Published in: Missouri & Kansas Super Lawyers 2011 — November 2011
By Amy Kates
Wichita’s Randy Rathbun left the farm to become one of the state’s foremost environmental litigators
Photo: Gavin Peters
Randy Rathbun’s legal career may have been born in the glint of a red tractor in the morning sun. At least, that’s how the former Kansas farm boy tells it. “My father set me on a tractor when I was 10 years old,” says Rathbun, “and I decided the very next day I was going to be a lawyer.”
This statement, like most that come from Rathbun, 57, is punctuated with a warm, earthy laugh. “Living on a farm, my dad especially taught me that we were stewards of the land,” he says. That deep-rooted love has proved invaluable for Rathbun, who became one of the foremost environmental litigators in Kansas. “I find it very offensive when companies just dump hazardous waste on the ground and not care about it,” he says. “Very offensive.”
Still, before he could litigate, he had to plow. Coming from a long line of Kansas farmers, Rathbun spent most summers driving a tractor. “You were expected, from the age of 10 or 11, to be helping out on the farm,” Rathbun says. When he was 18, he began custom cutting wheat to earn money. “Custom cutters go from location to location cutting wheat for farmers who don’t want to invest in combines,” he says. “We’d start down in Texas at the end of May, and a week later, we’d move on farther north, until we moved clear up to Montana.”
Traveling from town to town, Rathbun met his share of interesting people. “In the evenings, or when it rains, there’s nothing to do,” he says. “I spent a lot of time in little towns, just talking to folks.”
No matter what odd jobs Rathbun worked, though, he remained on a steady course toward the law. “I never made a fallback plan,” he says.
He almost needed one. “When I went to [Kansas State University] for undergrad school, I just had a wonderful time goofing around my first few years. I spent way too much time in Aggieville,” Rathbun says. “And if you don’t know what Aggieville is, that would be the bar section right off campus. I was literally one of the last students to get into Washburn Law School, by the skin of my teeth.”
Once there, he got his act together. “I knew I could not treat this like K-State,” he says. “So I lived in the library, and by the end of the first year, was near the top of my class. But, boy, K-State was fun.”
After law school, he landed a job in Wichita with what was then the second-largest firm in the state. But soon after, it split up. “It just blew up, into like 10 different firms,” he says. “And here I was, six months out of school and all I knew was that there were a lot of doors closed and a lot of conversations going on among the partners.” Because his firm wasn’t opening new cases, Rathbun spent a lot of time without a mentor, doing nothing. “I was just sitting there, walking up and down the hall saying, ‘Hey, you got anything I can do?’ I walked into this lawyer’s office and he said, ‘Yeah, go collect this debt.’” It was owed by a farm couple who lived northeast of town. “They were nice people,” Rathbun says. “And they said, ‘Would you look at something else for us because we’re very worried about this.’”
“This” was a toxic waste site that had opened up a few miles from the couple’s farm, operated by Chemical Waste Management Inc. “At that time, the company was the largest land-filler of hazardous waste,” Rathbun says. Chemical Waste claimed that due to its use of “impermeable Wellington shale,” the site was guaranteed to provide 10,000 years of protection to the earth. “Well, they only missed it by 9,995 years,” Rathbun deadpans. The waste ate through the shale in five years, flowed half a mile to a creek, and spread from there. “I sat around the table with this couple and their neighbors, and the stories they told were just horrible,” Rathbun says. “The chemicals dumped there were horribly toxic and burned their eyes and noses. In the summer, the fumes from the site were stifling. I listened to these people and thought, ‘God, I have to help them.’”
At 26, Rathbun, who in the meantime had joined Depew & Gillen, filed a multiparty case with more than 100 plaintiffs, in federal court. “[Chemical Waste] hired a Kansas City law firm, and the guys carrying the briefcases for the lawyers in that firm were my age. I’m sure my clients looked at me, and looked over at the other table and saw these gray-haired gentlemen that were well-recognized trial lawyers and thought, ‘What were we thinking?’”
In the end, the case settled favorably for Rathbun’s clients for an undisclosed amount; it also marked his initiation into environmental law. “I knew when I concluded [that] case in 1985 that I wanted to be an environmental lawyer,” he says. “It was trial and error because I didn’t really have anyone teach me how to try a case. [The partners] were just so busy they didn’t have time to get involved. But that was a very formative case for me because I learned that if you spend the time to do the digging yourself, and you look at the documents yourself, and you learn the geology, the hydrogeology, and you learn the chemistry, you’re going to be ahead of the lawyer on the other side—because he or she will have had a bunch of younger lawyers doing that background work. That has served me well over the years.”
So well, in fact, that after a decade of hazardous waste cases, Rathbun was tapped to serve as a U.S. attorney in 1993. “[U.S. Rep.] Dan Glickman knew I could try a case,” he says. Rathbun suspects, too, that his work for Bill Clinton during Clinton’s presidential run highlighted his name. “My parents always wanted to know where I went wrong, because they were Republicans,” he quips.
As U.S. attorney, he was involved in the Oklahoma City bombing case in 1995. “Within a couple of days [of the bombing], I got a call from the AG’s office on a Friday night saying it looks like there’s a Kansas connection to this, and we’re going to need you to do a search warrant tonight,” Rathbun says. “So I went over to Herington, Kansas, and the FBI were in the process of interviewing [Terry] Nichols, and we got the information we needed to get a search warrant. We called a judge early Saturday morning, went down to chambers, and got a search warrant. I just kept thinking, ‘Man, you better not screw this up because this is going to be one of the nation’s most horrendous crimes. … You better get this right.’”
Rathbun handled portions of the case involving the search of Nichols’ residence and the effort to send him back to Oklahoma. “I have the best law firm,” Rathbun says of what’s now Depew Gillen Rathbun & McInteer. “They’re like brothers and sisters to me. But that was the best job that I ever had.”
Until his time as a U.S. attorney, Rathbun’s practice was 100 percent devoted to contaminated groundwater. But he’s had to evolve. “There’s actually not much of that practice left anymore,” Rathbun says. “Companies that used to dump contaminants into the ground are more responsible now. So it’s good for the environment. Not so good for Randy Rathbun.”
Unfortunately, there are plenty of other ways in which the land can be abused.
In July 2007, a flood inundated Coffeyville, Kan. Officials at the Coffeyville refinery decided that to keep their crude oil tank from floating, they should pump it full of additional oil. But workers neglected to turn off the line after the tank had filled, Rathbun says. By 6:30 the next morning, 90,000 gallons of oil had coated the surrounding landscape, wiping out most of the east end of the town. “The refinery tried to portray this as [being caused by] an act of God,” contends Rathbun, who is representing businesses and farmers affected. “What it actually was, was that they let a tank run over—and it hadn’t been the first time a tank ran over at that refinery. And when a tank runs over in the middle of a flood, it causes catastrophic problems. There was oil clear down 20 miles into Oklahoma.”
Eighteen of the 20 cases that Rathbun filed have settled. At press time, he was awaiting trial for the remaining two. “The sad thing about it is if they had had any kind of emergency plan, it would have never happened,” he says.
With only 25 percent of his practice now devoted to environmental law, Rathbun has broadened his practice to include employment and civil rights law. “I have this white knight syndrome that I know drives my partners crazy sometimes,” Rathbun says. “But I think a jury can spot a phony a mile away—which requires me to believe with every fiber of my being that my clients are in the right and are being hurt by someone that doesn’t care about them.”
Though he takes his clients’ concerns seriously, Rathbun believes a sense of humor is crucial to the job.
“Look, I don’t like lawyers who take themselves too seriously, and I have never done that,” he says. “I have success with juries because I’m not a stuffed shirt. Life’s too short, and you need to enjoy every day of it. I’m just so blessed. I talk to so many people that hate to get up in the morning and go to work, and I’m just always eager to get in the office.” He laughs. “I guess that’s pretty pathetic, isn’t it?”