and buildings to our smart phones and laptop computers, and our energy systems. Even gold is used in sophisticated electronic computer systems because of the superior conductivity it provides. Our tall buildings and bridges require enormous amounts of stone, cement, glass, and steel, which all come from mining. Hybrid and electric cars require huge amounts of metals including copper and lithium. In 2022, over 80 percent of the energy used in the U.S. and the world still comes from fossil fuels, i.e., oil, gas, and coal. Without producing them, most of the world’s population would immediately suffer from terrible poverty, hunger, and death.

What about global warming and climate change from the carbon dioxide emissions produced by burning fossil fuels? The climate always has changed, as we can learn from studying the formation of the massive Great Lakes which was caused by advancing and retreating glaciers, long before the combustion engine. That is the subject for another book, but this geologist-author has studied the science on this subject for decades now, and is convinced that man has had no measurable effect on the climate, apart from localized urban heat island effects which are caused by the extensive concrete and buildings in our large cities. Could the answer to this long running controversy be that simple? In a word, I attest yes!

At some point in the future, effective alternative energy technologies likely will emerge, but for the foreseeable future wind and solar power systems are not going to provide economical large-scale substitutes for fossil fuels. In any case, so-called green energy alternatives such as wind and solar power also require mining and have enormous adverse environmental impacts. Large windmills in the U.S. alone kill many thousands of bats and birds annually, including Bald Eagles and Golden Eagles. Hydropower is a renewable energy source that has many benefits, but it also has adverse impacts because streams are blocked by massive dam structures, impeding natural fish migration.

Way back in 1556, a devout Catholic mining expert in Germany named Georgius Agricola wrote a massive, 600- page, treatise on mining, named De Re Metallica (Dover, 1950). The book was not about a rock music band! It described all the methods of mining and mineral processing known in the 16th century. It was translated from Latin to English for the first time by the prominent mining engineer, Herbert Hoover, and his dutiful wife in 1912, well before Hoover became the U.S. President.

Agricola (whose Latin name in English means farmer) acknowledged that mining could have harmful impacts to the lands, forests, and waters, but he concluded correctly (at p.14 of his treatise) that if we remove metals from the service of man, all methods of protecting and sustaining health and more carefully preserving the course of life are done away with. He added that "if there were no metals, men would pass a horrible and wretched existence in the midst of the wild beasts…." These observations remain true today.

Agricola also discussed the importance of having property rights and the rule of law governing the nation where minerals are to be developed. In the first ever discussion of what we now call political risk assessments, Agricola (at p. 32) advised that the miner should make careful and thorough investigation concerning the lord of the locality, whether he be a just and good man or a tyrant, for the latter oppresses men by force of his authority, and seizes their possessions for himself ….

Agricola explained that if a mine is developed in a country ruled by a tyrant, the mine will be rendered unsafe through hostile attacks, in which all of the gold or silver or other mineral products, laboriously collected with much cost, will be taken away from the owner, and his workmen will be struck with terror; overcome by fear, they will hastily fly, to free themselves from the danger to which they are exposed. In my law career, I would witness how sound this advice was in places such as the State of California from 2003 to 2005, and the country of Guatemala from 2017 to 2019.

In more recent centuries, our U.S. President Theodore Roosevelt became a great advocate of the principles of conservation of natural resources. However, Roosevelt was always careful to explain that "conservation means development as much as it means protection." This phrase is posted prominently in bronze on an old statue of President Roosevelt on the Roosevelt Island Park on the Potomac River, near the Lincoln Memorial — unless the National Park Service recently has removed the plaque as being politically incorrect!

These principles of fostering natural resource development, while engaging in sound conservation practices, were also favored by Gifford Pinchot, who was Roosevelt’s appointee at the newly established U.S. Forest Service. After that, Pinchot served as the Governor of Pennsylvania, where he helped establish the first state forest system. When the U.S. National Forest system was established by congressional action in 1897, the authorizing law made it clear that timber harvesting and mineral development were to be allowed in the National Forests, in contrast to the National Parks.

By my second year of law school, after being exposed to some of Mr. Murray’s small business mining clients who were having struggles with the U.S. Forest Service and the Interior Department, I began to empathize with them and question the actions of the government bureaucrats. This thinking further developed in my law school classes.

I wrote a detailed paper in law school on why aspects of the 1977 Surface Mining Control and Reclamation Act may be unconstitutional as an uncompensated taking of private property, despite the good purposes of the law. One decade later, a federal appeals court in D.C. agreed, when it ruled that the total prohibitions in that 1977 Act on coal mining in certain alluvial valley lands in Wyoming were an unconstitutional taking of property without just compensation. See Whitney Benefits v. United States, 926 F.2d 1169 (Fed. Cir. 1991). I wrote another detailed law school paper about why the U.S. Forest Service (which is an agency within the U.S. Department of Agriculture) may have lacked statutory authority to issue its 1974 environmental regulations over mining, since the Interior Department retained authority to administer the Mining Law on National Forest lands under a 1905 statute.

By the fall of 1981 and well into 1982, I was working for William B. Murray four days per week and going to law school at night. The Murrays had Andrea and I over to their home for dinner, and William B. wanted me to take over his law practice when I finished law school. We appreciated this opportunity and thought seriously about it, but we decided against it for various reasons. It was the right decision. After I had worked with Mr. Murray for about 18 months, he unexpectedly passed away from pneumonia in July of 1982 at age 74, at the end of my second year of law school.

I obtained a new job as a law clerk for the primary oil and gas lawyer in Portland, S. Kyle Huber, who also had two junior lawyer associates working with him. Kyle Huber was a bona fide Texas oil and gas lawyer, who was an adjunct professor teaching the oil and gas law course at the Lewis & Clark Law School.

His top client was Northwest Natural Gas, which was the local gas utility that also produced some natural gas in Oregon. I learned much about oil and gas law from Kyle Huber and, surprisingly as a mere law clerk, I was able to steer some of the mining law business from the Murray practice over to the Huber law firm. Katherine Murray worked there for a short time as well.

Kyle Huber was an excellent oil and gas lawyer and a good man. One of the junior lawyers working with him was Jim Draudt, who was a geology graduate from Dartmouth, and a Lewis & Clark Law graduate. In 1982, Jim and I drove together to Vancouver, British Columbia, to attend the Rocky Mountain Mineral Law Foundation’s Annual Institute, with several hundred lawyers attending.

I was impressed with the Institute and thought to myself, I would hope to give a presentation at this annual event someday. Many years later, I did just that in Aspen, Colorado, and Santa Fe, New Mexico, and in the early 2000s I became a Trustee of the Foundation. Being actively associated with the Rocky Mountain Mineral Law Foundation was a highlight of my four decades in the law business.

While I was at the Huber law firm, it merged with a larger real estate and litigation firm, with about a dozen lawyers known as Weiss, DesCamp, Botteri, and Huber. I continued working there four days per week and gained valuable experience until I finished law school in December of 1983.

In my final year of law school, I considered seeking a full-time position with the Weiss DesCamp law firm and discussed it with Kyle Huber. However, by this point Andrea and I had decided that we would like to move back East, if possible. Once again, that was the right decision.

Our Oregon Cottage Home

3

Heading Back East

With the end of law school approaching in December 1983, I had begun my job search in earnest in the previous summer. While Andrea and I were interested in the East, I did not focus solely on that part of the country. I sent out close to 100 letters with my résumé seeking interviews in the environmental and natural resources law field in places such as Denver, Salt Lake City, Pittsburgh, and Washington D.C.

I had learned about the Washington, D.C. law firm, Crowell & Moring, from hardbound annual publications of the newly established Eastern Mineral Law Foundation in the Lewis & Clark law library. Keep in mind that at that time there was no Internet and no law firm web sites to review. I sent a cover letter by U.S. Mail to John A. Macleod, who was a founding partner of Crowell & Moring, and head of what was then the firm’s mining law practice. Many years later, I would become a partner with him at Crowell & Moring, and Vice-Chair and then Co-Chair of that practice group, which had grown into a full-fledged environment and natural resources practice. However, back in 1983, he sent me a short response saying that he had forwarded my bio to the firm’s recruiting committee. Soon thereafter I