UNITED STATES DEPARTMENT OF JUSTICE 


ENVIRONMENT AND NATURAL RESOURCES DIVISION

SUMMARY OF LITIGATION ACCOMPLISHMENTS 


FISCAL YEAR 2005 


 


I 
CONTENTS 

FOREWORD I 


CRIMINAL ENFORCEMENT OF OUR NATION'S 


PROMOTING RESPONSIBLE STEWARDSHIP OF 


AMERICA'S NATURAL RESOURCES AND WILDLIFE 

PROMOTING NATIONAL SECURITY 


DEFENDING VITAL FEDERAL 


PROTECTING INDIAN RESOURCES 


ENVIRONMENTAL AND WILDLIFE LAWS 1 


PROTECTING OUR NATION'S AIR, LAND AND WATER 5 


ENSURING CLEANUP OF OIL AND HAZARDOUS WASTE 7 


9 


AND MILITARY PREPAREDNESS 12 


PROGRAMS AND INTERESTS 13 


AND RESOLVING INDIAN ISSUES 20 


SUPPORTING THE DIVISION'S LITIGATORS 21 

FOREWORD 

It is my pleasure to present the Enviromnent and Natural Resources Division's 

Accomplishments Rep0l1 for Fiscal Year 2005. The Division achieved significant victories for 

the American people in each of the Illany areas for which it has responsibility. These 

responsibilities include protecting the Nation's air, water, land, wildlife and nanrral resources, 

upholding our tl1l5t responsibilities to Native Americans, and [miheri.ug impol1ant federal 

programs, including the goVel1l111ent's mission to ensure national security. 

The Division is dedicated to the vigorous, reasonable and fair enforcement of our 

Nation's envirolllllentallaW5, in both the civil and criminal arenas. Such enforcement is a 

critical component of enviromllentai protection and helps ensure that our citizens breathe clean 

air, drink clean water, and will be able to enjoy the counllY's public lands, wildlife and other 

natural resources for generations to come. It also helps ensure that law-abiding businesses have 

a level economic playing field on which to compete. 

The Division's vigorous enforcement of om environmental laws has again generated 

record-breaking retllms. Thanks to these eff0l1s, polluters across the counuy will spend more 

than $9.5 billion in conective measmes to protect the Nation's environment and our people's 

health and welfare. Last year's record-breaking recovery of conective measmes was valued at 

$4.4 billion. The actions required include compliance measures and cleanup and pollution 

conu"Ols that will significantly benefit the health and welfare ofthe Nation. 

In the criminal arena, the Division handled a record lllullber oftrials, with a conviction 

rate of nearly 90 percent. The Division prosecuted major corporations and individuals under all 

the environmental stahltes, secming criminal penalties in excess of $60 million and more than 25 

years ofjail time. In addition, the Division launched a new national enforcement eff0l1 targeting 

worker endangenllent, highlighted by guilty pleas in Delaware by a major refinery and a $10 

million criminal fine. 

Although the public is generally familiar with the Division's role as enforcer ofthe 

environmental laws, much of om attorneys' time is actlmlly spent defending a wide range of 

federal programs and interests. The Division has defended almost every federal agency, 

handling cases that challenge such diverse and critical matters as military training programs, 

govenunent cleanup actions, resource management programs, and enviromllental regulations. 

The Division's eminent domain and takings cases also facilitate important federal programs by 

enabling agencies to acquire needed propeI1y or other rights in a fiscally responsible maImer 

while respecting the proper1y interests of citizens. 

The Division cunently has a docket of approximately 9,500 active cases and matters. 

These cases involve more than 70 different enviromnental and nahlral resources statllles, 

including the Comprehensive Enviromnental Response, Compensation and Liability Act, the 

Clean Water Act, the Clean Air Act, the National Forest Management Act, the Federal Land 

Policy and Management Act, the National Enviromnental Policy Act, and the Endangered 
Species Act. The Division has cases in every judicial district in the Nation. 

The Division's exemplalY record in protecting the envirollIllent, Indian rights, and the 

Nation's nahlral resources, wildlife, and public lands is due to the hard work of the Division's 

attorneys and staff in partnership with our client agencies, the United States Attorney's Offices, 

and state and local officials arOlmd the country. The Division's many accomplishments this year 

reflect the professionalism and dedication with which all these people work together to carry out 

the Division's mission. 

This is my first month with the Division. I am both privileged and proud to serve with 

the outstanding group of people who call)' out the Division's mission. As I look fOlward to the 

challenges ahead, I want to acknowledge and applaud the hard work and tremendous leadership 

ofThomas L. Sansonetti, the previous Assistant Attorney General for the Division, and Kelly A. 

Johnson, the Acting Assistant Attorney General for the Division since April, 2005, under whose 

stewardship the Division enjoyed such impressive successes. I look forward to continuing their 

eff0l1s on behalf of the Amelican people. 

Sue Ellen Wooldridge 

Assistant Attorney General 

Environment and Nahu'al Resources Division 

December 2005 

II 
CRIMINAL ENFORCEMENT OF OUR 

NATION'S ENVIRONMENTAL AND 

WILDLIFE LAWS 

Vessel Pollution Prosecutions. The Vessel 

Pollution Initiative is an ongoing, 

concentrated effOit to prevent ships from 

illegally discharging pollutants into the 

oceans, coastal waters and inland 

waterways. The Division continues to have 

great success prosecuting such activity. 

Recent whistleblower awards to crew 

members should further increase the 

likelihood of detection and serve as a 

significant detelTent. 

In UllUed States v. Evergreen 

international, SA., the defendant pled guilty 

to twenty-four felonies and one 

misdemeanor sparming five federal districts 

and paid $25 million in criminal fines and 

cOllllllunity service. TIus is the largest 

sentence ever imposed against a shipping 

company in an oil-water separator case. 

Evergreen admitted that crew members 

aboard many of its vessels repeatedly 

discharged oily waste water, bypassing 

required pollution control equipment. Crew 

members presented false record books to 

inspectors, disposed of equipment, and 

directed others to lie to conceal the illegal 

discharges. 

In UIlUed States v. JOIIg Chul Lee et 

01. , a ship owner paid a criminal fine of over 

$1.5 million after pleading guilty to making 

false statements in its oil record book. Two 

officers aboard the ship were convicted and 

sentenced to prison tenns. In United States 

v. Fujitralls C01p., a ship operator pled 

guilty to similar charges and paid over $1.3 

million in criminal fines in two federal 

districts. Two ofthe ship 's officers served 

time in prison and were then deported. 

In United Stares v. Rick Stickle et 01., 

Stickle was found guilty, after a jury trial, of 

conspiring to illegally dump four hundred 

forty tons of oil-contaminated grain on the 

high seas and of obstmcting a Coast Guard 

and Depal1ment of Agriculhrre 

investigation. He was sentenced to selve 

thilty-three months in prison and to pay a 

$60,000 fine. The transp0l1ation company 

that he chaired had previously pled guilty to 

related crimes and paid a $2 million dollar 

fine. 

Prosecuting Environmental Offenses and 

Worker Endangerment. The Division 

pursued both criminal and civil claims 

against Motiva Enterprises, LLC for 

violations ofthe Clean Water and Clean Air 

Acts stemming from an explosion at an oil 

refInelY. The 2001 explosion of a 415,000 

gallon tank for sulphuric acid killed one 

worker, injured eight others, and spilled 

99,000 gallons of acid into the Delaware 

River. Company officials knew that the 

tank leaked and should not have been used. 

Motiva was sentenced to pay a $10 million 

dollar criminal fine and serve three years of 

probation. It will also pay a $ 12 million civil 

penalty and spend at least $3 .96 million on 

environmental projects. The new owner of 

the refInelY agreed to implement a series of 

enhanced safety procedures that will cost an 

estimated $7.5 million. 

The Division has successfully 

prosecuted several companies owned by 

McWane, Inc., a company that has been 

cited by the U.S. Occupational Health and 

Safety Adminisu·ation (OSHA) hundreds of 

times since the mid-1 990s and has paid 

more than $1 million in civil penalties. In 

United States v. Tyler Pipe CompallY, a 

division of McWane located in Tyler, Texas, 

was sentenced to pay a criminal fine of $4.5 

I 

million, serve a five-year term of probation, 

and replace and upgrade stmctures at its iron 

foundry facility at a cost of approximately 

$20 million. Tyler Pipe pled guilty to a 

felony false statement count conceming a 

pennit application and to a knowing 

violation ofthe Clean Air Act for illegally 

operating its facility without notifying 

authorities of a major modification. After 

the company replaced a large furnace, 

known as a "cupola," it falsely claimed that 

the cupola was not new, in an attempt to 

avoid equipping it with updated, "best 

available control technology," as required 

by the Clean Air Act. The Tyler Pipe 

division of McWane has a history of 

environmental and safety violations. In 

2000, the company pled guilty to a willful 

violation of OSHA regulations that resulted 

in the death of an employee. 

In United Stares v. McWane, Inc., 

three high-ranking company officials and 

the corporation (acting through McWane 

Cast Iron Pipe Company, its Binllinghambased division) were convicted by a jUly of 

crimes related to six years of violations of 

its National Pollution Discharge 

Elimination System penllits. A fOUl1h 

defendant pled guilty to conspiracy before 

trial. The defendants conspired to violate 

the Clean Water Act, committed substantive 

Clean Water Act crimes by illegally 

discharging process wastewater through 

storm drains, and made false statements that 

helped conceal their discharges to the 

Environmental Protection Agency (EPA). 

In United States v. Union Foundry, a 

McWane iron foundry division located in 

Armiston, Alabama, pled guilty to a willful 

violation of an OSHA regulation that led to 

the death of an employee and to violations 

of the Resource Conservation and Recovery 

Act. Because the company operated 

equipment at its foundry without required 

safety guards, an employee was caught in a 

conveyer belt pulley and cmshed to death. 

The plant also illegally treated baghouse 

dust contaminated with lead, a hazardous 

waste, and exposed workers to this waste. 

The company was ordered to pay a $3.5 

rnillion crirninal fine, perform community 

serv ice valued at $750,000 (irlcluding local 

lead and asbestos abatement), and serve a 

three-year term of probation. In addition, 

trial has begUlI in United States v. Atlantic 

States Cast Iron Pipe Company, irl which 

another McWane subsidiary and several of 

its employees have been charged with 

conspiracy, Clean Water Act and Clean Air 

Act violations, as well as false statements 

and obstmction ofjustice. 

Enforcing the Asbestos Provisions of the 

Clean Air Act. In United States v. CleveAllan George, a jUly renuned guilty verdicts 

against both defendants for knowingly 

violatirlg regulations CorlU"Ollirlg asbestos 

removal during demolition of housing irl a 

low-income neighborhood. The defendants 

knowingly allowed friable asbestos to be 

removed improperly and filed false air 

monitorirlg docUlllents. 

In United States v. ACS, a company 

and two irldividuals pled guilty to conspiri.ng 

to obstmct OSHA, EPA, and Small Business 

Admirristration regulations. The defendants 

fraudulently obtained approximately $37 

nrillion in Small Business Admirristration 

set-aside contracts at federal facilities, 

irlcluding contracts for jobs irlVolvirlg 

asbestos, lead abatement, and hazardous 

waste operations. They also purchased 

approximately 250 false trainirlg certificates 

for their· unqualified employees and dir·ected 

them to conduct work irlVolvirlg asbestos, 

2 

lead, and hazardous waste at federal 

facilities under those contracts. At 

sentencing, a $3 million criminal fine and 

significant prison sentences for the 

individuals are expected. 

In UnUed States v. WR. Grace, a 

Montana grand jUly retumed a IO-COlllt 

indictment charging W.R. Grace and seven 

corporate officials with conspiracy to violate 

the Clean Air Act, conspiracy to defraud 

govenunent agencies, knowing 

endangennent, wire fraud, and obstl1lction 

ofjustice. The indictment alleges that Grace 

mined, manufactured, and sold products 

from a venniculite mine that it knew was 

contaminated with a pa11icularly toxic fonn 

of tremolite asbestos, endangering the mine 

workers' families, residents ofthe 

community and others. The company then 

sold mine propel1l.es to local buyers without 

infonning them ofthe contamination and 

later misled and obstmcted the govenunent 

by failing to disclose the nature and extent 

of the asbestos contamination to an 

emergency response team conducting a 

cleanup pursuant to the Comprehensive 

Enviromnental Response, Compensation, 

and Liability Act (CERCLA). 

Protecting Homeowners and Enforcing 

the Clean Water Act. In United States v. 

Robert Lucas, all tluee individual 

defendants and two companies were 

convicted by a jury of illegally developing a 

large wetlands tract on Mississippi's Gulf 

Coast and defrauding those who bought 

home sites there. Despite wamings from 

Mississippi health officials and the United 

States Anny Corps ofEngineers that the 

wetlands propel1y was lUlsuitable for homes, 

the defendants built and sold mobile home 

sites, most with illegal in-ground septic 

systems. By building these systems, the 

defendants criminally violated the Clean 

Water Act in that they knowingly caused 

illegal discharges to waters ofthe United 

States. TIle systems discharged directly into 

wetlands and frequently failed, causing 

sewage to back-up into homes and seep into 

nearby yards. 

Prosecuting Resource Conservation and 

Recovery Act Crimes. In United States v. 

Donald Roeser, the defendants, who 

operated a hazardous and non-hazardous 

waste treatment and disposal facility, 

directed their employees to discharge 

hundreds of thousands of gallons of 

untreated hazardous and non-hazardous 

liquid wastes through the sanitalY sewer 

system on a daily basis. They also caused 

thousands oftons of hazardous solid waste 

to be illegally shipped to a non-hazardous 

waste landfill on a daily or weekly basis. 

The company previously pled guilty to 

Resource Conselvation and Recovery Act 

(RCRA) crimes. This year, the two 

individual defendants pled guilty to similar 

crimes, and to conspiracy and substantive 

Clean Water Act violations. Both 

defendants were sentenced to periods of 

incarceration, one for 27 months and one for 

12 months. Each must pay a $60,000 fine . 

In United States v. Gary Wasserson , 

the Third Circuit reversed a district cOUl1 

I1lling that had set aside a criminal 

conviction under RCRA for the knowing 

disposal of hazardous waste at an 

unpennitted facility. Wasserson ananged 

for disposal of hazardous chemicals through 

an ordinalY I1lbbish hauler. TIle chemicals 

were ultimately discharged into a nnllicipal 

landfill, prompting closure of the landfill 

and a removal action. TIle Third Circuit 

held that "generators" may be liable for 

"causing" unlawful disposal of hazardous 

3 

waste even if they do not operate a disposal 

facility or commit disposal activities. The 

case is significant because it confinns that a 

person who knows that hazardous waste will 

be disposed of in violation ofRCRA 

requirements may be subject to criminal 

liability even though he does not personally 

dispose ofthe hazardous waste. 

Enforcing the Laws Protecting Wildlife. 

In United States v. Kenneth G. Kraft, a 

husband and wife were convicted of 

conspiracy and false labeling for the illegal 

interstate sale of endangered and threatened 

animals - including tigers, leopards, and 

grizzly bears - from a wildlife park. Nancy 

Kraft was sentenced to 15 months in prison 

and two years superv ised release. Kermeth 

Kraft pled guilty to conspiracy, false 

labeling and false statements. He was 

sentenced to 18 months in prison and three 

years superv ised release. Indictments were 

also issued against others. 

In United States v. Opfimlfs, Inc., a 

gounnet food company pled guilty last year 

to wildlife and smuggling charges and was 

sentenced to pay a $1 million criminal fine. 

The money will be deposited into the Lacey 

Act Reward Account, a fiUld used by the 

Fish & Wildlife Service to provide fUlancial 

incentives for infonnation leading to 

convictions of wildlife law violators. One 

of the largest imp0l1ers ofsturgeon caviar in 

the United States, Optinms admitted that it 

bought nearly 6 tons ofsmuggled caviar 

from five separate smuggling rings. Since 

1998, all sturgeon species have been listed 

as protected under the Convention on 

International Trade in Endangered Species 

of Wild FatUla and Flora. Smuggling in 

violation ofthis convention threatens the 

sUlv ival of the listed species, including 

sturgeon. 

In United States v. Antonio Pego, a 

federal grand jury indicted a resident of 

Spain and a Umguayan company for crimes 

stemming from the illegal imp0l1 and 

attempted sale of toothfish, marketed as 

Chilean sea bass. The case directly involves 

the imp0l1 of approximately 53,000 pounds 

of toothfish into Miami from Singapore. 

Related deliveri es occuning in the same 

time frame included over 160,000 pounds of 

toothfish brought into Los Angeles and over 

300,000 pounds brought into New York. 

All of the fish, valued at over $3 million, 

have been seized and are the subject of civil 

forfeiture complaints. In all cases, the 

United States alleges that the defendants 

knew the fish were transported in violation 

of the Antarctic Marine Living Resources 

Act and other provisions of U.S. law. TIus 

species is the target of both legal and 

"pirate" commercial fishing operations that 

are believed to be substantially depleting 

existing stocks. 

United States v. Stock Development, 

LLC, the defendant company pled guilty to a 

Class A misdemeanor for allowing an 

employee to cut down a tree and destroy an 

active bald eagle nest that had been 

discovered in an area slated for residential 

development. TIle company was sentenced 

to pay a $175,000 fIne and to pay $ 18 1,000 

in restitution to orgaruzations that supp0l1 

and promote conservation of eagles and 

other birds of prey. This is the largest 

combination of a fine and restitution ever 

paid for the destmction of an eagle nest tree. 

Punishing CFC Smugglers. In United 

States. v. Dov Shellef, a jury convicted two 

defendants of conspiring to defeat the excise 

taxes on ozone-depleting chenucals, to 

launder money and to COllUnit wire fraud. 

The defendants dodged approximately $ 1.9 

4 

million in taxes due on domestic sales of 

uichlorotrifluoroethane, an ozone-depleting 

chemical commonly refelTed to as CFC-l13, 

by representing to manufachlrers that they 

were purchasing it for expOit but then 

selling it in the domestic market. Once 

widely used as an industrial solvent and as a 

refrigerant in centrifugal chillers for large 

buildings, CFC-l13 now has a limited 

domestic market and is used in relatively 

small quantities for laboratory and analytical 

purposes. 

PROTECTING OUR NATION'S AIR, 

LAND AND WATER 

Reducing Air Pollution from Coal-Fired 

Power Plants. The Division continues to 

litigate Clean Air Act claims against 

operators of coal-fired electric power 

generating plants. Tlris past year, the 

Division also reached settlements that, when 

fully implemented, will remove over 

940,000 tons of pollutants from the air each 

year. These pollutants can cause severe 

respiratory problems and contribute to 

childhood asthma, and are also significant 

conuibutors to acid rain, smog and haze, 

which degrade forests, damage watelways 

and contaminate reservoirs. 

The Division reached a settlement in 

u.s. v.IIlinois Power Co. and Dynegy 

Midwest Generation in which Dynegy 

agreed to install approximately $500 nrillion 

worth of new pollution control equipment, 

pay a $9 nrillion civil penalty, and spend 

$15 million on projects to nritigate the hanu 

caused by unlawful enrissions. The 

settlement will reduce enrissions of halluful 

sulfur dioxide and nitrogen oxides fi-om five 

plants by 54,000 tons each year. In u.s. v. 

Ohio Edison Power Co., after the Division 

proved Ohio Edison's liability at trial, the 

company agreed to install pollution conu"Ols, 

estimated to cost $1.1 billion, which will 

eliminate over 200,000 tons of sulfur 

dioxide and nitrogen oxide pollution per 

year. The settlement also requires payment 

of $8.5 nrillion in civil penalties and $25 

million in mitigation projects. The Division 

also completed the liability trial in u.s. v. 

American Electric Power, the largest case in 

the Power Plants Itritiative. 

Reducing Air Pollution from Oil 

Refineries. The Division continues to make 

significant progress in its national 

enforcement initiative to address Clean Air 

Act violations within the petrolelUu refining 

induslIy. To date, the Division has reached 

settlements that address 76 peu"Oleum 

refineries comprising 65% of the nation's 

refining capacity, and will reduce air 

pollutants by more than 31 5,000 tons a year. 

The Division secured settlements 

with ConocoPhillips Co., Valero Energy 

COlp. , Sunoco Refinery, Inc., Citgo 

Peu·oleum Corp., and Chevron U.S.A. Inc. 

The ConocoPhillips settlement covers nine 

refineries in seven states, representing more 

than 10% of total domestic refining 

capacity. ConocoPlrillips will install $525 

nrillion in pollution conu·ol technology that 

is expected to reduce enrissions by more 

than 47,100 tons per year, pay a civil 

penalty of more than $4. 5 nrillion, and spend 

$10.1 million on supplemental 

environmental projects. Valero will 

implement approximately $700 nrillion in 

pollution conu·ol technologies that will 

reduce enrissions by more than 20,400 tons 

per year, pay a civil penalty of $5.5 million, 

and spend $5.5 nrillion on supplemental 

environmental projects. Sunoco will install 

5 

$285 million in pollution control 

technologies, pay a $3 million civil penalty, 

and perfonn $3.9 million in supplemental 

projects. The Citgo and Chevron 

settlements require the companies to spend 

$575 million on pollution control 

technologies that are expected to reduce 

ailliual emissions of pollutants by more than 

39,600 tons. TIle two companies will also 

pay civil penalties of $7.1 million and 

spend $9.5 million on supplemental 

environmental projects that will fmiher 

reduce nitrogen oxide emissions. 

Reducing Air Pollution at Other Diverse 

Industrial Facilities. The Division also 

made significant gains in improving the 

nation's air quality by concluding 

enforcement actions against numerous 

facilities in many diverse industIies, 

including ethanol production (US. v. 

Cargill, Inc., Us. v. Energy Partners, Us. 

v. AGP Com Processing, Inc., Us. v. 

Golden Triangle), grocery store refrigeration 

leaks (U.s. v. Jewel Food Stores), oil field 

production (U.s. v. Mobile Exploration and 

Production), glass manufacturing (US. v. 

Saint-Gobain), chemical manufacturing 

(US. v. E.I. du Pont de Nemours), 

sterilization facilities (US. v. Cosmed 

Group), hazardous waste disposal facilities 

(US. v. Clean Harbors Environmental 

Services), pulp and paper mills (US. v. 

Stone Container Corp.), and plastics 

manufacturing (US. v. Chevron Phillips 

Chemical Co.). 

Through those efforts, the Division 

secured commitments for facility 

improvements worth $145.4 million, 

supplemental enviromnental projects to 

benefit local communities valued at $8.2 

million, and payments of more than $6.8 

million in civil penalties. 

Controlling Storm Water Run-off at 

Construction Sites. Runoff from 

constIllction sites is a significant contributor 

to the impaument of water quality in the 

nation. To assure compliance with the 

Clean Water Act's provisions goveming the 

discharge ofstonn water from large 

constIllction sites, the Division obtained a 

consent decree with Wal-Mari Stores, Inc. 

the nation's largest retailer and one of its 

largest commercial developers - that 

resolved claims coverulg 24 locations in 9 

states. The United States was joined UI the 

settlement by the States ofTellllessee and 

Utah. Wal-Mart will pay a civil penalty of 

$3 .1 million, underiake a supplemental 

envu·onmental project to protect sensitive 

wetlands or waterways, and implement a 

$62 million compliance program that 

ulcludes requirements for constIllction 

plamling, u·ainulg, inspections, and record 

keeping. This settlement is serving as a 

model in ongoing negotiations with other 

large commercial and residential developers 

who regularly engage UI substantial 

constIllction activities. 

The Division also reached a 

settlement UI us. v. Department of 

Transportation, State ofHawaii (HDOT), 

resolving violations of the Clean Water Act 

resulting from stonnwater discharges along 

roadways, constlllction sites, and at three 

aUpOlis. HDOT will spend over $50 million 

to achieve and maintaul compliance with the 

Act, pay a $1 million civil penalty and 

perfonn $1 million in environmental 

projects in the affected cOllllnunities. 

Ensuring the Integrity of Municipal 

Wastewater Treatment Systems. The 

Division continued its aggressive national 

enforcement program to protect the nation's 

6 

waterways by ensuring the integrity of 

lIllmicipal wastewater treatment systems. 

The Division achieved a number of 

imp0l1ant settlements this year. In u.s. v. 

CUy ofLos Angeles, the United States and 

its co-plaintiffs reached a $2 billion 

settlement with Los Angeles resolving 

violations due to years of sewage spills. Los 

Angeles operates the nation's largest sewage 

collection system. The settlement, a 

grOlUldbreaking eff0l1 to address all causes 

ofsewage spills in the city, requires the city 

not only to repair and replace its aging 

infrastmcture but also to take a proactive 

approach to prevent future problems. The 

city must also perfOllll $7.7 million in 

environmental projects and pay civil 

penalties of $ 1.6 million. In u.s. v. Orange 

County SanUation District, the defendant 

agreed to come into compliance with its 

National Pollutant Discharge Elimination 

System pennit and the Clean Water Act and 

to undel1ake a project to upgrade its 

wastewater treatment system to secondary 

treatment levels. The work required by this 

consent decree is expected to cost 

approximately $640 million. In United 

States v. District ofColumbia Water and 

Sewer Authority (WASA), the Division 

reached a settlement requiring WASA to 

implement a Long-Tenn Control Plan to 

eliminate persistent overflows from the 

District's combined sanitary and stonn 

water collection system. These measures 

are expected to reduce the volume of raw 

sewage discharges by 96 percent. The 

projects, which WASA estimates will cost 

more than $ 1.265 billion, will be 

implemented over a 20-year peliod. In u.s. 

v. City ofSan Diego, the Division reached a 

partial settlement of our Clean Water Act 

action against the City of San Diego relating 

to unlawful discharges of sewage. The City 

will tmdel1ake an extensive operations and 

maintenance program valued in excess of 

$187 million. In US. v. Baltimore Co. , the 

COlmty agreed to spend approximately $800 

million on improvements to control 

overflows ofsanitary sewage, pay a 

$750,000 penalty, and perfonn $4.5 million 

in enviromnental projects. The Division 

reached a settlement in US. v. Washington 

Suburban SanUary Commission requiting 

the sewage authority to spend an estimated 

$200 million on itnprovements to control 

overflow of sanitalY sewage, pay a $ 1.1 

million penalty, and perfonn $4.4 million in 

envit·onmental projects. 

The Division also made significant 

gains itl ensuritlg the integrity ofmunicipal 

wastewater treatment systems by concluding 

enforcement actions against a number of 

smaller municipalities. Those actions 

resulted in commitments for $2.54 billion itl 

lIllmicipal wastewater system itnprovements, 

supplemental enviromnental projects valued 

at $5.36 million in local comnllmities, and 

more than $ 1. 8 million in civil penalties. 

ENSURING CLEANUP OF OIL AND 

HAZARDOUS WASTE 

Cleanup of Contaminated River Systems. 

The Division continues to secure liver 

cleanups of unprecedented size and scope. 

General EiectIi c Company (GE) agreed to 

begitl dredgitlg sediment contaminated with 

polychlorinated biphenyls (PCBs) at the 

Hudson River PCB Superfund site itl upstate 

New York. GE will pelfonn the first phase 

of dredgitlg, expected to cost between $ 100 

and $ 150 million, and pay EPA up to $78 

million for the Agency's past and future 

costs. nlis project addresses discharges 

from two GE capacitor manufacturitlg plants 

7 

that for years discharged hazardous PCBs 

directly into the upper Hudson River. The 

goal is to restore one of the country's most 

impOitant cultural and ecological resources, 

using approaches designed to minimize 

impacts on local cOllllnunities throughout 

the life of the project. 

The Division reached a settlement 

resolving claims against Atlantic Richfield 

and NOithWestem COlporation in 

connection with the Milltown Reservoir 

Operable Unit, one of many Superfund Sites 

within the Clark Fork River Basin in 

Montana. The defendants will remove the 

Milltown Dam and rnillions of cubic yards 

of contaminated sediment accumulated 

behind it, at an estimated cost of $106 

million. The Division also settled claims 

for civil penalties and natural resource 

damages against Sunoco, Inc. and Sun Pipe 

Line Company resulting from a discharge of 

approximately 4,57 1 balTeis of cmde oil 

from Sunoco's pipeline into a 145-acre 

wetland impoundment within the John 

Heinz National Wildlife Refuge in 

Philadelphia. The spill lasted for 3 days 

before it was detected. Sunoco will pay a 

civil penalty of $2,742,600 and damages of 

$865,000. During negotiations, SllllOCO 

perfOlllled all necessary remedial and 

preventative measures, funded assessment of 

natural resource damages and perfonlled 

restoration measures at the Refuge to restore 

and replace the damaged resources. 

Conserving Superfund Resources. The 

Division secured the commitment of 

responsible parties to clean up hazardous 

waste sites at costs estimated in excess of 

$646 million, and recovered more than $265 

million for the Superfimd to help finance 

filture cleanups. Among the major 

Superfund cases resolved this year are: us. 

v. Occidellfal Petroleum (defendants to 

perfOllll cleanup estimated at $36.5 million 

for COimnencement Bay Site in 

Washington); us. v. Atlantic Richfield Co. 

(Clark Fork-Allaconda Smeltel) (defendant 

to pay $50 million for past response costs 

inculTed at sites in the Clark Fork River 

Basin in Montana); Us. v. Industrial Excess 

Landfill, Illc. (par1ial settlement requires 

defendants to pay over $18 million in past 

costs, perforlll site remedy at estimated cost 

of $7.1 million, and pay funu·e oversight 

costs up to $700,000); In the matter of 

Kerr-McGee Chemical LLC (West Chicago 

Site) (defendant to perfOllll remedial action 

and natural resource restoration work valued 

at $74 million, pay $6 rnillion for past costs, 

and reimburse all filnlre costs for nonoversight activities, plus $1.685 million for 

oversight activities); us. v. City and County 

ofDenver (Lowry Landfill) (defendants to 

pay $13 .9 million in past response costs, and 

perfonll remedial cleanup work valued at 

$43 million). 

In Cooper v. Aviall, the Depal1ment 

ofJustice filed an amicus brief in the 

Supreme Court arguing that a potentially 

responsible pal1y who vohmtarily cleaned 

up a contaminated hazardous waste site 

could not seek contIibution from other such 

parties under Section 113 of the 

Comprehensive Enviromllental Response, 

Compensation and Liability Act (CERCLA) 

unless its liability was being, or had been, 

adjudicated in a CERCLA Section 107 

action. The Supreme COlll1, in a 7-2 

decision, agreed, reversing a Fifth Circuit en 

banc decision. 

Enforcing Cleanup Responsibilities In 

Bankruptcy Cases. The Division's 

bankruptcy practice has continued to grow 

significantly in recent years. This year, the 

8 

Division represented the United States in 

numerous bankmptcy proceedings in which 

debtors had significant environmental 

responsibilities, including Federal-Mogul, 

Met-Coil, Metrachem Products, Polaroid, 

Formica, Sherman Wire, Outboard Marille, 

Sloody CompallY, Weirton Steel 

Corporation, and Kaiser Allllllillum. The 

Division obtained more than $14 million in 

allowed general lUlsecured bankmptcy 

claims, to be paid in part under debtors' 

reorganization plans. The Division also 

lodged proposed settlements in various 

bankmptcy proceedings, including 

Outboard Marille, Anustrong and Huffy. 

The Division anticipates banklllptcy court 

approvals of more than $11 million of 

allowed general unsecured bankmptcy 

claims to fund enviroIlmental cleanups. 

In these and other cases, the Division 

has fostered settlements that hallllonize 

banklllptcy and envirolUllentallaw. TIlese 

settlements enable large companies to avoid 

liquidation and significant job loss by 

facilitating reorganization or sale of ongoing 

operations. The settlements also prevent 

debtors fi:om abandoning contaminated 

properties without providing cleanup fimds. 

Recovering Natural Resource Damages. 

The Division obtained significant results in 

its efforts to recover for natural resource 

damage claims, securing settlements WOlth 

over $87 millioll. The Division's recovery 

efforts include Us. v. Holyoke Water Supply 

Company, u.s. v. France Shipmallagemel1( 

S.A. , us. v. Olympic Pipeline, Us. v. 

ALCOA, Us. v. Chevron US.A. iIlC., u.s. 

V. COUllty ofSanta Clara, and us. v. 

Maratlion Oil. 

PROMOTING RESPONSmLE 

STEWARDSHIP OF AMERICA'S 

NATURAL RESOUR CES AND 

WTLDLIFE 

Implementing the President's Healthy 

Forest Initiative. The Division continued 

its string of victories in defending against 

challenges to projects designed to restore 

public forest lands, improve wildlife habitat, 

and recover the value of damaged timber on 

federal forest lands - projects which 

implement President Bush's Healthy Forest 

Initiative. These include notable victories in 

the various cases challenging the Biscuit 

Fire Recovery Project in the Siskiyou 

National Forest, the largest such recovery 

project in the nation. That project alone 

spawned six lawsuits and nearly a dozen 

motions for preliminary injlUlction. The 

Division defeated all of the preliIllinary 

injunction motions against the Project. The 

Ninth Circuit affirmed the district court's 

denial of preliIninary relief in two cases, and 

a third remains pending on appeal. 

In a series of other cases in 

numerous courts, the Division successfully 

defeated, in both district and appellate 

com1s, challenges to the Forest Service's 

ability to move forward under new 

categorical exclusions for small timber sales 

in order to quickly salvage trees killed by 

fire, wind or insects. 

Protecting Pyramid Lake and its Fishery. 

In United States v. Board ofDirectors, 

Tmckee-Carson Irrigation District, the 

United States sought ' recoupment' of water 

unlawfilily diver1ed from the TllIckee River 

to the Newlands Project by the TmckeeCarson Inigation District between 1974 and 

1979. The district c01ll1 entered judgment in 

favor of the United States and the Pyramid 

Lake Paiute Tribe of Indians, holding that 

9 

the District must repay 197,152 acre feet of 

water. This will promote federal effOlls to 

stem the decline of Pyramid Lake and its 

fishery, a resource of great impOilance to the 

Pyramid Lake Paiute Tribe. 

Securing Needed Water Rights for the 

United States. This past year the Division 

entered into numerous settlements, or 

secured fa vorable judgments, that will 

protect the water supplies and flows 

necessary to maintain the vitality of natural 

resources and uses of the public lands, 

national forests, national parks, wildlife 

refuges, wild and scenic rivers, military 

bases, and federal reclamation projects 

throughout the West. For example, in i n Re 

Snake River Basin Adjudication, we secured 

cOUll approval of a historic settlement of 

claims on behalf ofthe u.s. Forest Serv ice 

for federal reserved water rights for six 

rivers designated pursuant to the Wild and 

Scenic Rivers Act and for water sources 

protected by the Hells Canyon National 

Recreation Area Act. The settlement 

secures the water needed to protect the 

remarkable fisheries and recreation values 

on over 400 miles ofCongressionally 

protected rivers and 18 lakes, including the 

ability offish to migrate into and out of the 

lakes fi-om their outflow streams. 

The Division also had great success 

in the Klamath Basin Adj udication, the 

major general stream adjudication in the 

State of Oregon. For example, in five cases 

where the United States objected to inflated 

claims to water that threatened the water 

supply available for other pUlposes, the 

water cOUll reduced the claimed acreage by 

over 60%. Meanwhile, in State of 

Washington Department of Ecology v. 

Acquavella, a general stream adjudication 

of water rights in Washington's Yakima 

River Basin, the cOUll issued an extensive 

mling generally recognizing and upholding 

the Bureau ofReclamation's claims for 

water rights to manage the Yakima Project's 

six storage reserv oirs for purposes including 

flood control, inigation, domestic, 

lInmicipal and power generation. 

Protecting Clean Water. The Division 

successfully defended the EPA's test 

procedures for analyzing whole effiuent 

toxicity under the Clean Water Act in 

Edison Electric institute v. EPA. The cOUll 

held that the EPA reasonably concluded that 

the test methods were accurate (i.e., 

sufficiently precise), that cerlain criteria 

applicable to detenllining the validity of 

chemical test methods (such as "bias") could 

not be applied to biological test methods 

such as whole effiuent toxicity, and that the 

test methods did not produce an 

unacceptable number of false positives. TIle 

cOUll also found that the test methods do not 

create an unconstitutional ilTebuttable 

presumption that a person who fails a whole 

effiuent toxicity test has violated the Clean 

Water Act. The cOUll held that the EPA 

rea sonably concluded that the test methods 

are available and applicable in a wide 

variety of circlUllstances and that their 

results are representative ofreal world 

conditions. 

The Division continued its vigorous 

enforcement of the wetlands protection 

provisions of the Clean Water Act, and 

obtained a number offavorable resolutions 

in enforcement cases tlus year. For 

example, in United States v. Adam Bros. 

Farming, i nc., the defendant famung 

corporation had discharged dredged and fill 

material, without a permit or other Clean 

Water Act authorization, into Orcutt Creek, 

its nibutaries and adjacent wetlands in Santa 

10 

Barbara, Califomia. The Division prevailed 

in a first trial phase addressing federal 

regulatory jurisdiction, and thereafter 

negotiated a favorable settlement requiring 

defendants to pay $200,000 in civil penalties 

and $915,000 for off-site mitigation, and to 

preserve approximately 23 acres ofwaters 

of the United States and riparian areas onsite. In U1Iited States v. CIllIclllIa, the 

Division favorably settled a Clean Water 

Act enforcement action involving 

unauthorized discharges to wetlands. The 

defendant will pay a civil penalty of $78,400 

and purchase mitigation credits worih 

$21,000 from a wetland mitigation bank in 

San Diego. 

The Division also obtained a 

favorable result in United States v. George 

and Seth Cundiff, involving the destmction 

of wetlands. TIle comi issued smnmary 

judgment for the United States as to 

liability, and then held a trial to determine 

the appropriate remedy. The comi enjoined 

defendants fi-om any future violations of the 

Clean Water Act, ordered them to 

implement the restoration plan that we had 

presented during the trial, and imposed a 

civil penalty of $225,000 (with $200,000 to 

be suspended if defendants adequately 

implement the restoration plan). Finally, in 

United States v. Johnson , defendant had 

discharged fill material in violation ofthe 

Clean Water Act in connection with the 

constmction of cranberry bogs in adjacent 

wetlands at three sites. The court granted 

summary judgment for the United States, 

first on liability and then on remedy. The 

court enjoined future discharges, ordered 

implementation of the restoration plan 

proffered by our expert witnesses (providing 

for restoration and mitigation of 

approximately 25 acres of wetlands and 

streams), and imposed a civil penalty of 

$75,000. 

Restoring the Everglades. The Division 

continues to contribute to protection ofthe 

Everglades ecosystem by acquiring lands 

within Everglades National Park and Big 

Cypress National Preserve through exercise 

of the power of eminent domain, as 

authorized by Congress and requested by the 

National Park Service. Related acquisitions 

on behalf of the U.S. Anny Corps of 

Engineers took place to improve water 

deliveries to the Everglades. The largest 

case to date is United States v. 480 Acres of 

Land in Miami-Dade County, Florida. This 

is the lead case in a consolidated trial group 

involving seven tracts totaling 1,000 acres in 

the Everglades National Park expansion 

project; there are an additional 13 trial 

groups of similar size and complexity. The 

trier offact valued the land taken at 

$472,000, after a trial in which the United 

States testified that the value was $362,000, 

and the landowner testified it was wOlih 

$1,020,000. 

Defending Legislation Revising Wildlife 

Statutes. UFO Chuting v. Young. After a 

comi found that a Hawaii statute protecting 

humpback whales was preempted by the 

Marine Mammal Protection Act, Congress 

enacted a provision making clear that 

Hawaii could enforce laws that are more 

protective of humpback whales 

"notwithstanding any other federal law." 

Plaintiffs challenged the constitutionality of 

this provision, and the coml invited the 

United States to intervene to defend it. The 

court agreed with the United States and the 

State ofHawaii that the provision did not 

violate the separation of powers doctrine or 

equal protection principles. 

The Fundfor Anilllals v. Norton . 

II 

After a D.C. Circuit Court opinion held that 

a non-native species of swan, the lllute 

swan, was covered by the MigratOlY Bird 

Treaty Act, Congress enacted the Migratory 

Bird Treaty Reforlll Act, which clarified that 

non-nativel exotic species are not protected 

under the Act. When the Fish and Wildlife 

Serv ice (FWS) issued a list of non-native 

species, as required by the RefOllll Act, that 

included mute swans, plaintiffs challenged 

its interpretation of the Refonn Act, 

claiming mute swans were still protected, 

and sued to enjoin a mute swan control 

program plamled by Mary land. The 

Division successfully defended FWS's 

interpretation, and the case was dismissed. 

Protecting Wildlife and Fishery 

Resources. In Coalition of Ari=onalNew 

Mexico COllnties f or Stable Economic 

Growth v. U S. Fish and Wildlife Service, 

plaintiffs challenged FWS 's Mexican gray 

wolf reintroduction program, arguing that 

the agency was not meeting the conserv ation 

goals required by the Endangered Species 

Act. The cOlUlmled for FWS, holding that 

the day-to-day operations ofthe Mexican 

wolf reintroduction program were not 

subject to judicial review. The COlUl also 

held that FWS had reasonably assessed the 

level of livestock depredation and 

OCCUlTence, that its assessment of 

hybridization issues was not arbitrary , and 

that plaintiffs' claims about problems with 

the program were exaggerated. 

In Stilhifsen v. Evans, the Division 

successfully defended a National Oceanic & 

Atmospheric Administration (NOAA) 

decision cancelling a seafood dealer's 

pennit and imposing an administrative 

penalty for refusal to comply with reporling 

requirements. The district court found that 

the administrative law judge's decision was 

based on substantial evidence in the record, 

and held that the penalty was not excessive 

or arbitrary , and that plaintiff had no due 

process properly right in his fishing permit. 

PROMOTING NATIONAL SECURITY 

AND MILITARY PREPAREDNESS 

Property Acquisitions to Improve 

National Security and Military Readiness. 

The Division exercised the federal 

govemment's power of eminent domain to 

initiate litigation to acquire land needed for 

national security and military uses. Through 

these efforls, the United States acquired land 

that will protect our national security 

interests in a variety of ways, including: 

expanding the National Defense University 

and Forl McNair; acquiring a porl facility in 

Florida for the Navy to use in shipping 

weapons around the globe; providing a 

security buffer for the U.S. Southem 

Command headquarters; expanding the 

safety zone next to the Marine Corps Air 

Station in Yuma, Arizona; allowing 

constmction of a second fence and patrol 

zone along the San Diego-Tijuana border; 

facilitating the Anny's u·ansfonnation of a 

light infantry division to a Stryker Brigade 

Combat Team; providing encroachment 

protection for training and operations at 

Harv ey Point Defense Testing; improving 

security at the Puget SOlUld Naval Shipyard 

in Washington; and expanding a Nellis Air 

Force Base flight zone. 

The Division also continued work to 

facilitate the Navy's plan to build a practice 

landing strip in nu·al Norlh Carolina that 

would provide a more realistic training 

enviromnent to simulate aircraft calTier 

landings. In Nat 'I Audubon Soc 'y v. Dep 't 

of the Navy, the district cOUll found the 

12 

Navy violated the National Environmental 

Policy Act (NEPA) by inadequately 

considering impacts on migratory waterfowl 

and cUlnulative impacts in its Enviromnental 

Impact Statement. It entered a permanent 

injunction preventing the Navy from fmlher 

planning, development, or construction of 

the landing strip tmtil it complies with 

NEPA. The F oUllh Circuit, while affinning 

the NEPA violation, substantially nan-owed 

the injunction, allowing the Navy to pmsue 

various preparatory activities. 

Defending Destruction of Obsolete 

Weapons and Army Modernization. TIle 

Division obtained another in a series of 

victories defending the AnllY's program to 

destroy stockpiles of obsolete chemical 

weapons pmsuant to intemational treaty 

obligations. In Families Concerned About 

Nerve Gas Incineration v. Army, plaintiffs 

brought a Resomce Conservation and 

Recovery Act (RCRA) citizen suit 

challenging the operation of the AnllY's 

Armiston, Alabama, chemical weapons 

demilitarization facility. Although the 

Division had successfully defended the 

state-issued permit before the State Supreme 

Court in a prior proceeding, plaintiffs filed 

this action in federal court asserling that the 

facility posed an imminent and substantial 

endangennent, violated the State's Resomce 

Conservation and Recovery Act regulations, 

and violated their equal protection rights. 

The cOUll had previously dismissed some 

claims for lack of subject matter jmisdiction. 

This year, the cOUll granted summary 

judgment for the Army on all remaining 

claims, holding that (1) the "pennit shield" 

provision of the Alabama RCRA regulations 

limited the plaintiffs to claims that the 

facility had violated its permit; (2) the 

plaintiffs had presented no evidence that the 

facility was in violation of its permit; (3) the 

complaint sought impermissible collateral 

review ofthe facility's state-issued pennit; 

and (4) plaintiffs' claims were balTed by 

collateral estoppel because they had been 

previously litigated in state adrninistrative 

and judicial proceedings. 

In addition, the Division successfully 

defended a challenge to a critical link in the 

Army's 3D-year, Anny-wide modemization 

plan to meet the national security needs of 

the future in Ilioulaokalani Coalition v. 

Rumsfeld. The plaintiffs in this action 

challenged the Anny's compliance with 

NEPA concerning its decision to transform a 

light infantry division into a Stryker Brigade 

Combat Team at an Anny tr·aining facility in 

Hawaii. The district cOUll granted sUlllinary 

judgment in favor ofthe Anny, mling that 

the plaintiffs' claims were balTed on 

procedural grounds and lacked merit. 

DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS 

Defending Governmental Cleanup 

Actions. In 2004, voters in Washington 

passed a referendum to bar shipments of 

nuclear waste to the Department of Energy's 

(DOE) Hanford Nuclear Facility pending 

cleanup of waste already there, and expand 

the state's permitting jurisdiction over 

radioactive and hazardous wastes. This 

would significantly interfere with DOE 's 

ability to deal with waste both at Hanford 

and from out-of-state nuclear facilities and 

require the immediate cessation of cerlain 

program activities at Hanford. The Division 

secured an injunction in federal cOUll 

enjoining the state law pending the cOUll's 

ultimate resolution of this suit. In addition, 

the Washington Supreme Court issued a 

largely favorable decision adopting the 

13 

United States' interpretation of several of 

the state law's key tenus. As a result of 

these mlings, cleanup actions at Hanford 

may for now continue unimpeded by the 

state law, and Hanford can continue its 

critical role of receiving nuclear waste from 

DOE and the u.s. Navy. 

The Division also obtained a 

fa vorable lUling on pal1ial SlUumalY 

judgment in General Electric Co. v. 

Johnson , a challenge to the constitutionality 

of the administrative order provisions of the 

Comprehensive Enviromuental Response, 

Compensation and Liability Act (CERCLA). 

The district com1 originally dismissed this 

matter for lack ofsubject matter jurisdiction, 

but the D.C. Circuit reversed. On remand, 

the cOlU1 mled in favor of the EPA as to the 

facial challenge to the statute, holding that 

the challenged provision is constitutional on 

its face. An additional claim alleging a 

"pattem and practice" challenge to EPA's 

administration ofCERCLA remains to be 

resolved following discovely. 

The Division obtained a favorable 

mling on challenges to the Maritime 

Administration's eff0l1s to dispose of 

obsolete naval vessels in Basel Action 

Network v. Maritime Administration and 

EPA. The case involved a suit by 

environmental groups assel1ing claims under 

NEPA, RCRA, the Administrative 

Procedure Act, and the Toxic Substances 

Control Act seeking to enjoin the exp0l1 of 

obsolete naval vessels containing PCBs, 

which were destined for dismantling and 

recycling at a facility in the United 

Kingdom. The com1 granted our motion for 

summalY judgment on all claims. 

Defending Federal Programs Challenged 

under the Endangered Species Act. TIle 

Division successfully defended a number of 

imp0l1ant federal programs from challenges 

asserting violations ofthe Endangered 

Species Act (ESA). 

In Northwest Ellviro1l111ental 

Advocates v. NMFS, plaintiffs challenged 

the Anuy COlpS ofEngineers' compliance 

with the ESA with respect to a project to 

deepen and maintain the chalmel in the 

CollUubia River, pursuant to specific 

Congressional directive. The com1 upheld 

the biological opinion from plaintiffs' 

charge that it failed to evaluate the effects of 

dredging activities on salmon and steelhead 

and their critical habitat and pennitted the 

COlPS' activities to proceed. 

In National Wilderness Institllte v. 

USACOE, plaintiffs challenged the Anuy 

Corps of Engineers' operation ofthe 

Washington Aqueduct and the Federal 

Highways' Wilson Bridge re-constmction 

project, arguing that the agencies had not 

adequately considered impacts to sh0l1nose 

sturgeon (with regard to the Aqueduct) and 

to the bald eagle (with regard to Wilson 

Bridge). The Com1 held for the federal 

agencies on all claims, upholding the 

biological opinion's detennination that 

discharges in the Washington Aqueduct 

during non-spawning season would not 

jeopardize the sturgeon and concluding that 

the Wilson Blidge project disturbance was 

penuissible because the area was not a 

concentrated nesting area for the bald eagles 

and the eagles could relocate. 

In Florida Keys Citi=ells Coalition v. 

Us. Army Cmps ofEngineers, plaintiffs 

challenged an Army Corps of Engineers 

decision to penuit discharge of dredge and 

fillmatelial into waters ofthe United States 

in comlection with planned road widening 

14 

and other improvements to u.s. 1 in Florida. 

The comt rejected plaintiffs' claim that the 

project would jeopardize the endangered 

Florida manatee and the small tooth sawfish 

in violation ofESA requirements. 

In Bear Creek Cot/llcit v. Heath, 

plaintiffs challenged timber sales in the 

Gallatin National Forest, arguing that the 

Forest Serv ice and Fish and Wildlife Serv ice 

failed to use the best available scientific 

information in detenllining that the timber 

sale and associated road construction could 

go forward in grizzly bear habitat. The 

comt held that the agencies had adequately 

ensmed that the project complied with wellsettled motorized access density standards 

for grizzly bears and was otherwise in 

compliance with the ESA' s conservation 

requirements. The court of appeals affirmed 

the district comt's grant of smllmary 

judgment for the govemment agencies. 

In Buckeye Forest Councit v. USFS 

and USFWS, the Division successfully 

defended the Forest Service's ability to use a 

region-wide approach with respect to timber 

sales in the range ofthe Indiana bat. 

Although the Service consulted with the 

Fish and Wildlife Service to ensme that the 

region-wide guidance complied with the 

ESA, plaintiffs alleged that specific timber 

sales violated the ESA because the Service 

could not rely on the earlier biological 

opinion in examining the impact ofspecific 

projects. The Comt rejected this claim and 

upheld the agencies' "tiered" approach to 

biological opinions for the timber program 

and timber sales' impacts on the Indiana bat. 

In Forest Guardians v. Veneman , 

plaintiffs argued that the Canada lynxwhich is listed under the ESA as a distinct 

population segment in Colorado but not 

New Mexico - is protected under the ESA 

even in New Mexico because animals found 

in that state could have traveled there fi-om 

Colorado. They argued that the Forest 

Service was therefore required to comply 

with the ESA for land management projects 

on New Mexico forest lands. The Division 

argued that plaintiffs were attempting to 

collaterally attack the listing detenllination, 

and the comt agreed. The court held that the 

ESA applied only to species as listed, and 

that, because the Canada lynx listing 

expressly excluded New Mexico, the lynx 

was not protected there. 

Defending Ocean Management Programs. 

The Division also successfully defended 

against challenges to various ocean 

management programs established by the 

National Oceanic & Atmospheric 

Administration (NOAA). 

In Oceana v. Evans, enviromllental 

and industry groups challenged NOAA's 

Northeast Multispecies (groundfish) Fishery 

Management Plan under the Magnuson Act. 

The enviromnental organizations argued 

NOAA had not adequately limited 

overfishing, while the industry groups 

claimed NOAA had gone too far. A nmnber 

ofstates and fishing groups intervened and 

participated as amici. The comt ruled for 

NOAA on most claims, agreeing that the 

Magnuson Act allowed NOAA to "phase in" 

fishing mortality rates over time as long as 

the rates will achieve the rebuilding targets 

in the funu·e and end overfishing. Plaintiffs 

also challenged NOAA's Scallop Fishery 

Management Plan in Oceana v. Evans, 

arguing that it did not adequately consider 

the scallop fishery's incidental adverse 

effects on listed sea turtles and that NOAA's 

designation of essential fish habitat was 

inadequate. The court held for NOAA on 

15 

most claims, finding that NOAA had used 

the best available infonnation in the ESA 

consultation process even though it could 

not numerically quantify the impact on sea 

hutles incidental to the fishelY. The com1 

also rejected the challenge to the essential 

fish habitat claim. It concluded that 

NOAA's " fiamework" process for making 

fishelY management changes in the scallop 

fishery without notice and comment was 

pennissible. 

In Oregon Trollers Ass 'n v. 

Gutierre:=, commercial ocean salmon trolling 

interests challenged a management objective 

for Klamath River fall chinook that provided 

for a cel1ain escapement goal and an 

escapement floor of 35,000 "nahlrallyspawning" Klamath River fall chinook. The 

Division argued that the claim was timebaaed since the objective had been set by a 

1989 fishery management plan amendment. 

Plaintiffs argued that their "as-applied" 

challenge was permissible since recent cases 

established that NOAA could no longer 

differentiate between hatchery and nahlral 

fish. The court held for NOAA on both the 

statute of limitations grOlUlds and on the 

merits. The com1 rejected plaintiffs' 

argument that the National Marine Fisheries 

Selv ice could not promulgate regulations to 

protect the ability of a stock to reproduce 

nahlrally in the wild. 

Defending the Fish and Wildlife Service's 

Endangered Species Act Programs. In 

National Wddlife Federation v. Norton, the 

court upheld the City of Sacramento's 

Natomas Basin Habitat Conserv ation Plan 

and associated incidental take pennit for 

giant gaI1er snake, Swainson's hawk, and 

other species against an ESA challenge. 

The com1 concluded that the scheme for 

participating govemment entities was 

rational, and that ESA consultation on the 

plan was reasonable and cOllSidered issues 

relevant for the species, in particular habitat 

connectivity throughout the very fragmented 

and developed area. The court also upheld 

the mitigation plan for development under 

the Conselv ation Plan, concluding that the 

agency had ensured adequate funding for 

mitigation land acquisition, as required by 

the ESA. 

In addition, the Division successfully 

defended the Fish and Wildlife Selv ice's 

(FWS) determination that it was required to 

apply the Marine Mammal Protection Act 

with respect to projects subject to Anny 

COlpS ofEngineers permitting based on 

possible injmy to endangered manatees. In 

Florida Marine Contractors v. Williams, 

plaintiffs challenged FWS 's authority to 

regulate the incidental taking of manatees in 

Florida 's inland waterw ays. The court lllied 

for FWS, holding that its constlllction and 

application ofthe Act was tllle to "the 

unambiguously expressed intent of 

Congress . . . . " The court reasoned that the 

Act established a generalmoratorimll on the 

taking of marine mammals that is not 

subject to geographic or other limitations. 

Defending Pollution Control Regulations. 

The Division continued to have success 

defending the EPA's regulatory program 

under pollution control statutes such as the 

Clean Air Act. For example, in State o/New 

York v. EPA, states, environmental groups, 

and industry groups challenged the EPA's 

2002 amendments to the Clean Air Act 

"New Source Review" regulations, which 

revised the applicability test for such review 

in order to reduce disincentives for projects 

that might make industrial plants more 

efficient. The com1 upheld the mle in most 

major respects (vacating only two discrete 

16 

p0l1ions ofthe I1lle). Among other things, 

the com1 rejected all indusuy challenges to 

the revised I1lle, and upheld the nIle's 

provisions as to the baseline to be used in 

calculating an emissions increase and those 

regarding plantwide applicability 

limitations. 

In State o/Nevada v. DOE, Nevada 

filed a petition for review under the Nuclear 

Waste Policy Act claiming that the 

Department ofEnergy (DOE) violated an 

alleged mandatory duty to provide funding 

for Nevada's pal1icipation in activities 

related to the Yucca Mountain repository. 

DOE provided Nevada with $1 million that 

Congress had specifically appropriated for 

particular activities, but denied the state's 

request for additional funding, noting that it 

could not use the general appropriation out 

of the Nuclear Waste Fund to augment the 

specific appropriation. The Court of 

Appeals held that, even assuming the com1 

owed no deference to the agency decision, 

DOE had acted consistently with federal 

appropriations law. 

Protecting the Submerged Lands and 

Inland Waters of the United States. In an 

original action in the Supreme Com1, Alaska 

v. United States, the State of Alaska sought 

to quiet title to cel1ain marine submerged 

lands in Southeast Alaska, an area 

approximately the size of Tellllessee 

consisting of a thin mainland strip and the 

Alexander Archipelago. In a I1lling that 

adopted evelY significant legal position of 

the United States, the Supreme Com1 

confmned the United States' disclaimer of 

the marine submerged lands in the Tongass 

National Forest and granted judgment in 

favor of the United States on the three 

remaining counts. Specifically, the decision 

upholds federal ownership of the 

scientifically impol1ant submerged lands in 

the Glacier Bay National Momullent and 

Preserve. The Com1's rejection of Alaska's 

historic inland waters and jmi.dical bay 

claims, involving the waters ofthe 

Alexander Archipelago, resulted in a 

preselvation of the cunent division ofstate 

and federal waters in Southeast Alaska. 

Clarifying the Territorial Limits of 

National Environmental Policy Act 

Analysis. In Basel Action Network v. US. 

Maritime Administration (MARAD), the 

com1 upheld MARAD 's analysis of impacts 

to U.S. teni.torial waters related to the 

export of obsolete shipping vessels to a 

dismantling and recycling facility in the 

United Kingdom. The court's decision 

contained impol1ant language agreeing with 

the United States' view that the National 

Environmental Policy Act (NEP A) did not 

require analysis ofthe exu·ateni.torial 

impacts of an agency's actions. 

Defending Mississippi Delta Project. In 

Arkansas Wildlife Federation v. Army Corps 

ofEngineers, plaintiffs brought a challenge 

to the Corps ofEngineers' decision to 

pennit constl1lction of a pmnping station on 

the White River in Arkansas. The pmllPing 

station is part ofthe Grand Prairie Area 

Demonstration Inigation Project and would 

pmllp water from the River to help ini.gate 

agricultme in the Mississippi Delta and 

protect aquifers in that region. The com1 

granted judgment in favor of the Corps, 

finding that laches baned plaintiffs' NEPA 

claims and that the Corps had complied with 

the Act. 

Defending the Army Corps of Engineers' 

Clean Water Act Program. In lllullerous 

cases, the Division has successfully 

defended the AnllY COlpSofEngineers' 

17 

issuance of permits under the Clean Water 

Act. For example, in Preserve Ca/avera v. 

Army Corps of Engilleers, plaintiffs 

challenged the Corps' decision to issue a 

permit for a proposed industrial park and 

related municipal infrastmcture work. The 

court adopted the Division's arguments 

when it denied Plaintiffs' motion for 

emergency relief and later mled that the 

Corps' issuance ofthe permit was in full 

compliance with all applicable statutes. 

Likewise, in Nauyokas v. Army Cmps of 

Engineers, plaintiffs challenged the Corps' 

issuance of a dredge and fill permit to a 

riverboat casino. After both the district and 

appellate courts denied plaintiffs' request for 

preliminary injlUlctive relief, plaintiffs chose 

not to pursue their claims. 

The Division also defended the 

Army Corps ofEngineers' management of 

federal water storage projects against 

challenges arising out of a long-mnning 

dispute among Florida, Alabama, Georgia 

and others, over the allocation of water in 

the Apalachicola-Chattahoochee-Flint River 

Basin (ACF Basin), including Lake Lanier 

and the Buford dam. Multiple suits have 

been filed in different districts, challenging 

the Corps' management. Alabama v. u.s. 

AnllY Corps of Engineers is a NEPA 

challenge to the Corps' proposals to 

reallocate water storage to llllUlicipal and 

industrial water supply in two river basins 

shared by Alabama, Florida, and Georgia. 

Arl Alabama district court previously 

entered a preliminary injunction which, 

among other things, prevented the Anny 

Corps ofEngineers from implementing an 

agreement settling a case in the District of 

Columbia. The Division persuaded the 

Eleventh Circuit to vacate the preliminary 

injlUlction. The court mled that any alleged 

hanns had already occurTed in this case, 

making injunctive relief inappropriate. The 

court also concluded that there was no 

imminent hann because the settlement 

agreement made a thorough NEPA review a 

condition precedent to implementation of 

water storage contracts. Finally, the court 

held that the district court had abused its 

discretion in fUlding that the states were 

likely to succeed on the merits. 

The Division also secured mlings in 

fa vor of the Army Corps ofEngineers in 

challenges to its operation of dams and 

reservoirs on the Missouri River in In re 

Operatioll of Missouri River System 

Litigation (Proceedings Relating to Dams 

and Reservoirs on the Missouri River) . The 

Eighth Circuit rejected a challenge by 

Missouri, Nebraska, and other downstream 

interests to the Corps' discretion to manage 

flows from dams and reserv oirs on the 

Missouri River. The court also rejected an 

ESA challenge alleging the Corps was not 

doing enough to protect endangered and 

threatened species. The court further held 

that North Dakota was baned by sovereign 

imnllUlity from bringing a Clean Water Act 

action alleging the Corps' discharge of 

waters for barge navigation violated state 

water quality standards. 

Preserving the Bureau of Reclamation's 

Authority to Operate Critical Facilities. 

In Rio Grande Si/velY Minnow v. 

McDonald, the plaintiffs challenged the 

Bureau of Reclamation's operation ofthe 

Middle Rio Grande Project. Plaintiffs 

argued, among other things, that the United 

States did not own the Project works. After 

trial, the court rejected this claim and 

recognized that the United States holds title. 

The decision upholds the authority of the 

Bureau of Reclamation to operate the 

Project as Congress has directed. 

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Maintaining the Nation's Infrastructure. 

The Division exercised the federal 

govemment's power of eminent domain to 

acquire property to improve air and rail 

transportation and to build new com1house 

facilities, as well as to facilitate 

environmental remedial actions and flood 

connd projects. In addition, the Division 

provided advice and training to various 

federal agencies to enable them to acquire 

property in a fiscally responsible maImer 

while still protecting the interests of 

citizens. 

Capacity Building for Environmental 

Enforcement Throughout the World. 

Because pollution and other environmental 

hanns do not respect national borders, the 

Division has increased its eff011s to help 

countries around the world improve their 

capacities to enforce environmental and 

natural resource laws. These effol1s are 

generally sponsored or supp011ed by other 

agencies and conducted under the auspices 

of intemational agreements, such as those 

dealing with protected species, hazardous 

materials and vessel pollution. This year, 

the Division developed and conducted 

courses and workshops on civil and criminal 

enforcement of enviromnentallaws for 

prosecutors and other govemment officials 

in China, Westem and Eastem Emope, 

Thailand, Brazil and South Africa. For 

example, at the request of the Govemment 

of South Africa, we provided comprehensive 

training in environmental climes 

prosecution to over 50 South African 

prosecutors. We also hosted a number of 

delegations from around the world to 

discuss and share experiences on 

environmental enforcement and defense. 

Protecting the Taxpayers Against 

Unwarranted Claims. As pan of our 

responsibility to protect the public fisc 

against lllWalTanted claims, the Division 

prevailed against claimants who sought to 

recover for the conversion of railroad lightsof-way to multipmpose trails on an untimely 

basis. TIle Federal Circuit adopted the 

Division's argument on when the statute of 

limitations begins to run in such cases in 

Caldwell v. United States. Following that 

precedent, the Division succeeded in having 

three such cases dismissed this past year. 

The Division also succeeded in 

clarifying the compensation rights of 

landowners served by the Bureau of 

Reclamation. In Klamath Irrigation District 

v. United States, the Klamath IrTigation 

District and lllunerous other ilTigation and 

improvement districts, businesses and 

individuals sought approximately $100 

million based on the Bureau of 

Reclamation's operation of the Klamath 

Project during a selious drought in 2001 . 

The com1 granted summalY judgment in 

favor of the United States as to plaintiffs' 

takings claims, finding that their interest in 

project water was not a compensable 

property interest protected by the Fifth 

Amendment. The com1 recognized that the 

plaintiffs instead have contracmallights that 

govem their water deliveries. 

In Orj!v. United States, the Supreme 

Court ruled unanimously that a group of 

inigators who receive water through the 

Westlands Water District from the Bmeau of 

Reclamation's Central Valley Project could 

not directly sue the United States under 43 

U. S.C. § 390uu for breach of the United 

States' reclamation contract with Westlands. 

Section 390uu grants consent "to join the 

United States as a necessalY pal1y defendant 

in any suit to adjudicate" cel1ain rights 

under a federal reclamation contract. The 

19 

Supreme Court held that, in light of the 

principle that a waiver of sovereign 

uIlIllluIity must be strictly constmed in favor 

of the sovereign, Section 390uu is best 

unerpreted to grant consent to join the 

United States in an action between other 

parties when the action requires construction 

of a reclamation contract and joinder of the 

United States is necessaly. It does not 

pernIit a plaintiff to sue the United States 

alone. 

PROTECTING INDIAN RESOURCES 

AND RESOLVING INDIAN ISSUES 

Defending Tribal and Federal Interests in 

Water Adjudications. DurUlg the past 

year, the Division settled three major water 

rights adjudications UI which the United 

States had assel1ed significant water rights 

claims for the benefit of tribes. Water 

adjudications are complex, primarily 

defensive cases, typically involving the 

rights of thousands of parties. In the Snake 

River Basin Adjudication (Idaho), the 

Division worked with the Interior 

Department, the State ofIdaho, and the Nez 

Perce Tribe to craft an hiStOlic settlement of 

a water rights claun. Congress ratified this 

settlement UI the Snake River Water Rights 

Act. The Division also worked with the 

Department of the Interior, the State of 

Arizona, the Gila River Indian Community, 

and private water users to settle the Gila 

Community's water claims UI In Re Gila 

River System and Source (Ari=.), which 

Congress ratified UI the Arizona Water 

Settlements Act. A third major settlement 

was reached in Ari=olla v. California, 

concluding a 35-year-long origulal Supreme 

Court jurisdiction case ulVolving rights to 

water from the Colorado River. The 

settlement - which was approved by the 

Special Master - resolved the water rights 

clauns of the Quechan Indian Tribe and 

resolved any disagreement about the 

location of the Tribe's Reservation 

boundaries in Arizona. 

Protecting Tribal Lands. The Division 

also defends and brings suits relating to over 

50 million acres ofland that the United 

States holds in tmst for tribes. To this end, 

the Division settled Seneca Nation v. New 

York (Cuba Lake), an action asserting an 

unlawful trespass on tribal lands. TIle 

United States, New York, and the Seneca 

Nation reached a settlement resolvulg a 150­

year-old dispute. This was the first New 

York land claim to be resolved through 

settlement. 

Protecting Indian Reservation 

Environments. In United Stares v. CamWest alld Amoco Oil Company, the Division 

reached a settlement agreement that ensures 

that pollution related to oil wells on the 

Wind River Indian Reservation will be 

cleaned up. The settlement also provides 

that the companies will tmdel1ake a variety 

ofsupplemental envu·onmental projects to 

benefit the water treatment and delivelY 

systems for the Shoshone and Arapahoe 

Tribes residulg on the Reselvation, bring oil 

fields uno compliance, perfonn tasks auned 

at improving the environmental quality on 

the reselvation, and pay civil penalties for 

past violations of the Safe Drinking Water 

Act and the Clean Water Act. 

Upholding Agencies' Authority to 

Implement Indian Policies. The Division 

had a lllunber ofsuccesses in the past year 

defendulg federal agencies' authority to 

unplement policy for the benefit of tribes. 

In four cases, the Division successfully 

defended the Secretary of the Interior's UllSt 

20 

acquisition authority against constitutional 

and administrative law challenges. 

Defending the Criminal Jurisdiction of 

Indian Tribes. The Division also helped 

secure mlillgs that strengthen the authority 

ofNative American tribes to enforce 

criminal laws within their telTitories. In 

1990, Congress amended the Indian Civil 

Rights Act to affmn the power of Indian 

nibes to exercise criminal jurisdiction over 

"all Indians," including members of other 

nibes. In Means v. Navajo Nation and 

Morris v. Tanner, defendants - members of 

nibes other than those prosecuting them ­

argued that the Act was unconstitutional. 

The Division intervened to defend the law's 

constitutionality, and the Ninth Circuit 

agreed with the Division's argmnents. 

Promoting Negotiated Resolutions of 

Indian Disputes. TIle Division ended over 

fifty years oflitigation this past year when it 

resolved the last of the Indian Claims 

Commission Act (ICCA) cases, Pueblo of 

San Ildfonso v. United States. The 

umovative and comprehensive settlement 

among the plaintiff Tribe, the United States, 

the County ofLos Alamos, New Mexico, 

and the Pueblo of Santo Domulgo allows the 

Tribe to acquire 7,700 acres offonner 

aborigu13llands located in the Jemez 

National Forest. The settlement resolves the 

last of over 600 clauns filed by tribes lUlder 

the ICCA 

A number of other impOllant nibal 

issues were also resolved through 

negotiation. For example, in White 

Mountain Apache v. United States, the 

Division negotiated a resolution to the 

damages clauns sought by the tribe from the 

United States. The nibe sought damages for 

alleged breach oftmst responsibilities with 

regard to historic buildings located at the 

FOIl Apache site. The Division reached a 

settlement with the tribe under which the 

United States will pay a sum ofmoney to be 

used to rehabilitate cellain historic 

buildings. 

Defending Indian Gaming Laws. The 

Division was successful in defendulg the 

constitutionality ofprovisions of the Indian 

Gaming RegulatOlY Act. In Lac Du 

Flambeau v. Norton, we successfully 

defended the Secretary of the Interior's 

ability to allow a compact with a tribe to 

take effect without fonnal action on the pan 

of the agency. TIus decision preselv es the 

discretion ofthe Secretary to take no action 

UI the limited 45 days the Secretary ha s to 

approve Tribal-State compacts. In Texas v. 

Norton, we secured dismissal of a challenge 

to a regulation that provides procedures in 

lieu of a Tribal-State compact. TIle 

regulation allows tribes to engage in ceilaul 

gamuIg activities even when a state refuses 

to waive sovereign immunity for an action 

by the nibe to detennine the proper scope of 

gamulg in that state. 

SUPPORTING THE DIVISION'S 

LITIGATORS 

Environment and Natural Resources 

Division Rated 181h Best Place To Work in 

Government. In a ranking published by the 

Institute for the Study of Public Policy 

Implementation and the Partnership for 

Public Selv ice, the Division ranked as the 

I Sm best place to work UI goVel1lIllent. TIle 

rankings compare levels of employee 

satisfaction at federal agencies UI an effoll to 

promote excellence and unprove 

perfonnance, and are based on a 

govel1l111ent-wide smv ey mandated by 

21 

Congress and conducted by the Office of 

Personnel Management. 

OMB Gives Division Highest Rating. 

Using the award-winning Program 

Assessment Rating Tool (PART), developed 

as part of the President's Management 

Agenda to rate agency programs, the Office 

of Management and Budget gave the 

Division the highest rating, "Effective." 

The Division's response was consolidated 

with the other Litigating Divisions, who 

scored an 85 of 100 possible points. 

New Desktop Computer System In 2005, 

the Division upgraded its Justice 

Consolidated Office Network (JCON) suite 

of computer software to include the latest 

operating system and office application 

software upgrades for e-mail, word 

processing and other business functions. 

We also added significant new functionality, 

including streaming video of Justice 

Television Network training and education 

events, and press conferences, as well as CSPAN and CNN, expanded capability for 

preparation ofTables of Authority and 

citation checking, and new software for realtime court rep0l1ing and transcripts 

Automated Litigation Support. The 

Office ofLitigation Supp0l1 provided 

outstanding SUpp0l1 to some of the 

Division's most intense and complex cases, 

making the best use of new technology, 

contract staff, and in-house exper1ise. This 

year, we upgraded our network- and webbased software for managing electronic 

documents and case data to improve 

productivity, and we expanded our litigation 

support software offerings to include 

cutting-edge electronic trial presentation 

software. With the help of contractors, we 

assembled mobile trial networks in remote 

"war rooms" to manage electronic document 

collections and exhibits for several trials. 

This combination of comprehensive 

electronic trial presentation technology and 

on-site contractor SUpp0l1 were used 

effectively in several trials. Finally, we 

doubled our in-house supp0l1 capacity by 

moving the document scarming lab into a 

larger work area and adding new processing 

capability. These upgrades and expansions 

enable the Division to handle the 

increasingly teclmological needs of 

litigation with a consistently high level of 

serv rce. 

Performance Awards Policy. In June 

2005, the Division implemented a new 

perfonllance awards policy to strengthen the 

relationship between its missions, goals and 

accomplishments and the armual awards for 

employee performance. This year more 

than 450 employees, client agency and 

contr·act staff were recognized for 

exceptional contributions to the achievement 

of Division goals. 

Office Space Enhancements. The Division 

completed its multi-year plan to consolidate 

its Washington, D.C. staff into two buildings 

- the Rober1 F. Kennedy Main Justice 

Building, and the Patrick Hemy Building ­

from six area locations five years ago. The 

final phase involved relocating nearly 300 

staff into new space that was designed and 

built to Division specifications. This 

consolidation will yield many operational 

benefits for years to come, including 

increased productivity through the colocation of all of our legal practices, cost 

savings through shared resources and 

infrastrllcture, and better working conditions 

for all Division employees. 

22 

Telework Policy. TIle Division 

implemented a new "telework" initiative for 

attomeys this year. Also known as 

telecommuting or flexiplace, telework 

provides a practical solution to 

environmental, worklife and quality oflife 

issues for emolled attomeys. The success of 

tlus iIlllovative business solution reflects the 

Division's cOillnitment to progressive IT 

systems. 

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