January 17, 2013

ENRD

ACCOMPLISHMENTS REPORT

Fiscal Year 2012

UNITED STATES DEPARTMENT OF JUSTICE

ENVIRONMENT & NATURAL RESOURCES DIVISION

1
 
                                            

       

                            

                                

  


 


 

SUMMARY OF

DIVISION

ACCOMPLISHMENTS

FISCAL YEAR 2012
 

2
 
                       

                    

               

                                  

   

   

                  

                

                

   

                  

              

             

               

  

                  

  


 


 


 


 


 


 

 
 


 


 


 


 


 


 


 


 


 


 

CONTENTS
 

FOREWORD 4
 

OVERVIEW OF THIS REPORT

ENVIRONMENTAL JUSTICE
 

14
 

PRESENTING THE ENVIRONMENT AND NATURAL RESOURCES DIVISION 15
 

REPORTING OUR PROGRESS TOWARD ACHIEVING THE GOAL OF 19
 

PROTECTING OUR NATION’S AIR, LAND, AND WATER 26
 

NATURAL RESOURCES
 

CLAIMS
 

ENSURING CLEANUP OF OIL AND SUPERFUND WASTE 34
 

PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA’S WILDLIFE AND 39
 

ENFORCING THE NATION’S CRIMINAL POLLUTION AND WILDLIFE LAWS 46
 

DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS 52
 

PROMOTING NATIONAL SECURITY AND MILITARY PREPAREDNESS 66
 

PROTECTING TRIBAL RIGHTS AND RESOURCES AND ADDRESSING TRIBAL 73
 

SUPPORTING THE DIVISION’S STAFF 82
 

3
 
                              

                             

                           

                             

                              

                                    

                         

                            

                                      

                           

                                  

                                 

                           

                             

                           

                                  

                               

                                     

                              

                                 

                                

                 

             

                                  

                                

                              

                           

                              

                             

                       

                                

                           

                            

                             

                                  

 

 

 

 

 

 


 

FOREWORD

I am delighted to present the ENRD Accomplishments Report for Fiscal Year 2012. Every day, in

partnership with our client agencies, the U.S. Attorneys’ Offices, and our state, tribal, and local

counterparts, the Environment and Natural Resources Division (ENRD or the Division) works to bring

significant public health and other direct benefits to the American people through the reduction of

pollution across the nation and the protection of important natural resources and wildlife. We defend

client agency actions and rules when they are challenged in the courts. ENRD also handles a broad array

of matters relating to our government‐to‐government relationship with and trust obligations to Native

American tribes. As reflected in this report, the Division continued its distinguished record of legal

excellence in fiscal year 2012. At the same time, ENRD continued to win recognition as one of the “Best

Places to Work in the Federal Government” by the Partnership for Public Service.

Advancing the Division’s Core Mission and Achieving Environmental Justice for the Benefit of All

Americans

In managing its extensive, complex and diverse caseload, ENRD is guided by its core mission: (1) strong

enforcement of civil and criminal environmental laws to ensure clean air, clean water, and clean land for

all Americans; (2) vigorous defense of environmental, wildlife and natural resources laws and agency

actions; (3) effective representation of the United States in matters concerning the stewardship of our

public lands and natural resources; (4) vigilant protection of tribal sovereignty, tribal lands and

resources, and tribal treaty rights; and (5) protection of the public fisc. The remainder of this report

describes the myriad ways in which the Division advanced its core mission over the past year.

In addition to advancing its core mission, a central priority of the Division is to ensure that all Americans

enjoy the benefits of a fair and even‐handed application of environmental and natural resources law. I

am very proud to say that ENRD has taken a leadership role in advancing the goals of environmental

justice. Our progress in making environmental justice a real and meaningful part of the Division’s work

is described in a separate chapter of the report.

Record‐Setting Enforcement Results

ENRD’s environmental enforcement efforts—both civil and criminal—have achieved dramatic reductions

in emissions and discharges of harmful pollutants to America’s air, water and land. Over the past four

years, the Division has achieved record recoveries. Since 2009, we have obtained more than $28 billion

in corrective measures through court orders and settlements. We also secured almost $2.375 billion in

civil and stipulated penalties, cost recoveries, natural resource damages, and other civil monetary relief,

including more than $1.43 billion recovered for the Superfund. During that time period, we concluded

170 criminal cases against 319 defendants, and obtained 155 years in confinement and almost $256

million in criminal fines, restitution, community service funds and special assessments.

The results obtained from ENRD’s civil and criminal cases in fiscal year 2012 alone were outstanding.

We secured over $397 million in civil and stipulated penalties, cost recoveries, natural resource

damages, and other civil monetary relief, including almost $133 million recovered for the Superfund.

We obtained over $6.9 billion in corrective measures through court orders and settlements, which will

go a long way toward protecting our air, water and other natural resources. We concluded 47 criminal

4
 
                               

             

                             

                                  

                                   

                                    

                                

                                   

                                 

                                

        

                                 

                                  

                                 

                               

                     

                            

                             

                          

                             

                                 

                                

                        

                                      

                           

             

                                  

                            

                                 

                            

                                       

                                 

                                      

                               

                                  

                       

                                   

                               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

cases against 83 defendants, obtaining nearly 21 years in confinement and over $38 million in criminal

fines, restitution, community service funds and special assessments.

Holding Those Responsible for the Deepwater Horizon Oil Spill Accountable

The Division’s number‐one civil and criminal enforcement priority is to bring to justice those responsible

for the Deepwater Horizon oil spill. On April 20, 2010, an explosion and fire destroyed the Deepwater

Horizon offshore drilling rig in the Gulf of Mexico and triggered a massive oil spill amounting to millions

of barrels of discharged oil that took 87 days to contain. Eleven people aboard the rig tragically lost

their lives; many other men and women were injured. In December 2010, as part of multidistrict

litigation in the U.S. District Court for the Eastern District of Louisiana, the United States brought a civil

suit against BP, Anadarko, MOEX and Transocean for civil penalties under the Clean Water Act and a

declaration of liability under the Oil Pollution Act. Critical steps forward in this civil litigation occurred

over the past year.

On February 17, 2012, the Department announced an agreement with MOEX to settle its liability in the

Deepwater Horizon oil spill. MOEX paid $70 million in civil penalties to resolve alleged violations of the

Clean Water Act—the largest civil penalty paid to date under the Clean Water Act—and will spend at

least $20 million to facilitate land acquisition projects in several Gulf States that will preserve and

protect in perpetuity habitat and resources important to water quality.

The Department also took criminal action against BP. The Deepwater Horizon Task Force, which

includes ENRD, conducted the criminal investigation leading to the action, under the leadership of the

Department’s Criminal Division. On November 14, 2012, the Department filed a 14‐count criminal

information charging BP with 11 counts of felony manslaughter, one count of felony obstruction of

Congress, and violations of the Clean Water Act and Migratory Bird Treaty Act in connection with the

spill. BP agreed to plead guilty to all 14 criminal charges—admitting responsibility for the deaths of 11

people and the events that led to this unprecedented environmental catastrophe. The company also

agreed to pay $4 billion in fines and penalties. Under the terms of the agreement with BP, about $2.4

billion of the criminal recovery funds will be dedicated to environmental restoration, preservation and

conservation efforts throughout this region—including barrier‐island creation and river‐diversion

projects in Louisiana. An additional $350 million will aid in the development of state‐of‐the art oil spill

prevention and response technologies, education, research and training. And more than $1 billion will

go to the U.S. Coast Guard’s Oil Spill Liability Trust Fund, to be available for cleanup and compensation

for those affected by oil spills in the Gulf and throughout the United States.

Transocean also has agreed to plead guilty to violating the Clean Water Act and to pay a total of $1.4

billion in civil and criminal fines and penalties, for its conduct in the Deepwater Horizon explosion, fire

and oil spill. Pursuant to the terms of a proposed partial civil consent decree lodged on January 3, 2013,

the Transocean defendants agreed to pay $1 billion to resolve federal Clean Water Act civil penalty

claims, a record amount that significantly exceeds the $70 million civil penalty paid by MOEX. Under the

Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf

Coast States Act of 2012 (RESTORE Act), approximately 80% of the penalty will be used to fund projects

in and for the Gulf States for the environmental and economic benefit of the region.

5
 
                                   

                      

                         

                                  

                           

                                

                             

                           

                             

                           

                                

                               

                             

                                  

             

                         

                                 

                                

                         

                                    

                                 

                           

                                

                               

                               

                         

                                

                           

                           

                         

                                       

                                

       

                           

                          

                           

                                

                           

                          

 

 

 

 

 

 

 

 

 

 

 


 

Landmark Decisions Reducing Greenhouse Gases

More than half of ENRD attorney time is spent on the important work of defending lawsuits against the

federal government. This work preserves vital federal programs and interests, allowing the

implementation of environmental and natural resources laws and regulations, and protection of the

public fisc. In a landmark example of this work in the past year, the Division, with agency counsel,

successfully defended rulemakings under the Clean Air Act that reduce the emission of greenhouse

gases that contribute to global warming. Through a series of regulations, EPA (1) found that emissions

of greenhouse gases from motor vehicles may reasonably be expected to endanger public health and

welfare (known as the “endangerment finding”); (2) set standards for greenhouse gas emissions from

motor vehicles; (3) specified how, and to what extent, regulation of greenhouse gas emissions from

motor vehicles would trigger stationary source Clean Air Act permit requirements; and (4) established

the measures that states and EPA must take to effectuate such stationary source requirements. In June

2012, in one of the most significant environmental regulatory decisions of the past decade, a unanimous

panel of the D.C. Circuit in Coalition for Responsible Regulation v. EPA upheld EPA’s greenhouse gas‐

related regulatory actions against all challenges. This victory was due in no small part to the outstanding

briefing and argument by the Division’s attorneys.

Safeguarding the Nation’s Air

The Division's petroleum refinery enforcement initiative has produced settlements or other court orders

that have addressed more than 90% of the nation's refining capacity, and will reduce air pollutants by

more than 360,000 tons per year. Among the reduced air pollutants are nitrogen oxide, sulfur dioxide,

and volatile organic compounds, which cause respiratory problems and are significant contributors to

acid rain, smog and haze. Under the settlement achieved in fiscal year 2012 in United States v. BP

Products North America, Inc., for example, BP will pay an $8 million penalty, invest more than $400

million to install state‐of‐the‐art pollution controls at its petroleum refinery in Whiting, Indiana, and

spend an additional $9.5 million on projects to reduce the emission of greenhouse gases. The United

States was joined in this settlement by the State of Indiana as well as by several environmental

organizations and citizens who had asserted claims against BP, including Save the Dunes, the Sierra Club,

the Hoosier Environmental Council, the Natural Resources Defense Council, the Environmental Law and

Policy Center, and the Environmental Integrity Project. As a result of the direct participation of the

environmental groups and citizens in the settlement negotiations and input provided by the local

community, BP agreed to the reduction in greenhouse gas emissions and to perform a Supplemental

Environmental Project to install, maintain and operate a $2 million fence‐line emission monitoring

system at the refinery and to make the data available to the public on a public website on a weekly

basis. This will ensure that residents have access to critical information about pollution that may be

affecting their community.

Protecting America’s Waters

ENRD also has brought cases across the country to improve municipal wastewater and stormwater

collection and treatment. From January 2009 through December 2012, courts have entered 42

settlements in these cases, requiring long‐term control measures and other relief estimated to cost

violators more than $20.1 billion. These cases involve one of the most pressing infrastructure issues, the

discharge of untreated sewage from aging collection systems found in older urban areas, where low‐

income and minority communities often live. Eleven such consent decrees with municipalities or

6
 
                              

                                   

                       

  

                               

                      

                                   

                               

                             

                                    

                                 

                              

                           

                                       

                             

         

                             

                                

                              

                             

                                

                           

                          

                                 

                                  

                               

                               

                      

                            

                                 

                              

                                 

                                          

                                 

                             

     

  

                           

                                 

                             

                    

                                     

                                    

 

 

 

 

 

 

 

 

 

 


 

regional sewer districts were entered in fiscal year 2012. Collectively, these consent decrees provide for

the expenditure of more than $6.3 billion in improvements, the payment of more than $4 million in civil

penalties, and the performance of Supplemental Environmental Projects valued at more than $2.4

million.

One illustration is the case of United States v. Metropolitan St. Louis Sewer Dist. (MSD), the

environmental enforcement settlement requiring the largest injunctive relief in the nation’s history.

Under the terms of a consent decree resolving claims of violations of the Clean Water Act, MSD agreed

to make extensive improvements to its sewer systems and treatment plants, at an estimated cost of

$4.7 billion over 23 years, to eliminate overflows of untreated raw sewage, including basement backups,

and to reduce pollution levels in urban rivers and streams. The injunctive relief, which is historic in its

scope and importance to the people of St. Louis, also will significantly advance the use of large‐scale

green infrastructure projects to control wet weather overflows. MSD must invest at least $100 million in

an innovative green infrastructure program, for the benefit of environmental justice communities in St.

Louis. The city also paid a $1.2 million civil penalty to the United States. We worked closely with staff

from the U.S. Attorney’s Office for the Eastern District of Missouri, who provided invaluable assistance

in achieving this historic settlement.

Another case that demonstrates the Division’s strong commitment to enforcing the Clean Water Act to

ensure the protection of human health and the environment is United States v. Freedman Farms, Inc.

Freedman Farms is a 4,800‐head hog farm in Columbus County, North Carolina. It is a “Concentrated

Animal Feeding Operation” (CAFO), which is a large livestock or poultry animal feeding operation that

meets the regulatory thresholds for Clean Water Act regulation due to the number of animals involved.

These operations generate significant volumes of animal waste which, if improperly managed, can result

in significant environmental and human health risks. Investigators determined that more than 332,000

gallons of hog waste had been discharged over a five‐day period from the CAFO into Browder's Branch,

a stream that leads to the Waccamaw River. Freedman Farms was sentenced to five years of probation

and ordered to pay $1.5 million in fines, restitution and community service payments for violating the

Clean Water Act, making false statements and obstructing justice, in discharging the hog waste and lying

about its cleanup. The company also is required to implement a comprehensive environmental

compliance program and institute an annual training program. William B. Freedman, the president of

Freedman Farms, was sentenced to six months in prison to be followed by six months of home

confinement. We prosecuted this important case jointly with the U.S. Attorney’s Office for the Eastern

District of North Carolina, and with the strong investigative support of the State of North Carolina, EPA

and the U.S. Army Corps of Engineers. The nearly $1 million in restitution, to be made in a series of five

payments to the North Carolina Coastal Land Trust, will be used to acquire and conserve land along

streams in the Waccamaw watershed, which includes some of the most extensive cypress gum swamps

in the state.

Ensuring the Proper Use of Pesticides

The Scotts Miracle‐Gro Company, a producer of pesticides for commercial and consumer lawn and

garden uses, pleaded guilty in February 2012 to illegally applying two insecticides that are toxic to birds

(Actellic 5E and Storicide II) to its wild bird food products, falsifying pesticide registration documents,

distributing pesticides with misleading and unapproved labels, and distributing unregistered pesticides.

The case was jointly investigated by EPA and the State of Ohio and jointly prosecuted by ENRD, EPA and

the U.S. Attorney’s Office for the Southern District of Ohio. The company was sentenced to pay a $4

7
 
                           

                           

                        

                             

                                  

                                 

                                

                             

                        

                              

                        

                             

                                  

                       

                            

                             

                                      

                                 

                           

                     

                          

                         

                              

                             

                                

                   

                      

                             

                              

                     

                                   

                              

                                

                           

                        

                                 

                                

                   

 

 

 

 

 

 

 

 

 

 


 

million fine and contribute $500,000 to organizations that protect bird habitat for committing 11

criminal violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which governs the

manufacture, distribution and sale of pesticides. Sheila Kendrick, Scotts’ federal registration manager,

also pleaded guilty to FIFRA and false‐statement violations and was sentenced to 90 days of

incarceration. Because Scotts is the largest marketer in the world of residential use pesticides, it bears a

special obligation to comply with the laws governing the sale and use of its products and was

appropriately sentenced to pay the largest criminal penalty in the history of FIFRA enforcement to date.

Preserving Public Lands

The U.S. Forest Service manages about 58 million acres of inventoried roadless areas within the

country’s national forests. Inventoried roadless areas offer outstanding opportunities for recreation and

provide habitat for numerous fish, plant and wildlife species. The Forest Service’s 2001 Roadless Rule

prohibits road‐building and commodity‐purpose timber harvests in these areas. In October 2011, the

Tenth Circuit reversed a Wyoming district court judgment that had set aside and permanently enjoined

the 2001 Roadless Rule. The court rejected all challenges raised by the State of Wyoming under the

Wilderness Act, the National Forest Management Act, the Multiple‐Use Sustained‐Yield Act, and the

National Environmental Policy Act. After the Tenth Circuit decision, the Division worked closely with the

Department’s Office of the Solicitor General in successfully opposing the State of Wyoming’s petition in

the U.S. Supreme Court for a writ of certiorari to review the Tenth Circuit’s decision. After a decade of

protracted litigation, this victory now allows the Forest Service to apply the 2001 Roadless Rule in all

states but Idaho and Colorado, which have state‐specific rules developed collaboratively by the agency,

the states, and broad coalitions of environmental and industry interests.

Defending the Country’s Energy Agenda

This Administration is working to safely and responsibly develop additional sources of domestic energy.

The country’s energy development policy includes responsible development of fossil fuel and renewable

energy. The Division is actively defending challenges to permits and rights‐of‐way issued by the Bureau

of Land Management of the Department of the Interior to promote the development of renewable

energy projects on western public lands. ENRD is defending more than 20 cases involving solar, wind

and transmission projects located in California, Oregon, Tennessee, Delaware, Massachusetts and

Vermont. We successfully defeated motions for temporary restraining orders and preliminary

injunctions for the North Sky River Wind Project, Ocotillo Wind Energy Project, and Sunrise Powerlink

Project in California. We also defeated requests for injunctive relief in two cases challenging smaller

pilot projects for solar and wind energy in Tennessee and Delaware.

One example of this work is the Division’s successful efforts in the Ninth Circuit to oppose a preliminary

injunction against the Ivanpah Solar Energy Generating System (ISEGS). The ISEGS is the largest solar

project under construction in the world. When completed next year, the $2.2 billion system will use

more than 170,000 computer‐controlled mirrors to aim 1,000‐degree rays at boilers mounted on three

459‐foot towers, turning water into enough steam‐generated electricity to power 140,000 homes. Our

defense of the project in Western Watersheds Project v. BLM resulted in the first appellate decision to

address new solar projects sited on federal land. The Ninth Circuit concluded that the district court

correctly analyzed the balance of public interests favoring the project.

8
 
                               

                        

                           

                             

                                      

                       

                             

                               

                            

                           

             

                             

                           

                                    

                              

                                     

                           

                              

                              

                             

                                 

               

                         

                                     

                                    

                       

                           

                           

                           

                                

                         

                                 

                            

                               

   

                             

                                 

                          

                             

                     

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

The Division’s work in response to the Deepwater Horizon oil spill was not limited to the Department’s

civil and criminal enforcement actions. We defended cases challenging aspects of the federal

government’s response to contain the oil spill following the explosion, regulatory actions to prevent

future recurrence of oil spills, and approval of responsible exploration and production plans and lease

sales in the Gulf of Mexico and Alaskan waters. In 2012, the Fifth and Eleventh Circuit Courts of Appeals

issued important opinions in Deepwater Horizon defensive cases handled by ENRD.

‐‐In May 2012, the Fifth Circuit dismissed 12 petitions for review for failure to exhaust

administrative remedies and four others as moot in Gulf Restoration Network v. Salazar and Center for

Biological Diversity v. Salazar. These petitions challenged the Department of the Interior’s approval of

lessee‐proposed exploration and development plans in the days shortly before and after the Deepwater

Horizon explosion, fire and oil spill.

‐‐In November 2012, the Fifth Circuit also issued a decision in Hornbeck Offshore Services v.

Salazar reversing the district court’s contempt finding against Secretary Salazar for deciding to suspend

deepwater drilling in the Gulf of Mexico in the aftermath of the Deepwater Horizon oil spill. The district

court had granted plaintiffs’ motion for a preliminary injunction on June 22, 2010. The Secretary

ordered a new suspension of deepwater drilling in the Gulf on July 12, 2010 and, after finding that the

concerns underlying the suspensions had been addressed, ordered the suspension lifted on October 12,

2010. The district court found that the second suspension decision rendered the Secretary in contempt

of its preliminary injunction order. In reversing the contempt finding, the Fifth Circuit concluded that

the district court abused its discretion in invoking its contempt power because the Secretary’s actions

and statements leading up to the issuance of the July 2010 drilling suspension did not clearly and

convincingly violate the court’s June 2010 order.

‐‐In June 2012, the Eleventh Circuit denied consolidated petitions for review of Interior’s

approval of an exploration plan covering the drilling of up to 10 exploratory wells in a deepwater area of

the Gulf of Mexico in Defenders of Wildlife v. Bureau of Ocean Energy Mgmt. The court rejected several

challenges to the environmental assessment developed for the action under the National Environmental

Policy Act, emphasizing that a reviewing court must be “extremely deferential ‘when an agency’s

decision rests on the evaluation of complex scientific data within the agency’s technical expertise.’”

Promoting National Security and Military Preparedness

Increasingly, the Division is responsible for defending agency actions that support the national security

of the United States. For example, in fiscal year 2012, we defended against challenges to critical

Department of Defense training programs that ensure military preparedness, various agency projects to

secure the nation’s borders and waters, and U.S. development of all forms of domestic energy to reduce

our dependence on foreign oil. We also exercised the federal government’s power of eminent domain

to acquire lands or review title to lands needed to fulfill critical military and homeland security

functions.

One important illustration is the Division’s successful handling of a challenge to the Navy’s proposed

new $100 million Undersea Warfare Training Range (USWTR), which is to be located 75 miles off the

Atlantic coast of Florida. The USWTR facility will enhance and improve the Navy’s anti‐submarine

warfare training activities essential to the Navy’s ability to detect and defeat submarines operating in

littoral (shallow water) environments where environmental conditions coupled with new noise

9
 
                          

                                     

                               

                                

                           

                                

                                   

   

                                  

                             

                                 

                             

                          

                               

                         

                                 

                             

                                

                             

                                  

                                  

                           

                               

                                  

                                 

                                  

                           

                         

                       

   

                                

                             

                             

                             

                               

                        

                                 

                                      

       

                                     

                      

 

 

 

 

 

 

 

 


 

reduction technologies make detection increasingly difficult. The USWTR will be the only training range

of its kind on the East Coast, designed to provide ships, submarines and aircraft in the Atlantic Fleet with

a realistic and challenging littoral training environment that mirrors the areas in which the Navy finds

itself increasingly operating. In Defenders of Wildlife v. U.S. Dep’t of the Navy, plaintiffs alleged that the

Navy’s decision to construct the USWTR violated the National Environmental Policy Act and the

Endangered Species Act. After extensive briefing and oral argument, the district court ruled in favor of

the United States on all claims, allowing the Navy to begin implementing the next steps of this vital

project.

Protecting Tribal Rights and Resources and Addressing Tribal Claims

The United States holds almost 60 million acres of land in trust for tribes and individual members. Last

year, ENRD handled a broad range of matters affecting Indian tribes and their members, including

litigation on behalf of federal agencies to protect tribal resources and rights; policy and litigation work to

ensure that tribes receive the protections of the natural resources and environmental laws; and the

respectful and responsible defense of lawsuits brought by tribes against the federal government. I

would like to highlight two significant ENRD activities this past year—the issuance of the Eagle Feathers

Policy and the resolution of a large number of tribal trust lawsuits.

Federal wildlife laws such as the Bald and Golden Eagle Protection Act generally criminalize the killing of

eagles and other migratory birds and the possession or commercialization of the feathers and other

parts of such birds. These important laws are enforced by the Department of Justice and the

Department of the Interior and help ensure that eagle and other migratory bird populations remain

healthy and sustainable. At the same time, eagles and other federally protected birds play a unique and

important role in the religious and cultural life of many Indian tribes. On October 12, 2012, Attorney

General Holder issued a new Department policy addressing the ability of members of federally

recognized Indian tribes to use the feathers and other parts of eagles and other federally protected

birds, an issue of great cultural and religious significance to many tribes and their members. ENRD led

the initiative to develop the policy, working closely with the U.S. Attorneys’ Offices, the U.S. Fish and

Wildlife Service, and the Bureau of Indian Affairs and Solicitor’s Office of the Department of the Interior.

The policy was developed after an extensive series of consultations with tribal leaders and

organizations, involving an initial request for tribal input followed by a series of teleconference

consultation sessions and in‐person consultation sessions and meetings with tribal representatives in

Indian Country.

The Division also has settled a number of tribal trust lawsuits over the past several years. Numerous

federally recognized tribes and certain Indian groups have brought suit against the United States since

2002 alleging that the Departments of the Interior and Treasury violated the federal government’s trust

duties and responsibilities to the tribes by failing to provide “full and complete” historical trust

accountings and failing to manage the tribes’ trust funds and non‐monetary trust assets or resources in

an adequate manner. By 2009, the United States was defending approximately 97 breach‐of‐trust

lawsuits brought by 114 Indian tribes in federal district courts in the District of Columbia and Oklahoma

and in the Court of Federal Claims. Since that time, the United States has been involved in processes to

resolve these cases.

In 2012, the United States agreed to pay about $1.25 billion to 62 tribes in compensation for the tribes’

claims regarding the government’s management of trust funds and non‐monetary trust resources. The

10
 
                           

                               

                        

                     

                                  

                           

                       

                         

                                

                             

                            

                              

                           

                   

                                

                               

                            

                               

                                    

                                 

                         

                         

                                

                           

                          

                       

                                 

                             

                                     

                                

                                 

                                 

                                   

                            

                    

                             

                            

                         

                            

                                 

 

 

 

 

 

 

 

 

 

 


 

settlements also set forth a framework for promoting tribal sovereignty and improving or facilitating

aspects of the tribes’ relationship with the United States, while reducing or minimizing the possibility of

future disputes and avoiding unnecessary litigation. Under the settlements, the parties will implement

measures that will lead to strengthened management of trust assets and improved communications

between the Department of the Interior and the tribes. The tribes and the United States also have

established an alternative dispute resolution process to address any disputes that may arise regarding

the future management of the tribes’ trust funds and non‐monetary trust resources.

These settlements demonstrate the United States’ strong commitment to resolving the pending tribal

trust accounting and trust management cases in an expedited, fair and just manner. They are a

powerful example of how, working together, we can resolve conflicts, despite decades of costly and

burdensome litigation. They are an important legacy of the Obama Administration and set a path

forward for reaffirming the trust relationship of the United States with tribal governments. At the

Department of Justice, we will continue, through our cases, to vigilantly protect tribal sovereignty,

safeguard tribal lands and resources, and honor tribal treaty rights.

Handling ENRD Cases in the Supreme Court

The Division frequently has cases that come before the U.S. Supreme Court. The U.S. Supreme Court

also regularly solicits the Department’s views on whether to grant petitions for writs of certiorari in

cases that implicate Division interests. We support the Solicitor General’s Office as it formulates

positions in the Supreme Court in cases handled by the Division in lower courts and in non‐government

cases that are of interest to the Division. The 2011‐2012 U.S. Supreme Court term proved to be an

active one for ENRD. The Supreme Court decided four cases arising out of the Division’s work. PPL

Montana, L.L.C. v. State of Montana unanimously reversed a Montana Supreme Court decision which

had held that riverbeds occupied by petitioner’s hydroelectric facilities were state property because

they were allegedly navigable for title purposes at the time Montana became a state. Sackett v. EPA

unanimously held that administrative compliance orders issued under the Clean Water Act are subject

to judicial review under the Administrative Procedure Act before EPA brings an enforcement action.

Salazar v. Patchak concluded that an individual had prudential standing under the Administrative

Procedure Act to challenge the Department of the Interior’s decision to acquire land in trust for an

Indian tribe and that the United States’ waiver of sovereign immunity in the Administrative Procedure

Act applied because the individual did not bring an action to quiet title under the Quiet Title Act for

which there is no waiver of sovereign immunity as to challenges involving trust lands. And, finally,

Southern Union Co. v. United States held that the U.S. Constitution, as interpreted in Apprendi v. United

States, requires that the jury rather than the trial court determine the number of “days of violation”

before a court may impose a fine for knowingly storing hazardous waste without a permit in violation of

the Resource Conservation and Recovery Act. Our recent cases before the Supreme Court truly

illustrate the remarkable breadth and importance of the Division’s work.

Protecting the Public Fisc

We are committed to ensuring that American taxpayers receive a substantial return on their investment

in ENRD. The Division strives to reduce monetary recoveries from litigation brought against the United

States to the greatest extent possible, secure significant monetary recoveries and corrective measures

through affirmative civil and criminal litigation, and operate as efficiently as possible. ENRD estimates

that its handling of defensive and condemnation cases closed in fiscal year 2012 saved more than $1.8

11
 
                                

                           

                                

                           

                              

                 

                         

                            

                             

                   

                                       

                          

                                 

                                    

                          

                             

                      

                 

                             

     

                             

                                        

                              

                                

                

     

     

         

     

 

 

 

 

 

 


 

billion (a comparison of claims made in those cases with the amounts ultimately imposed). For example,

the Division’s resolution of cases seeking compensation under the Fifth Amendment to the U.S.

Constitution for the alleged taking of private property saved nearly $30 million in fiscal year 2012.

Cost Savings and Efficiencies

Implementation of various internal cost‐saving measures over the past four years also yielded significant

reductions in annual Division expenditures. ENRD saved tens of millions of dollars by streamlining its

administrative operations, expanding its use of state‐of‐the‐art information and communications

technology as an alternative to costly travel, and implementing in‐house litigation support services,

among other measures. For example, over the past four years, the Division’s in‐house automated

litigation support lab alone has saved us more than $19 million in discovery processing, database

hosting, scanning, digital Bates numbering, and other litigation support services.

Named as One of the Best Places to Work in the Federal Government

In each of the last three years, the Partnership for the Public Service (PPS) has ranked ENRD as one of

the “Best Places to Work in the Federal Government.” Among all federal agency subcomponents

surveyed by PPS and the Office of Personnel Management, ENRD’s overall ranking has been in the top

five for each of the past three years, including two #1 rankings. Within the Department of Justice, ENRD

has been the highest‐rated subcomponent in all three years. During this period, employee satisfaction

has remained consistently high, and the Division has been recognized among the top subcomponents for

effective leadership, empowerment, fairness, teamwork, and strategic management. I take this

opportunity to congratulate ENRD’s managers for these impressive results.

Diversity and Quality of Life

As this report demonstrates, the Division continues to make great strides in promoting diversity and

quality of life.

Recognizing Division Staff and Partners

The extraordinary work reflected in this report is due to the dedication, expertise and professionalism of

the Division staff. Thank you for the sacrifices that you and your families make each day in service to the

American people. To our colleagues at the U.S. Attorneys’ Offices, client agencies, and state, tribal and

local governments, I am grateful for our shared vision and close partnership. As this report shows, we

achieve the best results when we work together.

Ignacia S. Moreno

Assistant Attorney General

Environment and Natural Resources Division

January 17, 2013

12
 
   

   

                               

                            

                           

                             

                             

       

                                 

                           

                          

                                    

                               

               

                             

                           

                         

                                     

                           

                                     

  

         

     

 

 

 

 

 

 

 

 


 

TEXT BOXES

Record‐Setting Enforcement Results

Since 2009, we have obtained more than $28 billion in corrective measures through court orders and

settlements. We also secured almost $2.375 billion in civil and stipulated penalties, cost recoveries,

natural resource damages, and other civil monetary relief, including more than $1.43 billion recovered

for the Superfund. During that time period, we concluded 170 criminal cases against 319 defendants,

and obtained 155 years in confinement and almost $256 million in criminal fines, restitution, community

service funds and special assessments.

In fiscal year 2012, we secured over $397 million in civil and stipulated penalties, cost recoveries, natural

resource damages, and other civil monetary relief, including almost $133 million recovered for the

Superfund. We obtained over $6.9 billion in corrective measures through court orders and settlements,

which will go a long way toward protecting our air, water and other natural resources. We concluded 47

criminal cases against 83 defendants, obtaining nearly 21 years in confinement and over $38 million in

criminal fines, restitution, community service funds and special assessments.

“This resolution of criminal allegations and civil claims against Transocean brings us one significant step

closer to justice for the human, environmental and economic devastation wrought by the Deepwater

Horizon disaster. This agreement holds Transocean criminally accountable for its conduct and provides

nearly a billion dollars in criminal and civil penalties for the benefit of the Gulf States. I am particularly

grateful today to the many Justice Department personnel and federal investigative agency partners for

the hard work that led to today’s resolution and their continuing pursuit of justice for the people of the

Gulf.”

— Attorney General Eric Holder

Transocean Plea and Agreement Announcement

13
 
       

                             

                                

                             

                       

                        

                                

                     

                         

                       

                  

 

 

 

 

 


 

OVERVIEW OF THIS REPORT

In fiscal year 2012, the Environment and Natural Resources Division (the Division or ENRD) achieved

significant results for the American people across its many practice areas. The chapters of this report

briefly describe the organization of the Division, highlight its progress toward the goal of achieving

environmental justice in protecting all communities from environmental harm, and describe the

Division’s key accomplishments. The key accomplishments chapters, which reflect the components of

the Division’s mission, are: protecting our nation’s air, land, and water; ensuring cleanup of oil and

Superfund waste; promoting responsible stewardship of America’s wildlife and natural resources;

enforcing the nation’s criminal pollution and wildlife laws; defending vital federal programs and

interests; promoting national security and military preparedness; protecting tribal rights and resources

and addressing tribal claims; and supporting the Division’s staff.

14
 
             

                                  

                            

                                    

             

   

                             

                              

                

                               

                    

                             

                                  

                              

                

                             

                                   

               

                                

                               

                                      

                   

                                 

                              

                             

                           

                          

                           

                       

                               

                        

                             

                             

                                 

                          

           

                             

                       

                         

                         

 

 

 

 

 

 

 

 

 

 

 

 


 

PRESENTING THE ENVIRONMENT AND NATURAL RESOURCES DIVISION

The Division has a main office in Washington, D.C., and field offices in: Denver, Colorado; San Francisco,

California; Sacramento, California; and Anchorage, Alaska. ENRD has a staff of about 650, more than

400 of whom are attorneys. The Division is organized into nine litigating sections plus the Office of the

Assistant Attorney General and the Executive Office:

The Division has responsibility for cases involving more than 150 statutes and represents virtually every

federal agency in courts across the United States and its territories and possessions. Our litigation

docket contains almost 6,800 active cases and matters.

About one‐half of ENRD’s lawyers bring cases against those who violate the nation’s civil and criminal

pollution‐control laws. Others defend environmental challenges to government programs and activities,

and represent the United States in matters concerning the stewardship of the nation’s natural resources

and public lands. The Division is responsible for the acquisition of real property by eminent domain for

the federal government and for cases arising under the wildlife protection laws. In addition, ENRD

litigates cases concerning Indian rights and claims.

One of the Division’s primary responsibilities is to enforce federal civil and criminal environmental laws

such as the Clean Air Act (CAA), the Clean Water Act (CWA), the Oil Pollution Act, the Resource

Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA or Superfund), and the Safe Drinking Water Act. The main federal agencies

that the Division represents in these areas are the U.S. Environmental Protection Agency (EPA) and the

U.S. Army Corps of Engineers (the Corps or USACE). The ENRD sections that carry out this work are the

Environmental Enforcement Section, the Environmental Defense Section, and the Environmental Crimes

Section.

A substantial portion of the Division’s work includes litigation under a plethora of statutes related to the

management of public lands and associated natural and cultural resources. All varieties of public lands

are affected by ENRD’s litigation docket, ranging from entire ecosystems, such as the nation’s most

significant sub‐tropical wetlands (the Everglades) and the nation’s largest rain forest (the Tongass), to

individual rangelands or wildlife refuges. Examples of ENRD’s land and natural resources litigation

include original actions before the U.S. Supreme Court to address interstate boundary and water

allocation issues; suits over management decisions affecting economic, recreational, and religious uses

of the national parks, national forests, and other public lands; and actions to recover royalties and

revenues from development of natural resources. The Division represents all the land management

agencies of the United States including, for instance, the U.S. Department of Agriculture’s Forest Service;

the Department of the Interior’s (Interior’s or DOI’s) many components such as the National Park

Service, the Bureau of Land Management (BLM), and the Fish and Wildlife Service (FWS); the Corps; the

Department of Transportation; and the Department of Defense. The Natural Resources Section is

primarily responsible for these cases.

The Division’s Wildlife and Marine Resources Section handles civil cases arising under the fish and

wildlife conservation laws, including suits defending agency actions under the Endangered Species Act

(ESA), which protects endangered and threatened animals and plants; the Marine Mammal Protection

Act (MMPA), which protects animals such as whales, seals, and dolphins; and the Magnuson‐Stevens

15
 
                    

                         

                                  

                             

             

                       

                      

                                 

                             

                                

                             

                   

                          

                               

                                  

                            

        

                            

                           

                           

                     

                               

                          

                               

                                

                             

                              

                                

                     

                                 

                             

                     

                             

                           

                          

                             

                                  

                         

                            

                             

                     

 

 

 

 

 

 

 

 

 

 

 


 

Fishery Conservation and Management Act, which regulates increasingly depleted fishery resources.

The Environmental Crimes Section also brings criminal prosecutions under these laws and under the

Lacey Act against people who are found smuggling wildlife and plants into the United States. The main

federal agencies that ENRD represents in this area are FWS and the National Oceanic and Atmospheric

Administration’s (NOAA’s) National Marine Fisheries Service (NMFS).

Division cases frequently involve allegations that a federal program or action violates constitutional

provisions or environmental statutes. Examples include regulatory takings cases, in which plaintiff

claims he or she has been deprived of property without just compensation by a federal program or

activity, or suits alleging that a federal agency has failed to comply with the National Environmental

Policy Act (NEPA) by, for instance, failing to issue an environmental impact statement (EIS). Both takings

and NEPA cases can affect vital federal programs such as those governing the nation’s defense

capabilities (including military preparedness exercises, weapons programs, and military research),

renewable energy development, and food supply. These cases also involve challenges to regulations

promulgated to implement the nation’s anti‐pollution statutes, such as the CAA and CWA, or activities at

federal facilities that are claimed to violate such statutes. The Division’s main clients in this area include

the Department of Defense and EPA. The Natural Resources Section and the Environmental Defense

Section handle these cases.

Another portion of the Division’s caseload consists of eminent domain litigation. This important work,

undertaken with congressional direction or authority, involves the acquisition of land for projects such

as national parks or the construction of federal buildings including courthouses, and for national

security‐related purposes. The Land Acquisition Section is responsible for this litigation.

The Division’s Indian Resources Section litigates on behalf of federal agencies to protect the rights and

resources of federally recognized Indian tribes and their members. This includes defending against

challenges to statutes and agency action designed to protect tribal interests, and bringing suits on behalf

of federal agencies to protect tribal rights and natural resources. The rights and resources at issue

include water rights, the ability to acquire reservation land, and hunting and fishing rights, among

others. The Natural Resources Section also defends claims asserted by Indian tribes and tribal members

against the United States. The main federal agency that the Division represents in connection with this

work is the Bureau of Indian Affairs (BIA) in Interior.

The Appellate Section handles the initial appeals of all cases litigated by Division attorneys in the trial

courts, and works closely with the Department of Justice’s (the Department’s) Office of the Solicitor

General on ENRD cases that reach the U.S. Supreme Court.

The Law and Policy Section advises and assists the Assistant Attorney General on environmental and

natural resources legal and policy questions, particularly those that affect multiple sections in the

Division. It handles the Division’s response to legislative proposals and congressional requests, ENRD’s

comments on federal agency rulemakings, and amicus participation in cases of importance to the United

States, as well as other special projects on behalf of Division leadership. Other Law and Policy Section

duties include serving as the Division’s ethics and professional responsibility officer and counselor,

alternative dispute resolution counselor, and liaison with state and local governments. Attorneys in the

Law and Policy Section also coordinate the Division’s involvement in international legal matters as well

as the Division’s Freedom of Information Act and Privacy Act work.

16
 
                         

                 

                          

                       

                  

                   

                           

   

     

   

   

   

   

   

     

   

       

     

                         

               

         

             

             

           

     

         

                               

           

 

 

 

 


 

The Executive Office is the operational management and administrative support section for ENRD,

providing financial management, human resources, information technology, procurement, facilities,

security, litigation support, and other important services to the Division’s workforce. The Executive

Office takes advantage of cutting‐edge technology to provide sophisticated automation facilities to

ENRD employees. By utilizing groundbreaking technologies and innovative business processes—and by

in‐sourcing traditional contractor‐provided services and equipping employees to better serve

themselves—the Executive Office is able to achieve significant annual cost savings for the American

public.

TEXT BOXES

ENRD LITIGATING SECTIONS

‐‐Appellate

‐‐Environmental Crimes

‐‐Environmental Defense

‐‐Environmental Enforcement

‐‐Indian Resources

‐‐Land Acquisition

‐‐Law and Policy

‐‐Natural Resources

‐‐Wildlife and Marine Resources

WHAT WE DO

The Environment and Natural Resources Division has primary responsibilities for litigation as well as

policy work on behalf of United States regarding:

— Prevention and Cleanup of Pollution

— Environmental Challenges to Federal Programs and Activities

— Stewardship of Public Lands and Natural Resources

— Property Acquisition for Federal Needs

— Wildlife Protection

— Indian Rights and Claims

With offices across the United States, the Division is the nation’s environmental lawyer, and has the

largest environmental law practice in the country.

17
 
     

                           

         

       

           

         

       

     

         

         

     

           

       

     

         

     

   

           

           

       

       

           

       

     

       

   

       

     

           

           

       

       

   

   

   

         

     

           


 


 


 


 

ENRD CLIENT AGENCIES

To learn more about the client agencies referenced in this report, visit their websites:

United States Department of Agriculture www.usda.gov

United States Forest Service www.fs.fed.us

Animal and Plant Health Inspection Service www.aphis.usda.gov

United States Department of Commerce

National Marine Fisheries Service www.nmfs.noaa.gov

National Oceanic and Atmospheric Administration www.noaa.gov

United States Department of Defense

United States Air Force www.af.mil

United States Army www.army.mil

United States Army Corps of Engineers www.usace.army.mil

United States Marine Corps www.marines.mil

United States Navy www.navy.mil

United States Department of Energy www.energy.gov

Environmental Protection Agency www.epa.gov

General Services Administration www.gsa.gov

United States Department of Homeland Security www.dhs.gov

United States Customs and Border Protection www.cbp.gov
 

Federal Emergency Management Agency www.fema.gov
 

United States Coast Guard www.uscg.mil
 

United States Department of the Interior www.doi.gov

Bureau of Indian Affairs www.bia.gov

Bureau of Land Management www.blm.gov

Bureau of Ocean Energy Management www.boem.gov

Bureau of Reclamation www.usbr.gov

Bureau of Safety and Environmental Enforcement www.bsee.gov

National Park Service www.nps.gov

Office of Surface Mining Reclamation and Enforcement www.osmre.gov

United States Fish and Wildlife Service www.fws.gov

United States Geological Survey www.usgs.gov

United States Department of Transportation www.dot.gov

Federal Aviation Administration www.faa.gov

Federal Highway Administration www.fhwa.dot.gov

Federal Transit Administration www.fta.dot.gov

Pipeline Safety and Hazardous Materials Administration www.phmsa.dot.gov

United States Maritime Administration www.marad.dot.gov

United States Department of Veterans Affairs www.va.gov

18
 
               

                           

                            

                           

                                

      

                           

                          

                       

                

                      

                   

            

                           

        

                         

                         

                                  

                     

          

                              

                          

                 

                   

                                   

                          

                           

                     

                       

                        

                       

     

 

 

 

 


 

REPORTING OUR PROGRESS TOWARD ACHIEVING THE GOAL OF

ENVIRONMENTAL JUSTICE

All Americans—regardless of income or race—should breathe clean air, drink clean water, and be free

from exposure to hazardous waste and toxic substances. Environmental justice does not mean special

treatment, but equal treatment and full protection under the nation’s environmental, civil rights, and

health laws. Ensuring that environmental justice is considered in all aspects of our work is a core

mission of ENRD.

Environmental justice was first addressed by the federal government when Executive Order 12898 was

issued in 1994. The Department has committed to the following goals for achieving environmental

justice, as reflected in the Department of Justice Guidance Concerning Environmental Justice (1995):

‐‐Protect environmental quality and human health in all communities;

‐‐Use environmental, civil rights, criminal, and civil laws to achieve fair environmental protection;

‐‐Promote and protect community members’ rights to participate meaningfully in environmental

decision making that may affect them;

‐‐Analyze data that will assist the Department in law enforcement, mediation, and counseling efforts

involving environmental justice matters; and

‐‐Promote full and fair enforcement of the laws, increase opportunity for access to environmental

benefits, and minimize activities that result in a disproportionate distribution of environmental burdens.

ENRD plays an important role in implementing these goals. In fiscal year 2012, the Division continued to

achieve meaningful environmental justice results and to integrate the principles of environmental

justice into its work.

This chapter is divided into two sections. First, we describe ENRD’s continued collaboration with other

federal agencies and Department components. Second, we highlight the Division’s actions to further

environmental justice through its own work and litigation docket.

Collaborative Work with Other Federal Agencies and Department Components in Fiscal Year 2012  

Actively Participating in the Interagency Working Group on Environmental Justice (IWG)

Working primarily through the IWG, the Division has played a leadership role in ensuring that there is a

coordinated federal response to environmental justice issues. The IWG, which was originally established

in 1994 under Executive Order 12898 and reinvigorated under this Administration, is charged with

providing guidance to federal agencies on environmental justice issues; coordinating the development

of agency environmental justice strategies; coordinating research, data collection, and analysis; holding

public meetings; and developing interagency model projects on environmental justice. The creation of

the IWG underscores the importance of federal agencies working collaboratively to address

environmental justice issues.

19
 
                         

                                

                             

             

                       

                               

                                

                                

                         

                           

                         

  

                                   

       

                             

                                  

                           

                    

                            

        

                         

                           

                          

   

                           

                         

                          

                  

                          

                       

                   

           

                             

                                  

                             

                              

                           

 

 

 

 

 

 

 

 

 


 

Representatives from ENRD and the Department’s Civil Rights Division regularly attend IWG senior staff‐

level meetings and identify how the Department can support and further the IWG’s work. As discussed

below, ENRD has been actively involved in the work of the IWG this year.

Implementing an Interagency Memorandum on Environmental Justice

The Department continues to implement the Memorandum of Understanding on Environmental Justice

and Executive Order 12898 (MOU) signed by the Department and 16 other federal agencies in August

2011. The Division played an important leadership role in the conception and development of the MOU

in 2011 and continues to play an important role in its implementation. The MOU promotes interagency

collaboration and public access to information about agency work on environmental justice, and

specifically requires each agency to publish an environmental justice strategy, to ensure an opportunity

for ongoing public input on implementation of those strategies, and to produce annual implementation

progress reports.

The Department has taken steps to fulfill its own obligations under the MOU and further the efforts of

the IWG, such as:

‐‐The MOU identified four focus areas for the IWG as agencies implement their environmental justice

strategies: (1) implementation of NEPA; (2) implementation of Title VI of the Civil Rights Act of 1964, as

amended (Title VI); (3) addressing impacts from climate change; and (4) addressing impacts from

commercial transportation and supporting infrastructure (called “goods movement”). The IWG formed

committees for NEPA, Title VI, and, more recently, goods movement. The Division actively participates

in the NEPA committee.

‐‐In February 2012, the Department released the Department of Justice 2011 Implementation Progress

Report on Environmental Justice, its first annual report on the work and achievements of the

Department in this area. ENRD contributed significantly to the accomplishments reported in that

document.

‐‐In April 2012, ENRD Assistant Attorney General Ignacia Moreno and Deputy Assistant Attorney General

Bruce Gelber attended the IWG Deputies’ Meeting chaired by White House Council on Environmental

Quality Deputy Director Gary Guzy and EPA Deputy Administrator Robert Perciasepe. Among other

topics, each agency shared its views on proposed initiatives.

‐‐In June 2012, Cynthia Ferguson was selected as the Division’s environmental justice coordinator.

Among other tasks, she is responsible for coordinating environmental justice issues throughout the

Division and serves as the ENRD representative on the IWG.

Increasing Communication and Awareness Across Federal Agencies

The Division also continued to collaborate directly with other federal agencies to increase the dialogue

on and awareness of environmental justice issues. In fiscal year 2011, ENRD, along with EPA’s Office of

General Counsel, organized a group of career attorneys from agencies across the federal government to

discuss legal issues that arise with respect to environmental justice. In fiscal year 2012, the group

continued to serve as an important forum for open dialogue, continuing education, and informal

20
 
                            

                             

                       

                            

                               

   

           

                          

                     

                           

                          

                           

                 

                             

                                  

                            

                             

  

                                 

                     

         

                           

                         

                            

                           

             

                       

                              

                             

                         

                        

                       

                 

  

                           

                      

                             

 

 

 

 

 

 

 

 

 

 


 

counseling among the federal agencies. The discussions fostered by this effort improve each agency’s

ability to understand not only how to implement environmental justice initiatives, but also how to

respond to environmental justice concerns within the parameters of existing law.

ENRD attorneys assist in training staff of other federal agencies regarding environmental justice issues.

This past year, we participated in training sessions for personnel from the Department of Energy (DOE),

for example.

Participating in Community and Other Outreach

The IWG continued to conduct listening sessions in communities around the United States. These

sessions provide community members; federal, state, tribal, and local governments; businesses;

academics; and other interested persons the opportunity to hear about federal initiatives and speak

directly to federal agency representatives about environmental issues that affect them. These meetings

are often held in conjunction with other environmental and public health‐related meetings to maximize

the opportunities for reaching a broad spectrum of stakeholders.

These regional IWG sessions allow us to hear first‐hand from communities so that we can continuously

improve how we address environmental justice concerns in the work that we do. For example, this year,

Division representatives participated in a tour and listening session in Corpus Christi, Texas. We gain

valuable feedback from these sessions, and look forward to continuing our participation in more of

them.

Division‐Specific Fiscal Year 2012 Environmental Justice Achievements

In fiscal year 2012, the Division took further steps to make environmental justice a routine and fully

integrated part of its work and that of its client agencies.

Conducting Outreach on Environmental Justice Issues

The Division worked directly with other components in the Department, federal agency partners, state

and local officials, and community representatives to organize direct outreach on environmental justice

issues. For instance, in August 2012, Assistant Attorney General Ignacia Moreno and U.S. Attorney

Kenneth Gonzales held a listening session on environmental and natural resources issues affecting New

Mexico tribes in Albuquerque, New Mexico.

Assistant Attorney General Ignacia Moreno and other ENRD senior staff spoke about environmental

justice on a number of occasions. Examples are the 2012 Environmental Justice Conference and Training

Program, a Hispanic Bar Association of the District of Columbia event, the ALI‐ABA Conference on

Criminal Enforcement of Environmental Laws, a New York Bar Association event, the World Bank

“Colloquium on Environmental Justice: Access to Information and Public Participation,” the D.C. Bar

“Environmental Justice and Federal Environmental Policy—A Conversation” event, and the July 2012

National Environmental Justice Advisory Council meeting in Crystal City, Virginia.

ENRD, partnering with EPA, also has fostered a dialogue with the corporate community regarding

environmental justice. In July 2012, with Cynthia Giles, EPA’s Assistant Administrator for Enforcement

and Compliance Assurance, Assistant Attorney General Ignacia Moreno convened the first in a series of

21
 
                       

                            

                       

                           

                            

                             

                 

         

                           

                        

                 

                            

                       

                              

                         

                            

                         

                          

                       

                 

               

                         

                                   

                             

                         

                     

                           

  

                       

                                  

                               

                               

                              

                                   

                             

                         

       

                           

                               

                                

 

 

 

 


 

sessions with representatives from the corporate community to discuss environmental justice in

enforcement matters. The listening session provided a forum for a fruitful discussion that would, among

other things, raise awareness within the corporate community of the importance of environmental

justice and encourage consideration of environmental justice as a basic component of enforcement and

compliance matters. The corporate community has an essential role to play in the conversation on

environmental justice and ENRD will continue to look for appropriate ways to engage the corporate

community in a productive dialogue on these important matters.

Increasing Awareness Within the Division

ENRD has continued to increase awareness and understanding of environmental justice issues among its

attorneys and staff. For example, in 2012, ENRD’s Environmental Enforcement Section conducted highly

successful environmental justice training for attorneys at its Advanced Civil Environmental Enforcement

Seminar. Several U.S. Attorneys’ Offices also attended the training, which focused on incorporating the

principles of environmental justice into civil environmental enforcement work and, more specifically, on

how to identify and address environmental justice issues that arise. The section collaborated with the

Department’s Civil Rights Division and Community Relations Service, the U.S. Attorney’s Office for

Montana, and EPA to conduct the training. Because community engagement is one of the cornerstones

of environmental justice, a veteran environmental justice policy analyst who works on behalf of

communities and an expert from academia also were included among the seminar faculty. These

participants brought an invaluable perspective to the environmental justice conversation, helping to

enhance the attending attorneys’ understanding of community concerns.

Integrating Environmental Justice Principles into ENRD Litigation and Outcomes

Through enforcement of the nation’s environmental and natural resources laws, ENRD seeks to ensure

that all communities enjoy the benefit of a fair and even‐handed application of the law, and have a

meaningful opportunity for input in the consideration of appropriate remedies for violations of the law.

We continue to see the Division’s commitment to environmental justice demonstrated in litigation

results. For example, the following cases concluded by the Environmental Enforcement and

Environmental Crimes Sections in fiscal year 2012 have furthered the principles or goals of

environmental justice:

‐‐United States v. Metropolitan St. Louis Sewer Dist. (MSD) is the largest environmental enforcement

settlement in the nation’s history. Under the terms of a consent decree resolving claims of violations of

the CWA, MSD agreed to make extensive improvements to its sewer systems and treatment plants, at

an estimated cost of $4.7 billion over 23 years, to eliminate overflows of untreated raw sewage,

including basement backups, and to reduce pollution levels in urban rivers and streams. The injunctive

relief, historic in its scope and importance to the people of St. Louis, also will significantly advance the

use of large‐scale green infrastructure projects to control wet weather overflows by requiring MSD to

invest at least $100 million in an innovative green infrastructure program, focused in environmental

justice communities in St. Louis.

‐‐Residents in Memphis, Tennessee, will see significant public health and environmental benefits as a

result of the comprehensive CWA settlement reached in United States v. City of Memphis to address

overflows of untreated sewage. The City of Memphis will spend an estimated $250 million to make

22
 
                        

                  

                           

                          

                                          

                             

                              

                               

                           

                                 

                                      

                                  

                            

                               

                              

                               

                            

                           

                       

         

                                 

                             

                                    

                            

                         

                            

                               

                                           

                             

                                 

                            

                          

                                   

                   

                             

                         

                        

                       

                                  

                          

                                

                             

                                    

                               

 

 

 

 

 

 

 

 

 

 

 

 


 

improvements to its sewer systems as well as maintenance‐and‐repair programs. The parties conducted

community outreach and incorporated environmental justice considerations into the remedy. For

example, the settlement requires Memphis to consider "community input" as a factor in prioritizing

preventative maintenance and the long‐term assessment of its sewer system. Memphis is required to

assess 70% of its sewer system, 10% of which must be done in the first year of the settlement. Of the

10% of the system assessed, nearly all of the assessment will be in neighborhoods with environmental

justice concerns. The city also will prioritize rehabilitation of approximately six percent of its system and

nearly all of this rehabilitation work will be done in neighborhoods with environmental justice concerns.

‐‐In July 2009, the United States filed a complaint alleging an “imminent and substantial endangerment”

to public health presented by the discharge of untreated sewage into a tributary upstream of the intake

for drinking water supplied by the Town of Fort Gay. Fort Gay is a very small, low‐income municipality in

West Virginia. In a consent order, the town agreed to halt the discharge of untreated sewage and make

urgently needed repairs to its sewage pumping stations. When Fort Gay subsequently violated the

order, ENRD negotiated a consent decree entered in January 2012 to resolve CWA and Safe Drinking

Water Act violations at the town’s waste water and drinking water treatment plants. The decree

provides for $1.8 million in injunctive relief in the form of extensive capital improvements and other

measures to ensure proper operation, maintenance, and reporting relative to the plants. The decree

also appoints the Wayne County Commission as receiver over both facilities until the capital

improvements are completed to ensure that the settlement brings lasting health and environmental

benefits to Fort Gay residents.

‐‐Under the settlement in United States v. BP Products North America, Inc., BP will invest more than

$400 million to install state‐of‐the‐art pollution controls and cut emissions from its petroleum refinery in

Whiting, Indiana. The United States was joined in this settlement by the State of Indiana as well as by

several environmental organizations and citizens who had asserted claims against BP. As a result of the

direct participation of the environmental groups and citizens in the settlement negotiations and input

provided by the local community, BP agreed to perform a Supplemental Environmental Project or SEP.

The SEP requires BP to install, maintain, and operate a $2 million fence‐line emission monitoring system

at the refinery and to make the data available to the public weekly on a public website. (A SEP is an

environmentally beneficial project that a defendant agrees to undertake in settlement of a civil penalty

action that has a sufficient nexus to the alleged violation(s), but that the defendant is not otherwise

legally required to perform.) This information will allow the local community to monitor future

emissions from the facility. The environmental groups and citizens also sought reductions in facility

greenhouse gas emissions and as a result, BP is required to spend an additional $9.5 million at the

refinery on projects to reduce the emission of greenhouse gases.

‐‐Salvaging company Watkins Street Project, L.L.C., and three individuals were convicted by a jury of

conspiracy, CAA violations, obstruction of justice, and false‐statement offenses related to the illegal

demolition of a Chattanooga, Tennessee, factory which contained large amounts of asbestos. During

the demolition of the factory, visible asbestos dust emissions engulfed surrounding businesses,

residences, and a daycare center. Asbestos removed from the factory was left in open piles on the

property. Defendants attempted to conceal their illegal activities by falsifying documents, lying to

federal authorities, and using low‐paid day laborers to remove the material. Donald Fillers, an owner of

Watkins Street Project, L.L.C., was sentenced to 48 months of incarceration, followed by a three‐year

term of supervised release, and ordered to pay a fine of $20,000. David Wood, a supervisor for Watkins

Street Project, L.L.C., was sentenced to serve 20 months of incarceration, followed by a three‐year term

23
 
                                

                            

                                  

                               

    

                               

                          

                                  

         

                         

                      

                      

                       

                           

                           

                       

                           

                            

                               

                             

                       

                             

                    

                             

                        

                           

                          

                           

                            

                           

                        

                       

                              

                               

               

   

                             

                         

         

 

 

 

 

 

 

 

 

 

 

 

 


 

of supervised release. James Mathis, an owner of Mathis Construction, Inc., was sentenced to serve 18

months of incarceration, followed by a three‐year term of supervised release. The company was

ordered to pay a fine of $30,000. In addition, defendants were held jointly and severally liable for

$27,899 in restitution for the costs associated with the emergency response and cleanup of the former

plant.

More than half of ENRD’s work consists of defending the environmental or natural resources actions of

federal agencies. The Division is incorporating the principles of environmental justice into the handling

of these cases as well. Several examples of this aspect of ENRD’s environmental justice effort in fiscal

year 2012 are described below.

‐‐Recent amendments to federal transportation law underscore the need to ensure that transit systems

serve lower‐income communities. A major goal of federal transportation planning and funding decisions

made by the Department of Transportation is to further such “transportation equity.” In Honolulu

Traffic.com v. Federal Transit Admin., the Division vigorously defended the Federal Transit

Administration’s decision to approve the City of Honolulu’s rapid rail project, which will serve lower‐

income communities in western Oahu and reduce traffic congestion in and out of Honolulu.

‐‐In Crenshaw Subway Coal. v. Federal Transit Admin., the Division supported the President’s number‐

two infrastructure priority project to bring light rail from Los Angeles International Airport through the

minority and low‐income Crenshaw neighborhood to intersect with another rail line in Los Angeles. The

project will provide the broad benefits of public transportation, and we are working closely with the

federal and local agencies involved to ensure that they have fully considered and addressed community

impacts from building an above‐ground light rail instead of a subway.

‐‐In Latin Americans for Social and Economic Dev. v. Federal Highway Admin., we defended a challenge

to the Detroit River International Crossing project. Community‐, ethnic‐, and business‐based

organizations challenged the proposed construction of a new crossing in the Delray area of Detroit

connecting Detroit, Michigan, and Windsor, Ontario. Plaintiffs claimed that the Department of

Transportation illegally targeted the primarily Hispanic and poor community in siting the project in

Delray. We closely scrutinized the claims and determined that the agencies had developed

comprehensive mitigation measures and done extensive work to consider the impacts on the Delray

area and the potential impacts to other environmental justice communities from different siting options.

We also concluded that much of the impacted community welcomes the expected employment and

economic opportunities from the project. The district court found that the agency considered

community issues, noting that throughout the NEPA study process, the Federal Highway Administration

took a careful look at impacts to low‐income and minority communities. Moreover, the district court

held that there was no evidence in the administrative record that the agency downgraded the mitigation

measures or that it otherwise misled the community.

TEXT BOXES

“Environmental justice is the fair treatment and meaningful involvement of all people regardless of race,

color, national origin, or income with respect to the development, implementation, and enforcement of

environmental laws, regulations, and policies.”

— http://www.epa.gov/environmentaljustice/

24
 
                       

                          

                            

                         

         

                                      

                               

                         

                 

             

 

 

 

 


 

“The burden of environmental degradation still falls disproportionately on low‐income communities and

communities of color–and most often, on their youngest residents: our children. This is unacceptable.

And it is unconscionable. But through the aggressive enforcement of federal environmental laws in

every community, I believe we can–and I know we must–change the status quo.”

— Attorney General Eric Holder

“In all of the work that we do, we are mindful of the principles of ‘environmental justice.’ That is, we

strive to ensure that all communities enjoy the benefit of a fair and even‐handed application of

environmental laws, and we conduct outreach to provide affected communities with a meaningful

opportunity to participate in decisions that affect their wellbeing.”

— Assistant Attorney General Ignacia S. Moreno

25
 
             

                    

                                

                                     

                        

                       

     

                             

                     

                                

                                 

                                  

                         

                              

                            

                               

                        

                

                               

                      

                       

                       

                                

                                       

                                  

                               

                            

                                 

                            

                                    

                                 

                                 

                                

                           

 

 

 

 

 

 

 

 

 


 

PROTECTING OUR NATION’S AIR, LAND, AND WATER

Obtaining Company‐Wide Relief for Violations

Company‐wide case settlements benefit everyone. The government benefits through expedited

resolution of historic and ongoing violations on an efficient scale. Industry benefits because it gains the

certainty of knowing that it is not in violation, avoids the cost and risk of additional litigation, and can

obtain a negotiated settlement of important technological upgrades on an efficient scale. Communities

located near a range of facilities benefit from pollutant reduction and, where appropriate,

environmentally beneficial projects.

During fiscal year 2012, the Division obtained an important company‐wide settlement in United States v.

Essroc Cement Corp., the second settlement obtained under the Division’s national enforcement

initiative to reduce air pollution from cement plants. There, a consent decree resolved claims that the

company failed to comply with the CAA at six of its Portland cement manufacturing facilities in Indiana,

West Virginia, Pennsylvania, and Puerto Rico. Essroc paid a civil penalty of $1.7 million and agreed to

invest approximately $33 million in pollution control technology that will result in substantial reductions

of sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions at the Essroc facilities. On full

implementation, SO2 and NOx emissions will be reduced by approximately 7,500 tons per year.

Additionally, Essroc will spend $745,000 to mitigate the effects of past excess emissions by replacing old

engines in several off‐road vehicles at its facilities. The replacement engines will achieve approximately

a 50‐80% reduction in NOx emissions per replacement engine.

Reducing Air Pollution from Power Plants

ENRD has continued to litigate civil claims under the CAA against operators of coal‐fired electric power

generating plants. Violations in these cases arise from companies engaging in major life‐extension

projects on aging facilities without installing required state‐of‐the‐art pollution controls, resulting in

excess air pollution that has degraded forests, damaged waterways, contaminated reservoirs, and

adversely affected the health of the elderly, the young, and asthma sufferers. Through fiscal year 2012,

22 of these matters settled on terms that will result in reductions of over 2.1 million tons of SO2 and

NOx each year, once the more than $13 billion in required pollution controls are fully functioning.

Last year, the Division obtained one more settlement under this initiative in United States v. Dairyland

Power Coop. Under the consent decree, the company will install approximately $150 million worth of

air pollution controls at three of its coal‐fired power plants located in Alma and Genoa, Wisconsin, and

permanently retire three additional coal‐fired units at the Alma plant. The permanent retirement of

these units will ensure that they do not restart without first complying with the CAA. The actions taken

by Dairyland to comply with the consent decree will result in annual reductions of SO2 emissions by

23,000 tons and NOx emissions by 6,000 tons from 2008 levels, in addition to significant reductions of

particulate matter emissions. Dairyland also paid a civil penalty under the CAA of $950,000, and will

spend $5 million on projects to mitigate the adverse effects of past excess emissions.

26
 
                               

                        

  

                                 

                                   

                                   

                                

                             

                             

                                 

                         

                              

                                          

                                       

                               

                             

                               

                               

                                

                               

                           

                         

                     

                               

                       

                             

                           

                      

                            

                               

                                   

                                    

                                

                                    

                               

                                      

 

 

 

 

 

 

 

 


 

Addressing Air Pollution from Oil Refineries

The Division also made progress in its national initiative to combat CAA violations within the petroleum

refining industry. Three additional settlements were obtained under this initiative during fiscal year

2012.

‐‐In United States v. Hess Corp., the court entered a consent decree that requires the company to spend

more than $45 million in new pollution controls to resolve CAA violations at its refinery in Port Reading,

New Jersey, which, when fully operational, will reduce annual air emissions of NOx by 181 tons per year

and result in additional reductions of volatile organic compounds (VOCs). Hess also paid a civil penalty

of $845,000, split evenly between the United States and the State of New Jersey.

‐‐A consent decree entered by the court in United States v. Coffeyville Resources & Marketing, L.L.C.,

requires that refiner to invest more than $4.25 million in pollution controls and $6.5 million in operating

costs to resolve claims under the CAA, Superfund, and Emergency Planning and Community Right‐to‐

Know Act (EPCRA) at its Coffeyville, Kansas, refinery. Once the controls are installed, annual emissions

of NOx and SO2 will be reduced by more than 300 tons per year from this facility. Coffeyville also paid a

civil penalty of $975,000, which will be shared with the State of Kansas, and will perform a SEP that is

valued at more than $1.2 million and will benefit the surrounding communities by reducing emissions of

harmful air pollutants, reducing the frequency of future acid gas flaring incidents, and conserving 15

million gallons of water each year that would previously have come from the Verdigris River.

‐‐In a settlement resolving claims of noncompliance with a 2008 consent decree, the court entered the

sixth amendment to the consent decree in United States v. Sinclair Tulsa Refining Co. There, two

subsidiaries of Sinclair Oil Corp. paid stipulated penalties of $3.844 million and agreed to spend $10.5

million on additional pollution control equipment and other projects, which will reduce emissions of

NOx and SO2 by approximately 24,385 and 59 tons per year, respectively.

With these settlements, the Division's petroleum refinery enforcement initiative has produced

settlements or other court orders that have addressed more than 90% of the nation's refining capacity,

and will reduce air pollutants by more than 360,000 tons per year.

As part of the Division’s national effort to reduce air pollution from refinery, petrochemical, and

chemical flares, the Division negotiated an innovative consent decree that the court entered in United

States v. Marathon Petroleum Co. The settlement requires Marathon to implement cutting‐edge

pollution control, monitoring, and operating systems, which it developed in close cooperation with EPA.

Marathon began installing the systems in 2008 to improve the combustion efficiency of its flares and,

through the end of 2011, eliminated approximately 4,700 tons per year of VOCs and 110 tons per year

of hazardous air pollutants from the air. The settlement includes a “cap” on the amount of waste gas

Marathon may flare, which is the first time a company has agreed to such a limitation. Marathon

estimates that it will spend a total of $51.5 million on flare controls. The consent decree also requires

Marathon to implement a mitigation project that will further reduce VOC and benzene emissions at its

refinery in Detroit, Michigan, and to pay a $460,000 civil penalty to resolve its violations of the CAA.

27
 
                               

                          

                           

                                  

                    

                          

                               

                            

   

                              

                             

                                      

             

                             

                   

                                

                             

                                 

                              

                                   

                           

                               

                                  

            

                               

                         

                            

                          

                                

                           

                              

                                  

                                

                                  

                                   

                               

                                   

                                

                               

                              

                                    

 

 

 

 

 

 

 

 

 


 

Ensuring the Integrity of Municipal Wastewater Treatment Systems  

The Division has made it a priority to bring cases nationwide to improve municipal wastewater and

stormwater treatment and collection. From January 2009 through September 2012, courts entered 40

settlements in these cases, requiring long‐term control measures and other relief estimated to cost

violators more than $20 billion. These cases involve one of the most pressing infrastructure issues in the

nation’s cities—discharges of untreated sewage from aging collection systems. Low‐income and

minority communities often live in older urban areas. Raw sewage contains pathogens that threaten

public health and may cause beach closures as well as the issuance of public advisories against

consumption of fish. Clean Water Act enforcement also protects national water treasures like the

Chesapeake Bay.

Eleven consent decrees with municipalities or regional sewer districts were entered in fiscal year 2012.

Collectively, they provide for the expenditure of more than $6.3 billion in improvements, the payment

of more than $4 million in civil penalties, and the performance of SEPs valued at more than $2.4 million.

A few examples are the following cases:

‐‐United States v. Metropolitan St. Louis Sewer Dist. (MSD), which also was mentioned in the

environmental justice chapter, is the environmental enforcement settlement requiring the largest

injunctive relief in the nation’s history. Under the terms of a consent decree resolving claims of

violations of the CWA, MSD agreed to make extensive improvements to its sewer systems and

treatment plants, at an estimated cost of $4.7 billion over 23 years, to eliminate overflows of untreated

raw sewage, including basement backups, and to reduce pollution levels in urban rivers and streams.

The injunctive relief, historic in its scope and importance to the people of St. Louis, also will significantly

advance the use of large‐scale green infrastructure projects to control wet weather overflows by

requiring MSD to invest at least $100 million in an innovative green infrastructure program, for the

benefit of environmental justice communities in St. Louis. The city also paid a $1.2 million civil penalty

to the United States.

‐‐Under a consent decree entered in United States v. Dekalb County (Georgia), the county agreed to

make major improvements to its sanitary sewer systems in an effort to eliminate unauthorized

overflows of untreated sewage. The county’s sewer system is designed to convey only municipal

sewage, not stormwater, and serves over 500,000 people. The system includes approximately 2,600

miles of sewer lines, 55,000 manhole covers, and 66 lift stations. The consent decree provides for

targeted relief for priority areas, consisting primarily of the most aged sewer pipes, within eight‐and‐a‐

half years. These actions and other related relief are estimated to cost the county approximately $700

million. The county also agreed to conduct a stream cleanup project at an estimated cost of $600,000,

focusing on segments of the South River, South Fork Peachtree Creek, and Snapfinger Creek. The county

also paid a $453,000 civil penalty, split evenly between the United States and the State of Georgia.

‐‐A district court entered a consent decree in United States v. City of South Bend (Indiana) under which

the city agreed to make an estimated $506 million worth of improvements to its combined sewer

system to significantly reduce overflows of raw sewage to the St. Joseph River, which is a tributary of

Lake Michigan. The city’s sewer system has a history of being overwhelmed by rainfall when a portion

of the sewage that would otherwise flow through the city’s treatment plant is instead discharged into

the river through some or all of 36 outfalls. After implementing the improvements required under the

consent decree, the city will reduce the number of raw sewage discharge events by 95%. The city also

28
 
                                 

                             

                    

                               

                             

                               

                           

                              

                         

                           

                                

                           

                                        

                             

                               

            

                                 

                           

                           

                         

                     

                          

                                  

                             

                          

                             

                             

                       

                            

                                 

       

                               

                             

                             

                                  

                            

                                   

                                 

      

 

 

 

 

 

 

 


 

paid civil penalties totaling $85,000, split evenly between the United States and the State of Indiana, and

agreed to implement an environmental project that will reduce pollutants in Bowman Creek, a tributary

of the St. Joseph River, at a cost of $75,000.

‐‐A consent decree entered in United States v. City of Memphis (Tennessee), also discussed in the

environmental justice chapter, represents the combined efforts of the United States and the State of

Tennessee working with the Tennessee Clean Water Network to resolve claims under the CWA and the

Tennessee Water Quality Control Act relating to the city’s longstanding overflows of untreated raw

sewage. The consent decree requires the city to establish specific programs designed to eliminate the

unauthorized discharges of raw sewage and to implement a continuing sewer assessment and

rehabilitation program to ensure that the integrity of sewer infrastructure is maintained to prevent

system failures that would likely result in unauthorized overflows, at an estimated cost of $250 million.

The consent decree also requires the city to perform corrective measures in certain specifically

identified priority areas. The city also agreed to pay a $1.29 million civil penalty, half to be paid to the

United States and half to be paid through the performance of state projects, including the

implementation of an effluent color study to better delineate limits for the color of Memphis’ permitted

discharges to the Mississippi River.

‐‐Consent decrees entered in United States v. City of Euclid (Ohio); United States v. Boston Water and

Sewer Comm’n; and United States v. City of Newport (Rhode Island) require those municipalities to

spend $100 million, $56 million, and $25 million, respectively, to make improvements to their

wastewater collection systems to eliminate unauthorized discharges of sewage into local waterways.

Protecting the Nation’s Waters and Wetlands  

Keeping contaminated stormwater out of America’s waters is one of EPA’s national enforcement

initiatives. Construction projects have a high potential for environmental harm because they disturb

large areas of land and significantly increase the potential for erosion. Last year, the court entered the

latest consent decree with a residential homebuilder under the initiative to resolve claims of CWA

violations in connection with its construction projects. In United States v. Ryland Group, Inc., d/b/a

Ryland Homes, one of the nation’s largest homebuilders paid a civil penalty of $625,000 to resolve

alleged CWA violations at its construction sites in 13 states and agreed to implement a company‐wide

program to improve compliance with stormwater runoff requirements at current and future

construction sites around the country. The States of Colorado, Florida, Illinois, Indiana, Maryland, and

Nevada, and the Commonwealth of Virginia joined in the settlement and will receive a portion of the

$625,000 civil penalty.

Following a settlement, the court entered a consent decree in United States v. LaFarge North America,

Inc., with LaFarge and four of its American subsidiaries, resolving claims of unpermitted discharges of

stormwater and failure to comply with stormwater permits at 21 stone, gravel, sand, asphalt, and ready‐

mix concrete facilities in five states. Lafarge is one of the largest suppliers of construction materials in

the United States and Canada. The company agreed to implement a nationwide evaluation and

compliance program at 189 of its similar facilities in the United States to ensure that it meets CWA

requirements, paid a $740,000 civil penalty, and agreed to implement two SEPs at an estimated cost of

almost $3 million.

29
 
                             

                                    

                                 

                                 

                           

                                    

                         

             

                                 

                        

                         

                              

                               

                                

                              

                           

   

                           

                         

                          

                             

                                  

                              

                              

                                 

                       

                               

                       

                                 

                 

                                   

                                 

                                   

                                

                                 

                           

                          

                           

 

 

 

 

 

 

 

 

 

 


 

This year, the Division also obtained significant victories under its vigorous program to protect wetlands

and other waters of the United States from illegal fill activity. In United States v. Wright Bros. Constr. Co.

& State of Georgia Dep't of Transp., a civil enforcement action for the unpermitted discharge of fill

material in seven primary trout streams at four sites in Georgia, we negotiated a consent decree under

which defendants are obligated to restore portions of two streams, purchase mitigation credits for

impacts to streams that cannot be restored, and pay a civil penalty of $1.5 million. We also obtained

favorable consent decrees in United States v. Century Homebuilders ($400,000 civil penalty) and United

States v. Staben ($225,000 civil penalty).

Reducing Air and Water Pollution at Other Diverse Facilities

In fiscal year 2012, the Division improved the nation's air quality by concluding a number of civil

enforcement actions against industrial facilities. In addition to the company‐wide settlement with

Essroc Cement Corp. discussed above, the Division obtained another settlement in its national

enforcement initiative to reduce air pollution from cement plants in United States v. CalPortland Co.

There, CalPortland, which owns and operates a number of these facilities, agreed to resolve claims that

it violated the CAA at its manufacturing plant near Mojave, California. The company paid a $1.425

million civil penalty and agreed to install and operate appropriate emission controls at its kiln. The

settlement resolved claims that the company had modified its plant without obtaining the required

permit.

Courts entered consent decrees with operators of aluminum recycling and processing facilities in three

cases resolving alleged violations of the National Emission Standards for Hazardous Air Pollutants

(NESHAPs) applicable to their industry, Secondary Aluminum Production. In each case, defendant failed

to control the emission of hazardous air pollutants (HAPs) as required by the CAA and implementing

regulations. HAPs, also known as air toxics, are pollutants which are known or are suspected to cause

cancer or other serious health effects such as birth defects or reproductive effects in humans. Each

defendant paid a civil penalty and agreed to take measures to control the unlawful emissions.

‐‐In United States v. J.L. French, L.L.C., two related companies paid a civil penalty of $80,000 to resolve

claims in connection with their facilities in Sheboygan, Wisconsin, and Glasgow, Kentucky.

‐‐In United States v. Hydro Aluminum North America, Inc., the company paid a civil penalty of $310,000

to resolve claims in connection with its facility in St. Augustine, Florida.

‐‐In United States v. Spectro Alloys Corp., the company paid a civil penalty of $600,000 to resolve claims

in connection with its facility in Rosemont, Minnesota.

In 2008, in a CAA case, the United States demanded $72 million in stipulated penalties and interest from

Volvo Truck Corp., claiming that Volvo had violated the provisions of a 1999 consent decree by allowing

its facilities to be used by a sister company to produce engines that did not meet accelerated emission

standards as provided in the consent decree. In April 2012, in United States v. Volvo Powertrain Corp.,

the court agreed with the U.S. position and ordered Volvo to pay the entire $72 million.

The Division also improved the nation's water quality by concluding a number of civil enforcement

actions against industrial and commercial facilities. Among the industries agreeing to settle their

noncompliance with the CWA are a seafood processor, a coal company, and a racetrack:

30
 
                                 

                             

                              

                           

                                     

                                 

                                      

                             

    

                             

                                 

                               

                         

                           

                           

                               

                                   

                                  

                      

                                   

                               

                                    

                               

                       

   

   

                     

                                  

                               

                             

                   

       

               

                        

                                 

                           

 

 

 

 

 

 


 

‐‐One of the world’s largest seafood processors paid a $2.5 million civil penalty and will invest an

estimated $30‐40 million in seafood processing waste controls under the terms of a consent decree

entered in United States v. Trident Seafoods Corp. These measures will reduce Trident’s fish processing

discharges to Alaskan waters by a total of more than 105 million pounds annually.

‐‐The second largest supplier of coal in the United States paid a $4 million civil penalty to settle CWA

claims at four of its mining complexes in Virginia, West Virginia, and Kentucky under a consent decree

entered in United States v. Arch Coal, Inc. In addition to the penalty, Arch Coal also will take measures

that will prevent an estimated two million pounds of pollution from entering the nation’s waterways

each year.

‐‐In United States v. Sterling Suffolk Racecourse, L.L.C., the owner of the Suffolk Downs racetrack facility

in Revere and East Boston, Massachusetts, paid a civil penalty of $1.25 million to resolve CWA violations

at its facility, will spend more than $3 million to prevent polluted water from entering nearby

waterways, and will perform three projects worth approximately $742,000 that will provide water

quality monitoring and protection efforts for more than 123 square miles of watershed.

Ensuring the Safe Treatment, Storage, and Disposal of Waste

North America’s largest lead producer agreed to spend approximately $65 million to correct violations

of several environmental laws at 10 of its lead mining, milling, and smelting facilities in southeast

Missouri under the terms of a consent decree entered by the court in United States v. Doe Run

Resources Corp. The company paid a $7 million civil penalty to resolve claims that it violated the CAA,

CWA, RCRA, EPCRA, Superfund, and comparable Missouri environmental statutes. The company also

will establish financial assurance trust funds, at an estimated cost of $28 million to $33 million, for the

cleanup of its lead smelter in Herculaneum, Missouri, which the company is closing for business reasons

by 2014, and six mining and milling sites when they are eventually closed. The company also will spend

an estimated $5.8 million on stream mitigation activities along Bee Fork Creek and an additional $2

million on community‐based mitigation projects to reduce pollution from other sources in southeastern

Missouri.

TEXT BOXES

“These comprehensive measures at multiple Essroc facilities will achieve substantial reductions in

harmful air pollution and result in cleaner, healthier air for many people across the country. This will

bring Essroc into compliance with the nation’s Clean Air Act and marks significant progress in addressing

the nation’s largest sources of air pollution and protecting the most vulnerable among us, especially

children and the elderly, from respiratory and other health problems.”

— Ignacia S. Moreno

United States v. Essroc Cement Corp. Press Release

Twenty‐two settlements with operators of coal‐fired electric power generating plants as of

September 30, 2012, will result in reductions of over 2.1 million tons of sulfur dioxide and nitrogen

oxide, once the more than $13 billion in required pollution controls are fully functioning.

31
 
                                     

                            

                           

     

       

               

                                 

                           

                                    

                                   

         

                                   

                                  

                             

           

       

                   

                         

                                

                                  

                       

             

     

     

                       

                         

                                

       

                        

                              

                            

   

                      

                          

 

 

 

 

 

 

 

 

 

 


 

”This agreement is a great victory for the environment and will result in cleaner and healthier air for the

benefit of communities across the country in Illinois, Kentucky, Louisiana, Michigan, Ohio and Texas. By

spurring corporate ingenuity, this settlement will dramatically reduce emissions from all 22 flares at

Marathon’s six refineries.”

— Ignacia S. Moreno

United States v. Marathon Petroleum Co. Press Release

FLARES

A flare is a mechanical device, ordinarily elevated high off the ground, used to combust waste gases.

The more waste gas a company sends to a flare, the more pollution occurs.

The less efficient a flare is in burning waste gas, the more pollution occurs. EPA wants companies to

flare less, and when they do flare, to fully combust the harmful chemicals found in the waste gas.

— EPA Website and Photos

“We are fully committed to vigorous enforcement of the Clean Water Act, and will continue to work in

partnership with EPA to advance the goal of clean water for all communities in our nation’s cities. The

people of St. Louis, including those who live in minority and low‐income communities, will receive

tangible, lasting benefits from this significant settlement.”

— Ignacia S. Moreno

United States v. Metropolitan St. Louis Sewer Dist. Press Release

Green infrastructure uses vegetation, soils, and natural processes to manage water and create healthier

urban environments. At the scale of a city or county, green infrastructure refers to the patchwork of

natural areas that provides habitat, flood protection, cleaner air, and cleaner water. At the scale of a

neighborhood or site, green infrastructure refers to stormwater management systems that mimic

nature by soaking up and storing water.

— EPA Website

EXAMPLES OF GREEN INFRASTRUCTURE

Rainwater Harvesting. Rainwater harvesting systems collect and store rainfall for later use. When

designed appropriately, rainwater harvesting systems slow and reduce runoff and provide a source of

water. These systems may be particularly attractive in arid regions, where they can reduce demands on

increasingly limited water supplies.

Bioswales. Bioswales are vegetated, mulched, or xeriscaped channels that provide treatment and

retention as they move stormwater from one place to another. Vegetated swales slow, infiltrate, and

filter stormwater flows. As linear features, vegetated swales are particularly suitable along streets and

parking lots.

Permeable Pavements. Permeable pavements are paved surfaces that infiltrate, treat, and/or store

rainwater where it falls. Permeable pavements may be constructed from pervious concrete, porous

32
 
                       

                             

                        

                                

                              

                   

                          

                            

                               

         

                                     

                         

                           

     

     

                               

                               

                                 

                           

                               

                                 

                 

                                 

                           

                             

                               

       

               

 

 

 

 

 


 

asphalt, permeable interlocking pavers, and several other materials. These pavements are particularly

cost effective where land values are high and where flooding or icing is a problem.

Green Parking. Many of the green infrastructure elements described above can be seamlessly

integrated into parking lot designs. Permeable pavements can be installed in sections of a lot and

rain gardens and bioswales can be included in medians and along a parking lot perimeter. Benefits

include urban heat island mitigation and a more walkable built environment.

Green Roofs. Green roofs are covered with growing media and vegetation that enable rainfall

infiltration and evapotranspiration of stored water. Green roofs are particularly cost effective in dense

urban areas where land values are high and on large industrial or office buildings where stormwater

management costs may be high.

Urban Tree Canopy. Many cities set tree canopy goals to restore some of the benefits provided by trees.

Trees reduce and slow stormwater by intercepting precipitation in their leaves and branches.

Homeowners, businesses, and cities can all participate in the planting and maintenance of trees

throughout the urban environment.

— EPA Website

In fiscal year 2012, the Division secured agreements with industrial defendants under the Clean Air Act

to spend an estimated $397 million on corrective measures to reduce harmful air emissions, to pay

more than $28.8 million in civil penalties, and to perform $17 million in mitigation projects and more

than $2.5 million in Supplemental Environmental Projects to offset the harm caused by their unlawful

emissions.

In fiscal year 2012, the Division settled cases with industrial defendants under the Clean Water Act

valued at more than $20 million in injunctive relief (this does not include over $23 million in

Supplemental Environmental Projects) and over $87 million in civil penalties.

“This agreement will benefit the quality of Alaskan waters, which host a critical habitat for the seafood

industry. The [seafood processing waste control] upgrades will enable Trident to achieve and maintain

compliance with the Clean Water Act, and will protect Alaskan waters, eliminate waste, and create

efficiencies that will serve as a model of best business practices for the seafood processing industry.”

— Ignacia S. Moreno

United States v. Trident Seafoods Corp. Press Release

33
 
         

           

                                   

                                  

                   

                         

                              

                                 

                               

           

                               

                               

                                      

                                 

                             

               

                                 

                                  

                                     

                               

                                  

                   

                                         

                                 

                                    

                   

                               

                               

                              

                           

                                         

                                

                              

                     

                               

                      

                             

                                

 

 

 

 

 

 

 

 

 

 


 

ENSURING CLEANUP OF OIL AND SUPERFUND WASTE

Handling Civil Affirmative Litigation in Response to the Deepwater Horizon Explosion, Fire, and Oil

Spill in the Gulf of Mexico

On April 20, 2010, explosion and fire destroyed the Deepwater Horizon offshore drilling rig in the Gulf of

Mexico and triggered a massive oil spill amounting to millions of barrels. The discharge continued for 87

days, at which time BP regained control of the well.

Immediately, ENRD and the Department’s Civil Division—along with local U.S. Attorneys’ Offices, the

Gulf States, and client agencies—launched a civil investigation into the matter. In December 2010, as

part of a multidistrict litigation in the Eastern District of Louisiana, the United States brought suit against

BP, Anadarko, MOEX, and Transocean for civil penalties under the CWA and a declaration of liability

under the Oil Pollution Act.

Since filing, ENRD, along with the Civil Division, has taken or defended several hundred depositions, has

produced some 96‐million pages in discovery, and continues preparation for the first of what is expected

to be several phases of trial. In Phase One of the trial, which is currently scheduled for February 25,

2013, the United States intends to prove BP grossly negligent for purposes of civil penalty and recovery

of natural resource damages (NRD), as applicable, and that violations of federal safety and operational

regulations caused and contributed to the oil spill.

On February 17, 2012, the Department announced an agreement with MOEX to settle its liability in the

Deepwater Horizon oil spill explosion, fire, and oil spill. According to the terms of the settlement, MOEX

pays $70 million in civil penalties to resolve alleged violations of the CWA and spends at least $20 million

to facilitate land acquisition projects in several Gulf States that will preserve and protect in perpetuity

habitat and resources important to water quality. Of the $70 million in civil penalties, $25 million goes

to the States of Alabama, Florida, Louisiana, Mississippi, and Texas.

Transocean also has agreed to plead guilty to violating the CWA and to pay a total of $1.4 billion in civil

and criminal fines and penalties, for its conduct in relation to the Deepwater Horizon explosion, fire, and

oil spill. Pursuant to the terms of a proposed partial civil consent decree lodged on January 3, 2013, the

Transocean defendants (Transocean Ocean Holdings, L.L.C., Transocean Offshore Deepwater Drilling,

Inc., Transocean Deepwater, Inc., and Triton Asset Leasing G.M.B.H.) agreed to pay $1 billion to resolve

federal CWA civil penalty claims, a record amount that significantly exceeds the $70 million civil penalty

paid by MOEX. The unprecedented $1 billion civil penalty is subject to the Resources and Ecosystems

Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012

(RESTORE Act), which provides that 80% of the penalty will be to be used to fund projects in and for the

Gulf States for the environmental and economic benefit of the region. This civil resolution reserves all

other claims, including those for NRD and cleanup costs. Under the partial civil settlement, the

Transocean defendants also must observe various court‐enforceable strictures in drilling operations,

aimed at reducing the chances of another blowout and discharge of oil and at improving emergency

response capabilities. Examples of these requirements include certifications of maintenance and repair

of blowout preventers before each new drilling job, consideration of process safety risks, and personnel

training related to oil spills and responses to other emergencies. These measures apply to all rigs

34
 
                                       

                            

                             

                                  

   

                                   

                           

                              

                                   

                                 

                                  

                               

                              

                                    

                           

                                   

            

                               

                             

                             

                            

       

                                 

                             

                                  

                                  

                                        

                       

   

                                     

                                     

                                

                                   

                                 

                                  

                                 

 

 

 

 

 

 

 

 

 


 

operated or owned by the Transocean defendants in all U.S. waters and will be in place for at least five

years.

Case development for the Phase Two trial continues. It involves dozens of additional depositions and

development of expert opinions concerning the amount of oil discharged from the well and whether

defendants moved with sufficient speed to stop the discharges. Trial for that phase is tentatively set for

June 2013.

Recovering Damages and Penalties for Other Oil Spills

The Division, working closely with the State of California, the City and County of San Francisco, and the

City of Richmond, California, obtained a comprehensive settlement with the owners and operators of

the marine vessel Cosco Busan, which struck the San Francisco‐Oakland Bay Bridge in 2007. Under the

terms of a consent decree entered in United States v. M/V Cosco Busan, the companies paid $44 million

to resolve claims for NRD, penalties, and response costs that resulted from the ship alliding with the

bridge, and the subsequent oil spill in the San Francisco Bay. The event killed thousands of birds,

impacted a significant portion of the bay’s 2008 herring spawn, spoiled miles of shoreline habitat, and

closed the bay and area beaches to recreation and fishing. The settlement achieves compensation for

the significant natural resources that were injured as the result of the oil spill. It also forms the

foundation for the restoration of precious lost natural resources and park system resources, and

compensates the public for lost recreation uses for the benefit and enjoyment of the people of the San

Francisco Bay and all Americans.

Conserving the Superfund by Securing Cleanups and Recovering Superfund Monies

The Division brings actions under CERCLA to require direct cleanup by responsible parties or to recover

EPA’s cleanup costs. We also recover NRD on behalf of federal trustee agencies.

In fiscal year 2012, we concluded a number of settlements requiring responsible parties to reimburse

the United States for cleanup costs, to undertake the cleanup work themselves, or both. Examples

include the following cases:

‐‐The United States and the State of Texas reached a comprehensive resolution of their interests at the

complicated, multiparty Malone Superfund Site in Texas City, Texas, when the court entered a consent

decree in United States v. Alcoa, Inc. More than 1,400 parties sent waste to this former waste

processing and disposal site. The settlement requires 27 companies to clean up the site at an estimated

cost of $56.4 million and to pay the United States $900,000 for its past and future costs. The federal and

state natural resource trustees for the site will receive $3,109,000 to implement environmental

restoration projects.

‐‐After trial and an appeal to the First Circuit in United States v. General Electric Co., the General Electric

Co. (GE) paid more than $13 million to the United States in reimbursement of costs that it incurred in

cleaning up the Fletcher’s Paint Superfund Site in Milford, New Hampshire. In February 2012, the First

Circuit affirmed the district court’s finding in a CERCLA cost recovery action that GE was liable as having

“arranged for the disposal” of a hazardous substance and affirmed the district court’s ruling that none of

EPA’s cost recovery claims were barred by the statute of limitations. In this case, Frederic Fletcher, a

small junk yard operator and paint manufacturer, had entered into an arrangement with GE in the 1950s

35
 
                       

                          

                                            

                             

                                 

                

   

                           

                             

                              

                                   

                               

                                     

                            

                               

                               

                               

            

                               

                              

                                

                               

                                

                               

                                  

                                   

                                

                     

                               

                          

                             

                                   

                             

                             

                                 

                   

 

 

 

 

 

 

 

 

 

 


 

to purchase a polychlorinated biphenyl‐containing material called Pyranol that GE used in its

manufacture of electric capacitors. When the material became contaminated with dirt or other

materials, GE had no use for it and sold it to Fletcher at a cheap price. On appeal, GE argued, based on

the Supreme Court’s intervening decision in Burlington Northern & Santa Fe Railway Co. v. United

States, that GE lacked “actual intent” that disposal occur, and that indifference on GE’s part was not

enough. The First Circuit rejected GE’s argument.

‐‐In United States v. NuStar Terminal Services f/k/a Support Terminal Services, Inc., the company paid

$21 million to resolve the United States’ cost recovery claims for cleaning up soil and groundwater

contamination resulting from the leakage of a pipeline at the Massachusetts Military Reservation.

Protecting Against Interference with Cleanup Actions

In El Paso Natural Gas Co. v. United States, a former uranium mill operator and the Navajo tribe brought

suit under RCRA and the Uranium Mill Tailings Radiation Control Act, seeking to require the government

to clean up a former dump site and another property used for disposal near a former uranium mill in

Tuba City, Arizona. Having previously dismissed the Uranium Mill Tailings Radiation Control Act claims,

the district court in March 2012 granted the U.S. motion to dismiss plaintiffs’ remaining claims, holding

that section 113(h) of CERCLA removes jurisdiction over plaintiffs’ claims related to the Tuba City Landfill

because EPA and BIA had already entered into an administrative order on consent providing for a

CERCLA removal action at the site.

Protecting the Public Fisc Against Excessive or Unwarranted Claims

The Division also defends federal agencies that are sued for their activities at contaminated sites that

are being remediated. In Litgo New Jersey, Inc. v. Mauriello, plaintiffs brought a CERCLA cost recovery

action for alleged liability concerning the Somerville Iron Works Site in Somerville, New Jersey. In 2010,

the district court found the United States liable under CERCLA for three percent of plaintiffs’ recoverable

costs, or $51,878. Even though plaintiffs had dropped their claim for injunctive relief against the United

States under RCRA, they filed a motion seeking $4,700,000 in attorney fees from the United States

based on their RCRA claim. In April 2012, the court denied the motion, finding that because plaintiffs

had not obtained any relief from the United States on the RCRA claim, plaintiffs were not a prevailing

party. Alternatively, the court held that even if plaintiffs could be assumed to have “prevailed,” the

circumstances of this case made an award of fees inappropriate.

The Division settles claims seeking to impose liability for cleanup on federal agencies where a fair

apportionment of costs can be reached. In fiscal year 2012, these included such multimillion‐dollar

settlements as Nu‐West Mining Company v. United States (four phosphate mine sites located in and

around Dry Valley in Caribou County, Idaho); General Electric v. U.S. Air Force (former Air Force Plant No.

36 in Evendale, Ohio); Ford Motor Co. v. United States (Ford’s Rouge Manufacturing Complex in

Dearborn, Michigan); United States v. D & L Sales, Inc. (Aircraft Components Superfund Site near Benton

Harbor, Michigan); and United States v. Bradley Mining Co. (the Sulphur Bank Mine Site in California and

Elem Indian Colony and the Stibnite Mine Site in Idaho).

36
 
                             

                            

                             

                       

                                 

                                 

                          

                         

                               

                          

                     

                               

                           

                               

                       

                           

                             

                                   

   

                               

                                 

                           

                             

                               

                                

                   

                       

           

       

                               

                            

                             

                              

                                 

 

 

 

 

 

 


 

Enforcing Cleanup Obligations in Bankruptcy Cases

The Division files claims to protect environmental obligations owed to the United States when a

responsible party goes into bankruptcy. In fiscal year 2012, ENRD secured significant commitments of

responsible parties to clean up hazardous waste sites, reimburse the Superfund, and pay damages for

injuries to natural resources, in the context of several bankruptcy proceedings.

Pursuant to a settlement in the In re Johns Manville Int’l, Inc., bankruptcy proceeding, the debtor paid

$7,196,654 to resolve claims for past costs incurred by EPA to clean up properties located in the

Westbank Asbestos Superfund Site in Jefferson, Louisiana. Thousands of private, and some public,

properties in the Westbank area of New Orleans were contaminated with asbestos‐containing materials

that had been removed from debtor’s landfill and transported to properties in the Westbank area for

use as fill in the construction of driveways, walkways, and servitudes. After investigating 2,209

properties, EPA excavated and removed waste material from 1,365 properties.

The court in the In re DPH Holdings Corp. f/k/a Delphi Corp. bankruptcy proceeding approved a

settlement agreement under which the debtor and its affiliated reorganized debtors paid $857,582 to

resolve their environmental liabilities at two Superfund sites in Ohio, the Tremont City Landfill Site near

Springfield and the South Dayton Dump and Landfill Site in Moraine.

The Division also received substantial payments from debtors as the result of settlement agreements

obtained in bankruptcy proceedings in previous years, e.g., the In re Motors Liquidation Co. (formerly

General Motors); In re Old Carco, L.L.C., f/k/a Chrysler; In re LTV Steel Corp., Inc.; and In re Lyondell

Chemical Co. bankruptcy proceedings.

TEXT BOXES

In fiscal year 2012, the Division secured the commitment of responsible parties to clean up hazardous

waste sites at costs estimated in excess of $123 million; and recovered approximately $98 million for the

Superfund to finance future cleanups and more than $16 million in natural resource damages.

“Today’s announced settlement will aid the Gulf region’s recovery from the Deepwater Horizon oil spill

and require Transocean to take important steps that will help guard against such incidents happening in

the future. This resolution is the culmination of the tremendous efforts of many attorneys and staff in

the Justice Department’s Criminal, Civil and Environment and Natural Resources Divisions–dedicated

public servants whose hard work continues on behalf of the American people.”

— Acting Associate Attorney General Tony West

Transocean Plea and Agreement Announcement

“The development and exploration of a domestic source of energy is vitally important, and it can and

must be done in a responsible and sound manner. This unprecedented settlement under the Clean

Water Act demonstrates that companies will be held fully accountable for their conduct and share

responsibility for compliance with the laws that protect the public and the environment from harm. This

settlement will provide immediate relief and benefits to the people of the five Gulf States, and requires

37
 
                           

             

             

       

   

                                

                                 

                                

                                   

                            

                   

                         

                       

                           

     

       

                                 

                             

                               

                                

                               

                 

 

 

 

 

 


 

Transocean to implement significant safety measures, as well as stringent auditing and monitoring to

reduce the risk of any future disasters.”

— Assistant Attorney General Ignacia S. Moreno

Transocean Plea and Agreement Announcement

MALONE SUPERFUND SITE

• The Malone Services Company Site is located in Texas City, Texas. The site, which covers

approximately 150 acres, is located in an industrial and petrochemical area on the shores of Swan Lake

and Galveston Bay. Approximately 10,000 people live and/or work within a three‐mile radius of the site.

• From 1964 to 1997, the site was a reclamation, storage, and disposal facility for waste oils and

chemicals. Wastes received at the facility included acids and caustics from industrial cleaning and

surface preparations; contaminated residues and solvents removed from processing and storage units

during cleaning operations; spent drilling fluids; acids containing metals from etching and plating

operations; inorganic slurries from sump cleaning; gasoline and crude oil tank bottoms; contaminated

earth and water from chemical spill cleanup operations; general industrial plant wastes; phenolic tars;

and waste oils.

— EPA Fact Sheet

From the beginning of fiscal year 2009 through the end of fiscal year 2012, ENRD obtained agreements

in 32 bankruptcy proceedings, under which debtors committed to spend an estimated $1.4 billion to

clean up hazardous waste sites, reimburse the Superfund over $686 million, and pay more than $79

million in natural resource damages. Over that same time period, the United States also recovered an

additional $241 million for the Superfund and an additional $101 million in natural resource damages as

a result of payment of claims settled in earlier years.

38
 
         

                               

                                

                             

                     

                              

                                 

                                    

                                  

                             

                        

                             

                                 

                                  

                           

                             

                             

                               

                            

                                  

                              

                                   

                                  

                                

             

                           

                 

                               

                                       

   

                               

                                 

                                

                                     

                                    

 

 

 

 

 

 

 

 


 

PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA’S WILDLIFE AND

NATURAL RESOURCES

Protecting National Forest Roadless Areas

The Division continues to successfully defend the efforts of the U.S. Forest Service to manage and

preserve the 58 million acres of inventoried roadless areas within the nation’s national forests. Due to

the resolution of longstanding litigation in fiscal year 2012, the 2001 Roadless Rule, which prohibits

road‐building and commodity‐purpose timber harvests in inventoried roadless areas, remains the

primary policy regarding these areas. In 2005, the Forest Service promulgated a replacement rule, but

that action was invalidated and the 2001 Roadless Rule was reinstated by virtue of litigation in California

and the Ninth Circuit. The Wyoming district court, taking up the 2001 rule for the second time, again

held it invalid. On appeal, in October 2011, the Tenth Circuit rejected all challenges to the 2001

Roadless Rule raised by the State of Wyoming under the Wilderness Act, the National Forest

Management Act, the Multiple‐Use Sustained‐Yield Act, and NEPA. After that, the Division worked

closely with the Department’s Office of the Solicitor General in successfully opposing in the U.S.

Supreme Court the State of Wyoming’s petition for a writ of certiorari to review the Tenth Circuit’s

decision. After a decade of litigation, this victory now allows the Forest Service to apply the 2001

Roadless Rule in all states but Idaho and Colorado, which have state‐specific rules developed

collaboratively by the agency, the states, and broad coalitions of environmental and industry interests.

In The Ark Initiative v. Tidwell, the Division successfully defended a challenge brought against a Forest

Service project to expand skiable terrain within the existing boundaries of the Snowmass Ski Resort in

Colorado. When complete, the project will add approximately 230 acres of advanced off‐trail skiing

opportunities to the Burnt Mountain area of Snowmass. The decision was based in part on the Colorado

Roadless Rule, which allowed timber cutting to create skiing terrain at Snowmass. The matter was

litigated under a very short time‐frame, with the decision being made in time for the project to be

completed prior to the start of the 2012‐2013 ski season. The court ruled that the Forest Service

appropriately responded to plaintiff’s concerns. The court also held that the Forest Service could rely on

the recently completed Colorado Roadless Rule.

In Jayne v. Sherman, we successfully defended the state‐specific Idaho Roadless Rule in the district

court, and the case remains pending on appeal.

Finally, in the case of Alaska v. U.S. Dep’t of Agriculture, ENRD is litigating the last comprehensive

challenge to the 2001 Roadless Rule, which was filed by the State of Alaska in district court in the District

of Columbia.

Protecting National Park Lands

In County of Inyo v. Department of the Interior, Inyo County sought to quiet title to putative rights‐of‐

way under a repealed federal statute known as “R.S. 2477” for four roads within Death Valley National

Park, three of which were designated for closure under the California Desert Protection Act. That act

enlarged the park and designated as part of the Death Valley Wilderness Area the area of the park in

which three of the roads are located. In 2012, the district court entered an order denying the county's

39
 
                               

     

                                   

                     

                                    

                             

             

                               

                                 

                             

                           

                                    

                             

                                

                           

                                   

                                      

                                     

                                   

                                    

                                 

                                     

                                

                                 

  

                           

                             

                              

                             

                           

                                 

                                 

                     

                           

                                  

                                 

                                  

 

 

 

 

 

 

 

 

 

 

 

 

 


 

motion for summary judgment and granting the U.S. cross‐motion, thus dismissing for lack of merit the

county's remaining claim.

In County of San Bernardino v. United States, the County of San Bernardino sought to quiet title to 14

alleged rights‐of‐way established pursuant to R.S. 2477, in and around Mojave National Preserve–10

located on National Park Service land and four on BLM land. In 2012, the parties executed a settlement

agreement prescribing actions by the parties as conditions precedent to the eventual entry of a

judgment quieting title by the district court.

A former National Park Service employee contended in Buono v. Norton that the continuing presence of

a “Latin cross” on Sunrise Rock—a rock outcropping in a remote area of the Mojave National Preserve

that Congress placed under the jurisdiction of the National Park Service in the California Desert

Conservation Act of 1994—violates the Establishment Clause of the First Amendment to the U.S.

Constitution. In VFW Post 385 v. United States, the Veterans of Foreign Wars sought to quiet title to the

land surrounding the cross, to which it contends it is entitled under the 2003 federal land‐transfer

statute at issue in Buono. In 2012, the district court approved the parties’ settlement, vacated a

permanent injunction, dismissed one case, and stayed the other pending completion of the land

transfer.

Defending BLM Management of Mineral Resources

The Division litigated a challenge to BLM’s management of a uranium mine within 10 miles of the north

rim of the Grand Canyon that resumed mining in 2009 after a 17‐year hiatus. In 2011, the district court

decided that BLM was not required to issue a new mining plan of operations and that BLM was not

required to complete a new or supplemental NEPA review of its approval of the existing mining plan of

operations or of its decision to approve an updated reclamation bond for the mine. In 2012, the district

court further decided that BLM had conducted adequate NEPA review of its decision to issue a free‐use

permit to mine gravel from public land for use in maintenance of a county road that provides access to

the mine and many other resources. Plaintiffs have sought appellate review, but their motions for an

injunction pending appeal (two before the district court and two before the court of appeals) have all

been denied.

Successful Implementation of the ESA

Congress enacted the ESA “to provide a means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved [and] to provide a program for the

conservation of such endangered species and threatened species . . . .” Congress authorized the

Departments of the Interior and Commerce, acting through FWS and NMFS, respectively, to achieve this

objective by listing imperiled species, designating critical habitat for such species, and applying the

protections of ESA section 7 (requiring federal agencies to consult with the services if they propose to

take an action that may affect listed species or their designated habitat) and section 9 (containing a

prohibition against “taking” listed species). Such decisions are often challenged.

In fiscal year 2012, ENRD achieved favorable results in such cases, thereby allowing effective

implementation of the ESA and its protections. For example, in State of Alaska v. Lubchenco, the State

of Alaska and Escopeta Oil Co. challenged the listing of a Distinct Population Segment (DPS) of the

beluga whale in Cook Inlet, Alaska, as an endangered species under the ESA. Alaska argued that NMFS

40
 
                        

                              

                             

                           

                          

                              

                             

                                

                                 

                            

                           

                        

                                    

                       

                              

                   

  

                       

                           

                          

                           

                               

                            

                                     

        

                                     

                           

                                 

                                  

                                 

                             

                              

                               

                                   

                                   

                              

                                

                              

                            

 

 

 

 

 

 

 

 

 

 


 

had failed to comply with applicable procedural requirements. Escopeta challenged the modeling

employed by NMFS and argued that existing regulatory mechanisms are sufficient to protect the DPS.

On cross‐motions for summary judgment, the court granted the U.S. motion in its entirety, finding that

NMFS had complied with all procedural and substantive requirements of the ESA and rationally

considered the ESA listing factors based on the best available scientific data.

Division attorneys had similar success in Dow Agrosciences, L.L.C. v. NMFS. In 2008, NMFS issued a

biological opinion under ESA section 7 addressing the effects of the pesticides chlorpyrifos, diazinon, and

malathion on 27 species of Pacific salmon in the Puget Sound area. The biological opinion concluded

that EPA’s registration of these pesticides is likely to jeopardize the continued existence of 26 of these

species and destroy or adversely modify their designated critical habitat. Accordingly, it included a

reasonable and prudent alternative which required, among other things, changes in pesticide labeling to

implement larger buffers between the application of these pesticides and salmon habitat. This

biological opinion was the first ever to address the effects of pesticides on ESA‐listed salmon. A group of

pesticide manufacturers led by Dow Agrosciences challenged virtually every aspect of the biological

opinion. On extensive cross‐motions for summary judgment, the district court ruled in favor of the

United States, upholding NMFS’s biological opinion against all challenges.

Similarly, in Illinois Commercial Fishing Ass’n v. Salazar, plaintiff, a commercial‐fishing trade

organization, sued to set aside protections conferred upon the shovelnose sturgeon under the ESA’s

“similarity of appearance” provision to benefit the look‐alike endangered pallid sturgeon. FWS found

that commercial fishing of the shovelnose sturgeon presents a significant impediment to the survival

and recovery of the pallid sturgeon and issued a rule under the ESA prohibiting commercial shovelnose

sturgeon fishing in areas where the two species overlap. On cross‐motions for summary judgment, the

district court entered judgment in favor of the United States on all claims, finding the FWS’s rule to be

well‐supported by the administrative record.

Upholding the Constitutionality of Actions Directed by Congress for Endangered Species

In March 2012, in the case of Alliance for the Wild Rockies v. Salazar, the Ninth Circuit rejected a

constitutional challenge to an appropriations rider that required the Department of the Interior to

reissue a rule removing the protections of the ESA from gray wolves in the Northern Rocky Mountain

area outside of Wyoming. The court of appeals found that the rider directing reissuance of the rule

“without regard to any other provision of statute or regulation that applies to issuance of such rule”

effectively amended underlying law, and thus did not violate the constitutional Separation of Powers by

directing a court to make particular findings under existing law. The court also found no constitutional

problem with the fact that the rider also barred judicial review of the delisting rule’s reissuance.

Successful Implementation of the Convention on International Trade in Endangered Species of Wild

Fauna and Flora (CITES)

The United States is a signatory to CITES, a multilateral treaty that aims to protect wildlife that is

vulnerable to or adversely affected by trade, by regulating trade in species that are listed in its three

appendices. The treaty ensures that trade is regulated and sustainable by way of standardized import

and export permits. Species threatened with extinction are listed in Appendix I, the most protective of

the CITES appendices, and may be traded only in exceptional circumstances. Congress has charged the

Department of the Interior, through FWS, with enforcement of CITES. Among other duties, FWS

41
 
                           

                                 

                         

                   

                             

                          

                         

                                

                         

                             

                           

                                    

                               

                   

                     

                               

                              

                           

                                  

                           

                           

              

                                     

                               

                                  

                              

                         

                            

                             

                             

                           

                     

                                                                                               

                                 

                                 

                                

                               

                              

                                    

 

 

 

 

 

 

 

 

 

 

 

 

 


 

performs the functions of the CITES Management Authority and Scientific Authority for the United

States. This authority includes the review of all applications for import of CITES species and specimens.

Effective implementation of this import permitting program is a cornerstone to CITES implementation.

The ESA is the U.S. domestic law that implements CITES.

In fiscal year 2012, ENRD attorneys achieved favorable results in CITES cases, thereby allowing effective

implementation of its protections. For example, in Lawrence Franks v. Salazar, plaintiffs challenged

FWS’s denial of their trophy‐import permit applications for tourist‐hunted African elephants taken in

Mozambique. FWS had concluded that it could not make the requisite findings under the ESA special

rule for African elephants or non‐detriment under CITES because, despite having made repeated

requests to the Government of Mozambique over the course of several years, it never received

adequate information on the status of the species in Mozambique, the country’s management and

protection of the species, and the benefits of sport hunting to the species. The district court granted the

U.S. motion for summary judgment in its entirety, rejecting all of plaintiffs’ claims under the U.S.

Constitution, CITES, the Federal Register Act, and the ESA.

Similarly, Conservation Force v. Salazar involved plaintiffs’ applications to FWS related to trophy‐import

permits for the markhor, a wild goat species that lives in the rugged mountainous areas of Afghanistan,

India, Pakistan, Turkmenistan, and Uzbekistan. In a series of rulings, the district court rejected plaintiffs’

challenges to FWS’s handling of these permit applications, including rejecting plaintiffs’ claims of Due

Process violations under the U.S. Constitution. In so holding, the court found that plaintiffs did not have

a constitutionally protected property‐right interest in the import of markhor trophies and that the strict

permitting requirements of CITES and the ESA are the least restrictive means to promote the

government’s compelling interest in protecting imperiled species.

Defending Interior’s Water‐Use Determinations for the Central Valley Project

In March 2012, in San Luis & Delta‐Mendota Water Auth. v. U.S. Dep’t of the Interior, the Ninth Circuit

affirmed a district court ruling that Interior had properly accounted for certain releases of Central Valley

Project (CVP) water from the Nimbus and New Melones Reservoirs. (The CVP is a system of canals,

dams, and reservoirs that divert water for agricultural use in California’s Central Valley.) The court

unanimously found that certain Central Valley water authorities had standing to challenge Interior’s

2004 accounting decisions. On the merits, the majority upheld Interior’s determination that certain CVP

releases made in June 2004 in order to comply with California water‐quality requirements did not have

to be charged against the 800,000 acre‐feet account set aside for the primary purpose of implementing

the fish, wildlife, and habitat restoration purposes and measures authorized by the Central Valley

Project Improvement Act and for the secondary purpose of meeting water‐quality and endangered‐

species requirements.

Determining the Navigability of Waters  

In PPL Montana, L.L.C. v. State of Montana, the U.S. Supreme Court issued a 9‐0 decision that, consistent

with the position taken by the United States in its amicus brief, reversed and remanded a Montana

Supreme Court’s decision. The state court held that the Missouri, Clark Fork, and Madison Rivers were

navigable for the purposes of determining title at statehood such that the state acquired ownership of

the riverbeds under the Equal Footing doctrine. The Division assisted the Department’s Office of the

Solicitor General in filing the amicus brief in this case. The United States was interested in this case

42
 
                             

                               

                                   

                              

                                   

                                    

                            

                           

                             

               

                     

                             

                                

                            

                           

                              

                         

                            

                                    

                     

                                

                           

                               

                        

                           

                               

                            

                         

                          

                             

                               

                             

                              

                              

                               

                          

               

                                  

                               

                             

 

 

 

 

 

 

 

 

 

 

 

 

 


 

because it owns the beds of waterways adjacent to federal lands where the waters were nonnavigable

for title purposes at statehood and because the scope of its regulatory authority under certain statutes,

including the CWA and the Rivers and Harbors Act, is based in part on waters being navigable for

purposes of commerce. The Court rejected the Montana court’s failure to consider rivers on a segment‐

by‐segment basis to assess whether the segment of the river under which the riverbed in dispute lies is

navigable or not. The Court concluded that the fact that a river segment had to be circumvented by

portaging would generally be sufficient to establish that it was nonnavigable for title purposes. It

contrasted this with the “doctrinally distinct” question of navigability for purposes of determining the

scope of federal regulatory authority, which may exist on waterways where portages enabled goods to

be transported interstate on the waters in question.

Defending NMFS Management of Ocean Fisheries

The Magnuson‐Stevens Fishery Conservation and Management Act and other related statutes charge

NMFS with the task of managing ocean commercial fishing to provide for conservation and sustainable

fishing while, at the same time, optimizing fishing yield. In fiscal year 2012, ENRD again successfully

defended various fishery management actions necessary to meet both of these objectives. One such

case was the Division’s successful defense of a fishery management plan governing groundfish fisheries

on the Pacific coast known as Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan.

This plan applied a catch‐shares/limited‐access privileges management approach for the first time to

this fishery. The approach was designed to tighten restrictions on fishing for commercial groundfish in

an effort to end overfishing and rebuild stocks under the strict deadlines set by Congress. A variety of

groups representing diverse interests challenged the agency’s adoption of the amendment in Pacific

Coast Fed’n of Fishermen’s Ass’ns v. Locke. The Division obtained summary judgment for NMFS on all

issues, and that judgment was upheld by the Ninth Circuit in September 2012.

In San Joaquin River Group Auth. v. NMFS, plaintiff, an association of upstream water interests on the

San Joaquin River in California, challenged NMFS’s 2011 Pacific Salmon Fishery regulations. The

association claimed that the measures were not protective enough of Sacramento River fall‐run Chinook

salmon (SRFC), a stock whose 2010 status had triggered an overfishing concern under the Pacific Fishery

Management Plan. Two key issues were whether the forecasting tool used to estimate SRFC abundance

was accurate and whether the fishing measures struck the appropriate balance between long‐term

sustainability and harvest goals. After summary judgment briefing and argument, the district court

granted judgment in favor of NMFS on all issues, allowing the regulations to take effect.

The Division had similar success in Charter Operators of Alaska v. Locke, a challenge to NOAA’s

regulations creating a limited‐access system for charter vessels in the Guided Halibut Sport Fishery in

southeast Alaska and the central Gulf of Alaska. Plaintiffs claimed that the regulations violate the

Northern Pacific Halibut Act of 1982 and the Magnuson‐Stevens Act and sought to enjoin them. The

regulations were intended to reduce pressure on the halibut fishery to ensure a sustainable fishery for

the future. ENRD obtained a favorable summary judgment ruling, thereby allowing the regulations to

take effect and provide needed protections for halibut.

ENRD also defended the NMFS action at issue in Kahea and Food & Water Watch v. NMFS. Plaintiffs

challenged a Special Coral Reef Ecosystem Fishing Permit issued by NMFS to Kona Blue Water Farms

(KBWF) pursuant to the Magnuson‐Stevens Act. The permit allowed a pilot project for tuna aquaculture.

43
 
                                 

                           

   

                         

                              

                                   

                 

           

   

                              

                                     

                                    

     

                                        

                                   

                                        

   

                                       

                                

   

                                   

                       

                            

                                    

         

           

                        

   

                                 

                             

                         

                                 

                           

                              

         

 

 

 

 

 

 

 

 

 

 

 


 

In a ruling of first impression, the district court held that NMFS properly characterized KBWF’s project as

“fishing” under the act and that it acted appropriately in issuing a permit.

TEXT BOXES

Inventoried roadless areas constitute roughly one‐third of all National Forest System lands or

approximately 58.5 million acres. Although the inventoried roadless areas comprise only 2% of the land

base in the continental United States, they are found within 661 of the over 2,000 major watersheds in

the nation and provide many social and ecological benefits.

— U.S. Forest Service Fact Sheet

BELUGA WHALES

• Beluga whales inhabit the Arctic and subarctic regions of Russia, Greenland, and North America. Some

populations are strongly migratory, moving north in the spring and south in the fall as the ice forms in

the Arctic. There are a few isolated populations that do not migrate in the spring, including those in the

Cook Inlet, Alaska.

• Belugas are born dark gray. They turn white as they mature, taking three to eight years to reach their

adult coloration. Adult beluga whales can grow up to 16 feet long. Beluga whales do not have dorsal

fins. Dorsal fins would be a major hindrance during the winter when they live in the loose pack ice of

the Arctic.

• Beluga whales live for 35‐50 years. They are prey to killer whales and polar bears. They also can die

when entrapped by ice. Some beluga whale populations have been greatly reduced as a result of

hunting practices.

• In October 2008, NMFS issued a final determination to list a Distinct Population Segment of the beluga

whale, Delphinapterus leucas, found in Cook Inlet, Alaska, as endangered under the Endangered Species

Act. The Cook Inlet beluga whale is considered reproductively, genetically, and physically discrete from

the four other known beluga populations in Alaska. The decline of Cook Inlet beluga whales was due to

subsistence harvesting and other factors.

— NOAA Fact Sheets and Rule

TREATMENT OF SPECIES AS ENDANGERED OR THREATENED DUE TO SIMILARITY OF APPEARANCE: THE

SHOVELNOSE STURGEON

• Section 4(e) of the Endangered Species Act authorizes the treatment of a species as endangered or

threatened if (a) the species so closely resembles in appearance a listed species that law enforcement

personnel would have substantial difficulty in attempting to differentiate between the listed and

unlisted species; (b) the effect of this substantial difficulty is an additional threat to an endangered or

threatened species; and (c) such treatment of an unlisted species will substantially facilitate the

enforcement and further the purposes of the act. Species are infrequently treated as endangered or

threatened due to similarity of appearance.

44
 
                             

                       

                          

                              

                             

                            

                                   

                               

                                    

                         

                                   

                              

                   

           

                             

                     

           

     

                           

                 

                             

                          

                                       

               

                                   

                                  

                           

                         

     

 

 

 

 

 

 

 

 


 

• In September 2010, the U.S. Fish and Wildlife Service determined that the shovelnose sturgeon

(Scaphirhynchus platorynchus) would be treated as a threatened species under the Endangered Species

Act due to its similarity of appearance to the endangered pallid sturgeon (Scaphirhynchus albus). The

pallid sturgeon was listed as an endangered species in 1990. The shovelnose sturgeon and the

endangered pallid sturgeon are difficult to differentiate in the wild and inhabit overlapping portions of

various U.S. river basins. Commercial harvest of the shovelnose sturgeon has resulted in the

documented take of pallid sturgeon where the two species coexist and is a threat to the pallid sturgeon.

• Section 9 of the Endangered Species Act prohibits the “take” of endangered or threatened species

except where authorized by permit or special rule. By rule issued in September 2010, the U.S. Fish and

Wildlife Service has prohibited the take of any shovelnose sturgeon, shovelnose–pallid sturgeon hybrids,

or their roe when associated with or related to a commercial fishing activity in those portions of its

range that commonly overlap with the range of the endangered pallid sturgeon. This includes portions

of the Missouri, Mississippi, Platte, Kansas, Yellowstone, and Atchafalaya Rivers.

— FWS Fact Sheets and Rule

There are more than 90 species of groundfish managed under the Pacific Fishery Management Council’s

Pacific Coast Groundfish Fishery Management Plan and under the Magnuson‐Stevens Fishery

Conservation Act and other federal laws.

— NOAA Website

TUNA AQUACULTURE

• Aquaculture—also known as fish or shellfish farming— refers to the breeding, rearing, and harvesting

of plants and animals in all types of water environments.

• U.S. marine aquaculture primarily produces oysters, clams, mussels, shrimp, and salmon as well as

lesser amounts of cod, moi, yellowtail, barramundi, seabass, and seabream. Marine aquaculture can

take place in the ocean (that is, in cages, on the seafloor, or suspended in the water column) or in on‐

land, manmade systems such as ponds or tanks.

• Americans eat about 2.6 pounds of canned tuna per person per year, making canned tuna our second

favorite seafood and one of our top seafood imports. All the tuna that we currently eat is wild‐caught;

however, tuna aquaculture is moving from the research stage to the commercially‐viable stage as

scientists experiment and figure out the production cycle from egg to harvestable fish.

— NOAA Website

45
 
             

                             

                           

                            

                             

                              

                         

                           

                                

                                 

                      

                            

                           

                               

                            

                               

                             

   

                             

                          

                               

                                      

                                     

                            

                             

                             

                     

                                 

                          

                              

                                

                                  

                              

                                  

                                

                       

                        

                             

   

 

 

 

 

 

 

 

 

 

 


 

ENFORCING THE NATION’S CRIMINAL POLLUTION AND WILDLIFE LAWS

Keeping Our Nation’s Air Clean

Between 2005 and 2007, the Pelican Refining Company, L.L.C., of Lake Charles, Louisiana, operated its

refinery without properly functioning pollution prevention equipment as required by its CAA Title V

permit. As a result, pollutants including benzene, toluene, ethyl benzene, xylene, and hydrogen sulfide

were illegally released into the atmosphere through Pelican’s main refinery stack, leaks at pipes and

joints, the barge loading dock, and tanks with roofs that were improperly certified and fitted. Pelican

pleaded guilty to two CAA felony violations and an obstruction‐of‐justice charge for submitting

materially false deviation reports to the Louisiana Department of Environmental Quality, the agency that

administers the federal CAA in Louisiana. Pelican was sentenced to pay a $12 million penalty, which

includes a $10 million criminal fine and $2 million in community service payments that will go toward

various environmental projects in Louisiana, including air pollution monitoring. Pelican also was

directed to implement an environmental compliance plan and complete a five‐year term of probation.

Pelican Vice President Byron Hamilton pleaded guilty to two CAA negligent endangerment violations and

was sentenced to serve one day of incarceration, complete a one‐year term of supervised release, and

pay a $5,000 fine. Pelican Manager Mike LeBlue pleaded guilty to one CAA negligent endangerment

violation and was sentenced to serve one day of incarceration, followed by 90 days of home

confinement and a one‐year term of supervised release, and to pay a $4,000 fine.

Safeguarding America’s Waters

William Barry Freedman and his company, Freedman Farms, Inc., operated a 4,800‐head hog farm in

Columbus County, North Carolina. The farm is a “Concentrated Animal Feeding Operation” (CAFO),

which is a livestock or poultry animal feeding operation that meets the regulatory thresholds of number

of animals for various animal types. Animals are kept and raised in confined situations for a total of 45

days or more in any 12‐month period, and feed is brought to the animals rather than the animals grazing

or otherwise feeding in pastures or fields, or on rangeland. These operations generate significant

volumes of animal waste which, if improperly managed, can result in environmental and human health

risks such as water quality impairment, fish kills, algal blooms, contamination of drinking water sources,

and transmission of disease‐causing bacteria and parasites associated with food and waterborne

diseases.

In December 2007, witnesses observed hog waste in the stream that led from the farm, known as

Browder's Branch. Investigators determined that more than 332,000 gallons of hog waste had been

discharged from the CAFO into Browder's Branch over a five‐day period. State officials recovered only

169,000 gallons of the waste from the stream. Freedman falsely stated in documents that he properly

disposed of the some of the waste. He and Freedman Farms were indicted for CWA violations, false

statements, and obstruction of justice. Before the completion of the trial, the company pleaded guilty

to a felony CWA charge and Freedman pleaded guilty to a misdemeanor CWA charge. The company was

sentenced to pay a $500,000 fine and $925,000 in restitution. The company also was sentenced to

make a $75,000 community service payment to the Southern Environmental Enforcement Network and

implement an environmental compliance plan to include an annual environmental training program.

Freedman was sentenced to serve six months of incarceration followed by six months of home

confinement.

46
 
                                   

                          

                               

                              

                              

                           

                     

   

                       

                                        

                         

                           

                                 

                               

                                 

                                

                        

                                      

                           

             

                                  

                            

                                 

                                          

                             

                                 

                                

                               

   

                                 

                           

                               

                            

                               

                         

                 

           

                       

                            

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

In December 2011, the Sixth Circuit affirmed the conviction of Charles D. Long, a plant manager at a

waste management and treatment company near Detroit, Michigan. A jury convicted Long of violations

of the CWA based on his bypassing the required treatment process and pumping untreated waste into

the City of Detroit’s sewer system. Among other things, the appellate court rejected Long’s argument

that the CWA is unconstitutionally vague. The Sixth Circuit also rejected his challenges to the jury

instructions regarding the conspiracy, the sufficiency of the evidence, the admission of “other acts”

evidence in this prosecution, and the prosecutor’s remarks at closing argument.

Investigating the Deepwater Horizon Explosion, Fire, and Oil Spill in the Gulf of Mexico

During fiscal year 2012, the Department continued its criminal investigation of the catastrophic

explosion, fire, and oil spill in the Gulf of Mexico that took place on April 20, 2010. Staffs from ENRD,

the Department’s Criminal Division, and the U.S. Attorney for the Eastern District of Louisiana

participate in the Deepwater Horizon Task Force, which was formed in March 2011.

On November 14, 2012, the Department filed a 14‐count information in the U.S. District Court for the

Eastern District of Louisiana charging BP with 11 counts of felony manslaughter, one count of felony

obstruction of Congress, and violations of the CWA and Migratory Bird Treaty Act in connection with the

spill. BP agreed to plead guilty to all 14 criminal charges—admitting responsibility for the deaths of 11

people and the events that led to this unprecedented environmental catastrophe. The company also

agreed to pay $4 billion in fines and penalties. Under the terms of the agreement with BP, about $2.4

billion of the criminal recovery funds will be dedicated to environmental restoration, preservation, and

conservation efforts throughout this region—including barrier‐island creation and river‐diversion

projects in Louisiana. An additional $350 million will aid in the development of state‐of‐the art oil spill

prevention and response technologies, education, research, and training. And more than $1 billion will

go to the U.S. Coast Guard’s Oil Spill Liability Trust Fund, to be available for cleanup and compensation

for those affected by oil spills in the Gulf and throughout the United States. As part of its guilty plea, BP

will retain a monitor for four years, who will oversee safety, risk management, and equipment

maintenance in relation to deepwater drilling in the Gulf, as well as an independent auditor who will

conduct annual reviews to ensure compliance with the terms of this agreement. The company will also

hire an ethics monitor to improve its code of conduct and foster robust cooperation with the

government.

In addition to the charges filed against BP, a federal grand jury in November 2012 returned an

indictment charging the two highest‐ranking BP supervisors who were on board the Deepwater Horizon

oil rig on the day of the explosion with 23 criminal counts—including 11 counts of seaman’s

manslaughter, 11 counts of involuntary manslaughter, and alleged violations of the CWA. The grand

jury also charged a former BP executive who served as a deputy incident commander and BP’s second‐

highest ranking representative at Unified Command during the spill response with hiding information

from Congress and allegedly lying to law enforcement officials.

The task force investigation remains ongoing.

Protecting the Integrity of Pesticide Distribution, Sale, and Use Regulations

Scotts Miracle‐Gro, the world’s largest marketer of branded consumer lawn and garden products,

pleaded guilty to 11 violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Under

47
 
                            

                             

                        

                             

                      

                      

                              

                                         

                                

                                      

                             

                                    

                        

                         

             

                               

                             

                              

                                     

                      

     

                           

                                

                                   

                            

                              

                              

                               

                                  

                              

                       

                                   

                            

                                 

                                  

                                  

                               

                                      

                          

                       

                            

                                  

 

 

 

 

 

 

 

 

 

 


 

FIFRA, EPA must register pesticides. Registration assures that pesticides will be properly labeled and

that, if used in accordance with specifications, pesticides will not cause unreasonable harm to the

environment. Scotts’ federal registration manager submitted false documents to EPA and state

regulators in an effort to deceive them into believing that numerous pesticides were registered with

EPA. Accordingly, Scotts admitted to falsifying pesticide registration documents, distributing pesticides

with misleading and unapproved labels, and distributing unregistered pesticides. Scotts also admitted

to illegally applying insecticides to its wild bird food products. Specifically, Scotts applied the pesticides

Actellic 5E and Storcide II to 70 million units of its bird food products to protect its bird food from insect

infestation during storage. This occurred despite the fact that the labels on containers of Storcide II

state that the pesticide is extremely toxic to fish, birds, and other wildlife. Scotts sold this bird food for

two years and continued selling it for six months after company employees specifically warned Scotts’

management of the dangers of these pesticides. Scotts was sentenced to pay a $4 million fine and a

$500,000 community service payment to organizations that protect bird habitats. Sheila Kendrick,

Scotts’ federal registration manager, pleaded guilty to FIFRA and false‐statement violations and was

sentenced to 90 days of incarceration.

Reducing Pollution from Ocean‐Going Vessels

In fiscal year 2012, the penalties imposed in vessel pollution cases prosecuted by the Division totaled

nearly $10 million and responsible maritime officials were sentenced to more than 37 months of

confinement. This brought the penalties imposed as a result of ENRD’s Vessel Pollution Initiative, which

began in the late 1990s, to more than $330 million in criminal fines and more than 26 years of

confinement. The Division’s most recent prosecutions of deliberate violations include the

representative cases below.

Alejandro Gonzalez, a ship surveyor based in Miami, Florida, was responsible for inspecting and

certifying the safety and seaworthiness of merchant vessels on behalf of foreign countries. In 2008, U.S.

Coast Guard inspectors in San Juan, Puerto Rico, found that the M/V Cala Galdana was taking on water

and requested records detailing the ship’s last dry‐dock inspection. Gonzalez falsely told U.S. Coast

Guard officials that the vessel had undergone maintenance work that had never occurred. Gonzales also

issued a false safety certificate to another ship, the M/V Cosette, without conducting a proper survey.

When the ship entered New York Harbor in 2009, Coast Guard inspectors discovered exhaust and fuel

pouring into the engine room, endangering the safety of the crew and the ship. A jury convicted

Gonzalez of three false‐statement violations and obstruction of justice. He was sentenced to serve 21

months of incarceration, followed by a one‐year term of supervised release.

In September 2011, the U.S. Coast Guard conducted an inspection of the M/V Gaurav Prem in the Port

of Mobile, Alabama. During the inspection, crew members told inspectors that senior officers had

caused the overboard discharge of oily bilge waste from the vessel many times during the voyage from

South Korea to Mobile. Such discharges, although illegal, are required to be recorded in the vessel’s Oil

Record Book, but they were not. On May 30, 2012, Target Ship Management Pte., Ltd., M/V Gaurav

Prem’s operating company, pleaded guilty to violating the Act to Prevent Pollution from Ships (APPS) by

failing to maintain an accurate Oil Record Book. Target was sentenced to pay a $1 million fine and to

make a $200,000 community service payment to the National Fish and Wildlife Foundation. The

company also must complete a three‐year term of probation and implement an environmental

compliance plan. The chief engineer and second engineer of the vessel also pleaded guilty, were

sentenced to probation, and were ordered to leave the country. In a related case, the ship’s captain,

48
 
                                

                              

                                

                                

                               

                           

                            

                             

                            

                                 

                         

                               

                         

                             

                            

                 

                           

                              

                                

                             

                                    

                           

                                 

                          

                                   

                                      

                               

                                     

                                

                                    

                                   

                              

                             

                              

                                

                                 

                              

                                  

                                       

                       

                            

 

 

 

 

 

 

 

 

 

 


 

Prastana Taohim, was convicted by a jury of two counts of obstruction of justice. The convictions

stemmed from his ordering crew members to throw hundreds of plastic pipes overboard. These pipes

had been used to fumigate a grain shipment with insecticide. Captain Taohim then ordered that the

ship's Garbage Record Book be falsified to conceal the disposal. On August 15, 2012, Captain Taohim

was sentenced to serve a year‐and‐a‐day of incarceration, followed by three years of supervised release.

Guilty pleas were entered in seven additional cases involving deliberate violations by vessel operators

and crew members: United States v. Giuseppe Bottiglieri Shipping Co., S.P.A.; United States v. Rudolf

Hofer; United States v. Vano; United States v. Koeje Marine Co., Ltd.; United States v. Ilios Shipping Co.,

S.A.; United States v. Efploia Shipping Co., S.A.; and United States v. A.E. Nomikos Shipping. These

companies and individuals were sentenced to pay a total of $5.9 million in fines, $1.7 million in

community service payments, and $200,000 toward environmental compliance plans, and to serve a

total of four months of incarceration, with each serving a term of probation, for crimes including

conspiracy, false statements, obstruction of justice, and Oil Record Book violations under APPS.

Stopping Illegal Wildlife Trafficking

Federal criminal enforcement of wildlife statutes plays a key deterrent role and augments state, tribal,

and foreign wildlife management efforts. A wildlife case can include prosecution of both individual and

organizational perpetrators; disgorgement of proceeds from illegal conduct such as smuggling;

punishment that includes community service to help mitigate harm caused by the offense; and

forfeiture of wildlife and instrumentalities used to commit the offense. One key statute for prosecution

of wildlife crimes is the Lacey Act. Division prosecutions in fiscal year 2012 included the following cases:

‐‐From 2009 to 2011, Enrique Gomez De Molina illegally imported wildlife and wildlife parts from

Southeast Asia to the United States in violation of the Lacey Act. Among the illegal shipments De Molina

procured were cobras, pangolins, hornbills, babirusa (a species of pig), orangutan skulls, Java kingfishers,

and slow lores (a primate), none of which were properly declared when imported or, if allowed for

export, accompanied by the required CITES permit. De Molina incorporated the various wildlife parts

into taxidermy pieces at his studio in Miami, Florida, and offered to sell the pieces through galleries and

on the Internet for prices up to $80,000. De Molina pleaded guilty to a Lacey Act violation for smuggling

wildlife and was sentenced to serve 20 months of incarceration, followed by a one‐year term of

supervised release, to pay a $6,000 fine, and to forfeit all of the smuggled wildlife in his possession.

‐‐Black coral colonies serve as habitat for numerous aquatic species. The coral itself is slow growing,

taking hundreds or thousands of years to develop. Black coral is especially prized by some for use in

jewelry and art. It can be polished to a high sheen, worked into artistic sculptures, and inlaid. Because

of its scarcity, black coral is subject to strict trade regulations under CITES. GEM Manufacturing, L.L.C.

(GEM), a company incorporated in the U.S. Virgin Islands, frequently purchased black coral from a

Taiwanese company, Peng Chia Enterprise Co., Ltd., for use in its high‐end jewelry and sculpture. None

of the shipments of black coral from Peng Chia to GEM complied with CITES trade regulations. The

shipments to the United States violated the Lacey Act because the boxes of wildlife were falsely labeled

in international commerce. In January 2009, 10 boxes of black coral labeled “plastic of [sic] craft work”

were shipped by Peng Chia to GEM. For this illegal importation and for many other illegal shipments,

GEM pleaded guilty to violating the Lacey Act and was sentenced to pay a criminal fine of $1.8 million, to

be apportioned between the Lacey Act Reward Fund and the National Oceanic and Atmospheric

Administration Asset Forfeiture Fund. GEM also was required to pay $500,000 in community service

49
 
                               

                              

                         

  

                                 

                              

                         

                         

                       

             

                            

                         

                             

                         

                           

                         

                         

                 

                           

               

   

                             

                             

                 

                                     

                           

                                 

                                  

                                 

         

           

                             

                                        

                                  

 

 

 

 

 

 

 

 

 

 


 

payments for projects to study and protect black coral and to implement an auditing, tracking, and

inventory control program during its three years of probation. The sanction also included a criminal

forfeiture of jewelry and raw black coral that exceeded $2.17 million in value.

Working With Others to Protect the Environment Through Pollution and Wildlife Prosecutions

In fiscal year 2012, the Division continued to partner with state and local agencies and working groups

to ensure that pollution and wildlife prosecutions are given the attention and importance they deserve.

We developed and participated in major training events and meetings, including the following:

‐‐Division attorneys provided environmental crimes training to U.S. Coast Guard personnel, EPA Criminal

Investigation Division agents, Wildlife Refuge officers, FWS agents, Occupational Safety and Health

Administration officers, regional associations such as the Northeastern Environmental Enforcement

Project and the Western States Project, Assistant United States Attorneys, academics, and the judiciary.

‐‐ENRD worked closely with United States Attorneys’ personnel on environmental task forces in

Nebraska, the Southern District of Ohio, the Southern District of Texas, the Eastern and Western

Districts of Virginia, the District of the District of Columbia, and elsewhere.

‐‐The Division co‐hosted the biannual meeting of the Environmental Crimes Policy Committee, which is

comprised of Division prosecutors and Assistant United States Attorneys, and provided basic and

advanced environmental crimes training to Assistant United States Attorneys and agency counsel in its

week‐long Environmental Crimes Seminar at the National Advocacy Center.

‐‐The Division also participated in and presented at meetings of the Environmental Issues Working

Group of the Attorney General’s Advisory Committee.

TEXT BOXES

From January 21, 2009 through September 30, 2012, the Division concluded criminal cases against 227

individuals and 77 corporate defendants, obtaining over 134 years of confinement and more than $252

million in criminal fines, restitution, and other monetary relief.

“The $4 billion in penalties and fines is the single largest criminal resolution in the history of the United

States and constitutes a major achievement toward fulfilling a promise that the Justice Department

made nearly two years ago to respond to the consequences of this epic environmental disaster and seek

justice on behalf of its victims. We specifically structured this resolution to ensure that more than half

of the proceeds directly benefit the Gulf Coast region so that residents can continue to recover and

rebuild.”

— Attorney General Eric Holder

BP Exploration and Production, Inc., Plea Announcement

“As the world’s largest marketer of residential‐use pesticides, Scotts has a special obligation to make

certain that it observes the laws governing the sale and use of its products. For having failed to do so,

Scotts has been sentenced to pay the largest fine in the history of FIFRA enforcement. The Department

50
 
                                     

                             

       

         

                               

                             

                             

     

                       

                                          

                                    

                 

               

                   

 

 

 

 


 

of Justice will continue to work with EPA to assure that pesticides applied in homes and on lawns and

food are sold and used in compliance with the laws intended to assure their safety.”

— Ignacia S. Moreno

Scotts Miracle‐Gro Plea Agreement Press Release

Under the auspices of the Vessel Pollution Initiative which began in the late 1990s, the penalties

imposed in vessel pollution cases prosecuted by ENRD from January 2009 through September 2012 have

totaled more than $51.3 million, and responsible maritime officials have been sentenced to more than

77 months of confinement.

“Wildlife trafficking has become more organized, more lucrative, more widespread, and more

dangerous than ever before. . . . . By some estimates, the black market in wildlife is rivaled in size only

by trade in illegal arms and drugs. Today, ivory sells for nearly $1,000 per pound. Rhino horns are

literally worth their weight in gold, $30,000 per pound.”

— U.S. Secretary of State Hillary Rodham Clinton

November 8, 2012 Remarks at the Partnership Meeting on Wildlife

Trafficking

51
 
         

       

                               

                                  

                           

                                 

                                  

                               

                           

                       

                              

                        

                     

   

                         

                                   

                             

                             

                                  

                                      

                         

                         

                                     

                            

                       

                             

                                

                               

                            

                           

                              

                         

                                  

                                 

                           

                              

       

 

 

 

 

 

 

 

 

 

 

 


 

DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS

Defending the U.S. Response to the Deepwater Horizon Explosion, Fire, and Oil Spill and Management

of Oil and Gas Resources

The Division continued to defend cases arising from the Deepwater Horizon explosion, fire, and oil spill,

which occurred in the Gulf of Mexico in April 2010. These cases challenge aspects of the federal

government’s response to contain the oil spill following the explosion, regulatory actions to prevent

future recurrence of oil spills, and approval of exploration and production plans and lease sales in the

Gulf of Mexico and Alaskan waters. Cases resolved in fiscal year 2012 include the following district court

cases:

‐‐In Center for Biological Diversity v. Salazar, the district court dismissed nearly all of plaintiff’s claims in

2011, including challenges to the Department of the Interior’s policy of using categorical exclusion

reviews under NEPA when approving exploration, development, and production plans, and drilling

permits. The court also dismissed claims relating to several planned lease sales as constitutionally and

prudentially unripe for decision. In August 2012, the court dismissed all remaining claims–those

directed at Lease Sale 213–pursuant to the parties’ stipulation of dismissal.

‐‐In Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., Regulation & Enforcement, plaintiff

challenged oil and gas lease sales for deepwater wells in the Gulf of Mexico, alleging violations of NEPA,

the ESA, and the Administrative Procedure Act arising from the Department of the Interior’s alleged

failure to modify offshore oil and gas leasing operations, policies, and practices following the Deepwater

Horizon explosion, fire, and oil spill. The U.S. District Court for the Southern District of Alabama granted

the U.S. motion to dismiss all claims other than those relating to Lease Sale 213 in fiscal year 2011. The

court granted summary judgment for Interior on those remaining claims in May 2012.

‐‐In Oceana v. Bureau of Ocean Energy Mgmt., Regulation & Enforcement, plaintiffs challenged Lease

Sale 218, which is the first Outer Continental Shelf lease sale to be conducted in the Gulf of Mexico

following the Deepwater Horizon explosion, fire, and oil spill. Plaintiffs voluntarily dismissed their NEPA

claims with prejudice, and their ESA claims without prejudice, in September 2012.

In fiscal year 2012, two appellate courts issued opinions in Deepwater Horizon defensive cases handled

by ENRD. In May 2012, the Fifth Circuit dismissed 12 petitions for review for failure to exhaust

administrative remedies and four others as moot in Gulf Restoration Network v. Salazar and Center for

Biological Diversity v. Salazar. These petitions challenged the Department of the Interior’s approval of

lessee‐proposed exploration and development plans in the days shortly before and after the Deepwater

Horizon explosion, fire, and oil spill. The petitions challenged the use of categorical exclusions under

NEPA, and alleged that Interior should have considered new information regarding the Deepwater

Horizon explosion, fire, and oil spill. However, petitioners did not raise any of their claims before the

agency as it considered the plans, despite a requirement in the Outer Continental Shelf Lands Act that

judicial review of plan approval is available only to those who participate in the administrative

proceedings challenged in court. The court found that petitioners had provided no basis for excusing

their failures to exhaust.

52
 
                               

                                     

                                

                           

                             

                            

                             

                                

                                   

                                 

                                  

                               

                                  

                       

                             

                               

               

                               

                              

                             

                          

                                

                           

                         

                             

                           

                              

                                

                         

                                 

                               

                             

                               

                           

                           

                             

                               

                         

                           

                                   

                                  

                             

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

In June 2012, the Eleventh Circuit denied consolidated petitions for review of Interior’s approval of an

exploration plan covering the drilling of up to 10 exploratory wells in a deepwater area of the Gulf of

Mexico in Defenders of Wildlife v. Bureau of Ocean Energy Mgmt. The court rejected several challenges

to the environmental assessment developed for the action under NEPA, emphasizing that a reviewing

court must be “extremely deferential ‘when an agency’s decision rests on the evaluation of complex

scientific data within the agency’s technical expertise.’” The court found that Interior had adequately

considered the risks and potential impacts of oil spills and adequately considered site‐specific data and

impacts in concluding that there would be no significant impacts on the environment from the drilling.

The court found that Interior was not required to wait until environmental studies of the effects of the

Deepwater Horizon explosion, fire, and oil spill were complete, but could act on the basis of existing

information. The court also rejected a claim that Interior could not approve the exploration plan until it

had completed reinitiated consultations under the ESA with NMFS and FWS which it had initiated after

the Deepwater Horizon explosion, fire, and oil spill occurred. The court found that Interior could rely on

the pre‐Deepwater Horizon biological opinions, which had not been withdrawn, in conjunction with

more recent studies and the fact that Interior retained authority under the Outer Continental Shelf

Lands Act to suspend activities if it determined during the consultation that such action was necessary

to avoid jeopardy to threatened or endangered species.

Upholding Administrative Actions Related to Climate Change

Over the past several years, EPA has developed a regulatory program under the CAA to regulate

greenhouse gas emissions that contribute to global climate change. In one of the most significant

environmental regulatory decisions of the past decade, a unanimous panel of the D.C. Circuit in Coalition

for Responsible Regulation v. EPA upheld EPA’s four principal greenhouse gas‐related regulatory actions.

Through a series of regulations, EPA had (1) found that emissions of greenhouse gases from motor

vehicles may reasonably be expected to endanger public health and welfare (known as the

“endangerment finding”); (2) set standards for greenhouse gas emissions from motor vehicles; (3)

specified how, and to what extent, regulation of greenhouse gas emissions from motor vehicles would

trigger stationary source CAA permit requirements; and (4) established the measures that states and

EPA must take to effectuate such stationary source requirements. Among other things, the court held

that: (1) EPA had considered the proper factors and employed an appropriate legal standard in making

the endangerment finding; (2) EPA had articulated a thorough and reasonable scientific and technical

basis for the endangerment finding; (3) EPA had acted consistent with the statute in determining that it

was required to issue emission standards for new motor vehicles in light of the endangerment finding,

and costs and other implications of stationary source regulation of greenhouse gases were irrelevant to

this duty; (4) at least some newly regulated petitioners could challenge how, and to what extent,

regulation of greenhouse gas emissions from motor vehicles would trigger stationary source CAA permit

requirements, but on the merits, the statute unambiguously supports the longstanding view reflected in

those regulations, i.e., that emissions of any pollutant regulated under the act can trigger stationary

source CAA permit requirements; and (5) no one had standing to bring their claims challenging EPA’s

stationary source CAA permit requirements, primarily because the phased approach to greenhouse gas

permitting reflected in EPA’s regulations eased, rather than tightened, the regulatory burden facing the

petitioners.

At the same time, the Division defended against efforts in two cases to force the federal government to

do even more to address global climate change. In Alec L. v. Jackson, plaintiffs brought an unusual and

broad‐based challenge seeking to force seven federal agencies to take action with respect to climate

53
 
                                

                            

                               

                           

                                  

                     

   

                                   

                         

                              

                             

                      

                          

                         

                                

                 

                         

                              

                                    

                               

                             

                                      

                     

               

                                 

                              

                         

                           

                          

                              

                           

                               

                                    

                             

                                 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

change under a public‐trust theory. We were successful in persuading the district court to dismiss the

case on jurisdictional grounds. In Center for Biological Diversity v. EPA, plaintiffs alleged that EPA had

unreasonably delayed in responding to rulemaking petitions and in making a finding under the CAA that

greenhouse gas emissions from aircraft engines cause or contribute to air pollution endangering public

health or welfare. In March 2012, the district court concluded that EPA had not unreasonably delayed in

making such a finding, and denied plaintiffs’ motion for summary judgment.

Defending EPA’s Air Quality Standards Revisions and Implementation Plans

In two separate cases that the Division litigated during the past fiscal year, the D.C. Circuit upheld EPA’s

rules revising National Ambient Air Quality Standards (NAAQS) against industry challenges that alleged

the standards were too stringent and unsupported by science. In American Petroleum Inst. v. EPA, a

unanimous panel rejected a challenge to EPA’s decision to update and strengthen the NAAQS for

nitrogen dioxide. In National Environmental Dev. Association’s Clean Air Project v. EPA, a separate

unanimous panel upheld EPA’s revised NAAQS for SO2. Both cases reaffirm important precedent

regarding the significant deference owed to EPA in making technical and scientific judgments.

Protecting Water Quality in the Everglades

Efforts to restore water quality in the Florida Everglades took a major step forward in 2012. After

months of intergovernmental collaboration and negotiation, the Florida Department of Environmental

Protection issued a CWA National Pollutant Discharge Elimination System permit requiring the South

Florida Water Management District to implement an $880 million suite of projects. Issuance of the

permit was at issue in Miccosukee Tribe v. EPA, a case handled by ENRD. These projects will promote

efforts to restore water quality needed to protect natural populations of flora and fauna in Everglades

National Park and elsewhere in the remaining Florida Everglades, as also required under a consent

decree in United States v. South Florida Water Mgmt. Dist. This activity is a critical component of one of

the largest ecosystem restoration efforts in human history–the Comprehensive Everglades Restoration

Plan, which was approved by Congress in 2000.

Defending of Water Quality Criteria for Nutrient Pollution in Florida

In Florida Wildlife Fed’n v. EPA, a set of 13 consolidated cases, the Division was largely successful in

defending EPA’s numeric water quality criteria for nutrients for most Florida waters. EPA made a

determination in January 2009 that new or revised water‐quality standards–in the form of numeric

nutrient criteria–are necessary for Florida to meet the requirements of the CWA, and then promulgated

such numeric nutrient criteria in November 2010. EPA’s actions were challenged by both environmental

and agriculture industry groups. The district court in Florida issued a mostly favorable opinion in

February 2012. First, the court upheld EPA’s determination of the need for numeric criteria. Second,

the court upheld the criteria for lakes and springs and EPA’s decision to adopt downstream protective

values (DPVs), but found against EPA as to the stream criteria and DPVs for unimpaired lakes. The court,

however, suggested that EPA could support the stream criteria with a more thorough explanation of

whether the criteria do prevent a harmful imbalance of natural populations of aquatic flora and fauna.

54
 
                                 

                                 

                                    

                           

                                  

                              

                               

                         

                 

                               

                                

                                 

                             

                             

                             

                             

                                   

                                  

                               

                                 

                                 

                               

                         

   

                                 

                                      

                              

                           

                          

                                   

                              

                             

                                   

                                  

                                   

                                      

                               

 

 

 

 

 

 


 

Upholding Efforts to Deepen the Delaware River for Navigation

In State of New Jersey Dep’t of Environmental Protection v. United States Army Corps of Eng’rs, the Third

Circuit affirmed the judgments of two district courts upholding actions by the Corps in connection with a

project to deepen the 102‐mile shipping channel in the Delaware River. The State of New Jersey and a

coalition of environmental groups led by the Delaware Riverkeeper Network alleged violations of NEPA,

the Coastal Zone Management Act (CZMA), the CWA, and state water quality laws. The court upheld all

aspects of the federal agency’s actions. The court concluded that the Corps’ NEPA analysis was

procedurally and substantively adequate, the Corps’ decision that it was not required to revisit its CZMA

consistency determination was valid, and the Corps was statutorily exempt from the CWA’s general

requirements to obtain various state water‐quality certifications and permits.

Defending the Corps’ Permitting Decisions

The Division handled litigation related to multiple decisions by the Corps to issue CWA section 404

permits authorizing the discharge of dredge and fill materials into various waters of the United States.

Examples include Sierra Club v. U.S. Army Corps of Eng’rs (denial of a motion for preliminary injunction

seeking to halt construction of Segment E of the Grand Parkway project near Houston, Texas); Huron

Mountain Club v. Corps of Eng’rs (denying a motion for preliminary injunction seeking to enjoin

defendant Kennecott Eagle Minerals Co. from further development or operation of the Eagle Mine, a

nickel and copper mine beneath the Salmon Trout River in Marquette County, Michigan); Charleston v.

U.S. Army Corps of Eng’rs (dismissal on ripeness and standing grounds of suit challenging a plan by South

Carolina to put an intermodal rail yard on the former Charleston Naval Base); Georgia River Network v

U.S. Army Corps of Eng’rs (grant of summary judgment on claims by environmental groups and Leon

County, Georgia, challenging the construction of a 960‐acre fishing lake on Tired Creek, a tributary of the

Ochlocknee River in southern Georgia); City of Dania Beach, Florida v. U.S. Army Corps of Eng’rs (denial

of a motion for preliminary injunction against a permit authorizing the discharge of dredge and fill

materials with respect to the expansion of the southern runway at the Fort Lauderdale‐Hollywood

International Airport).

In the case of Bd. of Mississippi Levee Comm’rs v. U.S. EPA, ENRD also successfully defended EPA’s

decision to veto a Corps’ permit under section 404(c) of the CWA. The Corps sought to build a major

pumping station to reduce flooding in the Yazoo Backwater Area. The Board of Mississippi Levee

Commissioners claimed that the pump project was exempt from certain requirements of the CWA,

including section 404(c), because Congress approved it under section 404(r). To meet the requirements

of section 404(r), a project must be “specifically authorized by Congress” and the EIS under NEPA for the

project must be submitted to Congress prior to project authorization or an appropriation of funds. The

Fifth Circuit affirmed the district court, deferring to EPA’s determination that section 404(r) did not

apply because there was insufficient evidence in the record that an EIS for this project was provided to

Congress.

Representing Federal Interests in Asian Carp Litigation

Invasive species are one of the greatest threats to the Great Lakes ecosystem. Asian carp, which can

grow to five feet and weigh more than 100 pounds, have come to dominate sections of the Mississippi

River and its tributaries. If the carp were to become established in the Great Lakes, it is feared the

species could create an ecological disaster by consuming the bottom of the food chain and negatively

55
 
                            

                               

                                  

                               

                               

                                  

                                

                             

                                  

                                   

                               

                              

                                      

     

                             

                              

                         

    

                               

                                

                             

                             

                                

                           

                                 

                            

                                      

                           

                           

                                 

                           

                                  

                                

             

                               

                        

                             

                                    

                             

 

 

 

 

 

 

 

 

 

 

 

 


 

impacting the Great Lakes’ multibillion‐dollar fishery industry. In fiscal year 2012, the Division continued

to successfully represent the interests of the United States in litigation involving the migration of Asian

carp into the Great Lakes through the Chicago Area Waterway System. In State of Michigan v. U.S. Army

Corps of Eng’rs, the States of Michigan, Wisconsin, Illinois, Pennsylvania, and Ohio filed suit against the

Corps, alleging that the Corps had created a public nuisance by operating structures around Chicago in

such a way as to allow Asian carp to enter Lake Michigan. Plaintiffs sought a preliminary injunction,

which the district court denied and the Seventh Circuit upheld. The appellate court held that the

injunctive relief sought would only marginally decrease the likelihood of harm during the pendency of

the litigation while imposing great costs on the government and the public. It concluded that any effort

by the courts to intervene in the ongoing extensive interagency effort to stop the invasion of carp was

unnecessary and might do more harm than good given the relative competency of the branches of

government. Following affirmation by the Seventh Circuit of the denial of a preliminary injunction, the

states filed a petition for a writ of certiorari in the U.S. Supreme Court. In February 2012, the Supreme

Court denied certiorari.

Defending the Animal and Plant Health Inspection Service’s (APHIS’s) Biotechnology Regulatory

Program

The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture regulates the

nation’s use and introduction of genetically engineered crops. In fiscal year 2012, the Division continued

its defense of APHIS’s biotechnology regulatory program with respect to several genetically engineered

crops.

Alfalfa is the fourth‐most‐widely‐grown crop in the United States, and weed management for the crop is

a significant challenge. The case of Center for Food Safety v. Vilsack raised challenges to APHIS’s

deregulation of alfalfa that was genetically engineered to tolerate the herbicide known as “Roundup.”

The Division defended APHIS’s interpretation of the limits of its regulatory authority under both the

Plant Protection Act and the ESA as well as the sufficiency of its environmental impact disclosures. The

district court issued a decision favorable to the United States on all counts.

The Division also continued to defend APHIS in challenges to its decisions regarding sugar beets that also

have been genetically modified to tolerate the same herbicide. Genetically modified sugar beets make

up 95% of all sugar beets planted. In Grant v. Vilsack (Sugar Beets III) and Center for Food Safety v.

Vilsack (Sugar Beets IV), ENRD defended APHIS from challenges brought by industry groups and

environmental groups against its interim decision to partially deregulate the Roundup Ready sugar beet

root crop production and to permit planting of the Roundup Ready sugar beet seed crop subject to

mandatory conditions while it prepared an EIS under NEPA regarding full deregulation of Roundup

Ready sugar beets. In July 2012, APHIS issued its final regulatory determination on a petition for full

deregulation of Roundup Ready sugar beets after preparing an EIS. The district court dismissed as moot

all claims against the interim decision.

The Fish and Wildlife Service allows farming on national wildlife refuges, in some cases with genetically

modified crops. ENRD successfully defended the FWS’s decision to enter into Cooperative Farming

Agreements with private parties on refuges in the Midwest Region that would allow genetically modified

corn and soybeans to be grown. In Center for Food Safety v. Salazar, the district court found that FWS

had adequately evaluated the adverse impacts associated with the use of genetically modified crops on

56
 
                              

   

                             

                         

                     

                               

                             

                      

                             

                             

                           

                                     

                           

                              

                           

        

                           

                             

                             

   

                           

                                

           

                                   

                      

                           

                                

                               

                       

                                 

                                

                                 

                            

                                 

                               

                                  

                               

 

 

 

 

 

 

 

 

 

 

 

 


 

refuge land. The court also found that the FWS did not violate the National Refuge System

Administration Act.

Supporting Investment in Transportation Infrastructure

In fiscal year 2012, the Division continued to support the Department of Transportation’s investment in

state and city efforts under applicable law to expand crucial transportation infrastructure across the

nation with appropriate environmental protections. During construction, these projects will create jobs.

Once completed, these projects further economic development in the regions in which they are located.

The United States has contributed well over $1 billion towards Indiana’s effort to build, between

Evansville and Indianapolis, the longest continuous new‐terrain interstate highway in decades. In

Citizens for Appropriate Rural Roads v. Federal Highway Admin., some property owners along the route

filed a complaint and sought a preliminary injunction to stop the in‐progress construction by alleging

violations of NEPA, the Department of Transportation Act, the National Historic Preservation Act, the

ESA, and the CAA. Plaintiffs raised concerns about impacts to the endangered Indiana bat. As part of its

mitigation efforts, Indiana purchased two large caves that serve as important hibernacula for the

Indiana bat. By working closely with state attorneys and the United States Attorney’s Office for the

Southern District of Indiana, we successfully opposed the preliminary injunction, and work on the

project has continued uninterrupted.

In Sierra Club v. U.S. Army Corps of Eng’rs, the Division successfully defended the Texas Transportation

Commission’s construction of Segment E of the Grand Parkway, which is part of the important outer

beltway around Houston, in the face of challenges to the sufficiency of the Federal Highway

Administration’s environmental analyses.

Protecting the Public Fisc from Defective Takings Claims

Over the past year, the Division has successfully defended numerous cases seeking compensation under

the Fifth Amendment to the U.S. Constitution for the alleged taking of private property. The following

cases are worthy of special note:

‐‐In January 2012, in Otay Mesa Property v. United States, the Federal Circuit vacated the trial court’s $3

million just‐compensation award and remanded for the redetermination of an appropriate award. U.S.

Customs and Border Protection had placed 14 seismic underground sensors on plaintiff’s property to

help stop illegal immigration along the border with Mexico near San Diego, California. The United States

filed a stipulation in the trial court describing the property interest taken as a permanent easement.

Disagreeing, the trial court concluded that the government’s stipulation described a temporary

easement and awarded compensation based on an analogy to the rental value of property in the area

for skydiving and parachute training. The Federal Circuit agreed with the United States that it had

stipulated to the taking of a permanent, not temporary, easement and that the trial court erred in

basing its award on the rental value of property for skydiving and parachute training.

‐‐In a long‐running battle over the nature of rights on federal grazing lands, the Federal Circuit vacated

the Court of Federal Claims’ award of damages for a regulatory taking and compensation for range

improvements, and reversed the finding of a physical taking of water rights in Hage v. United States.

Plaintiff was a rancher who alleged that BLM’s and Forest Service’s efforts to enforce federal land

57
 
                              

                         

                          

                                   

                                

                                     

                               

                    

                             

                             

                              

                           

                               

                             

                             

                              

                                 

                                   

   

                           

                                     

                            

                                  

                               

                           

                                  

                          

                             

                             

                              

                               

                                 

                                  

                        

                         

                             

                           

 

 

 

 

 

 

 

 

 

 

 

 


 

management statutes worked a taking of his ranching operation by the government. The trial court

awarded plaintiff $14,243,542 in compensation for regulatory and physical takings of Hage’s water

rights, statutory compensation for range improvements, and interest. The Federal Circuit vacated the

award of compensation on the regulatory taking claim, finding that it was not ripe due to Hage’s failure

to seek special‐use permits to maintain irrigation ditches. As to the physical takings’ claim, the court

held that, pursuant to Nevada law, Hage could assert only a taking of water that he could put to

beneficial use, and found that Hage had presented no evidence that the federal government took any

water that he could have put to beneficial use.

‐‐In Banks v. United States, dozens of lakefront property owners along the shore of Lake Michigan

alleged that the Corps’ construction and operation of harbor jetties caused extensive erosion to their

properties. After two lengthy trials that included the use of several expert witnesses who undertook

detailed examination of the physical characteristics of the shoreline, the court dismissed the case on

statute‐of‐limitations grounds, resulting in a savings to the United States of more than $120 million.

‐‐In Casitas Municipal Water Dist. v. United States, a California municipal water provider alleged a Fifth

Amendment taking and breach of contract resulting from certain actions they allegedly were required to

undertake to protect the California steelhead, an endangered fish species. After a multiweek trial, the

Court of Federal Claims dismissed the action, finding that the water district had not demonstrated that it

had suffered a loss of water as a result of the government’s actions, thus defeating their $87 million

claim.

‐‐In Big Oak Farms v. United States, individuals owning property within the Birds Point‐New Madrid

Floodway filed a class action alleging that the opening of the floodway by the Corps in the wake of

historic water levels on the Mississippi River resulted in a Fifth Amendment taking. Plaintiffs’ $300

million demand in that case was defeated. The Court of Federal Claims concluded that the flooding was

not “inevitably recurring” and, therefore, plaintiffs failed to state a claim upon which relief could be

granted.

Resolving Ongoing Constitutional Claims Deriving from the Federal Rails‐to‐Trails Program

The Division continues to defend nearly 10,000 claims brought under the Fifth Amendment deriving

from the implementation of the National Trails System Act. That statute has led to the conversion of

abandoned railroad corridors throughout the United States into recreational trails. While these trails

provide significant benefit to countless communities, they also have led to numerous lawsuits in which

adjacent property owners argue that they should be compensated by the United States because the

property interests conveyed to the railroads did not contemplate trail use. The Division is working

diligently to bring these cases to a fair and efficient conclusion, and has successfully resolved numerous

claims over the past year either through settlement or by obtaining court dismissal of those claims that

did not have merit. Among those Court of Federal Claims cases in which we successfully have defeated

takings claims are: Gregory v. United States; Rhutasel v. United States; Rogers v. United States; Thomas

v. United States; Thompson v. United States; and Whispell Foreign Cars, Inc. v. United States.

Acquiring Property for Public Purposes

The Division exercises the federal government's power of eminent domain to enable agencies to acquire

land for public purposes ranging from establishing national parks to building federal courthouses to

58
 
                          

                                

                           

                              

                               

   

                         

                                

                       

                       

                                     

   

                                     

                             

                                

                                

                              

                      

                             

                     

                              

                       

             

                                       

                                 

                                     

                            

                               

                               

                              

                             

                           

                              

                                 

                          

                             

                         

                                    

                             

                                 

              

 

 

 

 

 

 

 


 

protecting the nation’s borders. These actions secure the Fifth Amendment guarantee of just

compensation in amounts that are fair to property owners and to taxpayers. We also assist many

federal agencies through consultation in acquiring lands, buildings, and leases without the expense of

litigation. In appropriate cases, we also provide assistance to federal agencies to ensure that they

obtain clear title for negotiated land acquisitions completed without the need for the Division to file

condemnation actions.

During fiscal year 2012, ENRD valuation and litigation advice to the General Services Administration

(GSA) led to resolution of leasehold acquisitions where the disputes totaled over $33 million. When the

Division’s pre‐condemnation efforts are combined with its trial‐level litigation efforts, the cost savings

for the federal government in fiscal year 2012 quickly approaches $100 million.

Examples of the Division’s actions to acquire land or review title to lands in fiscal year 2012 include the

following cases:

‐‐We provided guidance to the Forest Service in review of title for the acquisition of all right, title, and

interest of the Stearns Company, Ltd., in mineral rights underlying Daniel Boone National Forest in

Kentucky. Stearns conveyed its surface rights in approximately 46,842 acres of this land to the Forest

Service in 1937, but reserved the underlying mineral rights. Litigation ensued in the 1970s over Stearns’

requests to mine the reserved minerals. A separate dispute existed between Stearns and the United

States over environmental contamination arising from mining activities. Acquisition of the mineral

rights allowed the Forest Service to consolidate ownership over thousands of acres of Daniel Boone

National Forest and control all future mining on these lands.

‐‐We also reviewed title for 29.92 acres of land in Dona Ana County, New Mexico. The International

Boundary and Water Commission plans to use this property for environmental preservation and long‐

term river management along the Rio Grande.

‐‐The case of United States v. 156.0 Acres of Land Located in Lake Umbagog in the Town of Errol, Coos

County, New Hampshire, and the Society for the Protection of New Hampshire Forests was filed in district

court at the request of the FWS to acquire the majority of “Big Island,” which is located on Lake

Umbagog, a 7,000‐acre lake stretching between New Hampshire and Maine. The Society for the

Protection of New Hampshire Forests negotiated to sell the property to FWS for $1,000,000, but was

unable to convey clear title to an outstanding 0.027778 interest that had vested in unknown successors

of a defunct corporation. The condemnation action was filed with the consent of all known interested

parties to clear title and to add the land to Umbagog National Wildlife Refuge.

‐‐The Division has continued representation of the Corps in eminent domain actions filed to compensate

landowners for property taken to enable emergency repair of levees following Hurricane Katrina. In one

group of cases, the Corps installed a pumping system on land adjacent to the Mariner’s Cove townhome

development adjoining the 17th Street Levee, requiring acquisition of 14 townhomes. The Corps

reached agreements on compensation with each of the homeowners, but was unable to settle the

Townhomes Association’s aggregate claim for $3,033,333 arising from a claimed right to levy ongoing

assessments on the vacated lots. In November 2011, in United States v. 0.073 Acres of Land Situated in

the Parishes of Orleans and Jefferson, Louisiana, and Mariner’s Cove Townhomes Ass’n, the district court

held that the Townhomes Association did not have a continuing right to levy assessments on the taken

properties, and was entitled to no recovery.

59
 
                         

                     

             

                                

                             

                           

                             

             

                                 

                       

                                       

                                    

                               

                                       

                              

                     

                                  

                           

                           

                               

                             

                                

                           

                              

                               

                                      

                               

           

                       

                          

                   

       

                   

                              

  

                               

                   

 

 

 

 

 

 

 

 

 


 

Working with the U.S. Congress on Environmental and Natural Resources Litigation and Related

Matters

Through the Department's Office of Legislative Affairs, the Division responds to relevant legislative

proposals and congressional requests, prepares for appearances of Division witnesses before

congressional committees, and drafts legislative proposals, including proposals implementing

settlements of Division litigation. On May 31, 2012, with Acting Assistant Attorney General for the Civil

Division Stuart F. Delery and Assistant Attorney General for the Tax Division Kathryn Keneally, Assistant

Attorney General Ignacia S. Moreno appeared at an oversight hearing before the Subcommittee on

Courts, Commercial and Administrative Law of the House Committee on the Judiciary to discuss the

work of ENRD and the other divisions.

One example of federal legislation enacted in fiscal year 2012 with the assistance of ENRD is the

Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf

Coast States Act of 2012 (the RESTORE Act) (title I, subtitle F of Pub. L. No. 112‐141), which became law

in July 2012. The RESTORE Act provides for 80% of any civil or administrative fines awarded in the

ongoing enforcement action related to the Deepwater Horizon explosion, fire, and oil spill in the Gulf of

Mexico to be paid into a special Gulf Coast Restoration Trust Fund, which will in turn be used for various

coastal restoration purposes. The statute authorizes the trust fund monies to be expended for Gulf

environmental and economic restoration purposes, without further appropriation by Congress, and

requires the Secretary of the Treasury to establish procedures related to the operation of the trust fund.

The RESTORE Act also establishes the Gulf Coast Ecosystem Restoration Council, a federal entity

comprised of senior‐level representatives of the Department of the Interior, the Department of the

Army, the Department of Commerce, EPA, the Department of Agriculture, and the U.S. Coast Guard, as

well as representatives of the Governors of the States of Alabama, Florida, Louisiana, Mississippi, and

Texas. The council is charged with developing a comprehensive plan “to restore and protect the natural

resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf

Coast region,” and may expend funds from the trust fund in accordance with this comprehensive plan.

The statute requires a proposed plan to be issued by January 2, 2013, and an “Initial Comprehensive

Plan” to be published by July 6, 2013. Although the Department is not an official member of the council,

ENRD has been assisting other interested agencies in this process, with a particular focus on potential

legal issues that may arise during implementation.

Enforcing Environmental Law Through International Capacity Building

The Division actively implements a wide‐ranging program of international activities, often in

collaboration with partners from other federal agencies. The Division’s international activities serve the

goal of protecting and promoting effective environmental enforcement and support important

Administration and Department objectives:

‐‐We successfully prosecute transnational environmental and natural resources crimes that involve

foreign evidence or foreign assistance, or that rely on the violation of underlying foreign statutes.

‐‐We provide critical training for law enforcement partners in other countries to ensure that they may

work effectively with us in investigating and prosecuting transnational environmental crimes.

60
 
                         

                   

             

                         

       

                               

                         

                          

               

                           

                           

                             

                          

                               

                          

                                 

                           

                        

                           

   

                       

                              

                           

                       

                            

                 

                       

                                 

   

                               

                         

   

                                         

                                    

                              

                              

                             

                       

 

 

 

 

 

 

 

 

 


 

‐‐We participate in the development and implementation of trade and investment agreements, treaties,

international environmental agreements, and domestic implementing legislation in order to ensure that

they protect and promote effective environmental enforcement.

‐‐We also help to develop and facilitate international partnerships and networks that promote effective

prosecution of transnational environmental crimes.

In carrying out these objectives in fiscal year 2012, ENRD attorneys spoke at joint training and

cooperative activities and met with law enforcement counterparts in Brazil, Chile, China, France, Gabon,

Honduras, Indonesia, Peru, Portugal, Russia, South Africa, and Thailand. ENRD also met in Washington,

D.C., with visiting officials representing governments and non‐governmental organizations from

Argentina, Australia, Belgium, Indonesia, Iraq, the Republic of Korea, Russia, Singapore, and Thailand.

The Division continued to participate in domestic and international outreach in order to disseminate

information about the 2008 amendments to the Lacey Act, which added enforcement tools to combat

international trafficking in illegally harvested timber and wood products. For example, a prosecutor

from ENRD’s Environmental Crimes Section spoke about the Lacey Act at a Congress of South American

Environmental Prosecutors in Lima, Peru. ENRD attorneys also participated in U.S. delegations to

Bilateral Forums on Illegal Logging and Associated Trade in China and Indonesia, and in the meeting of

the Experts Group on Illegal Logging and Associated Trade at the Asia Pacific Economic Cooperation

Forum in Russia. Division attorneys also conducted State Department‐funded training programs for

prosecutors and forestry officials on investigating and prosecuting illegal logging crimes in Brazil and

Russia.

ENRD and the EPA Environmental Appeals Board conducted a State Department‐funded training

program on environmental adjudication for the Supreme Court of Chile. The Division also led a training

program on environmental governance for officials of the Environment and Oil Ministries of the

government of Iraq in conjunction with the Department of Commerce Commercial Law Development

Program. The Division also conducted training for the International Convention for the Prevention of

Pollution from Ships and the International Law Enforcement Academy.

We attended the INTERPOL International Chiefs of Environmental Compliance and Enforcement Summit

held in July 2012 and the Division was involved in the INTERPOL Wildlife Crime and Pollution Crime

Working Group.

Finally, the Division participated in negotiations led by the Office of the U.S. Trade Representative for

the environment chapter of the Trans‐Pacific Partnership Trade Agreement with eight Asian and South

American countries.

Protecting the Interests of the United States in Litigation Involving Third Parties

At times, ENRD participates as amicus curiae in cases in which the United States is not a party in order to

protect the interests of the United States and its component agencies. We filed briefs in a number of

such proceedings in fiscal year 2012. One illustration is the case of Decker v. Northwest Environmental

Defense Center (NEDC) and Georgia‐Pacific West v. NEDC. This case concerns a citizen suit brought by

NEDC under the CWA, and implicates a longstanding EPA rule addressing what silvicultural activities are

and are not subject to National Pollutant Discharge Elimination System (NPDES) permitting

61
 
                                

                                 

                     

                          

                                

                                   

                                  

                                 

                             

                                 

                                     

                            

                           

                            

                             

                                 

                                        

                              

                         

                                  

                           

                                

                                 

                              

                                

                             

                                  

                           

                               

                                    

                             

                        

                             

                            

                                 

         

   

                       

                            

                       

 

 

 

 

 

 

 

 

 

 

 

 


 

requirements under the CWA. The United States participated in the district court and Ninth Circuit as

amicus in support of defendants, the State of Oregon and the private timber entities, arguing that EPA

regulations exempted stormwater discharges from logging roads from the NPDES permitting

requirements and that EPA’s interpretation should be given deference. The Ninth Circuit disagreed,

holding that the CWA precluded that interpretation of the EPA regulations. In its revised opinion after

petitions for rehearing, the Ninth Circuit kept intact its entire opinion on the merits, but clarified in a

new section that the court has subject matter jurisdiction to decide the issue. After issuance of the

revised opinion, the State of Oregon and the timber defendants petitioned for writs of certiorari in the

U.S. Supreme Court. On June 25, 2012, the Supreme Court granted the certiorari petitions. On

September 4, 2012, the United States filed an amicus brief in the Supreme Court in support of

petitioners.

Another case in which the United States filed an amicus brief at the request of the U.S. Supreme Court

was Corboy v. Louie. The Supreme Court of Hawaii found that plaintiffs, five non‐native Hawaiians,

lacked standing under state law to challenge the preferential tax treatment afforded native Hawaiians

who obtain a 99‐year homestead lease under the Hawaiian Homes Commission Act. The Hawaii

Supreme Court ruled that the taxpayers lacked standing because they had not established that they

were interested in participating in the homestead lease program and thus failed to establish an injury in

fact sufficient to confer standing. In its brief, the United States opposed the grant of a petition for a writ

of certiorari in this case. On June 29, 2012, the U.S. Supreme Court denied certiorari.

The Division also conducts the Department’s review of citizen‐suit complaints and consent judgments

under the CAA and CWA. These statutes contain provisions allowing citizens to file suit for violations of

the statutes, and require that citizen‐suit complaints and consent judgments be served on the

Department and EPA. When served with complaints, we offer our assistance to counsel for the parties,

and we review all consent judgments to ensure that they comply with the requirements of the relevant

statute and are consistent with the statute’s purposes. An example of the citizen‐suit settlements that

we reviewed in 2012 was filed in Swinomish Indian Tribal Community v. Skagit County Dike Dist. The

Swinomish Tribe, a federally recognized tribe with a reservation adjacent to Puget Sound in Washington

State, brought suit under the citizen‐suit provisions of the CWA and the ESA. The tribe claimed that

defendants’ actions in replacing and maintaining tide gates and other drainage infrastructure in the

Skagit River delta were harming Puget Sound Chinook salmon, which are listed as threatened under the

ESA. Although the case settled in 2009, the parties notified the United States in 2012 that they intended

to amend the consent decree because necessary permits had not been obtained for a habitat

restoration project contemplated under the initial settlement. Working with EPA, we provided

suggested edits to the amended settlement document that were incorporated by the parties into the

amended consent decree filed with the court. Under the amended consent decree, defendants agreed

to pay $500,000 to be used to promote the recovery goals established in the federally adopted Puget

Sound Chinook Salmon Recovery Plan.

TEXT BOXES

KEY FEDERAL CLEAN AIR ACT REGULATORY INITIATIVES CHALLENGED IN THE D.C. CIRCUIT

“But for the reasons set forth below, we conclude: 1) the Endangerment Finding and

Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the

62
 
                             

                                  

                         

               

                   

               

                     

     

                                   

                               

     

                             

       

     

                             

                               

                           

                     

                       

     

                                 

                           

               

                           

     

                             

                               

                              

                             

                            

                            

                 

                             

                       

                                   

 

 

 

 

 

 

 

 

 

 

 


 

governing [Clean Air Act] provisions is unambiguously correct; and 3) no petitioner has standing to

challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review

of the Timing and Tailoring Rules, and deny the remainder of the petitions.”

— Decision in Coalition for Responsible Regulation v. Environmental

Protection Agency, 684 F.3d 102, 113‐14 (D.C. Cir.), reh’g en banc

denied, 2012 U.S. App. LEXIS 25997, 26313 (D.C. Cir. 2012).

Greenhouse Gas Endangerment and Cause or Contribute Finding (the “Endangerment Finding”)

December 7, 2009

EPA issued a final Clean Air Act regulation finding that six greenhouse gases constitute a threat to public

health and welfare, and that the combined emissions from motor vehicles cause or contribute to the

climate change problem.

Standards to Reduce Greenhouse Gas Emissions and Fuel Use for New Passenger Cars and Light‐Duty

Trucks (the “Tailpipe Rule”)

April 1, 2010

EPA and the National Highway Traffic Safety Administration announced a joint final regulation under the

Clean Air Act and the Energy Policy and Conservation Act establishing a historic national program that

will reduce greenhouse gas emissions and improve fuel economy for new passenger cars, light‐duty

trucks, and medium‐duty passenger vehicles, covering model years 2012 through 2016.

Timing Rule Establishing When Stationary Source Permitting Takes Effect (the “Timing Rule”)

March 29, 2010

EPA concluded that an air pollutant becomes subject to permitting under the Clean Air Act New Source

Review Prevention of Significant Deterioration and Title V Operating Permit Programs only when a

regulation requiring control of that pollutant takes effect.

Tailoring Rule for Regulation of Greenhouse Gas Emissions from Large Stationary Sources (the “Tailoring

Rule”)

May 13, 2010

EPA issued a final regulation that establishes thresholds for greenhouse gas emissions that define when

permits under the Clean Air Act New Source Review Prevention of Significant Deterioration and Title V

Operating Permit Programs are required for new and existing industrial facilities. This final rule “tailors”

the requirements of these permitting programs to phase in which facilities will be required to obtain

such permits. Facilities responsible for nearly 70% of the U.S. greenhouse gas emissions from stationary

sources are subject to permitting requirements under this rule. This includes the nation’s largest

greenhouse gas emitters—power plants, refineries, and cement production facilities.

“Today’s action is the culmination of an intensive seven‐month process of discussions among EPA, the

Florida Department of Environmental Protection, the South Florida Water Management District, and

other key federal agencies, including Interior and the Department of the Army, on the plan to clean up

the Everglades.”

63
 
                   

                   

       

   

                             

                                 

                            

                     

                               

                     

                 

                            

                           

                          

                       

                            

                           

     

                          

                     

                                

                                  

                               

     

       

                     

                   

                       

         

                   

   

 

 

 

 

 

 

 


 

— EPA Region IV Administrator Gwen Keyes Fleming Announcing the

June 13, 2012 Approval of Florida’s Submission to Address Water

Quality Requirements in the Everglades

NUTRIENT POLLUTION

• Nutrient pollution is caused by excess nitrogen and phosphorus in the air and water.

• Too much nitrogen and phosphorus in the water causes algae to grow faster than ecosystems can

handle. Significant increases in algae harm water quality, food resources, and habitats, and decrease

the oxygen that fish and other aquatic life need to survive.

• Excess nitrogen in the atmosphere can produce pollutants such as ammonia and ozone, which can

impair our ability to breathe, limit visibility, and alter plant growth.

• The primary sources of nutrient pollution are below.

• Agriculture: Animal manure, excess fertilizer applied to crops and fields, and soil erosion make

agriculture one of the largest sources of nitrogen and phosphorus pollution in the country.

• Stormwater: When precipitation falls on cities and towns, it runs across hard surfaces—like rooftops,

sidewalks, and roads—and carries pollutants, including nitrogen and phosphorus, into local waterways.

• Wastewater: Sewer and septic systems are responsible for treating large quantities of waste, and

these systems do not always operate properly or remove enough nitrogen and phosphorus before

discharging into waterways.

• Fossil Fuels: Electric power generation, industry, transportation, and agriculture have increased the

amount of nitrogen in the air through use of fossil fuels.

• At Home: Fertilizers, yard and pet waste, and certain soaps and detergents contain nitrogen and

phosphorus, and can contribute to nutrient pollution if not properly used or disposed of. The amount of

hard surfaces and type of landscaping can also increase the runoff of nitrogen and phosphorus during

wet weather events.

— EPA Fact Sheets

“After conducting a thorough and transparent examination of alfalfa through a multi‐alternative

environmental impact statement and several public comment opportunities, APHIS has

determined that Roundup Ready alfalfa is as safe as traditionally bred alfalfa.”

— Agriculture Secretary Thomas Vilsack

January 27, 2011 Announcement of Decision to Fully Deregulate Roundup

Ready Alfalfa

64
 
                     

                                     

                         

                         

                              

                                  

                                   

                               

                             

       

       

 

 

 

 


 

FARMING ON NATIONAL WILDLIFE REFUGE SYSTEM LANDS IN THE MIDWEST REGION

• For many years, the Fish and Wildlife Service has used row‐crop farming as a tool in restoring native

habitats, controlling noxious weeds, and providing food for migratory birds and resident wildlife.

• Its Midwest Region includes Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and

Wisconsin. Of the 54 national wildlife and 12 wetland management districts located in the Midwest

Region, 31 are using row‐crop farming as a method of managing wildlife habitat. In 2010, row crops

were being raised on 20,418 acres, or 1.6% of the lands within the refuge system in the eight‐state

region.

• In April 2011, the Midwest Region issued a final environmental assessment allowing the continued use

for five years of genetically modified, glyphosate‐tolerant corn and soybeans on refuge lands for the

purpose of habitat restoration.

— FWS Fact Sheet

65
 
         

                         

                          

                             

         

                           

                                 

                          

                               

                     

                                

                                     

                             

                            

                                

                        

                                       

                                  

                         

                             

                                 

           

                                     

                            

                         

                              

                                 

                                    

   

                                 

                            

                              

                            

                                 

                        

                            

                                

                             

 

 

 

 

 

 

 

 

 


 

PROMOTING NATIONAL SECURITY AND MILITARY PREPAREDNESS

The Environment and Natural Resources Division makes a unique and important contribution to national

security while ensuring robust compliance with the country’s environmental and natural resources laws.

Increasingly, the Division is responsible for defending a variety of agency actions that support the

security of the United States.

Supporting Critical Military Training and Security Needs

The Division successfully defended against a challenge to the Navy’s proposed new $100 million

Undersea Warfare Training Range (USWTR), which is to be located 75 miles off the Atlantic coast of

Florida. The USWTR facility will enhance and improve the Navy’s anti‐submarine warfare training

activities, which are essential to the Navy’s ability to detect and defeat submarines operating in littoral

(shallow water) environments where environmental conditions coupled with new noise reduction

technologies make detection increasingly difficult. The USWTR will be the only training range of its kind

on the East Coast, and it will provide ships, submarines, and aircraft in the Atlantic Fleet with a realistic

and challenging littoral training environment that mirrors the areas in which the Navy finds itself

increasingly operating. In Defenders of Wildlife v. U.S. Dep’t of the Navy, plaintiffs brought suit, alleging

that the Navy’s decision to construct the USWTR violated NEPA and the ESA. Plaintiffs also challenged

NMFS’s associated biological opinion. After extensive summary judgment briefing and oral argument,

the district court ruled in the Navy’s and NMFS’s favor on all claims, putting the Navy in position to begin

implementing the next steps of this vital project. In so ruling, the court accorded “’great deference to

the professional judgment of military authorities concerning the relative importance of a particular

military interest,’” and held that the Navy had reasonably decided not to adopt mitigation measures

that would have required sailors and marines to train in a manner different than what would be

required in an actual combat scenario.

In February 2012, the Ninth Circuit affirmed the district court’s judgment in favor of DOE in the case of

Tri‐Valley CARES v. Department of Energy. This case represents plaintiffs’ second challenge under NEPA

to the adequacy of DOE’s environmental reviews for construction of a new infectious biological‐agents

research facility at the Lawrence Livermore National Lab. In the instant appeal, plaintiffs challenged the

adequacy of DOE’s analysis of the environmental impacts that could result from a terrorist attack on the

facility. The Ninth Circuit held that DOE’s analysis of the risk of a terrorist attack was adequate in

various respects.

Defending Dredging Projects Necessary for National Defense and Economic Vitality

In Town of Bald Head Island v. Army Corps of Eng’rs, plaintiffs challenged a Corps’ dredging project that

was essential to the operation of the Military Ocean Terminal–Sunny Point (MOTSU), which is located

between Wilmington and Southport, North Carolina, on the west bank of the Cape Fear River. The

MOTSU is the largest ammunition terminal in the United States. Ammunition and weapons are

transported to MOTSU from all over the United States, loaded onto ships at MOTSU, and transported to

supply forward‐deployed troops overseas. MOTSU serves a critical role in numerous operations plans

supporting the European and Southwest Asia theaters. Ninety percent of the ammunition supplied to

troops in Iraq and Afghanistan is shipped from MOTSU. Additionally, the dredging was required to keep

the Port of Wilmington available for deep‐draft ships and assure sound economic development for the

66
 
                          

                             

  

                                 

                                    

                         

                                

                     

                        

                             

                              

                       

                             

                              

                                

                            

                             

                            

                               

                                

           

  

                               

                                  

                            

                                

                                 

                              

                                     

                           

                                

                                    

                             

                                      

                               

                                  

                           

                                  

                                  

                               

                        

 

 

 

 

 

 

 

 

 

 


 

Wilmington area. ENRD successfully defended against an injunction and prevailed on a motion to

dismiss, ensuring unfettered access to Cape Fear River channels serving MOTSU and the Port of

Wilmington.

Supporting the Administration’s Renewable Energy Agenda

One component of U.S. efforts to reduce the country’s dependence on foreign oil is expansion of cleaner

domestic sources of energy in the form of wind and solar power and renewable fuels. The Division is

actively defending challenges to permits and rights‐of‐way issued by BLM to promote the development

of renewable energy projects on western public lands. ENRD is handling more than 20 cases involving

solar, wind, and transmission projects located in California, Oregon, Tennessee, Delaware,

Massachusetts, and Vermont. We successfully defeated motions for temporary restraining orders and

preliminary injunctions for the North Sky River Wind Project, Ocotillo Wind Energy Project, and Sunrise

Powerlink Project in California. We also defeated requests for injunctive relief in two cases challenging

smaller pilot projects for solar and wind energy in Tennessee and Delaware.

The Division successfully opposed efforts in the Ninth Circuit to preliminarily enjoin the Ivanpah Solar

Energy Generating System (ISEGS). The ISEGS is the largest solar project under construction in the

world. The 377‐megawatt solar complex uses mirrors to focus the power of the sun on solar receivers

atop power towers. When completed next year, the $2.2 billion system will use 173,500 computer‐

controlled mirrors to aim 1,000‐degree rays at boilers mounted on three 459‐foot towers, turning water

into enough steam‐generated electricity to power 140,000 homes. Our defense of the project in

Western Watersheds Project v. BLM resulted in the first appellate decision to address new solar projects

sited on federal land. The Ninth Circuit concluded that the district court correctly analyzed the balance

of public interests favoring the project.

The Genesis Solar Energy Project is another of the first large‐scale renewable energy projects to be

constructed on federal public land managed by BLM. When complete, the project will provide up to 250

megawatts of clean solar energy to southern California. The Division has successfully defended this

important project in three different lawsuits. In California Unions for Reliable Energy v. U.S. Dep’t of the

Interior, the district court granted our motion to dismiss the case for lack of standing because plaintiffs’

allegations of injury to their domestic water supply were too speculative. In Colorado River Indian Tribes

v. U.S. Dep’t of the Interior, an Indian tribe alleged that BLM failed to adequately consult with the tribe

and conduct additional analysis with respect to artifacts uncovered during the ongoing construction of

the project. The district court denied the tribe’s motion for emergency relief and found that BLM had

adequately consulted with the tribe about the project. The court also found that BLM did not need to

conduct additional analysis because the types of artifacts uncovered were precisely the types of artifacts

that BLM expected to find when it authorized the project. In La Cuna de Aztlan v. U.S. Dep’t of the

Interior, a group of individuals alleged that BLM violated various laws governing public lands and failed

to adequately analyze the impacts of the project. The district court has granted the U.S. motion to

dismiss certain of plaintiffs’ claims, and we continue to aggressively defend against the remaining

claims.

The Ocotillo Wind Energy Project will produce up to 465 megawatts of electricity. The project is located

on 10,000 acres of BLM lands in western Imperial County in California. It is expected to generate

enough electricity via wind turbines to power almost 94,500 homes and will employ 246 workers during

peak construction times. The Division has been defending five separate actions regarding this project

67
 
                               

                                     

                                  

                             

                                   

               

                                   

                            

                               

                              

                            

                                 

                                   

                         

                       

                               

                                  

                           

                           

                                

                            

                 

                   

                            

                          

                                 

                            

                               

                                      

                                 

                        

                         

                         

                              

                                 

                           

                                   

                             

                                    

                         

                                 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

and has defeated each of the three requests for emergency injunctive relief filed to stop the

development of the project. We have secured a dismissal in one of the cases. One example of our

success in defending this project is the case of Desert Protective Council v. U.S. Dep’t of Interior. There,

the district court denied plaintiffs’ motion for a preliminary injunction, finding that plaintiffs failed to

show a likelihood of success on the merits, irreparable harm in the absence of preliminary relief, or a

balance of equities tipping in their favor.

We are working closely with BLM to defend a permit issued for the Cape Wind Project in Nantucket

Sound, America’s first offshore wind project. In four separately filed cases that have been consolidated,

environmental groups, fishermen, a local township, and an Indian tribe seek to overturn the decision by

the Secretary of the Interior to approve the construction of the project under multiple statues. Putting

together the very complex administrative record has led to substantial court proceedings. We have

counseled the Department of the Interior and the U.S. Coast Guard on myriad record issues, resulting in

resolution of all but three of the 12 issues plaintiffs had identified in a motion to compel.

In Backcountry Against Dumps v. Abbott and Protect Our Communities Foundation v. U.S. Forest Service,

local community groups in southern California challenged federal approval of a land‐use management

plan and authorization of a right‐of‐way for the Sunrise Powerlink utility line, which is designed to

enable the San Diego Gas & Electric Co. to transmit electricity from alternative energy projects. In 2011

and 2012, the district court denied plaintiffs’ motions for preliminary injunction and injunction pending

appeal, finding that plaintiffs’ claims under NEPA, the Federal Land Policy and Management Act

(FLPMA), the National Forest Management Act, and the ESA lacked merit. In 2012, the Ninth Circuit

affirmed these decisions. Construction of Sunrise Powerlink is now complete, and the project is

operating to deliver electricity to the San Diego area.

Defending Fossil Fuel Development and Storage

This Administration pursues an “all‐of‐the‐above” energy development strategy, including safe and

responsible development of various forms of fossil fuel energy. Several ENRD cases have furthered fossil

fuel energy development. In Sierra Club v. Bostick, plaintiffs challenged the Corps’ application of

Nationwide Permit 12 to the Keystone Pipeline Gulf Coast Project for development of oil and gas, and

sought a preliminary injunction to forestall the commencement of project construction. In August 2012,

the court denied the motion because plaintiffs failed to establish a substantial likelihood of success on

the merits of their claims. As to their facial challenge to the validity of Nationwide Permit 12, the district

court considered and rejected a series of attacks on the Corps’ interpretations of the CWA and its

implementing regulations, finding that the Corps’ interpretations were not arbitrary or capricious.

Similarly, the court rejected plaintiffs’ as‐applied challenge, concluding that the planned activities under

Nationwide Permit 12 would not have more than minimal adverse environmental effects, both

individually and cumulatively, in light of the Corps’ planned mitigation. The court also briefly addressed

the balance of equities, concluding that plaintiffs failed to establish that this project will have more than

a minimal impact on the environment and that its benefits far exceed its costs.

In May 2012, in Native Village of Point Hope v. Salazar, the Ninth Circuit rejected challenges to the

Department of the Interior’s approval of an exploration plan under the Outer Continental Shelf Lands

Act (OCSLA) for exploratory drilling by Shell in the Beaufort Sea off Alaska. The court first found that

petitioners’ argument that the agency violated OCSLA by approving Shell’s exploration plan before

certain revisions to Shell’s separate oil spill response plan had been approved was moot, in light of

68
 
                                  

                           

                                

                                 

                         

                                 

                              

                              

                              

                                 

                               

                                

                               

                               

          

                             

                                

                               

                               

                            

                               

                                

                                     

                          

                            

                           

                           

                            

                             

                              

                               

                             

                                  

                            

                             

                               

                          

                                 

                             

                        

 

 

 

 

 

 

 

 

 

 

 

 

 


 

Interior’s recent approval of the spill plan. The court also held that Interior was not arbitrary or

capricious in determining that the exploration plan contained an adequate description and discussion of

Shell’s plans for using a well‐capping‐and‐containment system in the event of a blowout. The court also

found that Interior had not acted arbitrarily in finding that Shell provided a reasonable estimate of the

time required for drilling a relief well in case of a blowout.

We supported the DOE’s critical need to acquire land to serve as replacement storage capacity for a

portion of the nation’s Strategic Petroleum Reserve. The U.S. Strategic Petroleum Reserve is the largest

stockpile of government‐owned emergency crude oil in the world. It is designed to provide the

President with a supply response option to support the U.S. economy and for national defense. The

case of United States v. 9.345 Acres of Land Situate in Iberville Parish, Louisiana, and Sidney Vincent

Arbour, III, was initiated in November 2011, with a determination of $17.945 million in estimated just

compensation to acquire an improved salt dome cavern. Because an existing salt dome facility used to

store approximately 10 million barrels of oil was in danger of failure, we obtained the court’s approval

for an immediate transfer of possession to enable DOE to prepare the replacement cavern for oil

transport from the failing facility.

The Division also successfully defended several BLM decisions concerning the leasing of coal on public

lands in the Powder River Basin in Montana and Wyoming. In Powder River Basin Resource Council v.

Salazar, the district court rejected claims that BLM’s decision approving a competitive sale of two coal

leases violated NEPA, FLPMA, and the ESA, and also determined that plaintiffs lacked standing to assert

their climate change‐related NEPA and ESA claims. In WildEarth Guardians v. Salazar, the district court

rejected allegations that BLM had acted arbitrarily and capriciously when it denied a petition to recertify

the Powder River Basin as a Coal Production Region under BLM’s coal leasing regulations. (BLM had

decertified the region as a Coal Production Region, which allowed land to be leased in the basin for coal

production by application. Plaintiffs claimed that such leasing reduced competition and prevented BLM

from adequately analyzing and addressing the environmental impacts of coal leasing in the basin.)

Supporting the Strategic Border Initiative and Securing the Nation’s Borders

In 2007, Congress mandated construction of fencing and related infrastructure at multiple points along

the United States‐Mexico border in order to enhance domestic security by curtailing smuggling, drug

trafficking, and illegal immigration. The Division has worked closely with local U.S. Attorneys’ Offices,

the Department of Homeland Security, and the Corps to facilitate land acquisitions necessary for the

construction of 225 miles of fencing (the Strategic Border Initiative). This has required acquisition by

eminent domain of nearly 400 land parcels in Texas, New Mexico, Arizona, and California and extensive

work to obtain timely possession for construction purposes and to address widespread title and survey

issues. The Division has helped resolve more than 180 cases (most from fiscal year 2009 forward) under

the Strategic Border Initiative. The Division also works more generally with the Department of

Homeland Security and U.S. Attorneys’ Offices in litigating land acquisition cases to secure the nation’s

borders.

Fiscal year 2012 saw successful resolution of previously filed eminent domain actions as well as initiation

of new ones as this important national security work continues. For example, an advantageous

settlement was reached in United States v. 14.30 Acres of Land Situate in San Diego County, California

and the County of San Diego, an acquisition by eminent domain to accommodate Strategic Border

Initiative fencing. The United States’ appraised value was $1,145,000; the landowner’s appraised value

69
 
                              

                                      

                                   

                             

                                 

                                 

                                    

                                   

                                 

                             

                               

       

                                 

                      

                                     

                                   

                                 

                              

                                  

                                    

                            

                               

                             

                                

                               

                                

                               

                                   

               

                                 

                             

                              

                                       

                                    

                                  

                                 

                               

                                 

                               

                                   

 

 

 

 

 

 

 

 

 

 


 

was $6,200,000. The parties arrived at a settlement of $2,000,000 inclusive of costs, expenses, fees, and

interest. In addition, for this same project, we filed the cases of United States v. 5.095 Acres, Located in

San Diego County, California and the State of California; and United States v. 2.81 Acres in San Diego,

County, California and the City of San Diego, with estimated just compensation totaling $595,332.

At the request of GSA and U.S. Customs and Border Protection, the Division also filed the following

actions to acquire lands in Orleans, New York; Van Buren, Maine; and Hamlin, Maine, for expansion and

modernization of land ports of entry: United States v. 3.851 Acres of Roadway and Land Located in the

Town of Orleans, Jefferson County, New York and the State of New York; United States v. 2.239 Acres of

Roadway and Land Located in the Town of Orleans, Jefferson County, New York and the Jefferson County

Highway Department; United States v. 0.50 Acres of Land Situated in the Town of Van Buren, Aroostook

County, Maine and Aroostook Maid Farms, Inc.; United States v. 2.96 Acres of Land Situated in Hamlin,

Maine and Roland F. Corbin.

Acquiring Additional Property to Improve Military Preparedness and National Security

We also acquire lands and review title to lands needed to fulfill other critical military and homeland

security functions. The following cases illustrate this work in fiscal year 2012:

‐‐In June 2012, the Ninth Circuit affirmed the final resolution of United States v. 32.42 Acres in San Diego

County, California, and San Diego Unified Port District, a case which the Division filed at the U.S. Navy’s

request to acquire all remaining interests in filled tidelands in San Diego Bay used as the Navy’s Anti‐

Submarine Warfare Training Center (ASW). In 2005, the United States acquired the property by eminent

domain through a condemnation suit filed in the district court. The San Diego Unified Port District (a

state agency) initially claimed its interest was worth in excess of $50 million. After an April 2010 trial,

the jury set just compensation at $2,910,000. On appeal, the California State Lands Commission

asserted that the U.S. government’s title in the property was limited because the Equal Footing and

Public Trust Doctrines prohibit the United States from exercising its power of eminent domain to

extinguish California’s “public trust” rights in the ASW property. It claimed that its “public trust” rights

become “quiescent” during the United States’ ownership and would “re‐emerge” if the land is later sold

to a private party. The Ninth Circuit rejected the commission’s arguments that the United States’ taking

of the property does not extinguish public trust rights, holding that the United States established new

title in the property through its use of eminent domain and that the federal government took its interest

unencumbered and free of California’s public trust.

‐‐A similar appellate victory was achieved in United States v. 300 Units of Rentable Housing, located on

approximately 57.81 acres of Eielson Air Force Base, Fairbanks, Alaska, and Polar Star Alaska Housing

Corp. We filed this condemnation action to confirm the government’s continuing right to use and

occupy 300 units of military housing built by a private company on land leased from the U.S. Air Force at

Eielson Air Force Base in Alaska. The private company claimed it was entitled to over $26 million in

damages. The district court ruled against the claim in 2008, holding that no compensation was owed by

the United States. In February 2012, the Ninth Circuit affirmed the district court on all points.

‐‐The Division initiated United States v. 2.52 Acres More of Less, Situate in San Bernardino County,

California and United States v. 10.00 Acres of Land More or Less, Situate in San Bernardino County,

California at the Army’s request to allow expansion of the National Training Center at Fort Irwin,

California. These cases are the first of over a dozen acquisitions for this project. Each month, the

70
 
                       

                       

                

                             

                             

                             

                                    

                   

             

                               

                           

                          

                           

              

                                     

                              

             

                               

                                 

             

   

                                        

                             

     

             

     

                                 

                             

                                

         

                                 

                                      

                                     

                             

           

 

 

 

 

 

 

 

 

 

 

 

 


 

National Training Center provides 4,000‐5,000 troops with essential training opportunities, including the

force‐on‐force and live‐fire training of heavy‐brigade‐sized military forces necessary to maintain and

improve military readiness and promote national security.

‐‐We also initiated United States v. 55.12 Acres in Evergreen, Conecuh County, Alabama; United States v.

41.32 Acres in Evergreen, Conecuh County, Alabama; and United States v. 0.13 Acres in Evergreen,

Conecuh County, Alabama at the Navy’s request to enable runway extension clear zones at Outlying

Landing Field Evergreen for Naval Air Station Whiting Field in Milton, Florida. These cases are part of a

nationwide effort to consolidate outer‐landing fields and address light and development encroachment

upon these important training facilities for pilots.

‐‐The Department of Homeland Security requested review of title to seven parcels of land in Anniston,

Alabama, purchased at a cost of $3,500,000 for the Federal Emergency Management Agency’s Center

for Domestic Preparedness. The center provides all‐hazards training to state, local, and tribal

responders on chemical, biological, radiological, nuclear, and explosive weapons in its capacity as the

only federally chartered weapons‐of‐mass‐destruction training center.

‐‐The Division reviewed title for 0.1368 acres of land located on the 2600 block of Barry Road, S.E., in

Washington, D.C. The General Services Administration will use this land in creating an access road to

the Department of Homeland Security complex.

‐‐We reviewed and approved title for U.S. Air Force acquisition of a conservation easement to limit

development of over 51.894 acres of land for the benefit of the nearby Warren Grove Air National

Guard Base in Burlington County, New Jersey.

TEXT BOXES

“We can’t have an energy strategy for the last century that traps us in the past. We need an energy

strategy for the future–an all‐of‐the‐above strategy for the 21st century that develops every source of

American made energy.”

— President Barack Obama, March 15, 2012

CAPE WIND PROJECT

• Cape Wind Associates, L.L.C., has obtained a lease to construct and operate a commercial wind energy

facility in federal waters between Cape Cod, Martha’s Vineyard, and Nantucket Island off shore of

Massachusetts. The project footprint is about 25 square miles, but the entire lease area (including a

buffer zone) is 46 miles.

• The facility will include 130 3.6 megawatt wind turbine generators with a maximum blade height of

440 feet to be located on Horseshoe Shoal in Nantucket Sound. The project is planned to supply up to

75% of the electricity needs of Cape Cod as well as of the islands of Martha’s Vineyard and Nantucket.

• The lease, which became effective on November 1, 2010, is of 33 years’ duration.

— BOEM Fact Sheet and Map

71
 
   

                                 

                                    

                           

                                  

                                   

               

                               

                               

                               

                                       

                            

                   

       

       

                                         

                                

                              

                               

                              

         

                                   

                 

       

 

 

 

 

 

 

 

 


 

STRATEGIC PETROLEUM RESERVE

• The Strategic Petroleum Reserve (SPR) is a U.S. complex of four sites with deep underground storage

caverns created in salt domes along the Texas and Louisiana Gulf Coasts. The caverns have a capacity of

727 million barrels and store emergency supplies of crude oil owned by the U.S. government.

• As of November 2012, the SPR level was just below 700 million gallons. The maximum drawdown

capacity per day is 4.4 million barrels and it takes approximately 13 days from a Presidential decision to

release for oil to enter the U.S. market.

• The Energy Policy and Conservation Act authorizes some types of SPR drawdowns—full and limited by

the President and test sale or exchange by the Secretary of Energy—if specified conditions are met.

• During the 34‐year existence of the SPR, crude oil has been acquired from 25 countries.

• Crude oil is stored in salt domes because it is at least five times less expensive than storage in above‐

ground tanks. Also, because the salt caverns are 2,000‐4,000 feet below the surface, geologic pressures

seal cracks that develop in the formation and prevent leakage.

— DOE Fact Sheet

LAND PORTS OF ENTRY

• A land port of entry is the facility that provides controlled entry and exit in and out of the United

States for people and materials. It houses the U.S. Customs and Border Protection and various other

federal inspection agencies responsible for the enforcement of federal laws. A land port of entry

consists of the land, the buildings, the on‐site roadways, and parking lots occupied by the federal

agencies. GSA is responsible for the initial construction and ongoing maintenance of most of the

nation’s land ports of entry.

• On an average day, about $2 billion in trade crosses the nation’s 167 border crossings, along with

more than 350,000 vehicles, 135,000 pedestrians, and 30,000 trucks.

— GSA Fact Sheets

72
 
               

                                   

                            

                           

                         

                            

                       

                 

                               

                    

                         

                        

                           

                    

                             

   

                               

                               

   

                     

                               

       

                         

                           

                              

                                 

                                      

                         

                       

                               

                             

                             

                                 

                                   

          

                           

                             

 

 

 

 

 

 

 

 

 

 

 


 

PROTECTING TRIBAL RIGHTS AND RESOURCES AND ADDRESSING TRIBAL CLAIMS

In fiscal year 2012, the Division handled a robust and diverse array of matters affecting Indian tribes and

their members. This includes litigation to protect and defend tribal resources and rights; policy and

litigation work to help ensure that communities in Indian Country—like all communities across the

country—receive the protections of the natural resources and environmental laws; and the respectful

and responsible defense of lawsuits brought by tribes against the federal government. The United

States has a government‐to‐government relationship with tribes, and we seek to work collaboratively

with tribes in carrying out this work wherever possible.

Working Closely with Tribal Leaders and Communities

In the past year, ENRD senior management met with tribal leaders, visited tribal lands, and saw first‐

hand their unique environmental and natural resources challenges. For example:

‐‐On December 2, 2011, Assistant Attorney General Ignacia Moreno and Deputy Assistant Attorney

General Ethan Shenkman participated in the annual White House Tribal Nations Conference. Ms.

Moreno represented the Department at a breakout session focused on natural and cultural resources,

and Mr. Shenkman attended a session focused on the government‐to‐government relationship. ENRD

staff also participated in region‐focused tribal meetings held in conjunction with the White House Tribal

Nations Conference.

‐‐On February 2, 2012, Deputy Assistant Attorney General Shenkman spoke at the Second Annual Oil &

Gas Summit hosted by the Mandan, Hidatsa, and Arikara Nation on the Fort Berthold Reservation in

North Dakota.

‐‐In September 2012, Deputy Assistant Attorney General Shenkman and other Division representatives

joined United States Attorney Tim Purdon and other United States Attorneys in a meeting with North

Dakota Indian tribes.

‐‐Deputy Assistant Attorney General Shenkman addressed ENRD’s Indian Country priorities in a speech

at the University of Colorado Law School’s American Indian Law Program in September 2012.

‐‐The Division has long supported the treaty fishing rights of tribes in the Pacific Northwest. Healthy,

productive fish habitat is necessary to ensuring that the treaty rights of taking fish are meaningful and

not merely a paper right to dip nets into water and bring them out empty. In September 2012, Deputy

Assistant Attorney General Shenkman and other Division representatives travelled to Seattle for a

listening session and discussion with representatives from the Northwest Indian Fisheries Commission

and leaders from most of the 20 western Washington tribes who have asserted that various federal

agency activities in the Puget Sound and Washington coast region negatively impact salmon and salmon

habitat.

‐‐In November 2012, Assistant Attorney General Moreno and Division staff took part in listening sessions

hosted by the United States Attorney’s Office for the Eastern District of Wisconsin, in which they visited

with a wide array of tribal officials on the reservations of the Oneida Nation of Wisconsin and the

Menominee Indian Tribe of Wisconsin.

‐‐ENRD officials also addressed important Indian law subjects at the Federal Bar Association’s National

Indian Law Conferences in Washington, D.C., in November 2011 and in Albuquerque, New Mexico, in

73
 
                             

                                 

                               

                                 

                               

                                

                                  

                         

                          

                                 

                           

                           

                         

           

                         

                               

                               

                             

         

                                 

                             

                                  

                           

                                

                                    

                               

            

                                     

                            

                          

                                   

   

                           

                  

                       

                              

       

 

 

 

 

 

 

 

 

 

 


 

April 2012; and addressed the National Congress of American Indians at its Mid‐Year Conference in

Lincoln, Nebraska, in June 2012, as well as its Annual Convention in Portland, Oregon, in October 2011.

Preserving the Culture and Religion of Federally Recognized Indian Tribes

On October 12, 2012, Attorney General Holder issued a new Department policy addressing the ability of

members of federally recognized Indian tribes to use the feathers and other parts of eagles and other

federally protected birds, an issue of great cultural and religious significance to many tribes and their

members. ENRD led the initiative to develop the policy, working closely with the U.S. Attorneys’ Offices,

FWS, and the Indian Affairs and Solicitor’s Offices of the Department of the Interior. The policy was

developed after an extensive series of consultations with tribal leaders and organizations, involving

multiple requests for tribal input and meetings with tribal representatives in Indian Country. The

Division’s efforts to engage with tribal leaders and obtain tribal input on this issue included an in‐person

consultation with tribal leaders at the Midwest Alliance of Sovereign Tribes, several national telephonic

consultation sessions, as well as in‐person discussions at the Mid‐Year Conference of the National

Congress of American Indians, the Native American Fish and Wildlife Society’s Southwest Regional

Conference, and other tribal listening sessions.

The policy clarifies and expands longstanding Department practice, consistent with the policy and

practice of the Department of the Interior, of not prosecuting tribal members for possessing or using

eagle feathers or the feathers or other parts of any federally protected birds while continuing to

prosecute tribal members and nonmembers alike for killing protected birds or buying or selling their

feathers or other parts.

Federal wildlife laws such as the Bald and Golden Eagle Protection Act generally criminalize the killing of

eagles and other migratory birds and the possession or commercialization of the feathers and other

parts of such birds. These important laws are enforced by the Department and the Department of the

Interior and help ensure that eagle and other migratory bird populations remain healthy and

sustainable. At the same time, eagles and other federally protected birds play a unique and important

role in the religious and cultural life of many Indian tribes. Many Indian tribes and tribal members have

historically used, and today continue to use, federally protected birds, bird feathers, or other bird parts

for tribal cultural and religious practices.

The policy helps to address the concerns of tribal members who are unsure of how they may be affected

by federal wildlife law enforcement efforts. This uncertainty may hinder or inhibit tribal religious and

cultural practices. The policy balances accommodation of the cultural and religious needs of federally

recognized tribes that regard the eagle or other birds as sacred with the need to protect at‐risk bird

populations.

Defending the Tribal Recognition Process

The Department of the Interior has established an administrative process for acknowledging groups as

federally recognized tribes. Recognition acknowledges an Indian community’s continuous existence,

establishes a formal government‐to‐government relationship between the United States and a tribe,

and recognizes the tribe’s sovereignty over its members and internal disputes. We represent Interior in

cases challenging its recognition determinations.

74
 
                               

                          

                            

                               

                         

                          

                    

                           

                                   

                     

                                

                                   

            

                                     

                         

                                  

                               

                          

                                 

                           

                             

           

                             

                          

                                     

                                

                               

                                

                                

                                 

                               

                     

                                          

                                 

                                

                 

                       

                            

                             

                  

                             

 

 

 

 

 

 

 

 

 

 

 

 

 


 

The integrity of this process was successfully defended in Sandy Lake Band of Mississippi Chippewa v.

Salazar and David Laughing Horse Robinson v. Salazar. In Sandy Lake, individuals sought to be

recognized as a separate tribe, although they were incorporated into another federally recognized tribe.

The court dismissed the case because, among other reasons, the purported tribe did not attempt to

establish the regulatory criteria for recognition under the acknowledgment process established by the

regulations. In David Laughing Horse Robinson v. Salazar, a non‐federally recognized Indian group and

its purported chairman sought federal recognition based upon a nineteenth‐century treaty. In

dismissing the plaintiffs’ third amended complaint, the court held that the claimed historical recognition

of the group in a treaty, even if true, did not excuse the group from exhausting administrative remedies

contained in the federal acknowledgment regulations, and, absent exhaustion, a judicial determination

of the group's tribal status would violate Separation of Powers under the U.S. Constitution. The court

deferred to the expertise of BIA in determining whether a group is the historical tribe and whether it

satisfies the criteria for tribal status.

We prevailed in Muwekma v. Salazar, a case in which a group of Native Americans sought review of the

Department of the Interior’s final determination that the Muwekma Ohlone Tribe was not

acknowledged to be a federally recognized tribe. In 2006, the district court remanded the case to the

Department of the Interior to explain why it had recognized two other California tribes without requiring

them to file a petition under the acknowledgment regulations. The Department of the Interior

concluded on remand that the other tribes were not similarly situated, and this decision was upheld by

the district court, which found that Interior had carefully applied the acknowledgment criteria and

logically explained its reasoning with respect to the various evidence presented by the Muwekma as

part of its recognition application.

Supporting Tribal Authority Over Tribal Lands and Resources

In fiscal year 2012, the Division continued to address questions related to reservation boundaries, the

status of tribal land, and tribal governmental authority over that land. For example:

‐‐In a case of first impression, ENRD secured dismissal of a case that raised the issue of the applicability

of local stormwater management fees to Indian trust lands. The Oneida Nation of Wisconsin sued the

Village of Hobart, Wisconsin, seeking to prevent the village from assessing a stormwater fee on tribal

trust land on which the Oneida Tribe maintains its own stormwater system. The village filed a third‐

party complaint against the United States, alleging that the United States is liable for the fee. The

district court agreed with the U.S. position that section 313 of the CWA, which waives the sovereign

immunity of the United States respecting the control and abatement of water pollution under the CWA,

does not apply to Indian trust lands, and dismissed the case.

‐‐The Division filed, for the first time, an amicus brief in a tribal court. The brief, filed in Village of Pender

v. Parker, supported the Omaha Tribe’s argument that an act of Congress did not alter or diminish the

tribe’s reservation boundary. The Division’s brief was based on the position articulated in an opinion of

the Solicitor’s Office of the Department of the Interior.

‐‐For almost 60 years, the Department of the Interior has actively promoted tribe‐specific employment

preferences in leases relating to a particular tribe’s trust resources. In 1988, the Equal Employment

Opportunity Commission (EEOC) took the position that Title VII of the Civil Rights Act—which prohibits

national origin discrimination—prohibited such tribe‐specific preferences by private employers. The

Department of the Interior, in contrast, takes the position that such preferences, when they involve

75
 
                               

                                

                                    

                                     

                                  

                              

           

                               

                                 

                         

                           

                             

                            

                       

                                  

                               

                                 

                          

                                

                               

                              

                               

                     

                                

                            

                                

                         

                       

                             

                                

                        

                             

                              

                               

                

                               

                            

                                     

                         

 

 

 

 

 

 

 

 

 

 


 

resources held in trust for the tribe, are based on political (tribal) sovereignty, rather than national

origin. This distinction is significant because if the classification is political rather than based on national

origin, it falls beyond the scope of Title VII. In EEOC v. Peabody Western Coal, the Secretary of the

Interior was pled into an EEOC enforcement action in the district court in Arizona due to Interior’s role in

approving the mineral leases in question. As a result, ENRD, on behalf of Interior, asserted the validity

of the tribal employment preference provisions in a series of leases involving Navajo Nation lands.

ENRD prevailed in the district court.

Defending Tribal and Federal Interests in Water Adjudications

The Division continues to assert water rights claims for the benefit of federally recognized Indian tribes

and their members in some 29 complex water rights adjudications in nearly every western state in the

United States. Settlements are often the preferred way to resolve these complex matters. Division

attorneys are actively involved in negotiating final agreements and seeking court approval under six

landmark tribal water rights statutes enacted by Congress over the past four years (Taos Pueblo,

Aamodt, Navajo‐San Juan River Basin, Crow Tribe, White Mountain Apache Tribe, and Duck Valley).

These settlements, once approved and implemented, will resolve complex and contentious Indian water

rights issues in four western states. With regard to the Crow Tribe Water Right Settlement in Montana

and the Navajo‐San Juan River Basin in New Mexico, the United States has signed the settlement

agreement and Division attorneys have joined the tribe and the state in seeking the approval of the

adjudicating court. Division attorneys are in the final stages of negotiating settlement agreements for

the others. Each settlement is uniquely adapted to the needs of the tribes and non‐Indians involved in

the particular river basins, but they all resolve complex water rights controversies that have existed for

decades and ensure that the tribes have access to water on their reservations. These settlements

provide certainty as to the nature and extent of tribal water rights, and thereby promote economic

development both on‐reservation and in the adjacent, often rural, communities.

Settlements are not possible in every case. In those situations, resolution of these complex water issues

falls to the adjudicating court or administrative agency. The Division in the past year successfully

defended claims for the benefit of the Klamath Tribes in the Klamath Basin Adjudication in Oregon. The

Oregon administrative law judge affirmed sufficient water rights to support productive habitat for fish,

wildlife, and edible plants on the Klamath Reservation in southern Oregon.

Upholding Agency Authority to Acquire Land in Trust for Tribes

The Division continued to successfully defend the Department of the Interior’s authority to take land

into trust for tribes. The authority to acquire land for tribes is important to furthering tribal self‐

government and self‐sufficiency. The following cases are examples of this important work:

‐‐We successfully defended appeals involving the acquisition in trust of land for the Sisseton and

Yankton Sioux Tribes. The Eighth Circuit affirmed the district court decisions, rejecting claims that BIA

has a structural bias and refusing to entertain challenges to the constitutional authority of the Secretary

of the Interior to take land into trust.

‐‐In a case involving the Karuk Tribe, the Division defended on appeal a district court opinion

interpreting an important aspect of the agency’s trust acquisition policy deferentially. The court found

that the Department of the Interior had properly determined that there was a need for land to be taken

into trust and rejected claims that the agency had improperly applied its regulations.

76
 
                         

                                

                             

                        

                             

                               

                             

                           

                                 

                         

                          

                            

                           

                                

                        

                                       

                       

                            

                         

            

                             

                              

                                 

                               

                 

                               

                                

                                  

                        

                                     

                        

                         

                       

           

                                

                                 

                                 

                                    

 

 

 

 

 

 

 


 

‐‐In Redding Rancheria v. Salazar, the Division successfully defended the Department of the Interior’s

regulations implementing authority to take land into trust that is intended to be used for Indian gaming.

The Indian Gaming Regulatory Act (IGRA) bars gaming on land acquired after 1988 with certain

exceptions, including an exemption for tribes that were restored to federal recognition. The

Department of the Interior rejected Redding Rancheria’s claim that 230 acres of newly acquired lands

qualified for the exception. The tribe filed suit challenging regulations interpreting the IGRA. The court

held that Interior had the authority to promulgate the regulations and had interpreted the IGRA’s

ambiguous “restored lands” exception in a permissible manner, consistent with the intent of Congress.

Addressing the U.S. Supreme Court’s Carcieri Decision

In 2009, in Carcieri v. Salazar, the Supreme Court limited the Department of the Interior’s trust land

acquisition authority to those tribes that were “under federal jurisdiction” when the Indian

Reorganization Act was enacted in 1934. The decision created uncertainty regarding Interior’s trust

acquisition authority, resulting in a backlog of trust applications. The Division worked closely with

Interior to develop a framework for interpreting “under federal jurisdiction” in trust land acquisition

cases. During fiscal year 2012, we continued to assist Interior in removing the backlog and defended

agency determinations under the framework. For example, the Division is actively defending Interior’s

decision to take approximately 152 acres of land into trust for the benefit of the Cowlitz Tribe.

Empowering and Partnering with Tribes to Address Environmental Issues Affecting Tribes

Through strong enforcement of environmental laws, we ensure that all Americans—including Native

Americans—have the benefit of a safe and healthy environment. To facilitate enforcement in Indian

Country, on October 16‐18, 2012, the Department conducted its first‐ever joint federal‐tribal training

course on wildlife and pollution enforcement issues.

The course was sponsored by the Department’s National Indian Country Training Initiative and held at

the National Advocacy Center. Working with other parts of the Department, EPA, and the Department

of the Interior, ENRD developed this training over the past year in response to tribal requests for

additional training for both federal and tribal officials who are involved in enforcing the wildlife and

pollution laws that protect tribal lands and resources.

The course was designed for tribal and federal law enforcement officers and prosecutors, as well as

other tribal and federal officials who work to protect tribal lands and resources. The training brought

together 120 federal and tribal officials as students and faculty. More than 60 different tribes signed up

to participate as students and faculty. The course was designed to promote federal‐tribal partnerships

in this area and to help tribes develop the capacity to assume a greater role in enforcement of laws

affecting tribal lands, consistent with the Department’s focus on strengthening tribal self‐governance.

Topics included civil and criminal jurisdiction in Indian country, federal environmental and natural

resources statutes, investigative and courtroom techniques, development of tribal wildlife codes, and

models for federal‐tribal cooperation in law enforcement.

In fiscal year 2012, ENRD also handled various environmental cases for the benefit of Indian tribes. For

example:

‐‐Under the consent decree entered in United States v. Questar Gas Mgmt. Co., Questar paid a $3.6

million penalty under the CAA to resolve violations at five natural gas compressor stations on the Uintah

and Ouray Reservation in Utah. Questar also paid $350,000 into a Tribal Clean Air Trust Fund to be

77
 
                            

                         

                            

                               

                                    

                                

                                 

         

                           

                                

                                   

                                          

                               

                                  

                                

       

                           

                             

                           

                               

                            

                      

                             

                   

                                   

                        

                 

                            

                       

                        

                   

                           

                                

                             

           

                                     

                          

                        

                                

                         

                                       

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

established by tribal member intervenors. The consent decree requires Questar to reduce its emissions

by removing certain equipment, installing additional pollution controls, and replacing its natural gas

powered instrument control systems with compressed air control systems. The actions required in the

settlement will eliminate approximately 210 tons of NOx, 219 tons of carbon monoxide, 17 tons of

hazardous air pollutants, and more than 166 tons of VOCs per year. It also will conserve 3.5 million

cubic feet of gas each year, which could heat approximately 50 U.S. households. The reduction in

methane emissions (a greenhouse gas that is a component of natural gas) is equivalent to planting more

than 300 acres of trees.

‐‐The Division successfully defended the Indian Health Service’s efforts to supply modern sewer and

water supply systems for housing on the Santa Ysabel Reservation in San Diego County. In Mesa Grande

Band of Mission Indians v. IHS, a nearby tribe sought to enjoin the installation and connection of sanitary

facilities for homes on land that has been subject to a land dispute by the tribes. At the time the case

was filed, occupants of the homes needing service purchased water from a communal water tank and

hauled it daily to their homes. ENRD argued against an expedited motion for injunctive relief in the

case, which the court denied. On the strength of the arguments presented, the nearby tribe voluntarily

dismissed its complaint.

Defending Against Tribal and Individual Indian Breach‐of‐Trust Claims

Since 2002, numerous federally recognized tribes and certain Indian groups have brought suit against

the United States alleging that the United States—in particular, the Departments of the Interior and

Treasury—violated the federal government’s trust duties and responsibilities to the tribes by failing to

provide “full and complete” historical trust accountings and failing to manage the tribes’ trust funds and

non‐monetary trust assets or resources in an adequate manner. The tribes requested declaratory and

injunctive relief and compensatory damages. By 2009, the United States was defending approximately

97 breach‐of‐trust lawsuits brought by 114 Indian tribes in federal district courts in the District of

Columbia and Oklahoma and in the Court of Federal Claims.

In September 2009, counsel for 96 of the litigating tribes sent a letter to President Obama asking the

administration to engage in expedited settlement discussions with their clients. Thereafter, federal

government representatives undertook a two‐year process of negotiating with tribal representatives

and consultants. As part of this process to address the Settlement Proposal to the Obama

Administration (SPOA), the federal government produced relevant information about certain tribal trust

fund accounts and transactions to tribal representatives. The federal government also carefully

developed certain trust data‐driven methodologies for evaluating reasonable potential settlement

values of the tribes’ trust accounting and trust mismanagement claims, which enabled the federal

government to make fair and reasonable settlement offers to each tribe. In addition to the SPOA

process, the Departments of Justice, the Interior, and the Treasury have been engaging in similar

settlement processes involving other litigating tribes.

As a result of the SPOA process negotiations, on April 11, 2012, the United States announced that it had

executed individual settlement agreements with 41 tribes. Between April and September 2012, the

government executed settlement agreements with 15 other tribes. Through these processes, the

United States reached settlements with 56 tribes, 45 of which were involved in the SPOA process. The

federal government is continuing its efforts to resolve the trust accounting and trust management

claims of the remaining tribes in a manner that is fair and reasonable to the tribes and the United States.

78
 
                           

                             

                                  

                           

                             

                            

                         

                       

                        

          

                                     

                              

                            

                           

                                

                             

   

                               

                                 

                                

                               

                                   

                                

                                  

                                 

       

                                 

                                   

                            

                                

                                 

                                  

                             

                                      

                                     

                             

                             

                              

                                

                                

 

 

 

 

 

 

 

 

 

 


 

Under the settlement agreements, litigation brought by the settling tribes regarding the Department of

the Interior’s accounting and management of the tribes’ trust accounts, trust lands, and other natural

resources has ended. With monies from the Judgment Fund, which is used to pay settlements or final

judgments against the federal government, the United States is compensating the tribes for their

breach‐of‐trust claims, and the tribes have agreed to waive, release, and dismiss their claims with

prejudice. Also, the tribes and the Department of the Interior have agreed to ongoing information‐

sharing procedures that will lead to strengthened management of the tribes’ trust funds and non‐

monetary assets, through improved communications between tribes and the Department of the

Interior. Further, the settlement agreements contained certain dispute resolution provisions to reduce

the likelihood of future litigation.

The SPOA process serves as a sound model for resolving pending or future tribal trust cases in a fair,

reasonable, and expedited manner. This process also protects the public fisc by avoiding protracted and

costly litigation. In addition to the SPOA process, the United States has used several different

alternative dispute resolution (ADR) processes to achieve settlements of tribal trust accounting and trust

mismanagement claims since the filing of the first tribal trust cases in 2002. Between 2002 and

September 2012, the government has resolved the claims of 64 tribes, using various different ADR

methods.

Limiting Duplicative Breach‐of‐Trust Claims Against the United States

Many Indian tribes brought claims against the United States for breach of trust and mismanagement of

trust funds and non‐monetary trust assets in federal district court and the U.S. Court of Federal Claims

simultaneously. A statute enacted by Congress in the 1860s, now codified at 28 U.S.C. section 1500,

prohibits the filing of such multiple lawsuits against the federal government, by providing that the Court

of Federal Claims lacks jurisdiction to adjudicate a lawsuit in that court if another lawsuit was pending in

federal district court based on the same operative facts. In 2011, the Supreme Court reaffirmed this

prohibition in United States v. Tohono O’odham Nation. In fiscal year 2012, the Division prevailed in its

motions to dismiss five tribal trust cases filed in the Court of Federal Claims for lack of subject‐matter

jurisdiction under section 1500.

We also secured dismissal in Blackfeet Housing Authority v. United States, a $30 million suit for breach

of trust for the failure to provide safe and proper housing on a reservation under the Native American

Housing Assistance and Self‐Determination Act. The court held that the statute of limitations barred the

action for breach of trust and, in any event, plaintiff failed to state a viable breach‐of‐trust claim. With

regard to statute of limitations, the court held that actual knowledge is not required; rather, plaintiff is

on notice of the material facts underlying the claim that are not inherently unknowable. In rejecting the

breach‐of‐trust claim, the court ruled that the Blackfeet Housing Authority could not rely on general

principles of trust law to state a claim for a breach of trust. The court held that control and involvement

alone in the oversight of the provision of housing grants and assistance in the absence of the violation of

statutory duties is insufficient to imply a damages remedy under the Tucker Act.

Defending Against Other Miscellaneous Tribal Claims

The Division also prevailed against tribal claims in cases that set important precedents for determining

when it is appropriate to hold the United States liable. These cases involved multimillion‐dollar claims

against the public fisc. In Samish Indian Nation v. United States, the tribe contended that although it

secured federal recognition as an Indian tribe in 1996, it should have been recognized since 1969. The

79
 
                                 

                                    

                                 

                            

                                 

                                  

                                 

       

   

                               

                          

                                 

                           

         

         

                       

   

                             

                                

                             

                             

           

             

                        

   

                    

                                 

                                  

                               

       

                 

                       

                               

                                

 

 

 

 

 

 

 

 

 

 


 

tribe brought claims for federal program monies that the tribe would have received if it had been

recognized. We prevailed both at the Court of Federal Claims and at the Federal Circuit, with the courts

holding that that statutory language of the federal programs could not be fairly interpreted to create a

damage remedy. The Federal Circuit, however, sustained the Court of Federal Claim’s holding that the

tribe was entitled to monies it would have received had it been federally recognized under the Revenue

Sharing Act. In fiscal year 2012, we successfully petitioned the Supreme Court for a writ of certiorari and

received a summary grant of certiorari, a vacated judgment of the Revenue Sharing Act claim, and a

remand directing dismissal.

TEXT BOXES

“This policy will help ensure a consistent and uniform approach across the nation to protecting and

preserving eagles, and to honoring their cultural and spiritual significance to American Indians. The

Department of Justice is committed to striking the right balance in enforcing our nation’s wildlife laws by

respecting the cultural and religious practices of federally recognized Indian tribes with whom the

United States shares a unique government‐to‐government relationship.”

— Attorney General Eric Holder

October 12, 2012 Announcement of the Policy on Tribal Member Use of

Eagle Feathers

“From time immemorial, many Native Americans have viewed eagle feathers and other bird parts as

sacred elements of their religious and cultural traditions. The Department of Justice has taken a major

step forward by establishing a consistent and transparent policy to guide federal enforcement of the

nation’s wildlife laws in a manner that respects the cultural and religious practices of federally

recognized Indian tribes and their members.”

— Assistant Attorney General Ignacia S. Moreno

October 12, 2012 Announcement of the Policy on Tribal Member Use of

Eagle Feathers

The Klamath Tribes: the Klamaths, the Modocs, and the Yahooskin.

See http://www.klamathtribes.org.

“This settlement will result in cleaner air for residents living on the Uintah and Ouray Reservation and

allow the responsible development of energy resources in accordance with the Clean Air Act. It also will

establish the Tribal Clean Air Trust Fund to fund environmental projects for the benefit of tribal

members.”

— Ignacia S. Moreno

United States v. Questar Gas Mgmt. Co. Press Release

“These settlements fairly and honorably resolve historical grievances over the accounting and

management of tribal trust funds, trust lands and other non‐monetary trust resources that, for far too

long, have been a source of conflict between Indian tribes and the United States. Our commitment to

80
 
                               

                                 

                             

                   

         

                   

 

 

 

 


 

tribes is the cornerstone of the Department of Justice’s policies and initiatives in Indian Country, and

these settlements will enable the tribal community to pursue the goals and objectives they deem to be

appropriate while marking another step in our shared future built upon mutual respect and strong

bonds of trust between tribal governments and the United States.”

— Attorney General Eric Holder

April 11, 2012 Announcement of Settlement of Tribal Trust Lawsuits

81
 
       

                               

                              

                           

                           

                          

                                   

     

                                  

                         

                        

                                 

                

                              

                         

                            

                                  

                                   

                       

                           

                      

                       

                              

                             

                                    

                               

                              

                          

                           

                                

                             

                         

                         

                           

                         

 

 

 


 

SUPPORTING THE DIVISION’S STAFF

Promoting Diversity at Work

ENRD takes seriously its commitments to reflect the people it serves by drawing its workforce from all

segments of society and to promote a culture of diversity and inclusion throughout the Division. During

fiscal year 2012, the Division took a number of important steps in this area:

‐‐We formally adopted a Diversity Committee Charter to provide a permanent governance structure for

this work and to define the committee’s responsibilities, authorities, and functions. The charter was

designed to ensure that the Division will be able to comply with all Office of Personnel Management and

Departmental requirements and guidance.

‐‐A primary focus this year has been to update Division outreach materials. A team from the Diversity

Committee rewrote the materials to include more information about the Division’s work, particularly

about more recent casework and cross‐cutting initiatives such as environmental justice. These materials

are expected to have greater visual appeal to all applicants as well as more relevance for applicants

interested in environmental law and public service positions.

‐‐We have strengthened ENRD hiring practices for all positions in three ways. First, the Diversity

Committee worked with the Department’s Office of Attorney Recruitment and Management to develop

resume review seminars for career managers and hiring officials. The seminars were designed to

capture common parameters used in attorney hiring. We hosted three this year and hope to host more

in the future. Second, we developed a strategy for diversifying applicant pools. Third, in the area of

strengthening hiring practices, the Division established a process for reviewing workforce data.

‐‐The Division has instituted procedures to improve the transparency of the hiring process for

promotional opportunities within the Division. We also are analyzing ways to restructure management

positions to provide additional promotional opportunities while also improving the efficiency of Division

operations.

‐‐Law clerk hiring also has been a primary focus of the Diversity Committee this year. Despite

curtailment of the Division’s travel budget, we have continued outreach efforts to attract law students

to ENRD. We have continued to send ENRD ambassadors to career fairs that are local to D.C. and the

ENRD field offices, and we have been fortunate to partner within the Department to send Division

outreach materials to other career fairs. Several ENRD attorneys also participated in the new DOJ

Ambassadors Program that began this year. Additionally, despite the Department’s hiring freeze, the

Department—and by extension, the Division—continues to “hire” a large number of unpaid law clerks,

many of whom go on later to apply to the Attorney General’s Honors Program. A subcommittee of

ENRD’s Diversity Committee has begun studying our law clerk program to identify best practices within

the Division and highlight ways to strengthen the program for the Division.

‐‐We also required the Division management team, hiring officials, and Diversity Committee to

participate in two seminars of the Attorney General’s Diversity Symposium (November 2011 and June

2012); all other interested employees have been encouraged, but not required, to participate.

82
 
                           

                               

                         

                               

                                  

                           

                            

                             

                            

                                      

                                 

                                

                           

                             

                                 

                           

                                  

                           

                           

                               

                         

                               

                             

                         

                         

         

                         

                      

                                 

                              

                                 

                    

                         

                            

                             

                         

                           

                   

 

 

 

 

 

 

 


 

‐‐To better inform all ENRD employees of the diversity and inclusion information, activities, and

resources available within the Division, we established an Intranet site in June 2012 which includes a

message from the Assistant Attorney General, learning resources, news and events, ENRD’s Diversity

Plan, and links to resources referenced in the training seminars and to additional information on related

topics.

Recognition of Division Staff

This year, client agencies recognized the efforts of Division staff in many ways. Of particular note, on

September 12, 2012, U.S. Forest Service Chief Tom Tidwell presented the Division’s Land Acquisition

Section with the U.S. Forest Service Lands and Realty Meritorious Service Award. This award—the

Forest Service’s highest—had never previously been given to a person or entity outside the U.S.

Department of Agriculture. Since 1970, the Land Acquisition Section has condemned lands for addition

to over 60 different parts of the National Forest System in at least 25 states and territories. The Land

Acquisition Section also has provided title review and valuation advice for tens of thousands of acres of

land purchased by the Forest Service. Additionally, the U.S. Army Corps of Engineers presented its 2012

Chief Counsel’s Excellence in Client Care Award to the team of litigators from the Environmental

Defense, Natural Resources, and Appellate Sections, as well as the Solicitor General’s Office, for their

handling of extremely fast moving litigation in the district court, the Eighth Circuit, and the U.S. Supreme

Court challenging the Corps’ operation of the Bird’s Point—New Madrid Floodway during the historic

flooding along the Mississippi River in the spring of 2011. ENRD staff also received awards from other

agencies, including Environmental Defense Section attorneys from EPA for their work on several pieces

of CAA litigation; Environmental Enforcement Section attorneys from EPA for their work to ensure the

integrity of municipal wastewater treatment systems, to enhance air quality in areas impacted by oil and

gas development, and on Superfund matters; Natural Resources Section attorneys from the Corps for

the handling of litigation in the Court of Federal Claims and from APHIS for defending its biotechnology

program; and cross‐Division teams from USDA for assistance in the development of the Forest Planning

Rule and from NOAA for defense of the Pacific groundfish trawl rationalization program.

Providing High‐Quality and Cost‐Effective Automated Services

In fiscal year 2012, the Division provided high‐quality and cost‐effective automated litigation support

(ALS) and other automated services:

‐‐ENRD led a Department‐wide review of litigation support spending that resulted in the consolidated

purchase of web‐hosting hardware and software for all Department litigating components. This

initiative is estimated to save the Department over $16 million in web‐hosting fees over the next three

years. The Division also led an effort to issue a Department‐wide contract for e‐discovery software,

which also is expected to result in cost savings for the Department based on consolidation of licensing

and maintenance fees. As appropriate, the contract will allow for standardization of operating

procedures and training, and we also expect to gain efficiencies from these added consistencies.

 ‐‐We combined contracted and in‐house ALS services to support ENRD casework. In addition to

providing contract support for the Deepwater Horizon explosion, fire, and oil spill case—one of the

largest cases ever undertaken by the Department—the Division’s Office of Litigation Support also

provided contract support to a number of large and complex cases and initiatives, including Fox River,

Goodrich, Nu West, Portland Cement, Tribal Trust, Tronox, the Western Water Adjudications, and the

83
 
                              

                              

                           

                      

                         

                   

                      

                             

   

                             

                              

               

  

                           

                     

                            

                               

                          

                             

           

                           

                                  

                             

                            

                             

                                 

                          

               

                                  

                 

                                 

                            

                           

                           

 

 

 

 

 

 

 

 

 


 

Vessel Pollution, Power Plants, and Clean Air Initiatives. ALS services were provided in‐house for more

than 200 cases through the Division’s Computer Lab at a significant savings. Using our onsite

capabilities, we are able to provide such services as document scanning, e‐discovery processing, Bates

numbering, optical character recognition, media duplication, and audio/video digitization. We also

supplied secure online database hosting services to support 128 cases using state‐of‐the‐art advanced

analytics searching and collaboration with agency personnel and expert witnesses.

‐‐The Division provided automated support for several congressional oversight information requests.

The requests required the processing of over 50 million records from several components of the

Department.

‐‐ENRD developed a pilot program to apply ALS technologies to the Division’s Freedom of Information

Act (FOIA) Program. Through the pilot program, we timely processed nearly 24,000 pages of records

that were potentially responsive to eight FOIA requests.

Providing Innovative Technology for ENRD’s Workforce

In fiscal year 2012, ENRD expanded its program for providing e‐discovery client consultation and

assistance to defensive collections involving electronically stored information, assisting ENRD attorneys

and client agencies to manage their electronic discovery obligations. We continued to provide guidance

and training to employees within the Division, as well as throughout the Department and in other

federal agencies, on e‐discovery best practices. We held regular brownbag lunches, monthly training

series hosted by the litigating components, and distance learning seminars for both civil and criminal

practices at the National Advocacy Center.

To provide the latest automated litigation tools to Division managers and frequent travelers, ENRD

piloted an iPad program this year. iPads have proven to be extremely valuable for certain classes of

personnel, and furnishing specific staff with such a lightweight and portable device for managing emails

and documents has provided increased functionality and efficiencies to a subset of ENRD’s workforce.

Based on the success of the pilot program, the Division plans to expand the program.

ENRD made several upgrades and changes to its Intranet site, ENRDNet, to assist with various areas of

litigation practice and Division administration. Section sites were developed for two sections, with

resources designed exclusively for their litigating practices.

Greening the Division

The Division held its 9th annual Earth Day service celebration at Marvin Gaye Park in April 2012.

Enthusiastic participants planted trees, removed trash, gardened, and landscaped.

Supporting Records and Systems Management

To store the growing number of important records in the form of email and attachments, the Division

introduced a new email archiving system. For managing file records pertaining to physical, hard‐copy

litigation files, ENRD’s records management software, database, and server were migrated to a new

application and a vendor‐supported platform, replacing legacy software that was no longer supported.

84
 
                                  

                           

                            

                      

                           

                       

                           

         

                               

                          

                       

                        

                                  

                              

                                 

                     

                                    

                         

                  

                            

                 

   

                             

                             

                         

                       

                                   

                       

                   

 

 

 

 

 

 

 


 

The Division updated a number of out‐of‐date systems this year. ENRD was the first litigating Division in

the Department to update its email system to MS Exchange 2010, establishing lessons‐learned and

prototypes for the remaining components to follow. We also developed new systems for internal

personnel management and attorney timekeeping. We also migrated the Division’s electronic learning

system from one Departmental platform to another to avoid duplication, began implementation of the

mandated requirement to maintain fully electronic official personnel files (eOPF), and configured the

Division’s computer infrastructure to allow access via Personal Identity Verification cards in addition to

user names and passwords.

Promoting Division Security

To ensure the safety of Division personnel, facilities, and IT systems, ENRD volunteered to participate in

security compliance audits at facilities in Washington, D.C., and the Sacramento field office. The

Department’s Security and Emergency Planning Staff evaluated ENRD on physical security, document

security, contractor security, IT security, emergency planning, and health and safety planning. Minimal

security issues were identified at the audited sites, and we were able to quickly resolve each item. The

Division as a whole benefited from the thorough review. The Division performed additional self audits

in the Denver and San Francisco field offices to ensure that these sites also were in compliance.

Saving Division Resources

Implementation of several cost‐saving measures yielded significant reductions in annual Division

expenditures. Fiscal year 2012 was the first full year that the Division was able to realize cost savings

from implementation of measures identified by the Division’s $AVE Committee, saving the Division an

estimated $300,000. Consolidating Division records warehouse storage space into shared warehousing

for the Department saved an additional $350,000. Renegotiating the Division’s IT Help Desk contract

resulted in a cost savings of nearly $200,000.

TEXT BOX

ENRD recognizes that a more inclusive federal government is a more effective federal government and

that all federal employees are entitled to perform their jobs free from discrimination, whether that

discrimination is based on national origin, language, race, color, disability, ethnicity, gender, age,

religion, sexual orientation, gender identity, socioeconomic status, veteran status, or family structures.

As such, ENRD strives to reflect the people it serves by drawing its workforce from all segments of

society and promotes an atmosphere of fairness and collaboration among its employees.

— From Department and ENRD Policy Statements on Workforce Diversity

85