ENRD FY 2003 SUMMARY OF LITIGATION ACCOMPLISHMENTS

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ENRD Home | Current Topics | ENRD FY 2003 

Summary of Litigation Accomplishments

UNITED STATES DEPARTMENT OF 

JUSTICE

 ENVIRONMENT 

AND NATURAL RESOURCES DIVISION

FISCAL YEAR 2003

SUMMARY OF LITIGATION 

ACCOMPLISHMENTS 

CONTENTS

FOREWORD

CRIMINAL ENFORCEMENT OF THE 

ENVIRONMENTAL AND WILDLIFE 

LAWS

PROTECTING OUR NATION'S AIR AND 

WATER

ENSURING CLEANUP OF 

HAZARDOUS WASTE

DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS

PROMOTING RESPONSIBLE 

STEWARDSHIP OF AMERICA'S 

WILDLIFE AND NATURAL 

RESOURCES

PROTECTING INDIAN RIGHTS AND 

RESOLVING INDIAN ISSUES

SUPPORTING THE DIVISION'S 

LITIGATORS

FOREWORD

I am pleased to present the Environment 

and Natural Resources Division's 

Accomplishments Report for Fiscal Year 

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2003. Once again, the Division has 

achieved significant victories for the 

American people in the many areas for 

which it has responsibility, including 

protection of this Nation's air, water, land, 

wildlife and natural resources, furthering 

of important federal programs, and 

upholding trust obligations to Native 

Americans.

Tough enforcement of the environmental 

laws continues to be a top priority for the 

Division and I am proud to announce that 

Fiscal Year 2003 set a record for civil 

penalties in our civil enforcement cases. 

We obtained approximately $203 million, 

which is over $80 million more than any 

previous year in the Division's 

enforcement history. Moreover, we 

recovered the largest civil penalty ever 

from a single company - $34 million - in a 

lawsuit under the Oil Pollution Act.

Although penalties and fines play an 

important role in our environmental 

enforcement efforts by deterring future 

violations and ensuring that wrongdoers 

do not profit at the expense of law-abiding 

citizens, they are by no means the whole 

story. Through our refinery, power plant, 

and ethanol initiatives, we have obtained 

injunctive relief that will remove hundreds 

of thousands of tons of air pollutants. 

Through actions against pipeline 

operators and wastewater treatment 

systems, we have obtained commitments 

to update and better maintain critical 

elements of the nation's infrastructure. 

And through numerous cases, we have 

ensured that responsible parties will 

either clean up or pay for the clean up of 

hazardous waste sites across the United 

States. These cases demonstrate our firm 

commitment to the Division's civil 

enforcement priorities that the Attorney 

General announced last spring, and we 

will continue to carry out that 

commitment.

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We were also honored to have the 

Attorney General join us in September to 

announce an important new criminal 

initiative, the Hazardous Materials 

Initiative, which joins a panoply of other 

highly successful criminal initiatives that 

the Division has implemented. Criminal 

prosecutions are an essential element of 

any environmental enforcement program 

and the Attorney General has stated 

repeatedly that "all those who violate 

these laws are on notice: the Department 

of Justice will not hesitate to seek criminal 

sentences where appropriate." In this 

context, we thank the many United States 

Attorneys and the State and local 

enforcement officers around the country 

who help make our enforcement efforts, 

civil as well as criminal, such a success. 

Equally central to the Division's mission is 

our defensive and eminent domain work. 

Having practiced in these areas, I have 

no hesitation in saying that these cases 

present some of the most challenging 

issues that we as a Division and the 

nation as a whole face. The Division 

defends a plethora of federal agencies 

when they are sued under environmental 

and natural resource laws, and the 

majority of our docket is consumed by 

these non-discretionary cases. Such 

cases include suits against the military in 

connection with training programs, 

against the Forest Service and the 

Department of the Interior in connection 

with their resource management 

programs, and against the EPA when it 

promulgates rules. Water rights 

adjudications are also a significant source 

of these cases, as are various Indianrelated lawsuits, such as those seeking to 

vindicate treaty rights and to establish 

tribal trust obligations. In addition, 

property rights and valuation issues also 

loom large in our takings and eminent 

domain caseload. In all of these cases, 

credit must go to the Division's attorneys 

and staff, who have done an outstanding 

job of bringing them to a successful 

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conclusion in the face of serious 

constraints on the Division's resources. 

This month marks the close of my second 

year as the Assistant Attorney General for 

the Environment and Natural Resources 

Division. It has been a time filled with 

challenges as well as successes, but 

through it all, the Division's employees 

have shown a skill, perseverance, and 

resourcefulness that is the hallmark of all 

top-notch legal staff. Every day, they 

deliver quality legal work for the American 

people. It is an honor for me to serve with 

such a dedicated group of individuals and 

I look forward to continuing to work with 

them in the months to come.

Thomas L. Sansonetti

Assistant Attorney General

Environment and Natural Resources 

Division

December 2003 

CRIMINAL ENFORCEMENT OF THE 

ENVIRONMENTAL AND WILDLIFE 

LAWS 

Hazardous Materials Initiative. The 

Departments of Justice and 

Transportation announced a new initiative 

this year to combat the illegal shipment of 

hazardous materials ("hazmat.") This 

initiative will address critical homeland 

security issues as well as the significant 

public health and environmental 

consequences of crimes involving the 

transportation of hazmat. The initiative 

already has produced results: in United 

States v. Emery Worldwide Airlines, 

Emery, which specializes in shipping 

heavy cargo, pled guilty to felony 

violations of the Hazardous Materials 

Transportation Act. DOT regulations 

require the operator of an aircraft that 

transports an item classified as hazmat to 

give the pilot of the aircraft written 

notification that hazmat has been loaded 

on board the plane. In January 1998, 

Emery conducted audits that revealed 

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they were not following proper procedure, 

but they did not take constructive steps to 

correct the problem until August 1999. 

Emery has agreed to pay a $6 million 

criminal penalty and develop a 

compliance program to detect and deter 

future violations. 

Laboratory Fraud Initiative. 

Laboratories are used to analyze soil, 

water and other media to determine their 

chemical composition, to assess whether 

such chemicals pose human health risks, 

and to determine whether such media are 

contaminated and in need of remediation. 

In light of this role, maintenance of the 

integrity of laboratory sample tests, 

results, and reports is critical. As a result, 

the Lab Fraud Task Force was 

established to survey the problem of 

fraudulent laboratory testing and to 

determine how best to tackle it. During 

the last year, Division attorneys 

prosecuted several nationally significant 

cases associated with the task force. 

These include United States v. Thomas 

Michael Hayes, in which Hayes, a vicepresident at Saybolt Inc., was convicted 

of conspiracy to falsify laboratory results 

on various petroleum products, including 

reformulated gasoline on behalf of, and in 

conjunction with, a number of Saybolt's 

clients. Another such prosecution was 

United States v. Jet-Pep Inc., in which the 

company pled guilty to knowingly making 

a false material statement in its 1998 

Annual Report to EPA. From 1995 

through 1998, Jet-Pep failed to perform 

certain tests required under regulations 

designed to reduce harmful emissions 

caused by gasoline. The company was 

sentenced to pay a $200,000 fine, and 

serve three years probation.

Cracking Down on Caviar Trafficking. 

Working with the Assistant United States 

Attorneys Offices, Fish and Wildlife 

Service, Customs Service, FBI, National 

Oceanic and Atmospheric Administration, 

and Food and Drug Administration, the 

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Division embarked on a crack down on 

caviar smuggling from the Caspian Sea. 

This initiative has already yielded fruit - on 

November 6, 2002, Viktor Tsimbal, the 

former president and owner of Beluga 

Caviar, Inc., was sentenced to serve 41 

months incarceration followed by two 

years of supervised release. Tsimbal had 

pled guilty to organizing a caviar 

smuggling conspiracy in violation of 

wildlife protection laws, a substantive 

smuggling violation, money laundering 

and obstruction of justice charges. During 

the course of the investigation, the agents 

seized more than $500,000 worth of 

caviar along with false identification 

labels. In 1999 alone, Tsimbal imported 

more Russian-origin Beluga caviar than 

the entire annual Russian export quota. 

Tsimbal also forfeited $36,000 in his 

possession at the time of his arrest at the 

Miami International Airport. 

CFC Smuggling Prosecutions. The 

Division continues to pursue its highly 

successful effort to stem smuggling of the 

ozone-depleting gases known as 

chlorofluorocarbons (CFCs). Ten 

defendants pled guilty in United States v. 

Himes, a case involving a complex, multimillion dollar scheme to import and sell 

CFCs under false pretenses and to avoid 

payment of excise and income taxes from 

1995-1998. Barry Himes, the lead 

defendant in this conspiracy, was 

sentenced to serve 78 months in prison 

and pay $1.8 million dollars in restitution 

and a fine of $12,500. Himes previously 

forfeited a $3 million dollar mansion, a 

BMW sedan, and a three-carat diamond 

ring. Co-conspirator John Mucha was 

sentenced to serve 48 months of 

incarceration, pay $1.2 million in 

restitution and forfeit his BMW sedan. 

Accountant Richard Pelletier was 

sentenced to serve 33 months of 

incarceration and pay 1.2 million in 

restitution. Others have been sentenced 

to terms of up to 15 months 

imprisonment.

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Vessel Pollution Enforcement. The 

Vessel Pollution Initiative is an ongoing, 

concentrated effort to prevent pollution 

from ships into the oceans, the coastal 

waters, and the inland waterways. Since 

1990, over 123 environmental 

prosecutions have involved pollution from 

ships, and in the past year, the work of 

the Vessel Pollution Initiative has 

contributed to a number of important 

prosecutions. One recent case was 

United States v. Ronald Cook in which 

Cook was found guilty by a jury of 

conspiracy, ocean dumping, and violating 

the Act to Prevent Pollution from Ships. 

Cook directed his employees to dump 

hundreds of plastic bags filled with 

asbestos into the ocean. He was 

sentenced to serve 24 months 

imprisonment, and three years supervised 

probation. 

Prosecuting Fraud in the Lead and 

Asbestos Abatement Industry. In 

United States v. Ho, the Fifth Circuit 

rejected a Commerce Clause challenge to 

the prosecution of Eric Ho, a Houston, 

Texas, real estate business developer, for 

Clean Air Act violations related to 

unlawful asbestos removal from buildings 

he was renovating. Ho employed 

untrained illegal aliens to remove the 

asbestos for $20,000, rather than pay as 

much as $400,000 for asbestos removal 

by a trained contractor. The Fifth Circuit 

rejected Ho's argument that his 

prosecution was unconstitutional because 

the asbestos did not move in interstate 

commerce. In United States v. Potomac 

Abatement, Inc., the company and its 

operations manager, William Gutierrez, 

pled guilty to two felony false statement 

counts for purchasing false lead and 

asbestos abatement certificates for 

approximately 60 untrained employees in 

order to obtain contracts to conduct 

abatement of numerous public buildings. 

The company was sentenced to pay a 

$100,000 fine and $100,000 in restitution, 

while Gutierrez was sentenced to six 

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months home confinement and one year 

probation.

Refinery Explosion Prosecution. In

United States v. Ashland Inc., the 

company was sentenced to serve five 

years probation and pay $9.1 million in 

fines and restitution in connection with a 

massive explosion at the company's 

refinery that injured several employees 

and firefighters. The company had pled 

guilty to negligent endangerment under 

the Clean Air Act because it drained 

hydrocarbons into a sewer that 

subsequently ignited causing the 

explosion. The court ordered the 

company to commit to paying millions 

more to upgrade the facility. 

Prosecuting Pollution of Our 

Waterways. We continue to prosecute 

vigorously those who pollute our 

waterways. In United States v. Tyson 

Foods Inc., the company pled guilty to 20 

felony Clean Water Act violations and 

agreed to pay a $5.5 million fine. Tyson 

also paid $1 million in damages to the 

State of Missouri in connection with a 

separate state civil enforcement action, 

and $1 million to the Missouri Natural 

Resources Protection Fund. The 

company admitted that, over a four-year 

period, it repeatedly discharged untreated 

wastewater from its Sedalia, Missouri 

poultry processing plant through storm 

drains into a tributary of the Lamine River 

in violation of its Clean Water Act permit. 

As a condition of Tyson's three-year term 

of probation, the company has agreed to 

have an environmental assessment of its 

facility performed by an outside auditor 

and to implement an enhanced 

environmental management program.

In United States v. Tin Products, the 

company was sentenced to a five-year 

term of probation, while its vice-president, 

James Goldman, and environmental 

supervisor, Melanie Purvis, were 

sentenced to serve 18 months 

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imprisonment and 5 months imprisonment 

respectively. From March 1999 until 

February 2000, Tin Products discharged 

toxic wastewater that killed a significant 

number of fish and shut down a 

wastewater treatment plant. 

Prosecuting Pollution of Our Air. The 

EPA has identified air pollution as a major 

public health concern. In United States v. 

John Littlehale, Littlehale, former VicePresident of the Scottsburg Division of the 

Multi-Color Corporation, which is one of 

the largest label manufacturers in the 

United States, pled guilty to making a 

false statement in violation of the Clean 

Air Act in connection with filing of a false 

construction application permit. This false 

permit led to uncontrolled emissions of 

over 100 tons of toxic gases including 

toluene and carbon tetrachloride. In a 

related case, United States v. Roger 

Taylor, Taylor pled guilty to misprision of 

a felony. Both defendants await 

sentencing. 

Enforcement of Wildlife Laws. The 

Division continues to obtain convictions or 

pleas in matters ranging from United 

States v. The Peterson Companies, in 

which a multi-million dollar company pled 

guilty to violating the Bald and Golden 

Eagle Protection Act related to its 

destruction of an eagle nest in developing 

the National Harbor, to United States v. 

David Joe Yocam, in which Yocam pled 

guilty to being a felon in possession of 

firearms and violating the Lacey Act in 

connection with his unlawful baiting of 

waterfowl on his commercial hunt club 

property. The Eleventh Circuit also 

affirmed the convictions in United States 

v. McNab of David Henson McNab, the 

owner of a Honduran lobster fishing fleet, 

and three of his confederates, who 

engaged in an extensive operation to 

smuggle spiny lobsters from Honduras to 

the United States. Prosecution of these 

defendants helped protect lobster 

fisheries and supported those in the 

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lobster industry who run their businesses 

in compliance with the law. 

PROTECTING OUR NATION'S AIR, 

LAND AND WATER

Reducing Air Pollution from Coal-Fired 

Power Plants. During the past year, the 

Division continued to litigate Clean Air Act 

enforcement actions against coal-fired 

electric power generating plants. The 

failure of these plants to install emissions 

control technology during major plant 

upgrades has resulted in tens of millions 

of tons of air pollution, leading to adverse 

health effects on asthma sufferers, the 

elderly and children, including premature 

deaths, and to forest degradation, 

waterway damage, reservoir 

contamination, and deterioration of 

buildings. As part of this initiative, the 

Division concluded the liability trial in 

United States v. Ohio Edison, after which 

it received a very favorable ruling, and is 

scheduled to begin the remedy phase in 

April 2004. We have also completed trial 

in United States v. Illinois Power Co., but 

the court has not yet issued a decision. 

The Division also reached settlements 

with four other companies: Virginia 

Electric Power Co., Wisconsin Electric, 

Southern Indiana Gas & Electric Co. and 

Alcoa, Inc. Collectively, these settlements 

will likely reduce annual emissions of 

nitrogen oxide by more than 113,000 tons 

per year and emissions of sulphur dioxide 

by more than 300,000 tons per year. The 

settlements require the defendants to 

spend approximately $2.1 billion to install 

pollution control equipment and another 

$38.9 million on environmental projects to 

mitigate the harm their alleged violations 

caused, as well as to pay $10.6 million in 

civil penalties. 

Addressing Air Pollution from Oil 

Refineries. The Division has moved 

aggressively to protect the nation's air 

quality by continuing its national 

enforcement initiative to address refinery 

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Clean Air Act violations. Building on 

previous successes, we secured 

comprehensive settlements with three 

additional petroleum companies: Cenex, 

Ergon and Coastal Eagle Point. These 

settlements will reduce toxic emissions at 

four refineries in four states, require the 

payment of $2.9 million in civil penalties 

and the expenditure of an estimated $30 

million in injunctive relief. All four states 

joined in these settlements. Three 

settlements require the defendants to 

install state-of-the-art pollution control 

equipment while one defendant has 

agreed to surrender its operating permit. 

To date, this initiative has addressed 

approximately 40% of the nation's refining 

capacity and will reduce air pollutants by 

more than 129,000 tons a year. 

Leveling the Playing Field in the 

Ethanol Industry. In a strong start to this 

new enforcement initiative, the Division 

and the State of Minnesota entered into 

12 consent decrees resolving Clean Air 

Act claims against 12 Minnesota dry corn 

mill operators that produce ethanol. The 

ethanol industry has historically 

underestimated toxic emissions from feed 

dryers, cooling cyclones and fuel loading 

operations. To achieve compliance with 

Clean Air Act New Source Review 

requirements, the settlements will require 

the defendants to install state-of the-art 

control technology on all units that are 

significant sources of pollution and pay a 

civil penalty. These settlements were 

quickly followed by a far-reaching 

settlement with agri-business giant Archer 

Daniel Midlands (ADM) covering 52 

ethanol, corn mill, and oilseed plants in 

16 states. Under the terms of the consent 

decree, ADM will install state-of-the-art air 

pollution controls on hundreds of units, 

shut down older, dirty units and accept 

restrictive emission limits on others, which 

will reduce harmful air emissions by 

63,000 tons per year. ADM is expected to 

spend $328 million on the injunctive relief 

and $6.363 million on other projects to 

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improve the environment, as well as pay 

a $4.6 million civil penalty. Eleven states 

and three counties joined in this 

settlement. 

Enforcement Initiative Against 

Industrial Bakeries. In the first 

enforcement action taken under this 

initiative, the Division reached a 

settlement with Earthgrains Baking 

Industries which resolved violations 

regarding the use of chlorofluorocarbons 

(CFCs). Earthgrains will convert all of its 

large refrigeration units that use ozonedepleting substances to substantially 

minimize the risk of leakage of 

substances such as CFCs from the units 

at a cost of more than $5 million. 

Earthgrains will also pay $5.25 million in 

civil penalties. 

Deterring Pipeline Spills. The Division 

achieved several landmark settlements in 

connection with pipeline spills this year. 

Two such settlements resolved claims of 

gross negligence against pipeline 

operators Olympic Pipeline Co. and Shell 

Pipeline Co. in connection with a major 

gasoline spill into a Bellingham, 

Washington river, which ignited, killing 

three boys and destroying natural 

resources and habitat. Collectively, the 

settlements require the companies to 

spend an estimated $80 million on 

comprehensive injunctive relief to restore 

and maintain 2,139 miles of pipeline 

running through seven states. The 

companies will also pay $15 million in civil 

penalties. Another settlement resolves 

claims against Colonial Pipeline Company 

concerning multiple spills along a pipeline 

spanning nine states, including a 

devastating spill of 950,000 gallons of 

diesel fuel into the South Carolina's 

Reedy River that killed 35,000 fish and 

other animals and extensively damaged 

habitat. Under the settlement, Colonial 

will undertake comprehensive injunctive 

relief worth $30 million along the full 

length of its pipeline and pay a $34 million 

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civil penalty, the largest penalty obtained 

against a single company under a federal 

environmental statute. 

The Division also settled claims against 

Potomac Electric Power Co. (PEPCO) 

and ST Services relating to a 140,000 

gallon oil spill from a ruptured pipeline 

into a tributary of Maryland's Patuxent 

River, which affected environmentally 

sensitive areas including wetlands and 

habitat for fish and resident and migratory 

birds and prompted emergency 

responses from federal and state 

agencies. The consent decree recovers 

$2.7 million for damages to natural 

resources and the payment of a $2 million 

penalty to our co-plaintiff, the State of 

Maryland, in addition to a previously 

issued emergency order requiring 

PEPCO to conduct oil recovery 

operations at an estimated cost of $71 

million. The Division also obtained the 

largest ever civil environmental penalty in 

Iowa when it settled with Koch Pipeline 

Company for damages caused by a 

ruptured pipeline that released about 

312,800 pounds of anhydrous ammonia 

in liquid and gas forms. As part of the 

settlement, Koch agreed to pay a $1 

million penalty to the United States and 

$450,000 to the State of Iowa for 

penalties and natural resource damages. 

Ensuring the Integrity of Municipal 

Wastewater Treatment Systems. The 

Division lodged consent decrees with six 

governmental entities - the District of 

Columbia Water and Sewer District 

(WASA), the Government of Guam, the 

Puerto Rico Aqueduct and Sewer 

Authority (PRASA), the City of Rock 

Island (Illinois), the City of Waterbury 

(Connecticut) and the Hoosic Water 

Quality District (Massachusetts) - settling 

Clean Water Act violations in connection 

with their operation of wastewater 

collection and treatment systems. The 

consent decrees provide for the 

governments to spend a minimum of 

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$360 million in injunctive relief to bring 

their sewage treatment systems into 

compliance with the Clean Water Act, to 

pay civil penalties totaling $1.76 million 

and to perform supplemental 

environmental projects worth more than 

$3.2 million. Collectively, the consent 

decrees address numerous illegal 

discharges of pollutants and raw sewage 

into waters of the United States. The 

Division also entered into a consent 

decree with a privately owned and 

operated wastewater treatment plant and 

sanitary sewer system in South Haven, 

Indiana, where EPA identified more than 

1,000 days of violations. The operator is 

required to implement corrective 

measures costing $7 million and will pay 

a $250,000 civil penalty. Additionally, in 

our enforcement action against the City of 

Los Angeles, we lodged a stipulation 

establishing the City's liability for 3,800 

spills of raw sewage from the City's 

sewage collection system, the largest 

collection system in the nation. 

Preserving Our Nations's Wetlands. 

The Division obtained court orders 

requiring violators of federal wetland laws 

to restore or create more than 200 acres 

of wetlands and pay over $1 million in civil 

penalties and. Our success in this area 

included four favorable appellate court 

decisions upholding Clean Water Act 

regulatory jurisdiction over adjacent 

wetlands and tributaries of navigable-infact waters in United States v. Deaton, 

United States v. Newdunn, United States 

v. Rapanos, and United States v. Rueth.

Protecting Our Drinking Water 

Supplies. We successfully defended the 

Safe Drinking Water Act ("SDWA") 

against constitutional challenge in State 

of Nebraska v. EPA. Seeking to overturn 

EPA's rule lowering the maximum 

contaminant level for arsenic in drinking 

water, Nebraska argued that the SDWA 

both exceeds Congress' power under the 

Commerce Clause and violates the Tenth 

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Amendment by compelling states to 

regulate. In June 2003, the court denied 

Nebraska's petition for review, finding the 

Act to be a valid exercise of Congress' 

Commerce Clause power, and holding 

that it does not compel states to pass 

legislation or enforce federal standards in 

violation of the Tenth Amendment. We 

also successfully defended EPA's rule 

setting limits on the permissible level of 

radionuclides in drinking water against 

industry challenges in City of Waukesha 

v. EPA. The D.C. Circuit found that EPA 

had relied on the best available scientific 

evidence in setting the standards, and 

had properly balanced costs against the 

benefits of increased protection afforded 

by the new rule.

Controlling Stormwater Discharges 

into the Nation's Waters. The Division 

successfully defended challenges to 

EPA's regulations requiring municipalities 

to control stormwater discharges. In 

Environmental Defense Center v. EPA, 

the Ninth Circuit held that EPA's 

stormwater regulations do not violate 

either the First or Tenth Amendments and 

that EPA had a sufficient factual basis to 

require control of discharges from 

construction sites as small as one acre. 

The Fifth Circuit in City of Abilene, Texas 

v. EPA similarly ruled that stormwater 

permits issued to two Texas 

municipalities did not violate the 

Constitution by requiring those entities to 

regulate discharges to their storm sewer 

systems or by requiring them to design a 

public education program to minimize 

stormwater pollution.

Reducing Toxic Air Pollution from 

Cars. The Division repelled attacks on 

EPA's decision setting controls on toxic 

emissions from cars. In April 2003, the 

court in Sierra Club v. EPA upheld EPA's 

decision imposing an "antibacksliding 

provision" to maintain refiners' existing 

levels of voluntary overcompliance with 

current toxic requirements on their fuels, 

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and EPA's conclusion that other recent 

rules limiting vehicle emissions already 

attain the greatest degree of toxics control 

achievable for cars. The court held that 

EPA acted within its authority and that its 

analysis of the adequacy of existing 

controls was well supported.

ENSURING CLEANUP OF 

HAZARDOUS WASTE

Conserving the Superfund through 

Securing Cleanup of Hazardous Waste 

Sites by Responsible Parties and 

Recovering Superfund Monies 

Expended for Cleanups. In a number of 

notable judgments and settlements, the 

Division secured the commitment of 

responsible parties to cleanup of 

hazardous waste sites or reimburse the 

United States for Superfund monies 

expended to clean up sites around the 

nation:

California - The Division lodged five 

consent decrees in connection with the 

Casmalia Superfund Site, a 252-acre 

inoperative commercial hazardous waste 

facility in Santa Barbara County. 

Collectively, the settlements provide for 

the payment and release of claims 

against the United States in the amount of 

$52 million. 

Idaho - We received a favorable ruling on 

liability in United States v. Asarco, Inc., in 

which we seek to recover response costs 

and natural resource damages 

associated with lead, zinc and cadmium 

in mining wastes deposited in the Coeur 

d'Alene Basin in northern Idaho, one of 

the largest Superfund sites in the nation. 

The wastes have caused elevated blood 

lead levels in children, and serious harm 

to migratory birds, fish, and vegetation 

over a large area.

Illinois - The court entered a consent 

decree resolving claims against NL 

Industries in connection with the NL 

Industries/Taracorp site, a former lead 

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smelter. The decree requires NL 

Industries to reimburse the Superfund at 

least $29.78 million in response costs. A 

separate group of generator parties 

recently completed implementation of the 

remedy at a cost of approximately $20 

million. 

Montana - We obtained the largest 

Superfund cost recovery judgment ever 

obtained after trial - over $54 million - 

against W.R. Grace & Co. in connection 

with the Libby Asbestos Site in Libby, 

Montana. EPA had removed large 

amounts of asbestos, a carcinogenic 

substance, from Grace's former 

vermiculite mining and processing 

facilities and remediated asbestoscontaminated mining and process wastes 

that were given to Libby homeowners for 

use in their gardens and to local schools 

for use on athletic tracks. 

New York - The Second Circuit affirmed 

Alcan Aluminum Corporation's liability for 

reimbursement of costs EPA and the 

State of New York incurred in cleaning up 

hazardous substances at two waste sites 

where Alcan disposed of more than 5 

million gallons of waste oil. Alcan claimed 

that the harms from hazardous 

substances it disposed of were divisible 

from the harms caused by others who 

sent waste to the sites, but the Second 

Circuit held that a responsible party 

arguing that it is not liable for all costs 

based on a divisibility of harms must 

present proof that the total impact of all its 

waste is divisible from harms from other 

wastes at the site. The Second Circuit's 

decision is expected to be very helpful in 

ensuring that responsible parties pay 

cleanup costs for their wastes sent to 

Superfund sites. 

Pennsylvania - We lodged a consent 

decree with Horsehead Industries 

providing for its implementation of the 

remedy at two operable units and the 

performance of operation and 

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maintenance at a third operable unit at 

the Palmerton Zinc Pile Superfund Site, 

which operated as a zinc smelter for more 

than 80 years. The projected cost of this 

work is $28 million. Horsehead also 

agreed to reimburse the Superfund $13.5 

million.

Texas - In connection with the West 

Dallas Lead Site, a former secondary lead 

smelter operation, RSR Corporation and 

its subsidiaries will pay $13.25 million to 

the Superfund and perform most of the 

remaining cleanup work, valued at $11.6 

million.

Washington - We entered into five 

consent decrees in connection with the 

Commencement Bay Superfund Site, 

which, taken together, require cleanup 

commitments of an estimated $66.1 

million, as well $28.4 million for the 

Superfund in cost recovery. We also 

lodged two consent decrees in 

connection with the Harbor Island 

(Seattle) Site which has been divided into 

seven operable units. In the first consent 

decree, Lockheed Martin agreed to 

perform the remedy for one operable unit 

at a cost of $29 million. The second 

decree provides that Todd Pacific 

Shipyards will perform the remedy at a 

second operable unit at an estimated cost 

of $30 million. 

Wisconsin - The Division lodged a 

consent decree with respect to the 

Sheboygen River Superfund Site in 

Sheboygan, which requires Tecumseh 

Products Co. to perform remedial action 

addressing PCB contamination in river 

sediments in the Upper River portion of 

the Site, at a cost of about $28 million and 

to reimburse the Superfund $2.1 million.

Pursuing Corporate Assets to Fund 

Cleanup Responsibilities. In January, 

the Division secured a stipulation with 

ASARCO, Inc. to enjoin the fraudulent 

transfer of ASARCO's most valuable 

asset - its majority ownership interest in a 

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Peruvian copper company - to its parent 

corporation, Americas Mining Co. (AMC), 

when it lodged a settlement resolving this 

claim. Our settlement with ASARCO 

requires AMC to pay $765 million - more 

than $100 million more than previously 

proposed - for ASARCO's stock 

ownership interest in the Peruvian 

company. The settlement creates and 

funds an independent environmental trust 

to be used to pay for cleanup at sites 

where ASARCO is responsible. Initial 

funding of the trust is valued at $100 

million and is guaranteed by AMC. 

Throughout the year, the Division also 

represented the United States in 

numerous bankruptcy proceedings where 

the debtor had environmental 

responsibilities to fund. For example, in 

national bankruptcies involving such 

corporations as LTV Steel, K-Mart 

Corporation, Bethlehem Steel, Kaiser 

Aluminum, Owens-Corning, Borden 

Chemical, Pittsfield-Canfield Corp., 

Farmland Industries, Aerovox, Inc., 

Laclede Steel and Western Processing, 

the Division secured commitments from 

debtors or its parent corporation to 

perform an estimated $33.6 million in 

corrective action and cleanup work, to 

make cash payments of approximately 

$38.5 million, to allow administrative 

claims of $365,000, to allow secured 

claims of $831,500, and to allow general 

unsecured claims of more than $48.6 

million.

Defending the Scope of Hazardous 

Waste Regulation Under Resource 

Conservation and Recovery Act 

("RCRA"). In American Chemistry 

Council v. EPA, an industry group 

challenged EPA's statutory authority 

under RCRA to regulate as a "hazardous 

waste" any substance that is either mixed 

with or derived from a listed hazardous 

waste. In August 2003, the District of 

Columbia Circuit denied the challenge, 

holding that EPA's interpretation fulfills 

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Congress's purpose of subjecting 

hazardous wastes to "cradle-to-grave" 

regulation in order to protect public health 

and the environment.

Allowing Anthrax Contamination 

Cleanup to Proceed. On September 15, 

2003, the Second Circuit affirmed the 

district court's dismissal of a challenge to 

the Postal Service's anthrax cleanup of 

the Morgan Processing Center in midtown 

Manhattan. The Second Circuit concluded 

that the Postal Service was conducting an 

ongoing removal action that precluded 

judicial review during the pendency of the 

removal. This ruling will allow postal 

officials to expeditiously complete the 

cleanup.

Defending EPA's Ability to Direct 

Cleanup of Polluted Sites. In General 

Electric v. EPA, General Electric sought 

to have declared unconstitutional portions 

of CERCLA allowing EPA to issue 

emergency orders directing cleanup of 

polluted sites nationwide. In March 2003, 

the district court resoundingly rejected 

General Electric's claims, thus preserving 

EPA's ability to ensure that environmental 

dangers can be responded to rapidly. The 

Division also successfully defended 

challenges to EPA's efforts to clean up 

widespread PCB contamination at a 

contaminated site in Bloomington, 

Indiana.

Apportioning Properly Cleanup 

Liability. One significant portion of the 

Division's practice involves resolving 

federal agency responsibility for cleanup 

of contaminated facilities. Of particular 

note in this regard is the Division's defeat 

of New Mexico's claims for more than $4 

billion at the South Valley Superfund site 

near Albuquerque. Despite the ongoing 

groundwater cleanup being supervised by 

federal and state authorities, private 

attorneys hired by the State filed suit in 

1999 sought to recover additional money. 

However, we demonstrated that the 

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cleanup operations would fully restore the 

groundwater to drinking water standards 

and that additional damages should not 

be awarded for contamination below 

those standards. In response, the State 

dismissed all claims against the United 

States. Similarly noteworthy was the 

court's determination that the United 

States was not liable on almost all 

contribution claims against the 

government in connection with the multimillion dollar cleanup of the Bunker Hill 

mining site in Idaho. 

PROMOTING RESPONSIBLE 

STEWARDSHIP OF AMERICA'S 

NATURAL RESOURCES AND 

WILDLIFE

Everglades Restoration. The Division 

continued to contribute to protection of 

the endangered Everglades ecosystem 

by acquiring lands within Everglades 

National Park and Big Cypress National 

Preserve, as authorized by Congress and 

requested by the National Park Service. 

We also continue to defend multiple 

challenges to the Army Corps of 

Engineers' implementation of the 

Everglades restoration program. For 

example, in two cases brought by the 

Miccosukee Tribe we faced repeated 

motions in which the Tribe tried to stop 

the Corps from implementing water 

management plans for the Everglades 

ecosystem as part of the Corps' effort to 

avoid jeopardy to the endangered Cape 

Sable seaside sparrow. Our success in 

this litigation has enabled the Corps to 

continue implementing its plan to avoid 

jeopardy to the endangered sparrow 

while also accommodating the waterrelated needs of South Florida. 

Expansion of Wildlife Refuges and 

National Parks. At the Fish and Wildlife 

Service's request, we acquired by 

eminent domain Calves Island, 

Connecticut, for addition to the Stewart B. 

McKinney National Wildlife Refuge. We 

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also administer regulations designed to 

ensure that federal agencies will acquire 

clear title when making land purchases. 

Purchases facilitated by administration of 

these regulations included the National 

Park Service's acquisition of 115,788 

acres in Hawaii and the Fish and Wildlife 

Service's purchase of property in Maine 

to add to the Rachel Carson National 

Wildlife Refuge. These regulations also 

helped to modify procedures for physical 

inspections of land in the Bureau of Land 

Management's Alaska Native allotment 

recovery program, which will likely save 

millions of dollars in processing costs 

while greatly speeding up the program. 

Establishing Federal Ownership of 

Coastal Submerged Lands. In a case 

involving 264,000 square miles of 

submerged lands, the Commonwealth of 

the Northern Mariana Islands sought a 

judgment that the Commonwealth owns 

the submerged lands underlying both a 

12-mile territorial sea and a 200-mile 

exclusive economic zone surrounding the 

Islands. The Division obtained an 

favorable ruling affirming title to these 

lands in the United States and holding 

that Congress must enact legislation 

before the Commonwealth can acquire 

any interest in the lands seaward of the 

Commonwealth's low water mark.

Obtaining Water Rights Victories. We 

secured numerous settlements that will 

protect the water supplies and flows 

necessary to maintain the vitality of 

natural resources and uses of the public 

lands, national forests, national parks, 

wildlife refuges, wild and scenic rivers, 

military bases, and federal reclamation 

projects in areas such as the Snake River 

Basin in Idaho, the Klamath River Basin 

in Oregon, and the Yakima River Basin in 

Washington. The Division also played a 

key role in resolving an original action in 

the Supreme Court brought by Kansas, 

Nebraska and Colorado alleging 

violations of the Republican River 

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Compact. The settlement, approved by 

the Supreme Court in May, provides 

much needed protection for federal 

reclamation and water supply projects 

and creates a moratorium on new 

groundwater development, stabilizing the 

water supply for existing users and 

federal projects. It also contemplates 

cooperative rules of water administration 

during dry years, thereby reducing future 

litigation over the compact.

In California, working closely with officials 

in the Department of the Interior, we 

successfully resolved a lawsuit 

challenging the Secretary's determination 

to limit Colorado River water deliveries to 

the Imperial Irrigation District to amounts 

needed for reasonable and beneficial use 

in 2003. Comprehensive and historic 

agreements, reached among the 

Department of the Interior, four Southern 

California water agencies, and the State 

of California, together with implementing 

legislation by the California legislature, 

not only resolved this lawsuit but also 

created a plan for California to bring its 

use of Colorado River water within its 

annual apportionment of 4.4 million acre 

feet, honored a 70-year old commitment 

to the other Colorado River basin states, 

provided for unprecedented agriculturalto-urban water transfers, established 

water conservation measures within the 

Imperial Irrigation District, and protected 

the Salton Sea.

Advancing Responsible Timber 

Production From the National Forests. 

The Division took a key role in fulfilling 

President Bush's commitment to timber 

production goals of the Northwest Forest 

Plan by a creative settlement of the last 

remaining challenge to the Plan with a 

coalition of timber industry, local county 

and labor union plaintiffs from the Pacific 

Northwest. The settlement allows for the 

sale of an additional 300 million board 

feet of timber a year in thinning sales, 

provides for the testing of new and 

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experimental timber harvesting systems, 

and contemplates the re-examination of 

the legal bases for the creation of 

reserves on certain Bureau of Land 

Management lands in western Oregon. 

Defending Federal Resource 

Management Programs. The Division 

had several victories this year in 

defending federal resource management 

programs. For example, we defeated 

challenges that sought to halt or alter 

timber related activities, ranging from 

individual timber sales in Kentucky and 

Washington to broad programs 

integrating conservation measures into 

harvest planning such as the Indiana bat 

and Northern spotted owl conservation 

programs. Similarly, we continued to 

defend federal grazing programs, 

defeating injunction motions on numerous 

grazing allotments in the West. We also 

fended off attempts to halt planning for oil 

and gas development on Forest Service 

and Bureau of Land Management lands 

and on the Padre Island National 

Seashore. 

Endangered Species Act Commerce 

Clause Challenges. Recently, two courts 

of appeals have rejected claims that the 

Endangered Species Act's prohibitions on 

taking species would violate the 

Commerce Clause. In GDF Realty v. 

Norton, the Fifth Circuit upheld the 

application of the prohibitions to the 

plaintiffs' commercial development 

activities in central Texas because the 

development would take members of six 

endangered and listed invertebrate cave 

species. The court of appeals ruled that 

the cave species takes may be 

aggregated with all other ESA takes in 

determining effects on interstate 

commerce because the ESA is an 

economic regulatory scheme and the 

regulation of intrastate takes of the cave 

species is an essential part of it." And in 

Rancho Viejo, LLC v. Nortonthe D.C. 

Circuit held that the take provision of the 

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Endangered Species Act - as applied to a 

housing development project that would 

harm endangered arroyo toads - was a 

constitutional exercise of Congress's 

Commerce Clause power. The Court 

reasoned that the housing project 

involved an economic enterprise, that the 

relationship between the housing 

development and interstate commerce 

was substantial, and that the regulated 

entity and activity causing the take in this 

case were both commercial. 

Guarding the Public Fisc Against 

Claims Regarding Mineral Regulation.

In several "regulatory takings" cases we 

recently handled, the Division has saved 

the United States tens of millions of 

dollars. For instance, the holder of a lease 

to drill oil and gas wells beneath the 

Waste Isolation Pilot Plant in New Mexico 

claimed that it was entitled to 

compensation due to the delay in the 

government's issuance of a drilling 

permit. The United States contended that 

this delay was necessary to allow the 

Department of Energy and the EPA time 

to analyze the environmental impacts of 

drilling beneath the world's only 

permanent storage facility for low-grade 

nuclear waste. The court, in dismissing 

the lawsuit, determined that the length of 

the delay was not unreasonable 

considering the unique circumstances. In 

another "regulatory taking" matter, we 

successfully defended a lawsuit brought 

by the owner of a coal mining property in 

Kentucky who alleged that limitations on 

his ability to conduct surface mining 

resulted in a taking of his property even 

though a portion of the property had been 

designated as unsuitable for surface 

mining due to contamination concerns 

involving the sole source of drinking water 

for the City of Middlesboro, Kentucky. 

PROMOTING MILITARY 

PREPAREDNESS AND NATIONAL 

SECURITY

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Defending Military Training and 

Readiness Programs. Plaintiffs alleged 

in two challenges to a Navy low frequency 

sonar system designed to detect the new 

generation of quiet foreign submarines 

that the system would have an adverse 

impact on marine mammals. We obtained 

dismissal of one challenge seeking to 

enjoin wartime use of the system. In the 

other challenge, which only challenged 

peacetime use of the system, we 

obtained an agreement allowing the Navy 

to operate the system in the western 

Pacific Ocean with carve-outs for certain 

areas where plaintiffs believe that 

densities of marine mammals may be 

higher. This agreement will enable the 

Navy to test and train under a wide 

variety of strategic, geographical, and 

oceanic conditions.

In other litigation against the Navy, we 

worked with the United States Attorney's 

Office to win in Ground Zero Center for 

Non Violent Action v. United States 

Department of Navy. Plaintiffs had 

claimed that the Navy violated the 

Endangered Species Act and other 

statutes by not examining the full 

environmental effects, including 

accidental detonation, of maintaining 

Trident D-5 missiles at Submarine Base 

Bangor, which was upgrading its facilities 

to accommodate the missiles. The court 

held that the appropriate scope of effects 

had been considered, and that the 

government had complied with the ESA. 

And, in a long-running case against 

several Defense agencies that use the 

Barry Goldwater Air Force Base, 

Defenders of Wildife v. Norton, we have 

avoided any injunctions against the 

military and had significant success in 

limiting renewed challenges to the revised 

Endangered Species Act consultations.

Facilitating the Army's Chemical 

Weapons Demilitarization Program. We 

enjoyed several victories in defending 

multiple lawsuits regarding the Army's 

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destruction of a stockpile of thousands of 

tons of chemical weapons to comply with 

the Chemical Weapons Convention and 

to protect the public from significant public 

health and safety risks associated with 

continued storage of the hazardous 

chemical agents. In March, the Tenth 

Circuit approved the Army's authority to 

continue incinerating chemical weapons 

at the Tooele Chemical Agent Disposal 

Facility in Utah, and in July 2003, the 

Division obtained dismissal of the bulk of 

plaintiffs' claims regarding Anniston Army 

Depot in Alabama, thus avoiding jeopardy 

to the Army's ability to meet the 

congressionally-mandated April 2007 

deadline for destruction of all chemical 

weapons in the United States. The 

Division also significantly boosted the 

Department of Energy's initiative to close 

unusable and costly nuclear facilities by 

handing a resounding defeat to a local 

county's attempt to stop the deactivation 

of the Fast Flux Test Facility, a research 

nuclear reactor which had outlived its role 

in the Nation's nuclear program, and 

which was costing DOE millions each 

month to keep in "hot safe standby" 

status. 

Property Acquisitions to Improve 

Military Readiness and National 

Security. We provided guidance in the 

multi-million dollar valuation and 

acquisition of safety zones to facilitate 

munitions handling at the Navy's Blount 

Island Command in Jacksonville, Florida. 

The agreement reached successfully 

avoided the need for condemnation of the 

safety zones. Similarly, our advice and 

assistance enabled the General Services 

Administration ("GSA") to increase 

security measures at the Defense 

Intelligence Agency's offices in Arlington, 

Virginia, without condemnation. This is 

one of a series of GSA acquisitions in 

which we are facilitating the expansion of 

rights under existing leases to satisfy new 

security needs. We also acquired 

property located in Washington, D.C., to 

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provide additional security for the abutting 

United States Secret Service 

headquarters and assisted in securing the 

nation's borders by coordinating 

preparation and filing of a series of 

eminent domain actions in Vermont, 

Minnesota, North Dakota and Montana to 

permit rapid construction of new border 

inspection facilities needed by the 

Department of Homeland Security. 

We continued to satisfy agency requests 

for approval of land titles under 40 U.S.C. 

§ 3111. Acquisitions reviewed included 

an exchange of property interests valued 

at $7,400,000 to improve access security 

for the Nuclear Regulatory Commission in 

suburban Maryland and purchase of 

twenty acres in Glynn County, Georgia, 

for $2,850,000 on behalf of the 

Department of Homeland Security's 

Federal Law Enforcement Training 

Center. 

Guarding Against Claims From Military 

Activities. Over the past year we have 

successfully defended several lawsuits by 

individuals who allege that actions 

undertaken by the United States military 

have resulted in a taking of their property 

without just compensation in violation of 

the Fifth Amendment. In one, the owner 

of a factory located in the Sudan which 

was destroyed by the Navy sought $50 

million in compensation. The United 

States contends that the plant was used 

for the manufacture and storage of 

chemical weapons and that it had ties to 

Osama bin Laden. El-Shifa's claim was 

rejected by the Court of Federal Claims, 

which held that the constitutional right to 

just compensation does not extend to 

claims arising out of the destruction of a 

purported enemy war-making 

instrumentality through American military 

action. In another matter, the Division 

successfully defended an attempt to 

certify a class action alleging that the 

noise from an increase in military 

overflights at Naval Air Station Oceana 

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prevented the residential neighbors of the 

base from making use of their property. 

The proposed class consisted of 

approximately 30,000 individuals seeking 

$500 million in compensation. 

DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS 

Defense of Federal River Structures. In 

2002-2003, the government faced major 

challenges to federal flood control, 

irrigation, and hydroelectric facilities 

operation on river systems throughout the 

country. For instance, the Division's 

litigators once again defeated various 

efforts to enjoin or modify the operations 

of the Federal Columbia River Power 

System, a series of dams and reservoirs 

on the Columbia and Snake Rivers which 

provide approximately half of the power 

needs of the Pacific Northwest. Similarly, 

we defeated attempts to alter operations 

of the Colorado and Klamath River 

projects. On the Colorado, plaintiffs 

argued that the United States should 

divert water from its reservoirs to benefit 

species in Mexico even though that would 

cause flooding in impoverished areas of 

Mexico. On the Klamath, plaintiffs 

demanded that more water be left in the 

river and shifted away from agricultural 

uses despite the fact that a National 

Academy of Sciences study indicated that 

the river species did not need the 

additional water. Perhaps most notable, 

however, were the Division's efforts 

regarding the Missouri River. In that case, 

the District of Columbia district court 

issued an injunction requiring that water 

levels on the Missouri be kept low during 

the summer. However, a prior conflicting 

ruling by the District of Nebraska required 

that the levels be kept high to benefit 

navigation. The Division guided the Corps 

through this dilemma by convincing the 

Judicial Panel on Multidistrict Litigation to 

transfer all of the cases to a single judge 

in Minnesota, resolving the conflicting 

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injunctions, and allowing the Corps to 

move forward with its river operations.

Maintaining the Nation's Infrastructure. 

In several different pieces of litigation, the 

Division defeated efforts to halt the 

upgrading of several of the nation's 

airports and its operation of major dams. 

For example, it successfully opposed 

efforts to halt construction of runways at 

the Phoenix Sky Harbor International 

Airport in City of Tempe, Arizona v. FAA

and Seattle-Tacoma Airport in Airport 

Communities Coalition v. Corps of 

Engineers, and forestalled continued 

efforts to prevent expansion of the 

Hopkins Cleveland International Airport in 

City of Olmsted Falls v. United States. In 

National Wildlife Federation v. Corps of 

Engineers, the district court upheld the 

Corps' plans for operating four dams 

along the lower Snake River in 

Washington State, rejecting claims that 

the plan was the cause of downstream 

violations of water quality standards.

Promoting Alternative Energy Sources.

The Division successfully defended a 

River and Harbors Act permit in Alliance 

to Protect Nantucket Sound v. Corps, 

which will allow further study of a possible 

wind energy facility in the ocean waters of 

Nantucket Sound off the coast of 

Massachusetts. The permit authorizes a 

data collection tower, and may eventually 

lead to the construction of a renewable 

energy windmill farm comprised of 170 

wind turbine generators, which could 

provide up to one-third of the electrical 

needs of Cape Cod in a clean and 

environmentally sound manner.

Protecting Energy Policy and 

Infrastructure. The Division exercised 

the government's power of eminent 

domain to acquire transmission line 

easements over 526 acres of land in 

California and Washington at an 

estimated cost of over $2,800,000 on 

behalf of the Department of Energy's 

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Western Area Power Administration and 

Bonneville Power Administration. 

Bolstering the Nation's Energy and 

Water Infrastructure. The Nation's effort 

to maintain secure, dependable electrical 

power was significantly aided by the 

Division's defense of Presidential Permits 

allowing two large Mexican power plants 

to transport electricity into California. The 

Division's lawyers successfully persuaded 

the Court to allow continued operation of 

the power plants and transmission of the 

electricity to fulfill vital energy needs. 

Also, in Georgia, we successfully 

defeated attempts to block the 

construction of a new water supply 

reservoir that will supplement the local 

municipal water supply, which would 

otherwise be exhausted in 2004. Another 

successful effort to ensure adequate 

water resources came when we 

successfully defeated attempts in New 

Jersey to interfere with the Corps' 

operation of a large multi-use reservoir 

that serves a variety of important 

municipal and other public purposes. 

Defending the Clean Water Act's 

Dredge and Fill Permitting Program. 

On appeal to the Fourth Circuit, the 

Division successfully obtained a reversal 

of a district court ruling which held, 

contrary to 30-years of prior practice, that 

the Environmental Protection Agency, not 

the Army Corps of Engineers, was the 

appropriate agency to review permit 

applications for the discharge of excess 

surface coal mining spoil into waters of 

the United States. In another appeal to 

the Fourth Circuit, the court also upheld 

the Corps of Engineer's authority to 

review a proposed Section 404 Clean 

Water Act discharge of fill material under 

general, nationwide permit provisions, 

rather than under a more time-consuming 

individual permit process. 

Land Acquisition Advice and Training 

for Federal Agencies. In addition to 

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providing representation for federal 

agents in lawsuits, the Division also 

provides advice and training to various 

federal agencies when appropriate. For 

example, the Division's Appraisal Unit 

provided significant valuation guidance to 

federal agencies over the course of the 

year, including advising the Department 

of the Interior in an ongoing major 

reorganization of real estate appraisal 

functions within that Department. 

Members of the unit presented training at 

national and regional meetings and 

seminars held by federal land acquiring 

agencies, including the Bureau of Land 

Management, the Fish and Wildlife 

Service, and Forest Service.

Saving Taxpayers Millions in Eminent 

Domain Cases. The Division successfully 

defended the statutory interest rate 

provided by law for exercise of the 

government's power of eminent domain in 

40 U.S.C. § 3116 against a constitutional 

challenge. The result in this single case 

saved the government as much as 

$25,000,000 and established precedent 

for future litigation. Similarly, we saved 

the federal government approximately 

$2,000,000 when we prevailed in a case 

stemming from the purchase of land 

within an irrigation district for expansion of 

the Yuma (Arizona) Marine Corps Air 

Station. We successfully argued that a 

formula used by the Ninth Circuit Court of 

Appeals to calculate just compensation in 

previous litigation involving other land in 

the same irrigation district should no 

longer apply. The new formula is also 

expected to apply to ongoing land 

acquisitions for Yuma Air Station.

PROTECTING INDIAN RESOURCES 

AND RESOLVING INDIAN ISSUES

Defending Tribal and Federal Interests 

in Water Adjudications. We had several 

notable successes in water rights 

adjudications. These adjudications are 

complex, primarily defensive cases, often 

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involving the water rights of thousands of 

parties, and we devote significant 

resources to crafting settlements that 

balance and recognize the interests of all 

parties, as opposed to litigating these 

cases in a winner-takes-all manner.For 

example, this year the Court approved the 

Warm Springs Water Rights Agreement, 

which concluded a 15-year adjudication 

with a cooperative conclusion. Not all 

water adjudications, however, are 

amenable to settlement, in which case we 

are prepared to litigate. We had several 

significant victories in such litigation, 

including Lummi Indian Nation v. 

Washington, where the Court adopted the 

United States' argument that reserved 

Indian water rights include a right to use 

groundwater and that the purposes for 

which Tribes may exercise their water 

rights include the right to support 

necessary domestic purposes. Since the 

decision, we successfully have 

encouraged discussions between the 

State and the Tribe to mediate the 

resolution of this adjudication. In the

Bitterroot River Basin adjudication in 

Montana, the Court adopted the United 

States' position that the Tribe had not 

abandoned its water rights. 

Protecting Tribal Rights to Hunting 

and Fishing. In United States v. 

Washington, the Court approved the 

Shellfish Implementation Plan negotiated 

among the parties, which resolved 

outstanding litigation issues regarding 

regulation of the shellfish habitat. In the 

culverts sub-proceeding of United States 

v. Washington, where the United States is 

seeking relief to aid the passage of 

endangered salmon through state 

culverts, the Court granted the United 

States' motion to dismiss the State's 

assertion of cross-claims on the grounds 

the United States had not waived its 

sovereign immunity. 

Defending the United States' Ability to 

Take Title to Indian Land. The Division 

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has had seven successes in a row in 

defending the Secretary of the Interior's 

decisions to accept title to Indian land and 

hold such land in trust status. These 

cases seek to vacate not only agency 

action, but to declare important federal 

statutes and programs unconstitutional. 

Notable successes this year included 

Calcieri v. Norton, in which the court 

rejected a plethora of constitutional and 

regulatory challenges to the Interior 

Department's power to take lands into 

trust that the Narragansett Tribe seeks to 

use for elderly and low income housing, 

and Santee Sioux v. Norton, in which we 

defeated a preliminary injunction seeking 

to bar Interior from taking land to be used 

for economic development into trust on 

behalf of the Ponca Tribe.

Defending the United States' Authority 

to Implement Indian Policies. The 

Division had several successes in the 

past year defending federal agencies' 

actions. For example, in Connecticut v. 

Department of Interior, the court 

dismissed Connecticut and two towns' 

challenge to the Secretary of the Interior's 

preliminary decisions on petitions for 

federal recognition by two groups of 

Indians and the regulatory procedures in 

place for processing recognition petitions. 

In South Dakota v. Department of 

Transportation, the court dismissed South 

Dakota challenge to a federal policy 

providing for the reimbursement of taxes 

collected by Indian tribes for 

transportation projects on reservations. In 

Association of Property Owners v. 

Individual Council Members of the 

Suquamish Tribal Council, we 

successfully defended before the Ninth 

Circuit a HUD program to provide lowincome housing for Native Americans 

pursuant to the Native American Housing 

Assistance Act. And in Oregon v. Norton, 

we obtained dismissal of a challenge that 

challenged the Secretary's authority to 

make decisions regarding whether trust 

lands could be considered part of a 

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Tribe's restored reservation after 

recognition. Following the grant of our 

motion to dismiss, the Governor 

announced the State would not appeal.

Promoting Negotiated Resolutions of 

Indian Disputes. The Division continues 

to promote the resolution of controversial 

legal disputes involving Indian land and 

rights through alternative dispute 

resolution ("ADR"). The goal is to resolve 

litigation efficiently and favorably, but also 

to establish cooperation between tribes, 

states, and local governments, which will 

benefit all parties in their future 

interactions. To that end, we served as 

the mediator in Nevada v. United States, 

where the State of Nevada challenged a 

trust acquisition on behalf of the Fallon 

Paiute Shoshone Tribe in Fallon, Nevada. 

We helped negotiate a resolution that 

enabled the State to dismiss its appeal of 

this challenge, while at the same time 

creating an agreement between the State 

and the Tribe for handling similar issues 

in the future. We believe this is the first 

negotiated resolution of a trust land 

challenge between a tribe, a State, and 

the United States, and will create a 

precedent for resolving similar disputes in 

the future.

Other examples of beneficial uses of ADR 

in the Indian context include the Gila 

River Water Adjudication, in which we 

worked with the parties to craft a 

legislative settlement of that adjudication, 

and the Snake River Basin Adjudication,

in which the parties agreed to a term 

sheet that will form the basis for the 

settlement of this complex water 

adjudication that has been the subject of 

six years of negotiations. To further our 

ADR initiative, Division managers 

addressed attendees at the Conference 

of Western Attorney Generals and at an 

American Bar Association conference on 

ADR to promote the use of ADR in 

resolving Indian disputes.

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Defending and Enforcing Indian 

Gaming Laws. The Division, working with 

United States Attorneys, enjoyed 

significant success in defending and 

enforcing Indian gaming laws. In a case 

of first impression, the Tenth Circuit 

upheld the authority of the Chairman of 

the National Indian Gaming Commission 

unilaterally to issue a temporary closure 

order under the Indian Gaming 

Regulatory Act ("IGRA") to close a 

gaming facility that was conducting 

uncompacted Class III gaming, that is, 

casino-style gambling. Also, in the Eighth 

Circuit, two factions of the Sac and Fox 

Tribe, the elected tribal officials and a 

dissident group, challenged the 

Chairman's temporary closure order 

shutting down the Tribe's Meskwaki 

Casino after the dissident group took over 

control of the Casino from the elected 

council. The court of appeals ruled that 

IGRA implicitly forbids review of 

temporary closure orders and requires 

that a party first take an administrative 

appeal to the full Commission. These 

rulings affirm the Chairman's authority to 

act quickly to halt unlawful gaming 

practices.

We also had several successes in the 

district courts. For example, in California, 

the Division prevailed in a suit brought by 

non-Indian casino interests from Nevada, 

who sought to have Indian gaming in 

California declared unconstitutional as a 

violation of the Equal Protection Clause. 

In Wisconsin, in a suit filed by a Tribe, we 

successfully defeated a challenge under 

the Tenth Amendment and other 

Constitutional provisions, to the Indian 

Gaming Regulatory Act's prohibition 

against taking of land into trust for a Tribe 

absent the concurrence of the State 

where the land is located. In Iowa, the 

Division won a court order shutting down 

an illegal Indian gaming casino that was 

generating more than $3 million in illegal 

revenues every month.

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Resolving Indian Land and Mineral 

Claims. In a significant victory for the 

Division, the Supreme Court issued a 

landmark decision for the government in a 

case in which the Navajo Nation sued the 

United States, seeking $600 million for an 

alleged breach of trust after the Secretary 

of the Interior approved amendments, 

previously agreed to by the Nation, which 

increased the royalties a private coal 

company would pay for mining tribal coal 

resources. The Supreme Court ruled that 

the Navajo Nation could not sue the 

United States for money damages 

because the Secretary has no 

responsibility to manage Indian coal 

resources on behalf of Tribes or to ensure 

that a Tribe seeking approval of a lease 

obtains the highest possible return. In so 

ruling, the Court recognized that 

important Congressional goals of 

furthering Tribal self-determination would 

be defeated if the United States were 

held accountable for decisions that are 

the primary responsibility of Tribes.

In another matter, the Division devoted 

significant effort in the past several years 

to resolving an ongoing land dispute 

between three tribes, the United States, 

and private landowners involving the 

Arkansas River in Oklahoma. In 1980, the 

Supreme Court held that title to a 96-mile 

stretch of the Arkansas Riverbed 

belonged to the Cherokee, Choctaw, and 

Chickasaw tribes of Oklahoma. The river 

changed course and much of the riverbed 

became dry land occupied by private 

landowners. The Tribes brought a breach 

of trust action against the United States in 

Cherokee Nation v. United States and 

sought to file quiet title actions against the 

private landowners as well. We played a 

significant role in drafting settlement 

legislation resolving the Tribes' claims 

against the United States and 

compensating them while at the same 

time affirming and ratifying title in the 

private landowners occupying the dry 

riverbed lands. Congress enacted the 

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Cherokee, Choctaw, and Chickasaw Land 

Claim Settlement Act at the close of the 

107 Congress. 

Also, in Mohawk Indian Nation v. New 

York, the State of New York asserted 

counterclaims against the United States 

in a land claim, seeking contribution from 

the United States for a share of the 

State's liability arising out of the State's 

invalid purchases of Indian lands. The 

court granted the United States' motion to 

dismiss these counterclaims, and denied 

the State's motion for reconsideration, 

which will provide valuable precedent for 

other such claims. In Sands v. United 

States, the court granted the United 

States' motion to dismiss a claim seeking 

$500,000 for alleged depredation in 

hunting and fishing rights on a new 

Mexico Indian reservation.

SUPPORTING THE DIVISION'S 

LITIGATORS

Litigation Support. The Division's Office 

of Litigation Support provided superb 

support to some of the Division's largest 

and most demanding cases. The unit 

worked diligently to manage scarce 

funding for the Power Plants family of 

cases, which have proven to be extremely 

resource-intensive. We were particularly 

pleased to break new ground in our work 

by electronically imaging all case 

documents in the recent Power Plants 

Ohio Edison trial from initial acquisition 

through the conduct of an electronic trial. 

The unit also provided support to 23 

Tribal Trust cases, in which gathering and 

managing a century of relevant 

documents present numerous logistical 

and technical challenges. The Division 

developed document exchange protocols 

and technical specifications for use with 

the Interior Department which greatly 

assisted the development of those cases.

Technology Upgrades. The Division 

provided its litigators with the latest and 

best technological tools available. This 

th

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year we upgraded all desktop computer 

systems, at all nationwide offices, on 

schedule, under budget, and with virtually 

no disruption to the staff. The upgrade 

provided critical new hardware, the latest 

releases of Corel and Microsoft software, 

and a new group of legal applications to 

improve productivity. The desktop system 

also includes new tools for "e-filing," a 

Division Intranet, and improved security. 

To prepare for the age of electronic 

litigation, we installed state-of-the-art 

digital copiers throughout the Division, 

and added large central networked 

copiers, with the capability to scan 

documents and create electronic 

documents that will be needed for e-filing 

purposes.

Remote Access. The Division improved 

its remote access options for litigators 

who frequently travel and need alternative 

access to electronic communications. We 

enabled a secure network solution for 

Blackberry handheld devices and 

installed a remote-access system 

compatible with high-speed broadband 

access for users to gain full network 

access through cable or DSL lines from 

home or hotel.

Training. We coordinated the 

development of several training programs 

and seminars at the Office of Legal 

Education's National Advocacy Center , 

including a new management training 

course for legal division attorneysupervisors and managers, developed in 

cooperation with several other 

Department training coordinators.

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Last Updated: 12/16/2009 

Updated April 13, 2015

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