ENRD
 

SUMMARYOF DIVISION ACCOMPLISHMENTS
 FISCAL YEAR 2016
 

UNITED STATES DEPARTMENT OF JUSTICE
 ENVIRONMENT & NATURAL RESOURCES DIVISION
 
Gulkana Wild and Scenic River Moose, Bureau of La nd Management 
   

                   

                 

                 

             

         

                 

               

               

                 

                     

           

CONTENTS
 

FOREWORD.......................................................................................................................................................... 5
 

OVERVIEW OF THE ENVIRONMENT AND NATURAL RESOURCES DIVISION .................................................. 11
 

PROTECTING OUR NATION’S AIR, LAND, AND WATER .............................................................................................15
 

ENSURING CLEANUP OF OIL AND HAZARDOUS WASTE ...................................................................................

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MAKING PROGRESS TOWARD ENVIRONMENTAL JUSTICE 43
 

PARTNERING WITH STATES 50
 

PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA’S WILDLIFE AND NATURAL RESOURCES 54
 

ENFORCING THE NATION’S CRIMINAL POLLUTION AND WILDLIFE LAWS 66
 

PROTECTING VITAL FEDERAL PROGRAMS AND INTERESTS 77
 

PROMOTING NATIONAL SECURITY, ENERGY SECURITY, AND MILITARY PREPAREDNESS 91
 

PROTECTING TRIBAL RIGHTS AND RESOURCES AND ADDRESSING TRIBAL CLAIMS 96
 

SUPPORTING THE DIVISION’S STAFF 106
 
               

             

Dean Creek Elk Viewing Area, Bureau of Land Management

Morley Nelson Snake River, Bureau of Land Management

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FOREWORD
 

As I bring to a close my final year as Assistant Attorney General of the

Environment and Natural Resources Division, this Accomplishments

Report allows me to reflect on the extraordinary work of the men and

women of the Division. I have previously had the honor and privilege of

spending over two decades at the Department of Justice, first as Chief

of the Environmental Enforcement Section and then as a career Deputy

Assistant Attorney General. During that time, I have been proud to serve

alongside the many extraordinary public servants who have devoted

their careers to the invaluable work of the Division: upholding our na‐

tion’slaws, improving our environment, protecting our natural resourc‐

es, and ensuring the health and safety of our citizens.

The Division’slongstanding commitment to service, integrity, and adherence to the rule of law reflects its

proud history. On November 9, 2016, the Division celebrated 107 years of work on behalf of the United States

by gathering in the magnificent Great Hall of the Department of Justice over 200 ENRD alumni from across the

United States. At that exceptional event, we gave our first Environmental Leadership Awards to two of our

most outstanding alumni: Carol Dinkins, the first female Assistant Attorney General of the Division and first

female Deputy Attorney General of the Department; and Richard Lazarus, the Howard and Katherine Aibel

Professor of Law at Harvard University.

The Division’s responsibilities are broad: enforcing the nation’s civil and criminal pollution‐control laws, de‐

fending environmental challengesto federal agency programs and activities, representing the United States

in matters concerning the stewardship of the nation’s natural resources and public lands, acquiring real prop‐

erty, bringing and defending cases under the wildlife protection statutes, and litigating cases concerning the

resources and rights of Indian tribes and their members. We have also received new responsibilities which we

have implemented during my tenure and which will be discussed in this report.

This year has been highlighted by three extraordinary events: (1) completing the historic settlement with BP

arising out of the tragic Deepwater Horizon oil spill into the Gulf of Mexico, (2) bringing a Clean Air Act case

against Volkswagen and finalizing an exceptional consent decree, which will impact over a half million diesel

car owners, and (3) defending the President’s Clean Power Plan, which served as the basis for the successful

Paris Agreement, designed to reduce carbon dioxide across the planet.

Largely because of the Deepwater Horizon and Volkswagen consent decrees, the past twelve months have

been among the most successful times in the Division’s history. And, our success has gone a long way to fulfill‐

ing the goals I established for the Division.

In last year’s Accomplishments Report, I set out my goals for the Division in 2016. The first of these was to

enforce the nation’s bedrock environmental laws that protect air, land, and water for all Americans. The Divi‐

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sion has made truly extraordinary progress toward this goal, as reflected in the successful civil and criminal

enforcement actions described throughout this Report. A key accomplishment was taking an important step

toward resolving the civil Clean Air Act violations alleged in the United States’ complaint relating to Volkswa‐

gen’s use of software algorithms and calibrations designed to defeat vehicle emissions tests (generally referred

to as “defeat devices”) on approximately 580,000 model year 2009‐2016 2.0 and 3.0 liter diesel vehicles sold

or leased in the United States. In June 2016, German automaker Volkswagen AG and related entities (Volkswa‐

gen) agreed to a partial settlement relating to the 2.0 liter vehicles, under which it will spend up to $14.7 billion

to offer consumers a buyback of the vehicles, and potentially also offer (if approved by regulators) an emissions

modification to substantially reduce emissions; fund nitrogen oxides reduction projects; and invest in green

technology. In September 2016, a Volkswagen engineer pleaded guilty to conspiracy to commit wire fraud, to

violate the Clean Air Act, and to defraud the EPA for his role in the nearly 10‐year conspiracy to defraud U.S.

regulators and Volkswagen customers through use of defeat devices, and agreed to cooperate in the ongoing

investigation. We continue our vigorous efforts to pursue a just resolution of all outstanding issues related to

Volkswagen’s use of defeat devices.

Another key enforcement success was the final entry in April 2016 of the consent decree in the Department’s

record‐breaking settlement with BP in the Deepwater Horizon Oil Spill litigation arising from the 2010 blowout

of the Macondo well and the resulting massive oil spill in the Gulf of Mexico. The United States and the five

Gulf Coast states secured payments in excess of $20 billion to resolve their claims against BP. This settlement

is the largest in the history of federal law enforcement for a single defendant, and it includes the largest‐ever

Clean Water Act civil penalty and the largest‐ever recovery of damages for injuries to natural resources. Now

that the consent decree has been finalized, the Trustee Council—comprised of representatives from four fed‐

eral agencies and all five Gulf States—can continue with the important work of restoring spill‐injured natural

resources.

In addition to the BP and Volkswagen litigation, the Division successfully litigated over 790 cases and handled a

total of 6,972 cases, matters, and appeals in fiscal year 2016. We achieved over $14 billion in civil and criminal

fines, penalties, and costs recovered. The estimated value of federal injunctive relief—clean‐up and pollution

prevention actions funded by private parties—exceeded $3 billion. And, in the Volkswagen settlement alone

(which was approved by the court after the 2016 fiscal year), over $14 billion more will go to protecting con‐

sumers, remediating the environment, and achieving full compliance with the Clean Air Act. ENRD also saved

the taxpayers over $12.3 billion by defeating monetary claims against the United States or reaching litigated or

negotiated resolutions for substantially less than was sought in such suits. The Division achieved a favorable

outcome in 95% of our cases, resulting in cleaner air, land, and water in the United States.

We also achieved great success toward my second goal for 2016: to vigorously represent the United Statesin

federal trial and appellate courts, including by defending EPA’srulemaking authority and effectively advancing

other agencies’ missions and priorities. In 2016, ENRD attorneys devoted substantial efforts to defending key

rules at the heart of this Administration’s commitment to safeguard clean air and clean water. The Division is

defending EPA’s Clean Power Plan—the Agency’s historic Clean Air Act rulemaking that takes action on climate

change by reducing greenhouse gases from power plants. The rule has faced challenges from over 100 state

and industry parties, with the cases consolidated in West Virginia v. EPA. The Division’s vigorous defense of

the rule culminated in a marathon six‐hour oral argument before a 10‐judge en banc panel of the D.C. Circuit

in September 2016. After long moot court practice sessions, I came out of that hearing proud of our litigating

team and impressed by the judges who were all well‐prepared and committed to the rule of law.

The Division has had extraordinary success in defending EPA’s other Clean Air Act rules, a source of constant

litigation and some controversy. In 2016, we had 23 decisions, and won 19 of them outright, and had split de‐

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cisions in two, losing only two. Of the 16 D.C. Circuit Court of Appeals judges who ruled on these cases, every

one of them cast numerous votessupporting these critical rulemakings.

My third goal for 2016 was to protect the public fisc and defend the interests of the United States. The Divi‐

sion protected the American taxpayer both through its careful and successful handling of agency land acquisi‐

tions and through vigorous and effective defense of cases alleging that government actions took property in

violation of the Fifth Amendment. For example, in helping the National Park Service with acquisitions that will

preserve important cultural and natural resources, the Division ensured that the government did not pay more

than market value in providing just compensation to landowners. The Division also had key victories in the

Federal Circuit in several Rails‐to‐Trails cases, some of which involved claims that the government illegally took

property by allowing abandoned rail corridors to be preserved for future rail use and, in the interim, used as

trails, and others involved claims for excessive amounts of attorney’sfees. In addition, the Division helped

federal agencies to carry out vital federal programs that serve a variety of important interests, including, for

example, promoting the use of renewable energy to foster energy independence. Our efforts in this area

included, for example, the successful defense of agency decisions regarding solar projects on public land as

well as the prosecution of those who engage in renewable fuel fraud – criminal conduct which undermines the

renewable fuel standard program that Congress created to curtail greenhouse gas emissions and expand the

nation’srenewable fuels sector.

The Division also made great strides toward my fourth goal for 2016: to advance environmental justice

through all of the Division’s work and promote and defend tribal sovereignty, treaty obligations, and the rights

of Native Americans. ENRD has a cross‐cutting position, the Counsel for Environmental Justice, charged with

integrating environmental justice considerations throughout our work. ENRD’s Counsel for Environmental Jus‐

tice continued to work closely with attorneys throughout the Division both to improve awareness and under‐

standing of environmental justice issues and to make sure we resolve cases in ways that provide real, concrete

results for low‐income and vulnerable communities that have suffered disproportionately from damage to the

environment.

We have also had great achievements this past year in protecting tribal sovereignty and tribal rights. For exam‐

ple, we successfully defended the Interior Department’s interpretation of a key phrase relevant to its authority

to take land into trust under the Indian Reorganization Act. This decision, by the D.C. Circuit, was the first court

of appeals to consider the issue since the Supreme Court’s 2009 decision in Carcieri v. Salazar. In addition, the

Ninth Circuit this year affirmed a district court decision finding that the State of Washington’s construction of

culverts that blocked access to fish habitat and reduced anadromous fish runs violated the treaty‐based fishing

rights of Indian tribes in the Pacific Northwest and upheld the injunction requiring the State to correct most of

the barrier culverts. The Division also made substantial progress in advancing the Department’s Indian Child

Welfare Act initiative through its amicus practice as well as by partnering with relevant agencies to develop and

use all available tools for compliance with the Act, engaging in outreach and other actions to promote

compliance with the statute, and defending against lawsuits that would undermine this important law. The

Division’s commitment to civil affirmative litigation in support of tribal interests continued to see important

results: protecting the treaty boundaries of the Omaha Reservation; defending the hunting and fishing rights  

of the Penobscot Nation; protecting against trespass on tribal lands of the Pueblo of Santa Clara and the Nez

Perce Tribe; and securing federally reserved rights to water, including groundwater, for the Agua Caliente Band

of Cahuilla Indians.

In addition, the Division also continued its initiative to resolve long‐standing tribal trust cases, reaching further

settlements with 17 tribes for almost $493 million between January 1 and September 26, 2016 alone. The

2016 settlements add to the already‐historic efforts in settling these lawsuits. Since January 20, 2009, the

Division has settled the claims of 104 tribes for a total of $3.35 billion. The settlements represent a significant

milestone in improving the government‐to‐government relationship between the United States and Indian

tribes.

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My fifth goal was that the Division provide effective stewardship of the nation’s public lands, natural resources

and animals, including fighting for the survival of the world’s most iconic species and protecting marine re‐

sources, and working across the government and the globe to end the illegal trade in wildlife. Here, too, we

continued to achieve outstanding results. Along with senior leadership from the Departments of State and

the Interior, I am a co‐chair of the Presidential Task Force on Wildlife Trafficking, which unites 17 federal agen‐

cies and offices in a “whole of government” effort to combat the pernicious trade in wildlife that is decimating

many species—including some of our most iconic, such as elephants, rhinos, great apes, tigers and sharks—

and undermining global security. This year, the Division successfully prosecuted multiple wildlife traffickers;

worked closely with our federal agency and international partners to develop and implement extensive train‐

ing programs for prosecutors and judges that will help our foreign partners further develop their enforce‐ ment

capacity; and participated in international meetings—including the Conference of the Parties on the

Convention on International Trade in Endangered Species of Fauna and Flora—at which countries agreed upon

key actions to counter wildlife trafficking. This year, we brought some of the most significant wildlife prosecu‐

tions in our history, particularly in the timber trafficking case against Lumber Liquidators. In addition, I led the

United States delegation to the International Illegal Wildlife Trafficking conference held last November in Ha‐

noi, Vietnam. The Division also promoted responsible stewardship of America’s wildlife and natural resources

by successfully defending important land‐ and resource‐management decisions of federal agencies, including

decisions that will protect forests, parks, and fisheries.

Furthermore, in 2016, the Division began to vigorously implement its newly acquired responsibility for crimi‐

nal workersafety prosecutions and enforcement of animal welfare statutes. Under the new workersafety

initiative, ENRD and the U.S. Attorneys’ Offices are already working with several offices within the Department

of Labor, including the Occupational Safety and Health Administration, to investigate and prosecute worker

endangerment violations. ENRD also took several steps in implementing our new responsibilities enforcing ani‐

mal welfare statutes. We have met with the responsible federal agencies, conducted training, and organized

a highly successful conference that brought together federal, state and local leaders to map out a coordinated

strategy for the future. The Division also brought criminal charges against nine defendants for their role in a

multi‐state dog fighting conspiracy; in coordination with these cases, we seized 79 dogs, and ENRD civil attor‐

neys negotiated the surrender of 71 of these dogs—making them potentially available for adoption—and are

seeking civil forfeiture of the remaining dogs. We are only at the beginning, but this is important work that we

will continue to move forward.

The Executive Office of the Division has worked tirelessly in a broad range of ways to support the Division’s at‐

torneys in making such outstanding progress toward all these goals. The work of these individuals ensures that

the Division is a diverse and thriving work environment, and has helped to ensure that it has consistently been

one of the absolute best places to work in the federal government. I am particularly proud of the work of the

EO educational arm, as we offered 71 unique courses, training over 1900 participants from the Justice Depart‐

ment and client agencies in the process.

In addition to all of the Division’s extraordinary work, we also drew experts from across the United States to

give us guidance. In October, we hosted in the Great Hall a symposium on Alternative Dispute Resolution,

drawing the leading private and judicial mediators in the country. In November, we hosted a symposium on

The Future of Environmental Law, drawing leading law professors from across the United States, speaking to

an audience of Division personnel as well as a dozen agency general counsels and White House officials. The

symposium was broken up into three parts: The future of administrative law, the future of natural resources

law, and the future of environmental enforcement. We have transcribed this exceptional symposium and will

be publishing the dialogue. We also established a speaker program that included Supreme Court Associate

Justice Elena Kagan, Department of the Interior Secretary Sally Jewell, Solicitor General Don Verrilli, and EPA

Administrator Gina McCarthy. And, on December 9, in the Great Hall, we celebrated the winners of the envi‐

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ronmental writing contest we sponsored with the District of Columbia Public School System and D.C.’s Depart‐

ment of Energy & Environment. This event was designed to both attract young people to environmental issues

and showcase their thoughtful essays on environmental issues facing the District.

We have also advanced our work on managing e‐discovery, both through our historic efforts in the Volkswagen

and BP litigation, as well as our efforts to train our work force. This year, we upgraded to the latest version of

our document review platform, allowing us to take advantage of increasingly sophisticated computer analytics

and to design improved screenings for relevance and privilege, enabling us to meet the aggressive deadlines in

many of our cases. In addition, we increased the training for our attorneys and professional staff in various

aspects of e‐discovery and continued to provide regular updates on advanced e‐discovery issues through our

bi‐monthly newsletter.

Finally, we have significantly advanced our efforts to promote cooperative federalism by engaging in joint

enforcement actions with States. Through such actions, we work more efficiently and effectively by leverag‐

ing resources and obtaining comprehensive outcomes for all Americans. For example, we not only share civil

penalties with partnering states, but many of the communities surrounding polluting facilities benefit from

environmental mitigation or supplemental environmental projects funded by defendants. And our coopera‐

tion with state counterparts extends to defensive litigation, where we may jointly defend challenges to needed

infrastructure projects. We have also regularly shared expertise and experiences with our state counterparts

through training on e‐discovery, bankruptcy law, and other topics of mutual interest.

As I depart from the Division, we are in the best shape of our tenure. In December, the Division accepted an

award by the Partnership for Federal Service, which ranked the Environment and Natural Resources Division as

the #2 best place to work in the federal government as well as the best place to work in the Department of Jus‐

tice. With more than 300 Federal agency subcomponents competing, our new rank places us well into the top

1% of all Federal workplaces. We have over 640 employees and have received 327 applications to fill 12 Honor

Grad attorney positions, from a record number of law schools (123) across the country.

The Report that follows discusses all of the Division’s important work, and provides further details on how we

have made progress toward our goals over the past year. I commend all of my colleagues for their exceptional

work.

I am so proud to have had the incredible opportunity to lead the men and women of the Environment and Nat‐

ural Resources Division over the past years. I am confident that they will continue to make excellent progress

on all aspects of the Division’s mission, and I look forward to watching their successes in the years to come!

John C. Cruden

Assistant Attorney General

Environment and Natural Resources Division

United States Department of Justice

January 15, 2017

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OVERVIEW OF THE
 ENVIRONMENT AND NATURAL
 RESOURCESDIVISION
 

The richness and complexity of the Division’s work is inseparable from the larger story of the growth and matu‐

ration of American society. During the 19th Century, the federal government sought to encourage settlement

by transferring the nation’s public lands to private owners. Federal land policy changed abruptly at the turn of

the century, when the government began to focus on retaining ownership of public lands, and managing the

resources on those lands, for the benefit of the entire nation.

On November 16, 1909, Attorney General George Wickersham signed a two‐page order creating “The Public

Lands Division” of the Department of Justice to step into the breach and address the critical litigation that

ensued. He assigned all cases concerning “enforcement of the Public Land Law,” and relating to Indian affairs,

to the new Division, and transferred a staff of nine—six attorneys and three stenographers—to carry out those

responsibilities.

As the nation grew and developed, so did the responsibilities of the Division, and its name changed to the

“Environment and Natural Resources Division” (ENRD) to better reflect those responsibilities. The Division cel‐

ebrated its 107th anniversary on November 16, 2016. Today, we are mindful of the strong legacy that we have

inherited and the opportunities and challenges that lie ahead of us. The Division has a main office in Wash‐

ington, D.C., and field offices across the United States. It has a staff of over 600 people, and is organized into

ten sections. It currently has over 6,972 active cases and matters and has represented virtually every federal

agency in connection with cases arising in all fifty states and the United States territories.

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 (OPA), the Resource Conserva‐

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

Act (CERCLA or Superfund). The main federal agencies that the Division representsin these areas are the U.S.

Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). The Division’ssections

that carry out this work are the Environmental Enforcement Section, the Environmental Defense Section, and

the Environmental Crimes Section. The Chiefs of these sections are Tom Mariani, Letitia Grishaw, and Deborah

L. Harris, respectively.

A substantial portion of the Division’s work includes litigation under a wide array of statutesrelated to the

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

affected by ENRD’slitigation docket, ranging from entire ecosystems, such as the nation’s largest sub‐tropical

wetlands (the Everglades) and rain forest (the Tongass), to individual rangelands or wildlife refuges, to historic

battlefields and monuments. Examples of ENRD’sland and natural resources litigation include original actions

before the U.S. Supreme Court to address interstate boundary and water allocation issues; suits challenging

federal agency decisions that affect 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

Overview of the Environment and Natural Resources Division | 11
             

         

     

             

Grand Staircase Escalante National Monument, Utah,

Bureau of Land Management

California Coastal National Monument, Bureau of Land Management

12 | Overview of the Environment and Natural Resources Division
                         

                               

                                   

                             

                             

                             

                           

                           

                         

                           

                             

                                        

                             

                           

       

                           

                     

                           

                                   

                               

                   

                         

                               

                                 

                               

                       

         

                           

                           

                           

                               

                               

                              

                                   

                                   

                               

                                 

                               

                   

                                   

                                     

                     

                                 

                               

                             

                           

resources, including subsurface minerals. The Division primarily representsthe land management agencies of

the United States in these cases, including the U.S. Department of Agriculture’s Forest Service and the many

components of the U.S. Department of the Interior (Interior) such as the National Park Service (NPS), Bureau of

Land Management (BLM), and U.S. Fish and Wildlife Service (FWS). The Natural Resources Section is primarily

responsible for these cases. The Chief of the Natural Resources Section is Lisa L. Russell.

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 animal and plant species; the Marine Mammal Protection Act, which pro‐

tects marine mammals, such as whales, seals, and dolphins; and the Magnuson‐Stevens Fishery Conservation

and Management Act, which regulates fishery resources. The Chief of the Wildlife and Marine Resources Sec‐

tion is Seth Barsky. The Environmental Crimes Section brings criminal prosecutions under these laws and un‐

der the Lacey Act against people who are found smuggling wildlife and plants into or out of the United States

or across state boundaries or otherwise violating federal wildlife laws. The main federal agencies that ENRD

representsin this area are FWS and the National Oceanic and Atmospheric Administration’s (NOAA) National

Marine Fisheries Service (NMFS).

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

or environmental statutes. Examples include Fifth Amendment takings claims, in which landowners seek

compensation based on the allegation that a government action has precluded development of their property,

and suits alleging that a federal agency has failed to comply with the National Environmental Policy Act (NEPA).

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

capabilities (including military preparedness, weapons programs, nuclear materials management, and military

research), renewable energy development, and food supply. In other cases, plaintiffs challenge regulations

promulgated to implement the nation’s pollution control 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 these areas include the

Department of Defense (DOD), EPA, the U.S. Army Corps of Engineers (Corps), the U.S. Department of Trans‐

portation (DOT), and Interior’s various components. 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, under‐

taken with Congressional direction or authority, involves the acquisition of land for the federal government,

including for national parks, the construction of federal buildings, and national security‐related purposes. The

Land Acquisition Section is responsible for this litigation. The Chief of the Land Acquisition Section is Andrew

Goldfrank.

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

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

to statutes and agency actions that 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 Chief of the Indian Resources Sec‐

tion is Craig Alexander. In addition, the Natural Resources Section defends claims asserted by Indian tribes and

tribal members against the United States. The main federal agency that the Division representsin connection

with this work is Interior’s Bureau of Indian Affairs (BIA).

The Appellate Section handles the appeals of all cases litigated by Division attorneys in the trial courts, and

works closely with the Department of Justice’s Office of the Solicitor General on ENRD cases that reach the U.S.

Supreme Court. The Chief of the Appellate Section is James Kilbourne.

The Law and Policy Section advises and assists the Assistant Attorney General on legal and policy questions,

particularly those that affect multiple sections in the Division. It reviews and analyzes legislative proposals on

environmental and natural resources issues of importance to the Division, handles the Division’s response to

congressional requests, provides comments on behalf of ENRD on federal agency rulemakings, and handles,

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with the Appellate Section, amicus curiae participation in cases of importance to the United States. The Law

and Policy Section leads the Division’s efforts on international issues, often in collaboration with the Environ‐

mental Crimes Section, and handles various special projects on behalf of Division leadership. Attorneys in the

Law and Policy Section also serve as the Division’s ethics and professional responsibility officer and counselor,

its alternative dispute resolution counselor, and coordinate the Division’s Freedom of Information Act (FOIA)

and correspondence work. The Chief of the Law and Policy Section is Karen Wardzinski.

The Executive Office is the operational management and administrative support section for ENRD. It provides

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 new

technologies and innovative business processes—and by in‐sourcing services traditionally provided by contrac‐

tors and equipping employeesto better serve themselves—the Executive Office is able to achieve significant

cost savings for the American public on an annual basis. The Executive Officer of the Division is Andrew Collier.

The Front Office is a cadre of extraordinary attorneys who ensure the Division’s work is accomplished in a

timely and professional manner each day. The Principal Deputy Assistant Attorney General is Sam Hirsch, who

supervises the Appellate Section and Indian Resources Section. Lisa Jones supervises the Law and Policy Sec‐

tion and the Environmental Defense Section. Career Deputy Jean Williams supervises the Natural Resources

Section, the Environmental Crimes Section, and the Wildlife and Marine Resources Section. Career Deputy

Bruce Gelber supervises the Environmental Enforcement Section and the Land Acquisition Section. In addition,

Cynthia Ferguson is Counsel for Environmental Justice, Andrea Berlowe is Counsel for State and Local Matters,

Daron Carreiro is Counsel for Indian Affairs, and Sarah Himmelhoch is Counsel for E‐Discovery. The Chief of Staff 

is Varu Chilakamarri.

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PROTECTING OUR NATION’S AIR,
 

LAND, AND WATER
 

The Division remains committed to enforcing the nation’s environmental laws in order to address air pollu‐

tion from the largest and most harmful sources; improving municipal wastewater and stormwater treatment

and collection to keep raw sewage, contaminated stormwater, and other pollutants out of our nation’s rivers,

streams, and lakes; compelling polluters to clean up hazardous waste or repay the government for the costs it

incurs conducting cleanups; and prosecuting criminal violations of environmental and other federal laws. The

Division continues to enforce applicable laws and regulations to ensure that we protect human health and the

environment.

Many of the Division’s most significant Clean Air Act cases have been part of EPA’s National Enforcement Initia‐

tives to control harmful emissions from the largest sources of air pollution. Two related parts of the Clean Air

Act — the New Source Review program and the Prevention of Significant Deterioration program — require

some large industrial facilities to obtain permits and install and operate state‐of‐the‐art air pollution controls

before the facilities make modifications that increase air pollution emissions. Other parts of the Act establish

New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants. The initia‐

tives aimed at large sources cover facilities such as power plants, oil refineries, acid manufacturing plants, and

glass manufacturing plants.

The pollutants emitted by these industries include sulfur dioxide, nitrogen oxides, and particulate matter. Sul‐

fur dioxide contributes to acid rain. Nitrogen oxides contribute to ground‐level ozone, commonly called smog,

which is created by chemical reactions between nitrogen oxides and volatile organic compounds (VOCs) in the

presence of sunlight. Ozone irritates the lungs, exacerbates asthma, and can increase susceptibility to respira‐

tory illnesses, such as pneumonia, emphysema, and bronchitis. Sulfur dioxide and nitrogen oxides also can

irritate the lungs and aggravate preexisting heart or lung conditions. Particulate matter contains microscopic

particles that can travel deep into the lungs and cause difficulty breathing. In addition to being harmful in their

own right, sulfur dioxide and nitrogen oxides in the atmosphere contribute to the formation of very fine par‐

ticulate matter, known as PM2.5. These very fine particulates can cause some of the most serious harm from air

pollution, including premature mortality and increased incidence of heart attacks, chronic bronchitis, stroke,

and respiratory ailments like asthma.

Many facilities also emit volatile organic compounds, which can result in numerous health effects, including

eye, nose, and throat irritation; headaches; nausea; loss of coordination; and damage to the liver, kidney, and

central nervous system. VOCs include a wide variety of hydrocarbons, some of which are hazardous air pollut‐

ants (also called air toxics) such as benzene, toluene, xylene, and ethyl benzene. Hazardous air pollutants are

known or suspected to cause cancer and birth defects. Chronic exposure to benzene, which EPA classifies as a

carcinogen, can cause numerous health impacts, including leukemia and adverse reproductive effects in wom‐

en. As mentioned, VOCs are also a key component in the formation of ground‐level ozone.

Protecting Our Nation’s Air, Land, and Water | 15
             

                   

                 

South Passroute over the Rocky Mountains, Bureau of Land Management

The Humbug Spires Wilderness Study Area, Bureau of Land Management

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Defending the Clean Power Plan

Pursuant to the President’s Climate Action Plan, EPA has developed regulations under the Clean Air Act to set

carbon dioxide emission standards for new and existing coal and natural gas‐fired power plants. When fully

implemented, the rules will reduce carbon dioxide (CO2) emissions from coal and natural gas‐fired power

plants by over 30% from 2005 levels. Those CO2 emission reductions make up a primary part of the United

States’ commitment in the 2015 Paris Climate Change Agreement to reduce domestic greenhouse gas emis‐

sions. The Clean Power Plan was published in the Federal Register on October 23, 2015, and formally consists

of two separate but related rules – one for existing power plants and one for new and modified power plants.

After the rules were published, 39 petitions for review of the existing source rule were filed in the D.C. Circuit

on behalf of over 100 state and industry parties, and 16 petitions for review of the new and modified source

rule were filed. ENRD vigorously defended the Clean Power Plan in FY 2016. Various groups of state, util‐ ity,

and other industry parties filed nine motions to stay the effectiveness of the existing source rule pending

judicial review of the merits, and ENRD filed a lengthy consolidated opposition to the motions. On January 21,

2016, a panel of the D.C. Circuit denied the motions to stay the rule, finding that petitioners had not satisfied

the stringent requirements for a stay pending court review, but ordered that the case be expedited. A few days

later, five groups of challengers filed separate applications with the Supreme Court for a stay of the existing

source rule pending completion of judicial review. ENRD assisted the Solicitor General in opposing those appli‐

cations, but on February 9, 2016, by a 5‐4 vote, the Supreme Court issued orders granting the applications and

staying the existing source rule pending completion of judicial review. ENRD then filed a lengthy merits brief

defending the rule in consolidated cases styled West Virginia v. EPA (D.C. Cir.), and on September 27, 2016,

presented a day‐long oral argument before the D.C. Circuit sitting en banc.

Continuing Defense of EPA’s Regional Haze Program

Although most of the Clean Air Act is directed toward reducing the amount of pollution in the air that af‐     

fects human health, one very significant program created by Congress under the Act is devoted to reducing

pollution‐based haze that affects visibility in some of the country’s most pristine and iconic national parks and

wilderness areas. Emissions of sulfur dioxide and nitrogen oxides, often from great distances away, contribute

to the particulate matter pollution that is the major cause of this problem. Some particulate matter, nitrogen

oxides, and sulfur dioxide emissions occur naturally, but much is caused by man‐made emissions from motor

vehicles, electric utility and industrial fuel burning, and manufacturing operations. Over the last few years, EPA

has devoted considerable resources to requiring states to adopt adequate plans to meet the Act’s visibility

requirements, and to developing federal plans where states fail to meet their obligation. Many of these EPA

actions have been challenged in various judicial circuits nationwide (the Clean Air Act directs judicial review to

the courts of appeals in the first instance), and to date the government has received largely favorable decisions

from courts considering the merits of those challenges. This trend continued in fiscal year 2016, where ENRD

received favorable regional haze decisions from the Ninth Circuit in a set of complex cases involving Arizona’s

plan (Arizona v. EPA), as well as a pair of favorable decisions from the Eighth Circuit involving plans for Nebras‐

ka (Nebraska v. EPA) and Minnesota (National Parks Conservation Association v. EPA).

Reducing Air Pollution from Power Plants: The Coal‐Fired Power Plant Enforcement Initiative

The Division has continued to litigate civil claims under the Clean Air Act against operators of coal‐fired electric

power generating plants, which emit, among other things, sulfur dioxide, nitrogen oxides, and particulate mat‐

ter. Through fiscal year 2016, these matters have settled on terms that will reduce emissions of sulfur dioxide

and nitrogen oxides by approximately 2.5 million tons each year once the more than $17.3 billion in required

pollution controls are fully functioning. The violations at issue in these cases arose when companies engaged

in major life‐extension projects on aging facilities without installing required state‐of‐the‐art pollution controls.

The result was excess air pollution that degraded forests, damaged waterways, contaminated reservoirs, and

adversely affected the health of our citizens, especially the young, the elderly, and asthma sufferers.

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In fiscal year 2016, the Division concluded another settlement under the initiative, bringing the total to 31. In

United States, et al. v. Duke Energy Corporation (M.D. N.C.), the Department of Justice and EPA, joined by co‐

plaintiffs Environmental Defense, the North Carolina Sierra Club, and Environment North Carolina, settled

alleged Clean Air Act violations at five coal‐fired power plants across North Carolina. The settlement resolved

long‐standing claims that Duke violated the federal Clean Air Act by modifying 13 coal‐fired electricity‐generat‐

ing units without obtaining air permits or installing and operating the required air pollution control technolo‐

gies. The 13 generating units were located at Duke’s Allen, Buck, Cliffside, Dan River, and Riverbend plants.

During the negotiations, Duke shut down 11 of the 13 units; those shutdowns became a permanent and

enforceable obligation under the consent decree. At the two remaining units, which are located at the Allen

facility in Belmont, North Carolina, Duke must continuously operate pollution controls and meet interim emis‐

sion limits before perma‐

nently retiring the two units

no later than December 31,

2024.

To help mitigate the harm

from the alleged violations,

the settlement requires

Duke to retire an additional

unit at the Allen plant by

2024. EPA estimates that

the shutdown of the three

Allen units will reduce emis‐

sions from the Allen plant

by approximately 2,300 tons

per year compared to recent

emission levels. When the

three Allen units are shut

down, total emissions from

the 13 allegedly modified units — which were in excess of 51,000 tons per year in 2000 when the suit was filed

— will be zero.

Duke’s Allen Plant Steam Station, Google Maps

The settlement also requires Duke to spend at least $4.4 million to fund several environmental mitigation

projects. These projects include restoration of native wildlife and plants on National Park Service and For‐     

est Service lands in North Carolina, a program to help North Carolina residents replace higher polluting wood

stoves and fireplaces with cleaner burning alternatives, and a program to increase the use of clean energy and

energy‐efficiency measures in economically distressed communities. Other projects may include efforts to‐

wards increasing truck‐stop electrification and electric vehicle charging stations in North Carolina. In addition,

the settlement requires Duke to pay a civil penalty of $975,000.

The United States initially sued Duke in 2000. In 2007, a landmark Supreme Court decision agreed with EPA’s

interpretation of Clean Air Act regulations governing modifications that increase the annual amount of pollu‐

tion from a plant. Following years of pre‐trial litigation, trial had been set to begin in October 2015; the con‐

sent decree was filed in September 2015.

Addressing Air Pollution from Oil Refineries and Chemical Plants

Refineries process crude oil into products like gasoline, diesel fuel, kerosene, jet fuel, asphalt, and liquefied

petroleum gas. They emit pollutants from a number of different sources. Fluid catalytic cracking units, sulfuric

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acid plants, heaters, boilers, and sulfur recovery units are substantial emitters of nitrogen oxides and sulfur di‐

oxide. Flaring results in emissions of greenhouse gases, sulfur dioxide, and VOCs, including toxic air pollutants

such as benzene. Leaking valves and pumps produce what are called “fugitive” emissions of VOCs.

Reducing Air Pollution from Refineries in Ohio, Kentucky, Michigan, Louisiana, and Illinois

In United States v. Mara‐

thon Petroleum Company

(E.D. Mich.), the Depart‐

ment of Justice and EPA

reached an agreement

with Ohio‐based Marathon

Petroleum Company that

will reduce air pollution

from the company’s pe‐

troleum refineriesin five

states. When fully imple‐

mented, the agreement

is expected to reduce

harmful air pollutants like

VOCs, sulfur dioxide, and

nitrogen oxides by ap‐

proximately 1,037 tons per

year. The amended con‐ Marathon Petroleum Refinery Canton Ohio, Google Maps

Reducing Air Pollution from Refineries

in Alaska, California, Hawaii, North

Dakota, Utah, and Washington

The $425 million settlement in United States,

et al. v. Tesoro Refining & Marketing Company

LLC, et al., (W.D. Tex.),addresses a range of alleged

flaring and leak‐detection‐and‐repair violations

under the Clean Air Act at all six refineries and,

at certain refineries, violations of the Act’s

Prevention of Significant Deterioration program,

Non‐Attainment New Source Review program, New

Source Performance Standards, and the National

Emission Standards for Hazardous Air Pollutants.

The settlement also addresses various violations of

state clean air laws and permits.

The settlement will reduce air pollution at six

refineries. Tesoro and Par Hawaii will spend

about $403 million to install and operate pollution

control equipment. Tesoro will spend about $12

million to fund environmental projects in local

communities previously impacted by pollution.

And Tesoro paid a $10.45 million civil penalty. The

consent decree resolved ongoing Clean Air Act

violations at refineriesin Kenai, Alaska; Martinez,

California; Kapolei, Hawaii; Mandan, North Dakota;

Salt Lake City, Utah; and Anacortes, Washington.

Of the $10.45 million civil penalty, Tesoro paid

$8,050,000 to the United States, and $2.4 million

to the United States’ co‐plaintiffs: the Northwest

Clean Air Agency, the State of Alaska, and the State

of Hawaii.

Once the companies install the pollution

controlsrequired by the settlement, annual

emissions reductions at the six refineries will total

an estimated 773 tons of sulfur dioxide, 407 tons

of nitrogen oxides, 1,140 tons of VOCs, 27 tons of

hazardous air pollutants, 20 tons of hydrogen

sulfide, and the equivalent of 47,034 tons of

carbon dioxide, a greenhouse gas. A large number

of the emissions reductions will occur in areas

with impaired air quality and thus help protect

populations at risk for respiratory illnesses. This

settlement will reduce greenhouse gas emissions

from flaring at the subject refineries by over 60%.

The settlement incorporatesthe latest

technological approaches to reducing flaring

and making the flaring that does occur as efficient

as possible. State‐of‐the‐art Flare Gas Recovery

Systems capture and recycle gases that would

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otherwise be sent to combustion devices known

as flares. Tesoro will install or expand Flare Gas

Recovery Systems at all six refineries. Tesoro will

also pay for third‐party auditing of compliance

with the enhanced leak‐detection‐and‐repair

requirements at all six facilities.

Under the consent decree, Tesoro will also

spend about $12.2 million to fund three

pollution mitigation projects. First, Tesoro will use

infrared gas‐imaging cameras at four refineries

to supplement the company’s enhanced leak‐

detection‐and‐repair program. These cameras are

able to locate fugitive VOC emissions that may not

be otherwise detected. Second, Tesoro will install

ultra‐low nitrogen oxides burners on a furnace at

its Salt Lake City refinery. Tesoro estimates that

the cost of this mitigation project is $10.8 million

and is expected to result in significant quantifiable

reductions in nitrogen oxides emissions. Finally,

Tesoro will contribute $1 million to fund the

replacement of old diesel school buses in Contra

Costa County, California, with new compressed

natural gas (CNG) school buses, decreasing

emissions of nitrogen oxides, sulfur dioxide, PM,

greenhouse gases, and other air pollutants.

sent decree builds on a 2012 consent decree in which Marathon agreed to reduce air pollution from flares by

generating less waste gas and by installing equipment designed to make flares burn more efficiently. The 2012

settlement reduced emissions of VOCs and sulfur dioxide by over 5,200 tons per year.

Under the amended consent decree, Marathon will install seven Flare Gas Recovery Systems at an estimated

cost of $319 million at its refineries in Canton, Ohio; Catlettsburg, Kentucky; Detroit, Michigan; Garyville,

Louisiana; and Robinson, Illinois. Marathon will also spend $15.55 million on projects to reduce air pollution

at three of the facilities. Marathon will shut down a flare at the fence line of its Detroit refinery at a cost of ap‐

proximately $6 million and reduce nitrogen oxides emissions at its Canton and Garyville refineries at a cost of

approximately $9.55 million. Marathon also paid a civil penalty of $326,500 to the United States.

By installing advanced pollution controls at its refineries, Marathon will help reduce emissions that can dispro‐

portionately affect low‐income and vulnerable populations, including children. In particular, the improvements

in the Detroit refinery further the Department’s and EPA’s efforts to advance environmental justice in commu‐

nitieslike southwest Detroit.

Addressing Air Pollution from Smelters

In the settlement in United

States v. ASARCO, LLC. (D.

Ariz.), the Department of

Justice and EPA required

ASARCO to spend $150

million to install new equip‐

ment and pollution control

technology to reduce emis‐

sions of toxic heavy metals

at a large smelter located

in Hayden, Arizona. The

company will also fund lo‐

cal environmental projects

valued at $8 million, replace

a diesel locomotive with a

cleaner model for $1 mil‐

lion, and pay a $4.5 million

civil penalty. ASARCO Hayden Site Copper Smelter, Arizona Department of Environmental Quality

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Built in 1912 and expanded over the years, the ASARCO Hayden site is a copper ore smelting facility located

adjacent to the towns of Hayden and Winkelman, Arizona. The ASARCO plant produces 300 to 400 mil‐

lion pounds of copper and over half a million tons of sulfuric acid annually. Currently, the ASARCO smelter

is the largest source of sulfur dioxide emissions in Arizona. ASARCO is owned by Grupo México, a Mexican

consortium.

Copper smelting produces sulfur dioxide, particulate matter, inorganic arsenic, and lead. Long‐term inhala‐

tion exposure to inorganic arsenic is associated with irritation of the skin and can affect the brain and nervous

system. Exposure to lead can cause effects on the blood and the nervous, immune, renal, and cardiovascular

systems.

The federal enforcement action targeted hazardous air pollutants, including lead, arsenic, and particulate mat‐

ter. With the controls in place, the hazardous air pollutants should be reduced by at least 8.5 tons per year,

and PM emissions are expected to be reduced by 3,500 tons per year. According to EPA estimates, the new

equipment and controls will also slash the facility’s sulfur dioxide emissions by 19,000 tons per year, a reduc‐

tion of more than 90%.

Addressing Air Pollution at Glass‐Manufacturing Facilities and Obtaining Company‐Wide

Relief

Company‐wide case settlements benefit everyone. Communitieslocated near the facilities covered by these

settlements benefit from lower levels of pollution and, where appropriate, environmentally beneficial projects.

The government benefits through the expedited resolution on an efficient scale of historic and ongoing viola‐

tions. Industry benefits by gaining the certainty of knowing it is bringing its operations into compliance with

the nation’s laws, avoiding the cost and risk of additional litigation, and obtaining a negotiated schedule for

technological upgrades that is efficient and consistent with company operations.

The production of flat glass produces pollution in the form of sulfur dioxide, nitrogen oxides, particulate mat‐

ter, and sulfuric acid mist. Sulfuric acid mist irritates the skin, eyes, nose, throat, and lungs, and exposure to

high concentrations can lead to more severe health effects.

In United States, et al. v. Guardian Industries Corporation (E.D. Mich.), the Department of Justice, EPA, Iowa,

and New York resolved alleged violations of the Clean Air Act at Guardian’s flat glass manufacturing facilities

throughout the United States. Under the settlement, Guardian will invest more than $70 million to control

emissions of nitrogen oxide, sulfur dioxide, particulate matter, and sulfuric acid mist from all of its flat glass

manufacturing facilities. Guardian will also fund an environmental mitigation project valued at $150,000 to

reduce particulate matter pollution in the San Joaquin Valley in California, and pay a civil penalty of $312,000.

The settlement resolved allegations that Guardian violated the Clean Air Act and state air pollution control

plans when it made major modifications to its flat glass furnaces that significantly increased harmful air emis‐

sions. This settlement is EPA’sfirst settlement involving flat glass (as opposed to container glass or glass fiber).

Flat glass, also known as float glass, is used in windows, glass doors, and automobile windshields.

EPA expects that the pollution controls required by the settlement will reduce harmful emissions by 7,300 tons

per year, including approximately 6,400 tons of nitrogen oxides, 550 tons of sulfur dioxide, 200 tons of particu‐

late matter, and 140 tons of sulfuric acid mist annually. The mitigation project in California will yield additional

reductions of particulate matter.

Guardian’s flat glass manufacturing facilities are located in Kingsburg, California; DeWitt, Iowa; Carleton, Michi‐

gan; Geneva, New York; Floreffe, Pennsylvania; Richburg, South Carolina; and Corsicana, Texas. The states of

Iowa and New York participated in the settlement and will each receive 25% of the total penalty; the United

States will receive 50%.

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Addressing Air Pollution Through the National Acid‐Manufacturing Plant Initiative

In United States, State of Idaho, and San Joaquin Valley Air Pollution Control District v. J.R. Simplot Co. (D.

Idaho), the Department of Justice and EPA settled with the J.R. Simplot Company, resolving alleged Clean Air

Act violations related to modifications made at Simplot’s five sulfuric acid plants near three towns: Lathrop,

California; Pocatello, Idaho; and Rock Springs, Wyoming. Under the settlement, Simplot will spend an estimat‐

ed $42 million on pollution controls that will significantly cut sulfur dioxide emissions at all five plants and fund

a wood‐stove replacement project in the area surrounding the Lathrop plant.

Once fully implemented, the

settlement will reduce sulfur

dioxide emissions from Sim‐

plot’s five sulfuric acid plants

by approximately 2,540 tons

per year—a reduction of

greater than 50%. Simplot

will implement a plan to

monitor sulfur dioxide emis‐

sions continuously at all five

plants, and pay an $899,000

civil penalty. Additionally,

Simplot will spend $200,000

on a wood‐stove replace‐

ment mitigation project in

the San Joaquin Valley to

reduce emissions of fine

particulate matter (PM2.5),

VOCs, carbon monoxide, and

hazardous air pollutants.

Simplot Plant Rock Springs Wyoming, Google Maps

The emission ratessecured in this settlement will result in the best‐controlled, system‐wide emissions rates

secured in any sulfuric‐acid‐plant settlement to date. Simplot’s Lathrop sulfuric acid plant is located in the San

Joaquin Valley in California, which is currently classified as nonattainment for the National Ambient Air Quality

Standards for PM2.5, and has some of the most difficult challenges meeting those standards in the country. Be‐

cause sulfur dioxide is a precursor to the formation of fine particulates, both the sulfur dioxide emission reduc‐

tions from Simplot’s plant and a wood‐stove‐replacement mitigation project will help reduce PM2.5 emissions in

the San Joaquin Valley.

Upholding Stringent Emission Standardsfor Boilers and Incinerators

Boilers and incinerators are some of the most ubiquitous sources of emissions of mercury, particle pollution,

sulfur dioxide, dioxin, lead, and nitrogen dioxide. These pollutants can cause a range of dangerous health ef‐

fects—from developmental disabilities in children to cancer, heart disease and premature death. In 2012, EPA

developed stringent emission standards based on the application of “maximum achievable control technology”

to these sources. EPA estimated that, as promulgated, the standards will avoid up to 8,100 premature deaths,

5,100 heart attacks, and 52,000 asthma attacks. The standards were subject to a host of consolidated chal‐

lenges in United States Sugar Corp. v. EPA, but in July 2016, the D.C. Circuit largely denied those challenges in a

comprehensive 156‐page opinion, thereby assuring implementation of these important regulations.

Addressing Air Pollution from Incinerators

General Electric owned its Waterford, New York, facility from 1947 through 2006 and continued to operate

it through early 2007. GE manufactured various products at the facility, including sealants made of silicone.

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The silicone manufacturing process generated hazardous waste. GE sought and received permits from the New

York Department of Environmental Conservation to dispose of the hazardous waste onsite, subject to

compliance with the Clean Air Act and RCRA. GE disposed of hazardous waste in a rotary kiln incinerator that

automatically shut off the flow of hazardous waste to the incinerator if conditions deviated from parameters

designed to ensure compliance with the CAA and RCRA. Unbeknownst to federal and state authorities, GE

overrode the incinerator’s automatic waste feed cut‐off system, allowing GE to continue to burn hazardous

waste in the incinerator in violation of its CAA and RCRA permits. On at least 1,859 occasions during the pe‐

riod from September 2006 to February 2007, GE employees overrode the automatic waste feed cut‐off system,

potentially exposing the public and the environment to harmful hazardous air pollutants, such as carbon mon‐

oxide, dioxins, and furans. GE submitted routine compliance reports to the United States and the state of New

York falsely attesting to compliance with RCRA, the CAA, and permits issued pursuant to those statutes. In a

settlement in United States and the State of New York v. General Electric Company (N.D.N.Y.), General Electric

agreed to pay a $2.25 million civil penalty to resolve a complaint alleging violations of federal and state envi‐

ronmental laws.

Addressing Air Pollution from Coke Production Facilities

Coke is used as a carbon

source and as a fuel to

heat and melt iron ore at

steel making facilities. The

Division entered into a

settlement in United States

and State of New York v.

Tonawanda Coke Corpora‐

tion (W.D.N.Y.), of claims

alleging that Tonawanda

Coke Corporation’s facility

in Tonawanda, New York,

violated the Clean Air Act,

the Clean Water Act, and

the Emergency Planning

and Community Right‐to‐

Know Act (EPCRA).

Tonawanda Aerial View Smoke Plume, Environmental Enforcement Section

Tonawanda Coke Corpora‐

tion’s alleged violations of the Clean Air Act resulted in releases of coke oven gas, which contains benzene and

other harmful chemicals. Tonawanda failed to install air pollution controls on its coke ovens, failed to properly

monitor equipment for coke oven gas leaks, failed to conduct required annual inspections of emission controls,

and failed to complete multiple required reports. Tonawanda’s alleged Clean Water Act violations included

discharging wastewater and other prohibited pollutants in its stormwater discharges to the Niagara River;

discharging excessive amounts of cyanide, ammonia, and naphthalene in its process wastewater; and allowing

process water holding tanks to decay, pipes to leak, and spill containment structures to become ineffective. In

addition, Tonawanda was alleged to have violated EPCRA by failing to report that the company manufactured

benzene and ammonia in quantities that exceeded the 25,000 pound‐per‐year reporting threshold. (Under

EPCRA, companies that manufacture, process, import, or use chemicals above a certain amount must submit

annually to state and local authorities chemical inventory information giving detailed information about the

chemicals they have on site.)

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Litigating the Volkswagen “Defeat

Devices” Matter

O
 

n January 4, 2016, the Division, on behalf of
 

the EPA, filed a civil complaint in the Eastern

District of Michigan against Volkswagen AG, Audi

AG, Volkswagen Group of America Inc., Volkswagen

Group of America Chattanooga Operations LLC,

Porsche AG and Porsche Cars North America Inc.

(collectively referred to as Volkswagen). The

complaint alleges that nearly 600,000 diesel engine

vehicles had illegal defeat devices installed that

impair their emission control systems and cause

emissions to exceed EPA’sstandards, resulting

in harmful air pollution. The complaint further

alleges that Volkswagen violated the Clean Air Act  

by selling, introducing into commerce, or importing

into the United States motor vehicles that are

designed differently from what Volkswagen had

stated in applications for certification to EPA and the

California Air Resources Board (CARB).

I

n related actions, the German automaker

Volkswagen AG settled for $14.7 billion allegations

that it had cheated emissions tests and deceived

customers for nearly 10 years. A portion of that

settlement, almost $5 billion, will go toward

mitigating the pollution caused by these cars

and investing in green technology. States also     

filed and were compensated for their consumer

claims. In September of 2016, the Division indicted

one Volkswagen employee and obtained a plea

agreement. The employee admitted that he    

helped his co‐conspirators continue to lie to the  

EPA, CARB and Volkswagen customers even after the

regulatory agencies started raising questions about

the vehicles’ on‐road performance following an

independent study commissioned by the

International Council on Clean Transportation, which

showed that the diesel vehicles’ emissions on the

road were up to 40 times higher than shown on the

dynamometer. The plea agreement provides that

the employee will cooperate with the government in

the Department’s ongoing investigation.

Under the settlement, Tonawanda paid $2.75 million in civil penalties, will spend approximately $7.9 million to

reduce air pollution and enhance air and water quality, and will spend an additional $1.3 million on environ‐

mental projects.

Under the consent decree, Tonawanda must improve its processes, operations, and monitoring for coke oven

gas leaks, assess key equipment, repair or replace equipment, install new pollution controls and take many ad‐

ditional measures under a prescribed schedule. One important requirement of the settlement is that Tonawa‐

nda install coke‐oven‐battery pollution controlsto limit coke oven gas emissions. Once fully operational, these

controls, known as “pushing controls,” are expected to reduce particulate matter emissions by up to 162 tons

per year. In addition, Tonawanda Coke will conduct additional auditing of its operations and implement neces‐

sary and appropriate changes. This work, estimated to cost approximately $7.9 million, will secure significant

reductions of emissions of benzene, ammonia, and particulate matter from the plant, improving air quality and

protecting public health in Tonawanda.

The settlement also requires Tonawanda to pay a $1.75 million civil penalty to the United States and a $1 mil‐

lion civil penalty to the state of New York, co‐plaintiff with the United States. In addition, Tonawanda Coke

will pay $1 million to fund projects that will benefit the environment and the residents of Tonawanda. Finally,

$357,000 will be provided to acquire and preserve wetlands, which protect and enhance water quality, reduce

flooding, and provide habitat for fish and wildlife.

Addressing Risks at Chemical Blending and Distribution Facilities; Reducing the Risk of

Environmental Violationsthat Endanger Work Safety

In United States v. Barton Solvents Inc. (S.D. Iowa), the Department of Justice and EPA settled with Barton

Solvents Inc., resolving multiple environmental violations at five of the company’s chemical blending and

distribution facilities in Iowa, Kansas, and Wisconsin. The settlement requires Barton to pay a civil penalty of

$1.1 million and undertake measures to ensure that its blending and packaging processes adhere to safety and

environmentalrequirements.

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In 2007, violations of the Clean Air Act General Duty Clause resulted in explosions and major fires at two Bar‐

ton facilities. (The General Duty Clause, rather than prescribe a specific emissions limit on a particular pollut‐

ant, imposes a general duty to identify risks and to maintain a safe facility.) The explosions and fires damaged

Barton’sfacilities and nearby businesses and caused the evacuation of the facilities and surrounding communi‐

ties. EPA inspections at these and other Barton facilities found violations of the hazardous waste storage re‐

quirements of RCRA and the Spill Prevention, Control, and Countermeasure (SPCC) requirements of the Clean

Water Act. These types of violations put at risk facilities, workers, and the surrounding communities.

Under the settlement, Barton will also hire independent auditors to perform comprehensive environmental

compliance audits and correct any additional violations uncovered at all of its facilities, including a facility in

West Bend, Wisconsin, where there were no known violations.

Addressing the Quality of Fuel Produced by America’s Refineries

As gasoline evaporates, volatile organic compounds are released, including a wide variety of hydrocarbons,

some of which, such as benzene, toluene, xylene, and ethyl benzene, are hazardous air pollutants. To limit

these emissions, the Clean Air Act requires refiners to ensure that conventional gasoline meets volatility stan‐

dards, called “Reid Vapor Pressure” standards.

In United States v. HollyFrontier Refining & Marketing LLC, et al. (D.D.C.), the Department of Justice and EPA

reached a settlement with

subsidiaries of the Holly‐

Frontier Corporation that

resolved alleged Clean Air

Act violations regarding

volatility standards and test‐

ing requirements at three

HollyFrontier facilities.

HollyFrontier disclosed to

EPA that three of its refiner‐

ies — the Navajo Refinery

in Artesia, New Mexico; the

Woods Cross Refinery in

Woods Cross, Utah; and the El Dorado Refinery in El Dorado, Kansas — produced approximately 42 million gal‐

lons of gasoline that exceeded the applicable Reid Vapor Pressure standards. HollyFrontier estimated that the

violations resulted in approximately 10 excess tons of VOC emissions.

El Dorado Refinery in El Dorado, Kansas, Google Maps

Under the settlement, HollyFrontier will implement a mitigation project at its refinery in Salt Lake City, Utah,

to offset past emissions: HollyFrontier will install new equipment on two tanks to reduce VOC emissions by

about 96 tons over the lifetime of the consent decree. HollyFrontier also paid a $1.2 million civil penalty to the

United States.

Reducing Air Pollution from Motor Vehicles

Over half of the pollutants in America’s air come from “mobile sources” of air pollution. These mobile sources

include cars, trucks, buses, motorcycles, recreational vehicles, scooters, off‐road construction equipment,

marine engines, generators, and small engines. Mobile source pollutants include volatile organic compounds,

nitrogen oxides, particulate matter, carbon monoxide, greenhouse gases, and various toxic air pollutants, in‐

cluding benzene.

The Clean Air Act requires that every vehicle and engine sold in the United States be covered by a valid EPA‐

issued certificate of conformity, which manufacturers obtain by certifying that vehicles meet applicable federal

emissions standards for various pollutants. The act also prohibits any person from removing, rendering inop‐

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erative, or tampering with a motor vehicle’s certified emissions control system. Enforcement efforts regarding

motor vehicles are part of an ongoing effort by the Division and EPA to ensure that manufacturers and import‐

ers of vehicles and engines comply with the requirements of the Clean Air Act, and that retailers exercise due

diligence in ensuring that their products comply fully with the Act’s regulations.

In United States v. Tractor Supply Company, Inc. and Tractor Supply Company of Texas, L.P. (D.D.C.), the Depart‐

ment of Justice and EPA resolved allegations that the companies imported and sold more than 28,000 all‐ter‐

rain vehicles, off‐highway motorcycles, and engines that did not comply with federal Clean Air Act certification

and emission‐information labeling requirements. Under the settlement, Tractor Supply Company will imple‐

ment a compliance plan to prevent future violations and mitigation projects to reduce air pollution. Tractor

Supply will also pay a $775,000 civil penalty. The Justice Department alleged that from 2006 to 2009, Tractor

Supply imported from China and sold in the U.S. over 28,000 vehicles and engines that varied from the certifi‐

cates of conformity that had been submitted to EPA. Among other things, the vehicles had adjustable carbure‐

tors that were not described in the applications for certification, were produced by manufacturers other than

those listed in the applications, or were significantly more powerful than described. The Department of Justice

and EPA also alleged that the emission‐control‐information labels on certain vehicles did not comply with fed‐

eral regulations, and that Tractor Supply provided an incomplete and inaccurate response to EPA’sinformation

request.

The settlement required Tractor Supply to implement a rigorous corporate compliance plan covering both

imported and domestically manufactured products. The plan requires regular vehicle and engine inspections,

emissions and catalyst testing, staff training, and reporting for five years. Tractor Supply will also mitigate

potential adverse environmental effects of equipment already sold to consumers, estimated by EPA to be up to

23.5 tons of excess hydrocarbon and nitrogen oxide emissions and 12.2 tons of excess carbon monoxide emis‐

sions.

Defending the Clean Water Rule and the Clean Water Regulatory Program

ENRD obtained a significant

win in ongoing litigation

over the EPA and Depart‐

ment of the Army’s Clean

Water Rule, which defines

“waters of the United

States” for purposes of fed‐

eral regulatory jurisdiction

under the statute. More

than one hundred parties

have filed challenges to  

the rule in both the courts

of appeals and numerous

district courts across the

country, citing an ambigu‐

ity in the Clean Water Act’s

jurisdictional provision. In

Murray Energy Corp. v. EPA

(6th Cir.), the Sixth Circuit Court of Appeals, presiding over 22 consolidated petitions for review of the rule, re‐

solved this dispute in favor of the United States, adopting our view that jurisdiction to review the rule properly

lies in the courts of appeals. The Sixth Circuit’s subsequent denial of rehearing of the jurisdictional ruling was a

significant victory in our overall strategy to consolidate the litigation. As a result, the consolidated petitions

will now proceed to the merits in the Sixth Circuit and the district court challenges to the Clean Water Rule

Snake River, WashingtonState.gov

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have been dismissed or stayed pending a ruling from the Sixth Circuit on the merits. The Division also obtained

a favorable Eleventh Circuit ruling in State of Georgia v. McCarthy (11th Cir.) that further supports the consoli‐

dated review by the Sixth Circuit. In that litigation, the State of Georgia and others appealed from the denial of

their request for a preliminary injunction to block the Clean Water Rule, asking the Eleventh Circuit to hold    

that appellate courts did not have exclusive jurisdiction to review the rule. After the Sixth Circuit issued its rul‐

ing, the Eleventh Circuit stayed both the appeal and proceedings in the district court pending a decision by the

Sixth Circuit. The Eleventh Circuit held that “[i]t would be a colossal waste of judicial resources for both this

Court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same

parties.”

ENRD also obtained a favorable decision on November 2015 in defense of the Corps’ wetlands regulatory

program in Walther v. U.S. Army Corps of Engineers (D. Alaska), where the owner of a wetlands mitigation bank

alleged that the Corps had improperly authorized a competing mitigation bank to sell credits. In dismissing the

claims, the district court found that the plaintiff lacked standing because even if the court were to grant the

requested relief and bar the competing mitigation bank from selling credits, it was unlikely that parties would

purchase credits from plaintiff’s mitigation bank given the other mitigation options open to them.

The Division also had success defending the Corps’ interpretation of its obligations under the Clean Water Act

in Idaho Rivers United v. U.S. Army Corps of Engineers (W.D. Wash.). In that case, plaintiffs challenged the

Corps’ maintenance dredging plans for the Lower Snake River in Washington, alleging violations of the Clean

Water Act and NEPA. After ENRD defeated plaintiffs’ motion for a preliminary injunction, the Corps completed

the dredging. In February 2016, the court granted judgment in the Corps’ favor, finding that the challenge

was moot, but that even if it was not, the Corps had properly determined that it did not need to complete the

“public interest review” required by Corps regulations for permitted projects because the regulations do not

apply to Army civil works maintenance activities authorized by Congress.

Clean Water Act Section 404 Permitting Authority

On July 8, 2016, in Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers (4th Cir.), the Fourth Cir‐

cuit upheld the Corps’ issuance of a permit under Section 404 of the CWA to an operator of surface coal mine

in West Virginia, allowing the operator to place fill in waters of the United States. Ohio Valley Environmental

Coalition (OVEC) challenged the Corps’ limitation of its review under NEPA to the environmental impacts to

regulated waters. OVEC argued that the Corps should have looked at the impacts of the operation of the mine

as a whole, specifically health impacts to surrounding communities from surface coal mining. The Fourth

Circuit has previously addressed the issue of the scope of the Corps’ NEPA review in a Section 404 permit con‐

text in Ohio Valley Environmental Coalition v. Aracoma Coal Company, where it held that the Corps correctly

interpreted its regulations in considering only impacts to regulated waters. In Aracoma, the Court stated that,

under the Surface Mining Control and Reclamation Act, the primary responsibility for regulation of surface

mining in West Virginia rested with the West Virginia Department of Environmental Protection. OVEC argued

that Aracoma was distinguishable, but the Fourth Circuit was unpersuaded. OVEC claimed that the Section

404 permit did authorize coal mining because coal would be extracted from waters under the Corps’ jurisdic‐

tion in a technique called “mine‐through.” The Court held that the Corps’ Section 404 permit did not allow the

extraction of the coal, just the placement of fill in those waters, and that responsibility for permitting extrac‐

tion of coal remained with West Virginia. The Court also rejected OVEC’s argument that because West Virginia

did not consider health effects from operation of the coal mine, the Corps had the responsibility to do so in the

Section 404 permitting process. The Court ruled that West Virginia’s alleged failure to consider these impacts

did not widen the Corps’ responsibility for issuance of a Section 404 permit.

On July 19, 2016, the D.C. Circuit, in a divided decision in Mingo Logan Coal Co. v. EPA (D.C. Cir.), upheld the

EPA’s 2011 decision to “veto” most of a CWA permit that the U.S. Army Corps of Engineers had issued to a coal

company in 2007. Section 404(c) of the Act authorizes EPA to “withdraw[]” disposal sites that the Corps speci‐

fies for dredged and fill material “whenever” EPA concludes that their specification will have an “unacceptable

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adverse effect” on specific natural resources, including “wildlife.” EPA’s veto decision precluded the company

from discharging coal‐mine overburden into seven miles of West Virginia streams due to an unacceptable

adverse effect on wildlife, both within the footprint of the fill material and downstream of that footprint. The

court of appeals had previously upheld EPA’s authority to act under Section 404(c) after a permit issues, and in

this latest decision, the court upheld the agency’s decision against various Administrative Procedure Act chal‐

lenges. First, the majority held that the coal company had forfeited its argument that EPA had to (and failed

to) weigh the company’s reliance interests in light of EPA’s acquiescence in the Corps’ issuance of the permit

four years earlier. Second, the court held that, even if EPA had to provide a more reasoned explanation for its

decision given its post‐permit timing, the agency did so in the form of substantial new information that arose

after permit issuance. Third, the court unanimously held that EPA permissibly considered downstream im‐

pacts of the fill material in light of Section 404(c)’s capacious language and despite the State of West Virginia’s

issuance of a Section 402 National Pollutant Discharge Elimination System (NPDES) permit to the company

for overlapping downstream discharges. The dissent concluded that EPA erred in not considering the costs of

vetoing the permit.

Ensuring the Integrity of Municipal Wastewater Treatment Systems

Through enforcement of the Clean Water Act, the Division addresses one of the most pressing infrastructure

issues in the nation’s cities—discharges of untreated sewage from aging collection systems. Raw sewage

contains organic matter, toxics, metals, and pathogens that threaten public health, deter recreational use of

beaches and waterways, and contaminate fish. Untreated or poorly treated sewage can also contain total

suspended solids, nitrogen, phosphorus, and “biological oxygen demand” (organic matter that, as it is broken

down by organisms, reduces the amount of oxygen in the water). High levels of total suspended solids in‐

crease water temperatures, decrease oxygen levels, and inhibit photosynthesis by blocking sunlight. Too much

nitrogen and phosphorus in the water causes algae to grow faster than ecosystems can handle. Large growths

of algae, known as algal blooms, contribute to the creation of hypoxia or “dead zones” where oxygen levels are

so low that most aquatic life cannot survive.

Exposure to raw sewage can cause ailments that range in severity from mild gastroenteritis, causing stomach

cramps and diarrhea, to life‐threatening ailments such as cholera, dysentery, infectious hepatitis and severe

gastroenteritis. Exposure to untreated sewage, therefore, presents a serious health risk to those who may

come into contact with it. Children, the elderly, pregnant women, and people with weakened immune systems

face greater risks from exposure to sewage.

Our work helps to protect some of our most vulnerable communities, including low‐income and minority

communities, which often live in older urban areas with the worst infrastructure problems. We also work to

preserve national treasures like the Chesapeake Bay and the Great Lakes.

The cornerstone of the Clean Water Act is the National Pollutant Discharge Elimination System (NPDES) permit

program. The discharge of pollutants from point sources to waters of the United States is prohibited unless the

discharger has obtained and complies with an NPDES permit issued by EPA or by a state with an EPA‐approved

permit program.

There are two major types of sewer systems: combined and separate. Combined sewers were designed to col‐

lect both sewage and stormwater runoff in a single “combined” system. In wet weather, when large amounts

of stormwater enter the system, combined sewer systems often overflow in what are called combined sewer

overflows (CSOs). (State and local authorities generally have not allowed the construction of new combined

sewers since the first half of the 20th century.)

Separate sanitary sewers are designed to collect primarily sewage, not stormwater. Sanitary sewers, however,

are often not watertight because of cracks, faulty seals, and/or improper connections. As a result, they can

receive large amounts of infiltration and inflow (I/I) during wet weather. The infiltration and inflow can cause

sanitary sewer overflows (SSOs).

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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 2016, courts entered 91 such settlements,

requiring, in total, an estimated $29.7 billion in long‐term control measures and other relief to bring munici‐

palities into compliance with the Clean Water Act.

In fiscal year 2016, courts approved eight settlements or partial settlements negotiated by the Division. Col‐

lectively, the settlements required more than an estimated $1.8 billion in improvements, $1.5 million in civil

penalties, and $234,000 in supplemental environmental projects.

Puerto Rico

Under a settlement in United States v. Puerto Rico Aqueduct and Sewer Authority and the Commonwealth of

Puerto Rico (D.P.R.), the Department of Justice, EPA, and the Puerto Rico Aqueduct and Sewer Authority (PRA‐

SA) agreed PRASA would make major upgrades, improve inspections and cleaning of existing facilities within

the Puerto Nuevo system, and continue improvements to its systems across the island. The Puerto Nuevo

sewer system serves the municipalities of San Juan, Trujillo Alto, and portions of Bayamón, Guaynabo, and

Carolina.

PRASA’s violations include

releases of untreated sew‐

age and other pollutants

into waterwaysin the San

Juan area, including the

San Juan Bay, Condado

Lagoon, Martin Peña Canal,

and the Atlantic Ocean.

These releases have been in

violation of PRASA’s NPDES permits and the Clean Water Act. PRASA also violated its NPDES permit by failing

to report discharges from the Puerto Nuevo collection system and by failing to meet effluent limitations and

operation‐and‐maintenance obligations at numerousfacilities.

PRASA Bay, Puerto Rico, Department of Justice

Under the agreement, PRASA will spend approximately $1.5 billion to make necessary improvements. The set‐

tlement expands upon and supersedessettlement agreementsreached with PRASA in 2004, 2006, and 2010.

The improvements required by the 2016 agreement supplement projects already being implemented under

the previous settlements and PRASA’s Capital Improvement Program. Under the 2016 agreement, PRASA will

prioritize island‐wide capital improvement projects, taking into consideration the effect of the project on the

population served. In recognition of the financial conditions in Puerto Rico, the U.S. government waived the

payment of civil penalties associated with violations alleged in the complaint.

Delaware County, Pennsylvania

In United States and the Commonwealth of Pennsylvania Department of Environmental Protection v. Delaware

County Water Quality Control Authority (DELCORA) (E.D. Pa.), the Department of Justice and EPA settled with

DELCORA, resolving alleged Clean Water Act violations involving combined sewer overflows to the Delaware

River and its tributaries. DELCORA agreed to develop and implement a plan to control and significantly reduce

overflows from its sewer system, which will improve the water quality of the Delaware River, Chester Creek,

and Ridley Creek near Philadelphia.

Based on information submitted by DELCORA, EPA estimates that the Authority could spend as much as $200

million to implement an overflow control plan that complies with the terms of the Clean Water Act. Once the

specific pollution control measures are selected and approved, the settlement requires DELCORA to imple‐

ment the plan as quickly as possible, with a 20‐year deadline. DELCORA must also pay a $1.375 million penalty

for prior violations, which will be split between the United States and the Commonwealth of Pennsylvania,

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a co‐plaintiff in the case. The settlement addresses longstanding problems with DELCORA’s combined sewer

system, which, when inundated with stormwater, discharges raw sewage and industrial waste. According to

DELCORA, the volume of sewage that overflows from the system is approximately 739 million gallons annually.

DELCORA’s wastewater facilities serve approximately 500,000 people in the greater Philadelphia area, including

many low‐income communities. When fully implemented, the settlement will help reduce the direct exposure

of low‐income and minority populations in the service area to raw sewage. DELCORA must seek input from

the public on the long‐term control plan, including from communities near Chester Creek, that have histori‐

cally been overburdened by pollution. The consent decree also requires DELCORA to notify the public of sewer

overflows using a visual notification system, including warning lights and flags at outfalls where sewers empty

into local waterways.

Using the Clean Water Act to Protect the Nation’s Water and Wetlands

The Division also obtained notable results enforcing and defending other Clean Water Act programs that pro‐

tect the nation’s navigable waters and wetlands.

Addressing Pollution Related to Stormwater

Stormwater often carries pollution and sediment from construction sites into local waterways damaging water

quality. Under the Clean Water Act, developers and contractorsresponsible for operations at construction sites

one acre or larger are required to implement stormwater pollution prevention plans to keep soil and con‐

taminants from running into nearby waterways. These plans can include measures such as sediment barriers

and means of reducing the flow of stormwater onto the construction site. Stormwater typically carries soil and

contaminants off of construction sites at a rate 10 to 20 times greater than the rate at which they are carried

off of agricultural lands, and 1,000 to 2,000 times greater than the rate from forested lands.

The consent decree in United States v. Rhode Island Department of Transportation (D.R.I.), addresses several

years of noncompliance by the Rhode Island Department of Transportation (RIDOT) with the Clean Water Act

and the permit that governs day‐to‐day operations of RIDOT’sstormwater drainage systems. RIDOT’sroad‐

ways are serviced by a drainage system made up of storm drains, pipes, catch basins, manholes, and outfalls.

The RIDOT drainage system includes approximately 25,000 catch basins and 3,800 outfalls, services over 3,300

lane‐miles of roadway, and carries stormwater runoff to approximately 235 impaired water body segments in

Rhode Island, including watersthat ultimately discharge into Narragansett and Mount Hope Bays.

The consent decree requires RIDOT to immediately begin comprehensive efforts to repair, restore, and improve

its stormwater systems. RIDOT will develop stormwater control plans for groups of impaired water bodies.

RIDOT must undertake a comprehensive sampling program to identify illicit connections to RIDOT’s storm sew‐

ers, connections that can send sewage or other non‐stormwater pollutantsinto the stormwater system. RIDOT

will submit an inventory of the catch basins and other components the system and then implement a compre‐

hensive inspection, cleaning, and repair program followed by continuing periodic inspection and maintenance.

Finally, RIDOT must inventory its roads and parking lots and then implement a street sweeping and tracking

system to ensure that its network is swept regularly.

RIDOT also paid a civil penalty of $315,000 and will undertake two Supplemental Environmental Projects (SEPs).

The SEPs will preserve, through conservation easements and permanent protection from development,

two parcels of land in Johnston and Lincoln, Rhode Island. These lands abut current state park or environmen‐

tal preserves and lie within the watersheds of impaired waterwayssubject to the consent decree.

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Addressing Water Pollution from Coal Mines in West Virginia, Virginia, Pennsylvania, Kentucky, and

Maryland

The settlement in United States, et al. v. Arch Coal, (S.D.W.Va.), resolved allegations that Arch Coal and its sub‐

sidiaries under the International Coal Group Inc. (ICG) umbrella violated discharge limits for aluminum, manga‐

nese, iron, and total suspended solids in their state‐issued NPDES permits on more than 500 occasions over six

years. Altogether, there were over 8,900 days of alleged violations. EPA discovered the violations by inspect‐

ing ICG facilities and projects, reviewing information provided by the companies, and coordinating with the

affected state governments. The West Virginia Department of Environmental Protection, the Commonwealth

of Virginia, and the Pennsylvania Department of Environmental Protection were co‐plaintiffs with the United

States.

Arch, one of the nation’s largest coal companies, and the ICG subsidiaries agreed to conduct comprehensive

upgrades to their operations to ensure compliance with the Clean Water Act. The settlement resolved Clean

Water Act violations related to illegal discharges of pollutants at the companies’ coal mines in West Virginia,

Virginia, Pennsylvania, Kentucky, and Maryland. The companies agreed to pay a $2 million civil penalty.

Arch and the ICG entities filed for bankruptcy protection in early 2016. Although the reorganized companies

might not ultimately pay the full civil penalty, the reorganization plan (which went into effect on October 5,

2016) confirms that requirements of the consent decree compelling the companies to carry out upgrades and

other work remain in effect.

Addressing Water Pollution from a Mine Complex in Western Pennsylvania

The U.S. government’s complaint in United States and the Pennsylvania Department of Environmental Protec‐

tion v. Consol Energy Incorporated, et al. (W.D. Pa.), alleges chronic exceedances of osmotic pressure (OP) and

other limits in Consol’s Clean Water Act permits governing discharges from the Bailey Mine Complex in Greene

and Washington Counties, Pennsylvania. The discharges primarily entered tributaries of the Ohio River. Penn‐

sylvania limits the osmotic pressure of discharges to protect aquatic life from excess amounts of total dissolved

solids (TDS). Excessive TDS entering into a water body can increase the salinity of the water, harm aquatic life,

and impact drinking water quality.

Under the terms of the consent decree, Consol Energy Inc., CNX Coal Resources, and Consol Pennsylvania Coal

Co. LLC have agreed to measures that will prevent discharges of contaminated mine waters from the mine

complex to nearby streams. EPA estimates that implementation of the consent decree will eliminate more

than 2.5 million pounds of pollutants in the form of TDS. The company also agreed to conduct regular long‐

term monitoring to ensure sufficient storage capacity to prevent future discharges, develop contingency plans

to be implemented should future discharges become likely, and implement an environmental management

system to ensure compliance with the Clean Water Act and other environmental laws. In addition, Consol

agreed to pay a $3 million civil penalty.

Addressing Water Pollution from a Cement Plant in California

Selenium is a naturally occurring element in limestone and other rock formations. When discharged at high

concentrations to waterways, however, selenium is toxic to fish and other aquatic life and to birds and other

animals that consume selenium‐contaminated aquatic organisms.

In United States, et al. v. Lehigh Southwest Cement Company and Hanson Permanente Cement, (N.D. Cal.), the

United States and the state of California alleged that from at least 2009 until 2014, the Lehigh cement plant

near Cupertino, California, routinely discharged excessive selenium into Permanente Creek, a tributary of San

Francisco Bay. The plant’s discharges also routinely exceeded standards for total suspended solids, total dis‐

solved solids, turbidity, and pH, and sometimes exceeded standards for mercury, hexavalent chromium, nickel,

and thallium. Permanente Creek is listed as “impaired” for selenium under the Clean Water Act and provides

important habitat for red‐legged frogs, a threatened species under the Endangered Species Act. The plant is

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owned by Hanson Permanente Cement Inc. and

operated by Lehigh Southwest Cement Co.

The settlement of the matter requires Lehigh to

construct an advanced wastewater treatment

system and make other facility improvementsto

significantly reduce its discharges of selenium

and other metals. Lehigh already installed an in‐

terim treatmentsystem; the permanentsystem

will be completed by 2017. Lehigh will make

other facility improvements to remove sediment

from its stormwater runoff. The company will

spend more than $5 million in total to come into Lehigh Hanson Cement Plant, Google Maps

compliance with the Clean Water Act. Lehigh also paid $2.55 million in civil penalties to settle the case, half to

the United States and half to the state of California.

Otherwise Protecting the Nation’s Waters and Wetlands

In United States & West Virginia v. James C. Justice Companies, Inc. (N.D.W.Va.), ENRD, in cooperation with the

State of West Virginia, achieved a favorable settlement to resolve CWA violations in Monroe County, West Vir‐

ginia, that resulted when a landowner hired a contractor to place 20 concrete dams in a series of streams with

the intent of improving recreational trout fishing. Under the court‐approved settlement, the defendants are

required to remove the dams, restore the streams, provide compensatory mitigation, and pay a civil penalty of

$345,000.

The Division obtained summary judgment on CWA liability in Duarte Nursery v. U.S. Army Corps of Engineers

(E.D. Cal.). The Corps had issued a cease and desist order in response to the nursery’s ripping activities in

vernal pools, vernal swales, and streams, including Coyote Creek, a tributary of the Sacramento River. The

nursery challenged the issuance of the order as a violation of Fifth Amendment procedural due process pro‐

tections. After the court denied our motion to dismiss the challenge as premature, ENRD filed a Clean Water

Act civil enforcement counterclaim. The nursery then amended its complaint to add a retaliatory prosecution

claim to enjoin our pursuit of the counterclaim. On June 10, 2016, the court granted our motions for summary

judgment and denied the nursery’s cross‐motions, finding that Duarte Nursery and its president, John Duarte,

are liable under the Act, that a cease‐and‐desist order is not a deprivation under the Fifth Amendment, and

that the United States has not waived sovereign immunity for decisions to bring suit. The issue of what remedy

(civil penalty and injunctive relief) should be granted on our enforcement counterclaim was left for trial at a

later date.

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ENSURING CLEAN UP OF OIL AND
 

HAZARDOUS WASTE
 

Recovering Penalties and Damages from Oil Spills

Clean Water Act Section 311 makes it unlawful to discharge oil or hazardous substances into or upon the navi‐

gable waters of the United States or adjoining shorelines in quantities that may be harmful to the environment

or public health. In addition, the Coast Guard has promulgated spill‐prevention regulations for vessels and

other facilities. Penalties paid under Section 311 go into the federal Oil Spill Liability Trust Fund, which is used

to pay for federal response activities and to compensate for damages.

The Gulf of Mexico

In March 2012, a floating oil‐and‐gas

production platform known as the ATP

Innovator was operating in the area

of the Mississippi Canyon in the Gulf

of Mexico, approximately 45 nautical

miles offshore of southeastern Loui‐

siana. Interior’s Bureau of Safety and

Environmental Enforcement (BSEE)

inspected the platform, discovering

that ATP had been discharging both oil

and an unauthorized chemical disper‐

sant to mask the oil. In February 2013,

the Division filed United States v. ATP

Oil and Gas Corporation, et al. (E.D. La.), a joint enforcement action by BSEE and EPA, alleging claims under the

Clean Water Act and the Outer Continental Shelf Lands Act (OCSLA).

The settlement with ATP involved three proceedings: the U.S. action filed in the Eastern District of Louisiana,    

an administrative action by BSEE, and ATP’s bankruptcy proceeding in the Southern District of Texas. First, the

consent decree approved by the District Court for the Eastern District of Louisiana resolved the claims of the

United States against ATP in that action by imposing a CWA civil penalty of $38 million. Second, BSEE cited ATP

in an administrative proceeding for several violations of OCSLA related to the oil discharges and other improper

operations on the platform. Finally, in the bankruptcy proceeding — In re: ATP Oil and Gas Corporation (Bankr.

S.D. Tex.) — the United States obtained an allowed unsecured claim for the $38 million (the amount of the

penalty imposed by the settlement in the Eastern District of Louisiana), and BSEE obtained an allowed claim of

$3.85 million for the violations BSEE had been pursuing administratively.

ATP Innovator Being Towed, Department of Justice

American Samoa

In United States v. Tri‐Marine Management Company LLC, et al. (D. Haw.), the Department of Justice and the

Coast Guard alleged that the Tri‐Marine companies were liable for the October 2014 oil spill from their com‐

mercial tuna‐fishing vessel, the Capt. Vincent Gann, into Pago Pago Harbor in American Samoa, and related

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Chemical drums at a newly discovered potential NPL site,

Environmental Protection Agency

Soil excavation and clean up at a Superfund site,

Environmental Protection Agency

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violations of the Coast Guard’sspill prevention

regulations.

It is illegal to store fuel in the bulbous bow of a

vessel. Yet on October 16, 2014, when the Capt.

Vincent Gann returned to Pago Pago Harbor after

a long fishing voyage and struck two moored

fishing vessels, at least 35 barrels of marine fuel

oil flowed out of the bulbous bow. The fuel oil

had originally been stored in two of the vessel’s

fish holds, but was later transferred from the fish

holds to the bulbous bow to make room for tuna

in the holds.

The complaint alleged the vessel stored the oil il‐

legally in the bow to extend the duration of the fishing voyage and allow the ship to store a larger catch of fish.

The consent decree required Tri‐Marine to pay $1.05 million in civil penalties and to perform inspections and

corrective measures across its entire fleet of ten vessels based in American Samoa.

Captain Vincent Gann Dry Docked, Department of Justice

Resolving Civil Claimsin the Deepwater

Horizon Explosion and Oil Spill

After five years of fast‐paced litigation, including
 

a three‐phase trial of the United States’ civil
 

penalty claim and intense work on the claim for

natural resource damages, the Division led many

federal agencies and the five Gulf Statesin negoti‐

ating a proposed settlement resolvesthe govern‐

ments’ civil claims against BP arising from the April

20, 2010, blowout of the Macondo well and the

massive oil spill in the Gulf of Mexico.

I

n April 2016, the United States District Court
      

for the Eastern District of Louisiana entered this
 

consent decree resolving civil claims of the United

States and the five Gulf Coast states against BP.

Under the consent decree, BP will pay the U.S. and

the five Gulf States more than $20 billion, including:

a $5.5 billion civil penalty; more than $8.1 billion in

natural resource damages; $600 million in further

reimbursement of clean‐up costs and some royalty

payments; and up to $6 billion in economic damage

payments for the Gulf States or their local units of

government. This resolution isthe largest settle‐

ment with a single entity in Department of Justice

history. It includes the largest civil penalty ever

awarded under the Clean Water Act, the largest‐

ever natural resources damagessettlement and

massive economic damages paymentsto our state

partners.

T

he United Statesreceived numerous comments
 

on both the proposed federal consent decree
 

and the 1,700‐page draft damage assessment and

restoration plan published by the Deepwater Hori‐

zon Trustees Council, a council comprised of repre‐

sentatives of the five Gulf States and four federal

agencies. The plan includes a comprehensive assess‐

ment of natural resource injuries resulting from the

oil spill and a detailed framework for how the trust‐

ees will use the natural resource damage recoveries

from BP to restore the Gulf environment.

Penaltiesrecovered in connection with the litiga‐

tion will be distributed under the framework

established in the Resources and Ecosystems Sus‐

tainability, Tourist Opportunities, and Revived Econ‐

omies of the Gulf Coast States Act of 2012 (RESTORE

Act). The RESTORE Act will direct about 80% of civil

penalties to environmental and economic projects

that will benefit the Gulf of Mexico region in the five

Gulf States.

Previously, BP entered into a plea agreement with

the Department that resolved certain criminal

claims against the company for this same disaster.

Under that agreement, BP is liable for fines and

other sums in excess of $4 billion.

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Conserving the Superfund by Compelling Partiesto Clean Up Hazardous Waste and

Recovering Superfund Monies

The Division brings actions under CERCLA to require responsible parties to clean up hazardous waste and to

recover the costs of cleanups conducted by EPA. In fiscal year 2016, ENRD concluded a number of settlements

requiring responsible parties to reimburse the United States for EPA’s clean‐up costs, to undertake the clean‐up

work themselves, or both. The Superfund program operates on the principle that polluters should pay for the

cleanups rather than pass the costs on to taxpayers. EPA searches for parties legally responsible for the con‐

tamination at sites and seeks to hold those parties accountable for the costs of investigations and cleanups.

The American Cyanamid Superfund Site, New Jersey

The American Cyanamid Superfund Site, in Bridgewater Township, New Jersey, has a history of industrial pol‐

lution dating back to 1915. For nearly a century, chemicals were manufactured at the property. A number of

impoundments used for the storage and disposal of waste eventually contaminated the soil and groundwater.

The site was placed on the federal Superfund list in 1983. The soil, groundwater, and waste disposal areas are

contaminated with volatile and semi‐volatile organic compounds and heavy metals. The groundwater underly‐

ing the site is highly contaminated with benzene and other contaminants. Many of the site contaminants are

known or suspected to cause cancer in people and animals, and benzene can cause cancer in people.

In United States v. Wyeth

Holdings LLC. (D.N.J.), the

Department of Justice and

EPA settled with Wyeth

Holdings LLC, a subsidiary

of the Pfizer Corporation.

Wyeth will perform nearly

$194 million worth of clean‐

up work and pay $1 million

for EPA’s past costs of over‐

seeing clean‐up work at the

site. The clean‐up work in‐

cludes addressing contami‐

nated soil, groundwater,

and six waste disposal areas

at the site. The agreement

provides for the closure of

two waste disposal areas,

the contents of which were

previously excavated and sent off‐site. Also, Wyeth will continue to operate a system for collecting and treat‐

ing contaminated groundwater under the site to prevent the water from seeping into the Raritan River, Cuckels

Brook, or Middle Brook. A study to evaluate alternatives for cleaning up two additional waste disposal areas is

ongoing.

Wyeth Holdings Aerial View, Department of Justice

The Copper Basin Mining District Superfund Site, Tennessee

From the mid‐1800s until 1989, the Copper Basin Mining District Superfund Site in Eastern Tennessee was the

location of extensive copper, iron, and sulfur mining operations, mineral processing, and sulfuric acid produc‐

tion. Throughout that time, sulfuric acid, lead, mercury, polychlorinated biphenyls (PCBs), and other wastes

generated by those operations were disposed of in and around Davis Mill Creek and North Potato Creek, both

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of which discharge to the Ocoee River. Over the last 25 years, in cooperation with the Tennessee Dept. of

Environment and Conservation, EPA has overseen extensive work at the site, including the construction of two

of the three water treatment plants (WTPs). Over 67.3 billion gallons of water have been treated. To date,

535,231 kilograms of hazardous waste, oil, equipment, and soil contaminated with lead and PCBs have been

removed from the site and properly disposed.

In United States and the State of

Tennessee. v. OXY USA, Incorpo‐

rated (E.D. Tenn.), OXY, a sub‐

sidiary of Occidental Petroleum

Co., settled with the Department

of Justice and EPA by agree‐     

ing to clean up two watersheds

that flow into the Ocoee River

and monitor sediments in the

river. The settlement requires

the company to spend an esti‐

mated $40 million to maintain

and operate a water treatment

system and reimburse EPA for

approximately $10.8 million

toward costs incurred in its past

clean‐up actions at the site. Vintage Photo of OXY Site, Department of Justice

In addition, the Tennessee Valley Authority (TVA) agreed to implement measures at its dams along a 26‐mile

stretch of the Ocoee River in order to prevent contaminants from becoming mobilized and contaminating the

river. EPA will oversee the work. Also under the consent decree, the United States, on behalf of the Depart‐

ment of Defense and the Department of Commerce, agreed to pay OXY approximately $12.6 million to settle

claims for OXY’s past and future clean‐up costs, based primarily on the United States’ ownership and opera‐

tion of a portion of the site between 1941 and 1946. Taking into account the new settlement and the work

previously performed, over $217 million is being devoted to cleaning up the contamination at this site in Polk

County, Tennessee.

Protecting the Public Fisc from Excessive or Unwarranted Claims for Reimbursement of Clean

Up Costs

The Division has had significant successes defending against claims seeking reimbursement of costs that can‐

not be recovered under CERCLA. In United States v. Sterling Centrecorp, Inc. (E.D. Cal.), an enforcement action

on behalf of EPA to recover response costs at the former Lava Cap Mine near Grass Valley, California, defendant

filed a counterclaim against the United States alleging that government was an “operator” of the mine, and

thus liable under CERCLA, based solely on an order of the War Production Board that temporarily restricted

gold mining during World War II. On September 20, 2016, the court granted summary judgment in our favor,

concluding that the Board’s mere issuance and enforcement of the order was insufficient to give rise to “opera‐

tor” liability under CERCLA.

In ARCO v. United States (D.N.M.), the plaintiff, Atlantic Richfield Company (ARCO), sought to recover over $40

million paid to the Laguna Pueblo in 1986 to conduct reclamation work at the Jackpile‐Paguate Uranium Mine

Site in New Mexico, arguing that this payment constituted a response cost recoverable under Sections 107 and

113 of CERCLA. On February 9, 2016, the court granted ENRD’s motion to dismiss the complaint, agreeing with

the United States that ARCO’s claim for money spent in 1986 was time‐barred, and that ARCO’s more recent

expenditures hiring consultants, surveying the site, and identifying responsible parties were unrecoverable

litigation costs. The court also rejected ARCO’s attempt to proceed with a Section 113 claim before the United

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States had sought cost recovery from ARCO, declining to allow ARCO to “force the United States’ hand” con‐

cerning the timing of litigation.

The Division also settles claims under CERCLA seeking to impose liability for clean up on federal agencies

where a fair apportionment of costs can be reached. In fiscal year 2016, these included several multimillion‐

dollarsettlements:

	 On March 4, 2016, the court entered a consent decree in State of Alaska v. United States (D. Alaska),

resolving claims against the Air Force and its contractors for PCB and trichloroethylene (TCE) cleanup

costs arising from a Cold War‐era communications site in Aniak, Alaska. Under the decree, the United

States will pay $8.3 million to resolve its past and future liability with respect to PCB clean‐up costs, and

will contribute $495,000 to perform a remedial investigation and feasibility study to address the TCE

contamination.

	 ENRD successfully resolved an administrative action by EPA that required the Navy to remediate waste

disposed of in the Gorst Creek Ravine Landfill in Port Orchard, Washington. Pursuant to a settlement

agreement and consent order executed on January 19, 2016, between EPA, the Navy, and the current

owner of the property, the Navy will pay more than $24 million to resolve its liability and facilitate clean

up of the site.

	 In The Boeing Company v. Air Force (D. Kan.), the Boeing Company threatened claims against the Air

Force to recover response costs under CERCLA in connection with clean up of contamination at the

former Air Force Plant 13 in Wichita, Kansas. After a formal mediation process led to agreement on

a settlement amount, on March 7, 2016, the court entered a consent decree under which the United

States will pay $32,250,000 to fully resolve Boeing’s claims.

	 In The Boeing Company v. Air Force (C.D. Cal.), Boeing brought claims under CERCLA for response costs

arising from hazardous substance contamination – primarily TCE and hexavalent chromium – at Boe‐

ing’s former aircraft manufacturing plant (former Air Force Plant 15) in Long Beach, California. After

formal mediation, the parties reached an agreement to settle Boeing’s claims for past and future

response costs. On April 20, 2016, the court entered a consent decree under which the United States

will pay Boeing $40,750,000 to fully resolve its claims. Boeing had initially demanded more than $200

million in alleged past and estimated future response costs.

	 On December 21, 2015, the court entered a consent decree resolving Chartis Specialty Insurance Co. v.

United States (N.D. Cal.). Under the consent decree, the United States will pay $7,750,000 to an insurer

for past and future cleanup costs at a former defense contractor’s explosive ordnance manufacturing

plant in Hollister, California. The settlement resolves claims under CERCLA arising from the remedia‐

tion of contaminants found in the soil and underlying groundwater at and migrating from the site. In a

second case involving the same site, Whittaker Corp. v. United States (N.D. Cal.), the former owner and

operator the ordnance plant, brought claims under CERCLA for response costs arising from ongoing en‐

vironmental remediation of soil and groundwater. On June 3, 2016, the court entered a consent decree

under which the United States will pay Whittaker $1,732,000 for its past cleanup costs, and agrees to

reimburse 20% of Whittaker’sfuture cleanup costs(presently estimated at approximately $20 million).

	 In 2012, Verizon settled a claim by the Hicksville Water District seeking to recover the cost of construct‐

ing a water treatment plant to address groundwater contamination migrating from a former uranium

manufacturing facility in Hicksville, New York, with Verizon paying the Water District $5.65 million. Ve‐

rizon in turn sought contribution from the United States arising out of federal involvement at the site.

On July 5, 2016, the parties executed a settlement that would resolve Verizon’s potential claim against

the United States for a payment of approximately $2.825 million.

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Securing Natural Resources Damages

In addition to authorizing lawsuits to compel clean up and recoup clean‐up costs, CERCLA allows separate

claims for money damages when natural resources have been injured by releases of hazardous substances.

These actions can only be brought by the United States, states, and Native American tribes, because claims

for natural resource damages (NRD) seek compensation for public losses from injuries to natural resource. To

ensure that the public benefits from any compensation that the government obtains, CERCLA specifies that re‐

coveries on NRD claims must be used to restore, replace, or acquire the equivalent of the resources that were

injured by the hazardous substances.

The Thea Foss and Wheeler‐Osgood Waterways in Tacoma’s Commencement Bay

In United States, et al. v. Advance Ross Sub Company, et al. (W.D. Wash.), more than 56 settling parties agreed

to resolve their liability for natural resource damages caused by hazardous substances released into the Thea

Foss and Wheeler‐Osgood Waterwaysin Tacoma’s Commencement Bay. For many decades, the Thea Foss

and Wheeler‐Osgood Waterwaysreceived discharges of industrial waste from a variety of industrial sources

and sewers. The contaminants discharged include cadmium, lead, zinc, polychlorinated biphenyls, and poly‐

cyclic aromatic hydrocarbons (PAHs). In addition, bis(2ethylhexyl) phthalate was discovered to be widespread

throughout the Thea Foss waterway at levels associated with biological effects. The settling parties are compa‐

nies, individuals, and state or local governmental entities that are past or current owners or operators of facili‐

ties that released hazardoussubstances to the waterways(or successors to past owners or operators). The

complaint asserts claims for natural resource damages in Commencement Bay under CERCLA, the Clean Water

Act, the Oil Pollution Act, and Washington’s Model Toxics Control Act.

The settlement resulted from the collaborative efforts of the settling parties and the natural resource trustees:

NOAA, Interior, the Washington State Department of Ecology, the Puyallup Tribe of Indians, and the Muckle‐

shoot Indian Tribe. The State of Washington and the two tribes were co‐plaintiffs with the United States.

In the consent decree, the settling parties agreed to fund the restoration of key salmon habitat on the White

River, which flows through King and Pierce Counties in Washington State and is one of the Puget Sound’s most

important watersheds for imperiled salmon and steelhead. The habitat restoration project will reopen 121

acres of historic floodplain for salmon. Specifically, the settling parties will fund the Countyline Levee Setback

Project, which will restore and provide off‐channel rearing habitat for salmon and steelhead on the Lower

White River in the vicinity of Pacific, Auburn, and Sumner, Washington. The project will also help reduce the

risk of flood damage for more than 200 nearby homes and businesses by allowing floodwaters more room to

flow without damage.

The settling parties will monitor and manage the project under a 10‐year plan that ensures at least 32.5 of the

121 acres are inundated by the river and thus accessible to fish. The parties also will pay more than $1 million

towardsthe natural resource trustees’ assessment, oversight, and long‐term stewardship costs.

This is the twentieth natural resources settlement related to pollution in Commencement Bay, long the in‐

dustrial heart of Tacoma. Through these settlements, more than 350 acres of salmon habitat will have been

restored to offset the injuries to salmon and other fish from pollution in Commencement Bay.

Talmadge Creek and the Kalamazoo River near Marshall, Michigan

Enbridge Energy Limited Partnership’s pipeline called “Lakehead Line 6B” ruptured near Marshall, Michigan,

on July 25, 2010. Enbridge then discharged additional oil from Line 6B during two attempts to restart the

ruptured pipeline on July 26, 2010. The oil spill was one of the largest inland oil spills in U.S. history. Oil dis‐

charged from Line 6B entered Talmadge Creek and ultimately extended approximately 38 miles down the Ka‐

lamazoo River. The oil impacted over 1,560 acres of stream and river habitat as well as floodplain and upland

areas, injuring birds, mammals, reptiles, and other wildlife. The river was immediately closed to the public and

sections remained closed for several years, reducing recreational and tribal uses of the river.

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The 2015 consent decree in United

States v. Enbridge Energy, L.P., et

al. (W.D. Mich.), resolves claims of

federal, state, and tribal trustees for

natural resource damages caused

by the 2010 rupture of Enbridge’s

Line 6B. The natural resource

trustees in this case are the Michi‐

gan Department of Environmental

Quality, the Michigan Department

of Natural Resources, the Michi‐

gan Department of the Attorney

General, the U.S. Fish and Wildlife

Service, the National Oceanic and

Atmospheric Administration, the

Nottawaseppi Huron Band of the

Potawatomi Tribe, and the Match‐E‐

Be‐Nash‐She‐Wish Band of the Pot‐

tawatomi Indians (Gun Lake Tribe).

The State of Michigan and the two

tribes were co‐plaintiffs of the United States.

Enbridge Energy Kalamazoo River Lakehead Line 6b oil spill site,

Google Maps

Under the settlement, several Enbridge affiliates will be responsible for completing numerous natural resource

restoration projects along the Kalamazoo River and will pay an additional sum of nearly $4 million to fund addi‐

tional restoration projects, reimburse natural resource damage assessment costs of federal and tribal trustees,

and support ongoing restoration planning activities of the natural resource trustees.

The trusteesreached the NRD settlement in conjunction with a separate settlement that resolved related state

law claims of the state of Michigan. The United States’ 2015 NRD settlement incorporates elements of the

state settlement requiring Enbridge, among other things, to perform work to restore, or compensate for, in‐

jured natural resources along the Kalamazoo River, at an estimated cost of at least $58 million. The two settle‐

ments combined secured an estimated $62 million or more to restore natural resource damages.

The NRD settlement provides for habitat improvement projects to address injuries to aquatic organisms, fish,

reptiles, mammals, and birds, as well as for enhancements to public access and use of the Kalamazoo River for

recreational, educational, and cultural purposes. The trustees have proposed to carry out several projects with

funding from the NRD settlement. The Damage Assessment and Restoration Plan and Environmental Assess‐

ment for the spill was issued in final on October 20, 2015. The NRD settlement addresses Enbridge’sliability    

for natural resource damages under the Oil Pollution Act (OPA) and Michigan’s Natural Resources and Environ‐

mental Protection Act.

In July 2016, the Department of Justice and EPA announced a different settlement with Enbridge that address‐

es, EPA’s claims for spill prevention and civil penalties. Under that second settlement, Enbridge would spend  

at least $110 million on measures to prevent oil spills and pay $62 million in penalties. The public comment

period on the proposed consent decree closed on October 21, 2016.

Addressing Hazardous Waste Generated by the Production of Phosphoric Acid and Fertilizer

While certain wastes generated from phosphoric acid processing operations are not regulated as hazardous

wastes when properly managed under RCRA, these wastes become subject to hazardous waste regulations

when a facility commingles them with other hazardous wastes not qualifying for the exemption. Through its

National Enforcement Initiative on Reducing Pollution from Mineral Processing Operations, EPA is requiring

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phosphate fertilizer produc‐

tion facilities nationwide to

cease commingling hazardous

waste with exempt waste,

reduce the storage volume of

stored hazardous wastewa‐

ters, ensure that waste stacks

and ponds have environmen‐

tally protective barriers, and

verify the structuralstability

of waste stacks and ponds.

As part of that initiative, EPA

and State personnel inspect‐

ed the facilities of Mosaic

Fertilizer, LLC (Mosaic) and

discovered that Mosaic was

mixing certain types of highly

corrosive hazardous wastes

from its fertilizer operations

with the phosphogypsum and mineral processing wastewater in its stacks and ponds, which is a violation of

federal and state hazardous waste laws.

New Wales Facility, Florida, Department of Justice

In United States and the Florida Department of Environmental Protection v. Mosaic Fertilizer, LLC (M.D. Fla.)

and United States and the Louisiana Department of Environmental Protection v. Mosaic Fertilizer, LLC (E.D.

La.), the Department of Justice and EPA reached a settlement with Mosaic that will reduce the generation of

hazardous and other wastes by over 23 million tons per year at four Mosaic facilities in Florida and two in

Louisiana. The settlement will further ensure the proper treatment, storage, and disposal of an estimated 60

billion pounds of hazardous waste already on site at these facilities, and the proper management of contami‐

nated wastewater so that it does not pose a threat to groundwater resources. The settlement resolves a series

of alleged violations by Mosaic of RCRA, which regulates how hazardous waste must be stored, handled, and

disposed. Louisiana and Florida joined the United States as co‐plaintiffs in the cases.

Mosaic Fertilizer is one of the largest producers of fertilizer and phosphate products in the world. At Mosaic’s

facilities, mined phosphate ore is reacted with sulfuric acid to produce phosphoric acid, which produces large

quantities of a solid material called phosphogypsum and highly acidic wastewater. These wastes are stored in

large stacks, tanks, ditches, and ponds; the stacks can reach 500 feet high and cover more than 600 acres, mak‐

ing them some of the largest man‐made waste piles in the United States. The stacks also contain several billion

gallons of highly acidic wastewater, which can threaten human health and cause severe environmental damage

if it reaches groundwater or local waterways.

Under the settlement, Mosaic will spend approximately $170 million over the next several years to implement

an innovative reconfiguration of their current operations and waste management and recycling systems. The

development of these industry‐leading technologies will optimize resource efficiency and decrease the amount

of raw materials required to produce fertilizer. This case spurred Mosaic to develop advanced engineering con‐

trols and practices to recover and reduce some types of acid wastes, which will reduce the amount and toxicity

of the waste materials stored at Mosaic’s facilities, and the severity of potential spills, all while cutting Mosaic’s

costs for treating material at closure. The settlement also provided comprehensive design and operating re‐

quirements for Mosaic’s phosphogypsum stack systems and stringent groundwater monitoring requirements.

Mosaic also will operate under a comprehensive set of controls that regulate how the company constructs,

operates, and closes phosphogypsum stack systems. These controls include installing liners under new or ex‐

panded stacks, ponds, and ditches; managing and minimizing acidic wastewater on‐site; monitoring groundwa‐

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ter; inspecting stacks for signs of potential problems; closing stacks, ponds, or ditches when they reach the end

of usability; and providing financial means to fund the closure and longterm care of all of its phosphogypsum

stack systems.

The financial assurance to be provided by Mosaic Fertilizer includes a $630 million trust fund, which will be

invested until it reaches full funding of $1.8 billion, the amount needed to close the operating facilities in com‐

pliance with RCRA. The settlement also requires Mosaic Fertilizer to provide a $50 million letter of credit until

the trust fund reaches full funding. These funds will cover the costs of closing four Mosaic facilities: the Bar‐

tow, New Wales, and Riverview plants in Florida and the Uncle Sam plant in Louisiana. The funds also will be

used for the treatment of hazardous wastewater remaining at those facilities as well as the long‐term care of

those facilities and two additional facilities that are already being closed. The Mosaic Company, Mosaic Fertil‐

he imp parent company, will provide a corporate guarantee for this work until the trust reaches full funding.

Mosaic also will fund a $1.2 million environmental project in Florida to mitigate and prevent certain potential

environmental impacts associated with an orphaned industrial property located in Mulberry, Florida. In Loui‐

siana, Mosaic will spend $1 million to fund studies regarding statewide water quality issues. In civil penalties,

Mosaic will pay $5 million to the United States, $1.55 million to co‐plaintiff the State of Louisiana, and $1.45

million to co‐plaintiff the State of Florida.

Enforcing Clean Up Obligationsin Bankruptcy Cases

The Division takes actions in bankruptcy cases to protect environmental obligations owed to the United States

when a responsible party goes into bankruptcy. During fiscal year 2016, the Division obtained eleven settle‐

ment agreements in bankruptcy proceedings. Debtors or parties in interest were obligated to pay or perform

work valued at over $67 million. In addition, debtors paid over $7 million during fiscal year 2016 under bank‐

ruptcy agreements concluded by the Division in prior fiscal years. Altogether, debtors or parties in interest in

bankruptcy cases reimbursed the federal government for over $12.5 million in previously expended costs, and

were obligated to pay or perform work valued at over $61.5 million to clean up hazardous waste sites.

42 | Ensuring Clean up of Oil and Hazardous Waste
   

                         

                                 

                           

                                 

                           

                       

                                 

                                   

                       

                     

             

                             

                             

                         

                     

                           

                     

                               

                           

                       

                                 

                             

                               

                             

                               

MAKING PROGRESS TOWARD
 

ENVIRONMENTAL JUSTICE
 

Clean water, air, and land are basic necessities—not luxuries—that every American should enjoy wherever they

live, work, play, and learn, regardless of their income status or race. However, the burdens of pollution often

still fall disproportionately on low‐income and minority communities who do not have a meaningful opportuni‐

ty to voice their concerns. Environmental justice means that all Americans are afforded fair treatment and full

protection under the nation’s laws, including environmental, civil rights, and health and safety laws. Further‐

more, every American should have the opportunity to participate meaningfully in the decision‐making process‐

es that affect their environment. The goals and principles of environmental justice are part of ENRD’s mission

and are appropriately integrated into our work. In 2016, ENRD worked in a number of waysto advance the

goals of environmental justice and continued to achieve tangible results that benefited communities.

The Department of Justice, along with 16 other federal agencies and White House offices that signed a Memo‐

randum of Understanding on Environmental Justice (MOU) in August 2011, works to lead the federal govern‐

ment’s efforts to help all communities in America achieve environmental justice. Building upon Executive

Order 12898—the federal government’sfirst statement of an environmental justice policy—the MOU reflects

the federal government’srenewed commitment to environmental justice. The MOU promotesinteragency

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

requires each agency to publish an environmental justice strategy, provide an opportunity for public input on

those strategies, and produce annual implementation progress reports. This past year, the Division achieved

significant results for the American people as it continued to implement its Environmental Justice Strategy,

Executive Order 12898, and the MOU.

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

2016

Interagency Working Group on Environmental Justice (EJ IWG)

EPA and the White House Council on Environmental Quality (CEQ) co‐lead the efforts of the Environmental

Justice Interagency Working Group (EJ IWG), which was established by Executive Order 12898. The EJ IWG

demonstratesthe importance of federal agencies working collaboratively to enhance multi‐agency support of

holistic community‐based solutions to address environmental concerns. The EJ IWG facilitates the active

involvement of all federal agencies in implementing Executive Order 12898 by minimizing and mitigating dis‐

proportionate negative impacts on overburdened communities and fostering environmental, public health, and

economic benefits for all Americans. The EJ IWG provides a forum for federal agencies collectively to advance

environmental justice principles. The agencies work together to assist communities in building capacity to pro‐

mote and implement innovative and comprehensive solutions to address environmental justice concerns.

Through its work with the EJ IWG, the Department has assumed a leadership role in ensuring a coordinated

federal response to environmental justice issues. Representatives from ENRD and the Civil Rights Division (CRT)

regularly participate in EJ IWG senior staff‐level meetings and identify waysthe Department can support and

further the EJ IWG’s work. On August 29, 2016, EPA Administrator Gina McCarthy hosted a Cabinet‐level meet‐

ing of the EJ IWG. The Department’s Acting Associate Attorney General William Baer and senior leadership

Making Progress Towards Environmental Justice| 43
       

   

   

Air Pollution, Wikipedia

Dangersign, Tennessee.gov

44 | Making Progress Towards Environmental Justice
               

         

       

         

         

         

       

         

           

   

     

       

                 

           

       

       

                     

                                 

                           

               

                               

                   

                   

                                   

                             

                         

                   

                         

                         

                               

                                   

                     

             

     

                                   

                         

                         

                             

                     

                             

               

                             

                     

                               

                             

from ENRD and CRT attended this productive meeting.

Implementing the Interagency Memorandum on Environmental Justice

The Department played an impor‐

tant leadership role in the concep‐

tion and development of the MOU

and continues to play an impor‐

tant role in its implementation.

The MOU identifies four focus

areas for the EJ IWG as agencies

implement their environmental

justice strategies: (1) implementa‐

tion 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 im‐

pacts from commercial transportation and supporting infrastructure (often referred to as “goods movement”).

The Charter to the MOU was updated in 2015 and now includes a governance structure and a requirement for

agency senior leadership to meet twice a year to discuss agency collaboration efforts and commitments that

will help further efforts to achieve environmental justice.

Environmental Justice Seal, Environmental Protection Agency

The EJ IWG governance structure identifies permanent EJ IWG committees on the following four topics: Public

Participation; Regional Interagency Working Groups (RIWG); Strategy and Implementation Progress Reports;

and Title VI of the Civil Rights Act of 1964.

Every three years the EJ IWG also determines if there are additional focus areas for federal agencies to con‐

sider and address. During fiscal years 2016–2018, the EJ IWG will maintain the following additional committees

to address these five focus areas: Native Americans/Indigenous Peoples; Rural Communities; Impacts from

Climate Change; Impacts from Commercial Transportation (Goods Movement); and NEPA.

In 2016, ENRD co‐chaired the EJ IWG committees on Public Participation, Strategy and Implementation Prog‐

ress Reports, and Native Americans/Indigenous Peoples. The Division also actively participated in other com‐

mittees such as the RIWG Committee and the NEPA Committee. The RIWG Committee developed a very suc‐

cessful “Access & Awareness Webinar Series,” a monthly event that gives the public access to the EJ IWG and

increases community awareness of federal agency environmental justice strategies and holistic community‐

based solutions to address environmental justice issues.

EJ IWG NEPA Committee

ENRD’s Natural Resources Section (NRS), continues to be a vital member of the NEPA Committee of the EJ IWG,

which is dedicated to cross‐agency education and coordination to foster the incorporation of environmental

justice principles into decision‐making through the NEPA process. NEPA requires federal agencies, before they

act, to assess the environmental consequences of their proposed actions for the dual goals of informed agency

decision‐making and informed public participation. Additionally, NEPA gives communities the opportunity to

access public information on and participate in the agency decision‐making process for federal actions. The

Presidential Memorandum accompanying Executive Order 12898 underscoresthe importance of procedures

under NEPA to “focus federal attention on the environmental and human health conditions in minority com‐

munities and low‐income communities with the goal of achieving environmental justice.”

In 2016, NRS’ work with the NEPA Committee has principally been through two Subcommittees: the Education

and Community of Practice (COP) Subcommittees. In March 2016, the EJ IWG released the NEPA Committee’s

Making Progress Towards Environmental Justice| 45
       

                               

                       

                               

                               

                             

                 

         

         

                                 

                                   

                         

                         

                                 

             

                                 

                         

                           

                 

                               

                          

                             

                         

   

     

             

                             

                       

                   

                             

                                   

report on “Promising Practices for EJ Methodologies in NEPA Reviews.” The report provides a framework

for meaningful engagement, developing and selecting alternatives, and identifying minority and low‐income

populations. NRS helped ensure that the report was disseminated within DOJ and also assisted the NEPA Com‐

mittee in various presentationsto federal agencies to promote further awareness and use of the Promising

Practices report. The NEPA Committee’s Education Subcommittee is also working to finalize a National Training

Product as a companion to the Promising Practices report.

Increasing Communication and Awareness across Federal Agencies

The Division continues to collaborate directly with other federal agencies to increase dialogue on and aware‐

ness of environmental justice issues. For example, ENRD’s Counsel for Environmental Justice and CRT’srepre‐

sentative to the EJ IWG meet jointly with representatives from the U.S. Department of Agriculture’s Office of

General Counsel and other parts of the agency to discuss environmental justice. In addition, the “Law Leaders

on Environmental Justice,” a cross‐agency group of career attorneys that ENRD and EPA’s Office of General

Counsel established five years ago to discuss legal issues regarding environmental justice, continues to be an

important forum, with ongoing dialogue and education on topics such as EPA’s environmental justice mapping

and screening tool known as EJSCREEN.

Participating in Community and Other Outreach

Community engagement is an important part of the EJ IWG’s responsibilities under EO 12898. As a co‐chair of

the EJ IWG Public Participation Committee along with EPA, ENRD continues to work with the EJ IWG to facili‐

tate community engagement. The committee strives to provide communities with opportunities to access the

EJ IWG to raise awareness, seek multi‐agency support of community‐based solutions to address environmental

justice issues, and share success stories. For example, in 2016 a number of EJ IWG meetings included presenta‐

tions by community activists and EJ advocates.

The Department continues to use a variety of other forums to hear from communities about their concerns.

For example, an ENRD representative attended the March 2016 EPA National Environmental Justice Advisory

Council public meeting held in Gulfport, Mississippi. These meetings afford communities the opportunity to

comment on environmental justice issues of concern to them.

ENRD and other components of the Department continue to engage in community outreach to ensure that the

Department understands and is responding to community concerns. The Department approaches outreach in

a variety of ways, including community meetings, visits by senior Department officials, participation in EJ IWG

community meetings and calls, participation in environmental justice conferences, and outreach in conjunction

with cases.

Training and Increasing Awareness

ENRD continued to focus on increasing awareness and understanding of environmental justice issues among  

its attorneys and staff. For example, in September 2016, ENRD included environmental justice in its training for

new attorneys entering the Division. During 2016, ENRD also worked to foster greater understanding of envi‐

ronmental justice principles within the Department of Justice. The Division has been working with the Execu‐

tive Office for United States Attorneysto provide the Department’s 93 Offices of the U.S. Attorneys with useful

and easily accessible information regarding environmental justice.

Integrating Environmental Justice Principlesinto ENRD Litigation and Outcomes

The breadth of the Division’s work benefits local communities across the country and reflects the Depart‐

ment’s continued commitment to environmental justice. Through the fair and even‐handed enforcement of

the nation’s environmental and natural resources laws, ENRD’s Environmental Enforcement and Environmental

Crimes Sections and the U.S. Attorneys’ Offices seek to protect all communities from environmental harms.

And we work to resolve our cases in the interest of affected communities by finding appropriate ways to en‐

46 | Making Progress Towards Environmental Justice
                                     

     

                              

                               

                         

                             

                     

                       

                             

                       

             

                                   

               

                             

                             

                             

                                 

       

                                 

                           

                             

                           

                     

           

                           

                           

                            

                           

                             

                           

           

                               

                       

                       

                         

                           

                       

                               

                           

       

                           

                               

                                   

                             

                             

sure they have a voice in remedies that affect the places in which they live, work, play, and worship.

Incorporating Environmental Justice in Enforcement Cases

Our efforts to achieve environmental justice in our enforcement cases are reflected throughout this Report.

For example, our settlement of Clean Air Act claims against Marathon—described in this Report’s section on

addressing air pollution from oil refineries and chemical plants—furthers our efforts to advance environmental

justice in communities like southwest Detroit by requiring improvements in a Detroit refinery that will reduce

emissions that disproportionately affect low‐income and vulnerable populations, including children. The

DELCORA Clean Water Act settlement—described in this Report’ssection on municipal wastewater treatment

systems—will help reduce the direct exposure of low‐income and minority populations to raw sewage, and the

settlement includes important provisions regarding public input from and notification of neighboring commu‐

nities that have suffered disproportionately from pollution.

The following are a few additional examples of how ENRD, in coordination with the U.S. Attorneys’ Offices and

our agency partners, furthered environmental justice in 2016:

	 In United States v. J.S.B. Industries, Inc. et al. (D. Mass.), communities in Chelsea and Lawrence, Massa‐

chusetts will receive needed emergency response equipment as a result of the settlement DOJ and EPA

reached concerning violations in the handling and release of anhydrous ammonia and the use of sulfu‐

ric acid at two wholesale bakeries in Chelsea and Lawrence. The settlement was approved by the court

on August 17, 2016.

The violations alleged include failure to comply with the requirements of the Clean Air Act under which

facilities that use hazardous chemicals must, among other things, take action to prevent accidental

releases and take steps to minimize the consequences of any accidental releases that occur. Additional

violations include a failure to comply with chemical reporting requirements of the Emergency Planning

and Community Right‐to‐Know Act and chemical release notification requirements of the Comprehen‐

sive Environmental Response, Compensation, and Liability Act.

The Chelsea and Lawrence facilities are in densely populated, urban neighborhoods, in close proximity

to residences and other businesses. At JSB’s Chelsea facility, approximately 2,000 pounds of anhydrous

ammonia was accidentally released from a refrigeration system in April 2009. Anhydrous ammonia is

an extremely hazardous chemical that is corrosive to skin, eyes, and lungs, can be immediately danger‐

ous to life and health, and, under certain conditions, is flammable and explosive. The release triggered

a shelter‐in‐place order by local authorities and exposed two firefighters to anhydrous ammonia, one of

whom was hospitalized for medical treatment.

Under the settlement, the defendants will pay a civil penalty of $156,000. The defendants must also

perform a supplemental environmental project (SEP) valued at $119,000. The SEP requires the defen‐

dants to provide emergency response equipment to fire departments serving Chelsea and Lawrence,

both of which are low‐income and minority communities with environmental justice concerns. The

equipment will help these communities better protect their residents and workers by improving their

emergency preparedness and abilities to effectively respond to the release of hazardous chemicals.

In addition to performing the SEP, before DOJ lodged the settlement with the court, the defendants

switched their refrigeration system from anhydrous ammonia to less hazardous liquid nitrogen, at a

cost of over $300,000.

	 School children and low‐income populations will breathe cleaner air as a result of the settlement

reached in United States v. Detroit Diesel Corp. (D.D.C). The settlement, lodged with the court on Octo‐

ber 6, 2016, resolves alleged violations of the Clean Air Act by Detroit Diesel in selling heavy‐duty diesel

engines that were not certified by EPA and did not meet applicable emission standards. Under the

settlement, Detroit Diesel will spend $14.5 million on projects to reduce nitrogen oxide and other pol‐

Making Progress Towards Environmental Justice| 47
       

                       

                           

                           

                                 

                     

                             

                         

                           

                               

                             

                             

                             

                                 

           

                                   

             

                             

                             

                                 

                             

                             

                               

                           

                           

                           

   

         

   

       

       

           

         

         

       

       

         

     

     

         

       

         

       

         

           

       

         

             

   

lutants, including replacing high‐polluting diesel school buses and locomotive engines with models that

meet current emissions standards. Detroit Diesel will also pay a $14 million civil penalty.

The United States’ complaint, filed along with the settlement, alleges that Detroit Diesel violated the

Clean Air Act by introducing into commerce 7,786 heavy‐duty diesel engines for use in trucks and buses

in model year 2010 without a valid EPA‐issued certificate of conformity demonstrating conformance

with Clean Air Act standards to control nitrogen oxide emissions. The complaint also alleges that the

engines did not conform to emission standards applicable to model year 2010 engines.

To mitigate the harm posed by the alleged violations, the school bus and locomotive replacement proj‐

ects required by the settlement will reduce ambient air levels of nitrogen oxide and other pollutants.

EPA will approve where the projects are to be performed, based on various criteria, including whether

the area already does not meet Clean Air Act standards and whether the area includes low‐income

communities. In addition, the school bus program will improve air quality inside school buses by reduc‐

ing exposure to diesel exhaust. Diesel exhaust poses a lung cancer hazard for humans and can cause

non‐cancer respiratory effects such as asthma.

Detroit Diesel is also required to post data and information about the clean diesel projects on a public

website.

Incorporating Environmental Justice in the Defense of Agency Action

An important aspect of ENRD’s work involves defending the environmental or natural resources actions of

federal agencies. The Division has worked to incorporate the principles of environmental justice into our han‐

dling of these cases, which comprise more than half of the Division’s work. ENRD works closely with agencies

to identify defensive cases that present environmental justice concerns, even where the complaint may not

clearly assert that the agency failed to address environmental justice issues adequately. More broadly, in the

context of litigation, the Division actively evaluates the depth of the agency’s analysis and handling of environ‐

mental justice issues as well as the completeness of the decision‐making effort in addressing environmental

justice concerns. Indeed, rather than merely defending agency analysis of environmental justice issues and

decision‐making, ENRD implements Executive Order 12898 by proactively looking for waysto address concerns

of environmental justice commu‐

nities outside of the traditional

litigation context.

One important recent example

involves a settlement the Depart‐

ment announced in July 2016 with

the Navajo Nation, under which

the United States will provide

funding necessary to continue

clean‐up work at abandoned

uranium mines on the Navajo

Nation. Specifically, the United

States will fund environmental

response trusts to clean up 16

priority abandoned uranium mines

located across the Navajo Nation.

The agreement also provides for

evaluations of 30 more abandoned

uranium mines, and for studies of

two abandoned uranium mines

to determine if groundwater or

Abandoned Uranium Mines on and Near Navajo Nation,

Environmental Protection Agency

48 | Making Progress Towards Environmental Justice
                                     

                             

                 

                                 

                           

                                   

                                 

                                   

                                   

                               

                               

                           

                 

                                     

                         

surface waters have been affected by those mines. The legacy of uranium mining on Navajo lands is one of the

most severe environmental justice problems in Indian Country. Land near Navajo homes, roads, grazing lands

and cultural areas has been contaminated by abandoned mines.

The work to be conducted is subject to the joint oversight and approval of the Navajo Nation Environmental

Protection Agency and the United States Environmental Protection Agency (EPA). The United States previously

provided $13.2 million for evaluations at the 16 priority mines in a “Phase 1” settlement executed in 2015.

This “Phase 2” settlement agreement is the next step to ensure cleanup of abandoned mines posing the most

significant risks to people’s health. It also starts the evaluations of additional mines for cleanup in the future.

The Navajo Nation encompasses more than 27,000 square miles within Utah, New Mexico and Arizona in the

Four Corners area. The unique geology of the region makes the Navajo Nation rich in uranium, a radioactive

ore in high demand after the development of atomic power and weapons at the close of World War II. Ap‐

proximately four million tons of uranium ore were extracted during mining operations within the Navajo Na‐

tion from 1944 to 1986. The federal government, through the Atomic Energy Commission (AEC), was the sole

purchaser of uranium until 1966, when commercial sales of uranium began. The AEC continued to purchase

uranium ore until 1970. The last uranium mine on the Navajo Nation shut down in 1986.

Many Navajo people worked in and near the mines, often living and raising families in close proximity to the

mines and mills. Since 2008, federal agencies including EPA, the Department of Energy, Interior and its Bu‐

reau of Indian Affairs, the Nuclear Regulatory Commission and the Indian Health Service have collaborated to

address uranium contamination on the Navajo Nation. The federal government has invested more than $100

million to address abandoned uranium mines on Navajo lands.

EPA has also compiled a list of 46 “priority mines” for cleanup and performed stabilization or cleanup work at 9

mines. EPA work cleaning up mines has generated 94 jobs for Navajo workers.

This settlement agreement resolves the claims of the Navajo Nation pertaining to costs of engineering evalua‐

tions and cost analyses, and cleanups, at the 16 priority mines for which no viable responsible private party has

been identified, as well as the costs of evaluations at another 30 such mines, two water studies, and modest

costs for pre‐assessment of natural resources damages. The area is also seeing results from an earlier settle‐

ment. In April 2014, the Justice Department and EPA announced in a separate matter that approximately $985

million of a multi‐billion dollar settlement of litigation against subsidiaries of Anadarko Petroleum Corp. will be

paid to EPA to fund the clean‐up of approximately 50 abandoned uranium mines in and around the Navajo Na‐

tion, where radioactive waste remains from Kerr‐McGee mining operations. EPA commenced field work with

the proceedsfrom thatsettlement in 2016.

Making Progress Towards Environmental Justice| 49
       

   

                             

                               

                           

                             

                               

                     

                                   

                     

               

                                 

                       

                             

                         

                                     

PARTNERING WITH STATES
 

During 2016, the Division actively promoted cooperative federalism through work with our state partnersto

enforce our nation’s pollution laws and prosecute wildlife traffickers. By teaming up with state partners in

both enforcement and defensive cases, we enhance our ability to meet mutual goals and missions, reduce

costs, and obtain more comprehensive results. We also met throughout the year with numerous state offi‐

cials to exchange views and collaborated regularly with state officials on a wide variety of training opportuni‐

ties.

A key example of our fruitful work with state leadership is the record‐breaking settlement with BP in the

Deepwater Horizon Oil Spill litigation. In April 2016, the United States District Court for the Eastern District of

Louisiana entered the final consent decree in the litigation, thereby resolving civil claims of the United States

and the five Gulf Coast states against BP. The claims arose from the 2010 blowout of the Macondo well and

the resulting massive oil spill in the Gulf of Mexico. Under the consent decree, BP will pay the U.S. and the  

five Gulf States more than $20 billion, including: 1) a $5.5 billion civil penalty; 2) more than $8.1 billion in

natural resource damages; 3) $600 million in further reimbursement of clean‐up costs and some royalty pay‐

ments; and 4) up to $6 billion in economic damage payments for the Gulf States or their local units of govern‐

ment. This resolution is the largest settlement with a single entity in Department of Justice history; it includes

the largest civil penalty ever awarded under the Clean Water Act, the largest ever natural resources damages

settlement and massive economic damages paymentsto our state partners.

ENRD had many other significant state‐federal enforcement actions this year, which highlight cooperative

federalism in action. Not only do we share civil penalties with partnering states in these joint cases, but many

of the communities surrounding the facilities responsible for violations benefit from environmental mitiga‐

tion or supplemental environmental projects funded by the defendants.

In other federal‐state coordinated enforcement efforts involving oil spills in and around the Gulf of Mexico,

ORB Exploration LLC (ORB) agreed to pay civil penalties and state response costs and to implement corrective

measures to resolve alleged violations of federal and state environmental laws stemming from three crude    

oil spills that occurred in 2013 and 2015 from two of ORB’s Louisiana facilities in the Atchafalaya River Basin,

as well as violations of Spill Prevention, Control and Countermeasure regulations at its Frog Lake oil storage

barge. Under a proposed consent decree lodged on Earth Day 2016 in federal court, ORB will pay $615,000 in

federal civil penalties for the spills and other environmental violations, pay $100,000 to the Louisiana De‐

partment of Environmental Quality for civil penalties and response costs, and take measures to improve spill

response preparedness and prevent future oil spills.

ENRD also partnered with Utah to negotiate an agreement with Salt Lake County to resolve alleged Clean

Water Act violations associated with the county’sstormwater management program. The agreement requires

the county to take specific measures to reduce illegal stormwater and non‐stormwater dischargesto Jordan

River Valley surface waters by thoroughly implementing the requirements of its municipal separate storm

sewer system permit. The county also must pay a civil penalty of $280,000 to be split evenly between the

50 | Partnering with States
         

           

BP Deepwater Horizon Oil Spill, Wikipedia

Operation Roadhouse Paddlefish, Missouri Department of Conservation

Partnering with States | 51
 
       

       

                                 

                           

                               

                             

                                 

                             

                                   

                                        

                                       

                            

                                 

                                 

   

                                 

                             

                                   

                                         

                             

                         

                           

                           

                                 

                           

                                     

                     

                             

                             

                                     

                       

                                 

                               

                             

                               

                               

                         

                               

United States and Utah.

In late April, ENRD and the California Department of Toxic Substances Control (DTSC) announced that a group

of 66 companies had agreed to clean up contaminated groundwater at the Omega Chemical Corporation

Superfund Site in Whittier, California, which is across the street from a residential neighborhood and within

one mile of several schools. The site was a refrigerant and solvent recycling, reformulation and treatment

facility that operated from about 1976 to 1991 and involved a number of parties. The settlement requires the

companies to spend an estimated $70 million to install wells and operate a groundwater treatment system

that will clean up the underground water. The defendants will also reimburse EPA and DTSC for their costs

incurred in past cleanup actions at the site. An additional 171 parties that have either sent waste to the site

or operated in the area and contributed to the contamination also agreed to fund a portion of the work. The

drought in California has underscored the importance of protecting groundwater resources by cleaning up

the affected aquifer, and this settlement will make excellent progress toward that goal, as well as put addi‐

tional systems in place to monitor and evaluate the level of contamination, which will guide future work at

the site.

In May, we partnered with the State of Minnesota to settle various claims arising from the Southern Min‐

nesota Beet Sugar Cooperative’s violations of its wastewater discharge permit at its processing facility in

Renville, Minnesota. The consent decree requires for the defendant to pay a civil penalty of $1 million, to be

split equally with the State, for its violations of the Clean Water Act. It also calls for the defendant to spend at

least $5 million to address wastewater treatment plant performance and wastewater storage issues, and to

pay nearly $50,000 in restitution to the State for the associated fish kill.

The Division also continued our cooperative relationship with states in criminal prosecutions this year. For

example, we partnered with state agencies to handle criminal cases that arose from “Operation Roadhouse,”

a covert investigation into trafficking in paddlefish led by U.S. Fish and Wildlife Service and the Missouri

Department of Conservation. We prosecuted eight individuals for wildlife trafficking in violation of the Lacey

Act, with five defendants convicted on felony charges. In addition, as part of this joint effort, the state issued

citations to over a hundred individuals for violations of state law.

To improve our ability to work closely with states on enforcement efforts, prosecutors from ENRD’s Environ‐

mental Crimes Section provided criminal enforcement training to various state partners, including informa‐

tion on the Division’s new Worker Safety Program. Our cooperation with states does not end with environ‐

mental enforcement; we also partnered with statesin defensive cases this year.

For example, ENRD partnered with the State of North Carolina to defend the jointly prepared environmental

analysis of a proposed tollway near Charlotte from a challenge under the National Environmental Policy Act

(NEPA). On June 9, 2016, the U.S. Court of Appeals for the Fourth Circuit affirmed the federal district court’s

ruling that the agencies’ supplemental environmental analysis met NEPA’srequirements. Counsel for the fed‐

eral and state agencies prepared a joint brief in the appeal and shared time at oral argument.

The Land Acquisition Section of the Division also collaborated with U.S. Fish and Wildlife Service to orches‐

trate a land exchange with the South Florida Water Management District. The property acquired by the

United States protects the largest remaining cypress swamp in Palm Beach County, Florida and will be in‐

cluded in the Arthur R. Marshall Loxahatchee National Wildlife Refuge. The property conveyed to the South

Florida Water Management District will facilitate a stormwater management project that will reduce phos‐

phorus levels in water flowing into the Everglades ecosystem, greatly benefiting both the United States and

local government.

Finally, ENRD continued to develop and enhance relationships with our state counterparts by participating in

several forums designed to share experiences and expertise. Last spring, Assistant Attorney General John

C. Cruden had the honor of being the first ENRD Assistant Attorney General invited to speak to the annual

52 | Partnering with States
                             

                             

                         

                       

                     

                               

                           

                               

                       

     

meeting of the Environmental Council of the States, the national association of state and territorial environ‐

mental agency leaders. He joined colleagues from EPA, New Mexico and academia to discuss innovative ways

to measure the success of environmental enforcement. Other ENRD representatives gathered in May with

state investigators and environmental enforcement attorneysfrom around the country at the annual meeting

of the Regional Environmental Enforcement Associations. ENRD attorneys also partnered with the National

Association of Attorneys General to present webinars on topics of mutual interest, such as e‐discovery, and

share expertise regarding federal bankruptcy law in the context of environmental cases. Division attorneys

also participated in a meeting intended to foster cooperation between FWS and state wildlife managers, and

taught wildlife criminal investigators representing seventeen states at a course presented by the Wildlife

Investigators’ Covert Academy.

Partnering with States | 53
         

   

                     

                               

                                 

                               

                               

                       

                                 

                           

                                   

                                 

                       

                         

                         

                               

                                     

                                 

                                     

                                   

                             

                                 

                                 

                                 

                                 

                                   

                                 

                                 

PROMOTINGRESPONSIBLE
 STEWARDSHIP OF AMERICA’S
 WILDLIFE AND
 NATURAL RESOURCES
 

Defending the Bureau of Land Management’s and the Forest Service’s Land Management

Discretion

The Forest Service and the Bureau of Land Management (BLM) manage lands under broad mandates to pro‐

vide for multiple uses. Their statutory authorities require the agencies to balance a variety of interests and

environmental concerns in order to determine the proper mix of uses for public lands. Because the different

kinds of authorized uses on federal lands often conflict, management decisions are frequently the target of

litigation.

In National Parks Conservation Association v. Forest Service (D.D.C.), the Division successfully defended the

Forest Service’s decision authorizing a 24.6‐acre gravel pit on the Dakota Prairie Grassland in North Dakota.

The Division persuaded the court that the Forest Service’s environmental assessment explored a reasonable

range of alternatives, including an exchange of mineral rights, and took the “hard look” at the project’s impacts

required by National Environmental Policy Act (NEPA). The decision has allowed the Forest Service to satisfy its

multiple‐use mission while ensuring that the mining company complies with all legal requirements.

In Center for Biological Diversity v. Forest Service (C.D. Cal.), environmental groups challenged the Forest

Service’s actions in administering water diversion and transmission facilities operated by Nestlé Waters North

America for its Arrowhead Springs bottled water product on the San Bernardino National Forest. The court

ruled in favor of the Forest Service on all claims, holding that a 1978 special use permit for Nestlé’s activities

continued in effect because Nestlé had requested a new permit prior to the 1978 permit’s 1988 expiration

date. And, because the 1978 permit remained in effect until the agency acts on the request for a new permit,

the challenges to the Forest Service’s actions in annually billing Nestlé for use of National Forest System lands

did not constitute challenges to “final agency action” as required for judicial review under the Administrative

Procedure Act (APA). The holding recognizes implicitly that as a result of the agency’s finite resources, it can‐

not as a practical matter complete new or supplemental NEPA analyses before a permit for existing use expires

whenever a permittee applies to renew it. Nor, the court found, does the APA require that result.

The Division continued to build on its recent successes in defending BLM’s commercial timber program in

western Oregon. Last year, the United States Court of Appeals for the District of Columbia Circuit reversed, on

standing grounds, summary judgment in favor of timber industry plaintiffs in Swanson Group Manufacturing

v. Jewell (Swanson I), and the district court thereafter rejected the same groups’ attempt to recast their allega‐

tions in Swanson Group Manufacturing v. BLM (Swanson II). This year, when the same timber industry groups

brought a third challenge to BLM’s western Oregon timber program in Swanson Group Manufacturing v. Jewell

(Swanson III), the Division moved aggressively to shut down those claims.

When the Swanson III timber industry plaintiffs moved for a preliminary injunction requiring BLM to sell a spe‐

cific volume of timber in this fiscal year, the Division mounted a vigorous defense to the motion and simultane‐

ously moved to dismiss based on issue preclusion, lack of standing, and other grounds. The court dismissed

fourteen of the fifteen timber industry plaintiffs for failure to establish standing, and, as to the remaining

54 | Promoting Responsible Stewardship of America’s Wildlife and Natural Resources
   

             

           

Continental Divide Wilderness Area, Bureau of Land Managment

Wildernessin Colorado, Bureau of Land Management

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timber industry plaintiff, denied its motion for a preliminary injunction for failure to establish a likelihood of

success on the merits of its allegations of standing.

Appellate Defense of Forest Service Land Management

On December 3, 2015, in Cascadia Wildlands v. Thrailkill (9th Cir.), the Ninth Circuit affirmed the district court’s

ordering denying plaintiffs’ request for a preliminary injunction. The lawsuit was brought by environmen‐

tal groups who sought to enjoin the Douglas Fire Complex Recovery Project, located in the southern Oregon

Klamath Mountains. They challenged the validity of FWS’s biological opinion, which had concluded that the

Recovery Project was not likely to jeopardize the Northern Spotted Owl or adversely modify its critical habitat.

The court of appeals concluded that the district court had not erred when it determined the plaintiffs had not

demonstrated a likelihood

of success on their merits

claims. Specifically, the

panel concluded the Ser‐

vice had relied upon the

best scientific and com‐

mercial data available in

assessing (1) the predatory

effects of barred owls on

spotted owls, (2) the effect

of wildfire on the spotted

owl’s habitat use, and (3)

the impact of the project

on the spotted owl’srecov‐

ery.

Northern Spotted Owl, National Park Service

On February 26, 2016,

the Ninth Circuit affirmed

the district court’s grant

of summary judgment to

the Forest Service in Friends of Tahoe Forest Access v. United States Department of Agriculture (9th Cir.). This

action, brought by a coalition of motorized recreational groups, challenged the Forest Service’s approval of a

Motorized Travel Management Project on the Tahoe National Forest under NEPA. The plaintiffs asserted on

appeal that the Forest Service did not properly consider and disclose the environmental impacts of motorized

travel, failed to consider a reasonable range of alternatives, and impermissibly limited the analysis of cumula‐

tive environmental impacts. The panel rejected all of the plaintiffs’ claims. The panel explained that the Forest

Service had engaged “in a robust public process” to develop a reasonable range of alternatives and that the

plaintiffs had failed to show how consideration of more alternatives would have fostered “more informed deci‐

sion making.” The panel also found that the Forest Service reasonably limited its analysis of cumulative im‐

pacts to the Tahoe National Forest boundaries. Even though there could be some impacts outside the Forest,

it was reasonable for analysis to be limited to the Forest’s boundaries because the Forest was the scope of the

project area, considering a larger spatial area would result in a loss of “site specificity” “among all the assump‐

tions,” and impacts across a larger geographic area were speculative.

On August 22, 2016, the California Supreme Court unanimously upheld that state’s legislative ban on the use

of suction dredges for mining throughout the state in People v. Rinehart (Ca. Sup. Ct.). After Brandon Rine‐

hart was caught mining illegally on National Forest System lands, he argued that the state law was preempted

by the federal Mining Law of 1872. The California Court of Appeal agreed, holding that because the use of a

suction dredge was the only “commercially practicable” method of extracting gold from his claim, the state

law posed an “obstacle” to Congress’s intent to encourage the free and open exploration of mineral deposits

on federal lands. The California Supreme Court reversed. The Court agreed with the position set forth in an

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amicus curiae brief filed by the Division, finding that the text of the Mining Law of 1872 concerns itself with

property rights and assignment of title, and therefore only preempts state law “with respect to laws governing

title. In other areas, state and local law are granted free reign.” The Court therefore concluded that it was not

the intent of Congress to permit mining on the public lands absent any environmental regulation by the State.

Protecting United States’ Property Interests

The Division obtained a favorable decision in Silver States Land LLC v. Beaudreau (D.D.C.), where a land de‐

velopment company sought an injunction forcing the Secretary of the Interior to issue a patent to a 480‐acre

parcel of public lands in Nevada. BLM had initially offered the parcel for sale under a modified competitive

bid process based on representations that the land would be used to develop a professional sports arena and

other facilities consistent with a development agreement between the development company and the City of

Henderson, Nevada. After submitting the highest bid and depositing the full purchase amount into escrow,

however, the company terminated the development agreement. Interior then withdrew the sale and the Divi‐

sion successfully defended that decision in district court. The court found that the Secretary of the Interior is

authorized to stop consummation of unlawful sales of public lands, based on long‐standing principles relating

to the general statutory mandate for Interior and the Secretary to manage public lands. It held that this broad

plenary authority remains intact absent a contrary statutory provision, and that nothing in the Federal Lands

Policy and Management Act (FLPMA) compels the issuance of land patents or limits the Secretary’s author‐

ity to terminate public land sales. On December 16, 2016, the D.C. Circuit unanimously affirmed the district

court’s grant of summary judgment.

Preventing Illegal Grazing on Public Lands

In a long‐standing dispute between federal land managers and a Nevada ranching family, the Division had

significant successes both on appeal and on remand after appeal. The United States sued ranchers (the Hages)

in trespass seeking injunctive relief and damages for persistent unauthorized grazing use of federal lands in

violation of federal grazing regulations. The district court, among other things, substantially denied recovery   

in trespass on the ground that ranchers, who were owners of stockwater rights on federal grazing lands, have    

a defense to any trespass action where grazing occurs within one‐half mile of a water source in which they  

hold rights. The district court also concluded such water‐right owners hold an implied half‐mile access ease‐

ment that allows grazing associated with moving cattle to such water sources. These associated grazing rights

applied regardless of whether they hold grazing permits for the land on which the grazing occurs. The district

court also granted relief on a counterclaim that the United States violated Hage’ssubstantive due process  

rights by failing to renew permits in the 1990s. It directed the Hages to apply for grazing permits, and ordered

BLM and the Forest Service to grant the permits, along with other injunctive relief. The district court addition‐

ally held BLM and Forest Service employees in contempt for taking administrative enforcement actions direct‐

ed at cattle grazing in the area where the defendants’ cattle were found, thereby interfering with the court’s

jurisdiction over this trespass action. The United States appealed all of those rulings, and the employees that

had been held in contempt separately appealed the contempt ruling.

On January 15, 2016, in United States v. Estate of E. Wayne Hage (9th Cir.), the Ninth Circuit unanimously re‐

versed the district court on all issues. It held that the rancher’s stockwater rights are irrelevant to the require‐

ment to obtain federal grazing permits, and merely provide the holder of the rights with a priority for the grant

of grazing permits. It vacated the rulings on the Hages’ counterclaims regarding substantive due process on  

the ground that litigation of those claims was barred by the statute of limitations. It also held that the district

court “grossly abused” the contempt power by holding federal employees in contempt for taking lawful actions

within the scope of their employment. Finally, the court approved the United States’ request that the case be

reassigned on remand. The court held that the judge’s conduct reflected “both pre‐judgment of the merits  

and bias against the federal agencies” and that this same judge had demonstrated similarly improper conduct

in a number of prior cases. It vacated the judgment and remanded for determination of trespass damages by a

different federal judge.

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Following the Ninth Circuit’s remand, a newly‐assigned district court judge announced rulings from the bench,

finding that Wayne N. Hage was responsible for placing cattle on federal lands and liable for $555,040.50 for

trespass on lands administered by the BLM and $11,791.34 for trespass on National Forest System lands. The

court found that an injunction requiring Mr. Hage to remove his cattle and cattle in his control from the federal

lands was justified. The court stayed entry of judgment while the defendants sought certiorari, but the Su‐

preme Court denied their petition for certiorari on October 17, 2016.

Successful Defense of Stewardship of National Park Lands

The Division secured a favorable decision in National Parks Conservation Association v. Department of the

Interior and Public Employees for Environmental Responsibility v. Salazar (M.D. Fla.), a case involving a chal‐

lenge to NPS’s February 2011 Record of Decision and 2010 General Management Plan, Wilderness Study, Off 

Road Vehicle Management Plan, and Environmental Impact Statement for the “Addition Lands” of Big Cypress

National Preserve, as well as the U.S. Fish and Wildlife Service’s (FWS) related 2010 Biological Opinion. The

groups challenging the agencies’ decisions asserted claims under NEPA, ESA, the Wilderness Act, the Organic

Act, the Enabling Act, Executive Orders 11,644 and 11,989, and the Federal Advisory Committee Act (FACA).

Following a favorable decision in 2014, the Eleventh Circuit affirmed the district court’s ruling, stating that “Ap‐

pellants’ arguments can be reduced to a disagreement regarding the NPS’s and FWS’s ultimate conclusions. It

is unsurprising that reasonable minds can differ regarding the interpretation of the copious amount of data

upon which the NPS and FWS relied when making their decisions . . . it is beyond the power of Appellants and

this Court to second guess these agencies’ reasoned decision‐making.”

Successful Implementation of the Endangered Species Act

Congress enacted the Endangered Species Act (ESA) “to provide a means whereby the ecosystems upon which

endangered and threatened species depend may be conserved, [and] to provide a program for the conserva‐

tion of such endangered species and threatened species.” Congress authorized the Departments of the In‐

terior and Commerce, acting through the FWS and National Marine Fisheries Service (NMFS) respectively, to

achieve this objective by listing imperiled species, designating critical habitat for such species, and then apply‐

ing the protections of the ESA. Such decisions are often challenged.

In 2016, ENRD attorneys achieved favorable results in several cases, thereby allowing full and effective imple‐

mentation of the Act and its protections. For example, in Carpenters Industrial Council v. Jewell (D.D.C.),

Division attorneys obtained the court’s dismissal of a challenge to FWS’s designation of critical habitat for the

threatened Northern spotted owl. Accordingly, the important conservation tool of critical habitat designation

remains in effect.

Appellate Defense of ESA Implementation

On February 29, 2016, the Ninth Circuit unanimously reversed the district court’s order vacating FWS’sfinal

rule designating critical habitat for the polar bear under the ESA in Alaska Oil & Gas Association v. Jewell (9th

Cir.). The district court had faulted FWS for failing to identify specifically where and how polar bears use the

portions of critical habitat designated as Units 2 and 3. The court further faulted FWS for failing, under ESA §

4(i), to provide the State of Alaska with an adequate “written justification” for not adopting a final rule consis‐

tent with the State’ssubmitted comments. On appeal, the panel agreed with FWS that the district court held

it to a standard of specificity that the ESA does not require. The panel reviewed FWS’s designations of Units 2

and 3, and found their inclusion supported by the administrative record. The court also found that FWS had

provided adequate “written justification” to Alaska under § 4(i). The panel rejected the district court’s ruling

that FWS had to include all of its responses to the State in its letter to the State and could not cross‐reference

to the Final Rule. The Court explained that nothing in the text of § 4(i) imposed a “one document” rule, and

instead the only requirement is that the justification be in writing. Nothing prevented FWS from referencing

other publicly‐available documents in support of its justifications. The court also ruled that FWS reasonably

mailed the letter to the Governor, instead of the State Wildlife Management Agency, given that the State’slet‐

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ters appeared to be speaking for the State rather than any of the agencies listed.

On March 1, 2016, the D.C. Circuit upheld FWS’s decision not to list the dunes sagebrush lizard as endangered

under the ESA in Defenders of Wildlife v. Jewell (D.C. Cir.). The court rejected the plaintiffs’ claim that the Ser‐

vice’s decision was arbitrary and capricious in relying on a voluntary conservation plan by the Texas Comptrol‐

ler for avoiding and limiting the loss of the lizard’s habitat, which overlies a highly productive area for oil‐and‐

gas development. Finding the Service’s conclusions about the Texas plan supported by substantial evidence,

the court rejected as unpersuasive plaintiffs’ arguments that the plan was insufficiently certain to be imple‐

mented or to be effective under the Service’s own policy.

On June 30, 2016, the Fifth Circuit upheld FWS’s designation of approximately 1,500 acres of privately‐owned

timber land as critical habitat for the endangered dusky gopher frog. In Markle Interests, PLC v. U.S. Fish and

Wildlife Service (5th Cir.),

FWS had found that this

parcel, which is not current‐

ly occupied by the frog, was

“essential” to the conserva‐

tion of this species because

it: (1) formerly supported   

a population of frogs; (2)

contains a unique and rare

grouping of ephemeral

ponds within a woodland

that, while not currently

good upland habitat, could

be converted thereto; and

(3) is far enough away from

the confined area currently

occupied by the frog that  

it could serve as a refuge

in case of disaster. The

panel majority deferred to

the Service’s interpretation of “essential” habitat as including areas that would require some modification

before they could serve the needs of the species, where, as here, the Service had shown that the best avail‐

able science indicated that the parcel was uniquely valuable and necessary to support recovery of the species.

The dissent complained that the Service had stretched the meaning of “essential” beyond the bounds of the

statute where, in the dissent’s view, there was no reasonable probability that the parcel would in fact ever be

useful to the frog, given that the upland areas would require modification and the landowners were not will‐

ing to cooperate with any effort to reintroduce the frog. The majority also rejected plaintiff’s contention that  

it was arbitrary and capricious not to exclude their property from the designation on grounds of economic

impact, holding—consistent with two recent Ninth Circuit decisions—that determinations not to exclude from

critical habitat on grounds of economic impact are entirely discretionary and thus unreviewable under 5 U.S.C.

§ 701(a)(2). It next rejected the landowners’ argument that designation of unoccupied private land as critical

habitat in these circumstances is beyond the reach of the Commerce Clause. The Court found that while the

designation of this land may not have a direct relationship to commerce, it nevertheless survives constitutional

muster because it is an essential part of an economic scheme to preserve the value (including economic value)

of endangered and threatened species, and without the ability to designate in these circumstances the regula‐

tory scheme could be undercut by piecemeal extinction. Finally, the Court found that the National Environ‐

mental Policy Act did not apply to critical habitat designations, because the designations do not result in any

physical changes to the environment.

Dusky Gopher Frog, Fish & Wildlife Service

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On August 15, 2016, the Ninth Circuit upheld BLM’s Recreational Area Management Plan for the Algodones

Dunes, a popular off‐highway vehicle destination in Southern California, in Center for Biological Diversity v. BLM

(9th Cir.). Plaintiffs claimed that the biological opinion for the Plan violated the ESA because it did not include

an incidental take statement for the Peirson’s milk vetch, a threatened plant species. The Ninth Circuit

rejected that argument, holding that because the ESA’s definition of “take” only applies to fish and wildlife, not

to plants, and the ESA’s prohibition against take does not include plants, there was no need for an incidental

take statement. The panel also rejected the plaintiffs’ Clean Air Act emissions‐level arguments, holding that

BLM’s factual assumptions about off‐highway vehicle use at the Dunes were supported by substantial evidence

in the record and that its choice of scientific methodology was reasonable.

Supporting Land Management Decisions Designed to Restore Forest Health and to Protect

Federal Lands from Catastrophic Fire

In response to threats from drought, wildfire, and climate change, the Forest Service identifies and conducts

vegetation management projects designed to help restore forest health and resilience. These decisions are

often subject to judicial challenge by those opposed to any activities in National Forests or by industry entities

who believe that greater economic access should be allowed. Such cases often involve a range of issues, in‐

cluding ESA issues, because the Forest Service must balance the needs of ESA‐listed species as part of its direc‐

tive to manage the National Forest system for multiple purposes. The Division continues to be a strong partner

with the agency, defending these projects as they are challenged in court – often on an emergency basis.

	 In Alliance for the Wild Rockies v. Savage (D. Mont.), the Division successfully defended the East Res‐

ervoir Project on the Kootenai National Forest. This ten‐year project authorizes timber harvest and

other vegetation management treatments to restore a landscape in northwest Montana and to make it

more resilient to disturbance, including wildfire, insect damage, and climate change. The Forest Service

developed the project with extensive input from the Kootenai Forest Stakeholders Coalition, a diverse

group of local organizations and governmental entities interested in responsible forest management.

	 In Native Ecosystems Council v. Marten (D. Mont.), the Division prevailed in a challenge to the East

Deerlodge Project, on the Beaverhead‐Deerlodge National Forest in Montana, allowing critical forest

restoration work to go forward.

	 In Alliance for the Wild Rockies v. U.S. Forest Service (D. Idaho), the Division succeeded in the defense

of the Lost Creek‐Boulder Creek Landscape Restoration Project, allowing approximately 17,700 acres of

timber harvest and forest health activities on the Payette National Forest to proceed.

	 In Native Ecosystems Council v. U.S. Forest Service (D. Mont.), the Division successfully defended the

Rendezvous Project, a forest health project on the Gallatin National Forest in Montana.

	 In Conservation Congress v. U.S. Forest Service (E.D. Cal.), the Division successfully defended, in both

preliminary injunction and summary judgment proceedings, the Shasta‐Trinity National Forest’s Porcu‐

pine Project, a large project designed to thin over‐crowded and diseased tree stands to improve habitat

for the northern spotted owl.

	 In Conservation Congress v. U.S. Forest Service (E.D. Cal.), the Division successfully defended the Harris

Vegetation Management Project on the Shasta‐Trinity National Forest. The Harris Project authorized

timber thinning and other vegetation management treatmentsto reduce fire risk and improve habitat

for the California spotted owl.

The Division has also worked successfully with the Forest Service to defend the agency’s efforts to salvage tim‐

ber killed by wildfire. The agency’s ability to recover commercial value from burned trees, to restore disturbed

landscapes and to prevent fire‐damaged wood from contributing to future fire risk requires these projects to

proceed quickly. Thus, our salvage sale litigation generally involves short turn‐around emergency motions

practice.

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	 For example, the Westside Fire Recovery Project was developed by the Forest Service in response to

the massive 2014 wildfires in the Klamath National Forest. In Karuk Tribe v. Stelle (N.D. Cal.), the Divi‐

sion prevailed on a motion for a temporary restraining order and preliminary injunction, allowing this

important salvage work to proceed.

	 In Alliance for the Wild Rockies v. Bulletts (D. Utah), the Division successfully defended the Iron Springs

Vegetation Improvement and Salvage Project on the Dixie National Forest in Utah.

Defending National Marine Fisheries Service’s

Management of Ocean Fisheries

The Magnuson‐Stevens Fishery Conservation and Man‐

agement Act (MSA) and other related statutes charge

the National Marine Fisheries Service (NMFS) with the

difficult task of managing ocean commercial fishing to

provide for conservation and sustainable fishing while,

at the same time, optimizing fishing yield. In FY 2016,

ENRD again successfully defended various fishery man‐

agement actions necessary to meet these objectives.

In Goethel v. Pritzker (D.N.H.), ENRD attorneyssuc‐

cessfully turned back a sweeping constitutional and

statutory challenge to NMFS’s program for enforcing

the rules governing the Atlantic groundfish fishery off 

the coast of New England. In Etheridge Seafood Co.

v. Pritzker (E.D.N.C.), Division attorneys defeated a

similar challenge to NMFS’s program establishing an

individual bluefin quota system to reduce bycatch of

Atlantic bluefin tuna by pelagic longline vessels. This

year, ENRD attorneys also obtained favorable decisions

upholding regulations implementing the Gulf Coast

Reef Fish Fishery Management Plan in Coastal Conser‐

vation Association v. Pritzker (E.D. La.), specifications

and management measuresfor the Atlantic herring

fishery in Flaherty v. Locke (D.D.C.), and NMFS’s quota‐

shifting rule that annually sets harvest limits for bigeye tuna in the U.S. territories of Guam, American Samoa,

and the Commonwealth of the Northern Mariana Islands in Conservation Council for Hawaii v. NMFS (D. Haw).

Through these cases, Division attorneys assured that the MSA’s objectives of providing for sustainable fisheries

without causing undue economic hardship are realized.

Lost Creek Boulder Creek Landscape Restoration Project

Payette National Forest, Department of Agriculture

Fair enforcement of fishery regulations is also critical to NMFS’sfishery program. Consistent with that objec‐

tive, in Bolton v. Pritzker (W.D. Wash.), ENRD attorneyssuccessfully defended NMFS’s penalty assessment of

$223,905 for the illegal harvest of 1.2 million pounds of Pacific cod in the Western Gulf of Alaska. Similarly, in

Pacific Ranger, LLC v. Pritzker (D.D.C.), ENRD attorneyssuccessfully defended NMFS’s penalty assessment of

$127,000 for setting purse seine fishing gear on whales during five tuna‐fishing expeditions in violation of the

Marine Mammal Protection Act and Western and Central Pacific Fisheries Convention Implementation Act.

Enforcement of these requirements is essential to ensuring that fisheries are being harvested in a responsible

and sustainable manner while, at the same time, maintaining a level playing field for all participants.

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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 vul‐

nerable wildlife by regulating trade in species

that are threatened with extinction as well as

speciesthat are not necessarily threatened

with extinction at present but may become

so unless trade in such species is subject to

strict regulation. CITES ensures that trade

in these species is regulated and sustainable

by way of standardized import and export

permits and other mechanisms.

Pacific Cod, Wildlife & Marine Resources Section

Of note this past year was Safari Club International v. Jewell (D.D.C.), involving a challenge by hunting organi‐

zations under the ESA and CITES to the FWS’s decision to suspend the importation of sport‐hunted elephant

trophies from Zimbabwe. Due to changed circumstances for the worse in Zimbabwe, FWS announced a prohi‐

bition on further importation of elephant trophies from there until further review could be undertaken. Hunt‐

ing interests challenged the

moratorium. After  

briefing by ENRD attorneys,

the Court affirmed FWS’s

decision, thereby allowing

the prohibition to remain in

effect and provide needed

protections to the el‐

ephants.

Co‐Chairing the Presi‐

dential Task Force on

Wildlife Trafficking

Illegal trafficking in wildlife,

plants and timber, and ma‐

rine creatures has reached

epidemic proportions. It is

both a critical conservation

concern — threatening the

survival of many species

throughout the world — and a growing threat to regional stability and global security that requires increased

attention. The United States’ efforts to tackle this crisis are coordinated through the Presidential Task Force

to Combat Wildlife Trafficking, established by President Obama through Executive Order on July 1, 2013. The

Division representsthe Department of Justice on this Task Force, which is co‐chaired by the Attorney General

and the Secretaries of State and the Interior or their designees. The Task Force also includes senior‐level rep‐

resentativesfrom 14 additional federal departments and agencies, including the Departments of Commerce,

Defense, Treasury, Agriculture, and Homeland Security, as well as the United States Agency for International

Development (USAID) and the Office of the Director of National Intelligence.

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African elephants, Fish & Wildlife Service

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The Task Force developed the first‐ever National Strategy for Combating Wildlife Trafficking, which was issued

by the President on February 12, 2014. The Strategy reflects a “whole‐of‐government” approach that will both

strengthen anti‐trafficking efforts already underway in ENRD and other federal agencies and elevate illegal

wildlife trafficking as a priority for additional agencies whose missions include law enforcement, trade regula‐

tion, national security, international relations, and global development. The Strategy identified three strategic

priorities that the Task Force deemed critical to combating wildlife trafficking: strengthening domestic and

global enforcement, reducing demand for illegally traded wildlife, and building international cooperation and

public‐private partnerships. In February 2015, the Task Force issued an implementation plan for the Strategy,

which recognized that achieving the Strategy’s goals would require a significant and sustained commitment

over the long term and identified both short‐ and long‐term next steps toward each of the objectives set out in

the Strategy. The Division continues to work in concert with the other Task Force agencies to carry out its

responsibilities under the Strategy and Implementation Plan.

Coinciding with the celebration of World Wildlife Day in March 2016, the Task Force agencies held public

events at the State Department and Great Hall of the Department Justice to issue the first‐ever Annual Prog‐

ress Assessment. The Division took the lead role in drafting this report, which documents the Task Force agen‐

cies’ progress in implementing the National Strategy and describes the actions of multiple federal agencies,

working worldwide, to counter wildlife trafficking in accord with each of the Strategy’s three objectives.

The Division’s primary role in stopping wildlife trafficking is direct enforcement of wildlife trafficking laws. We

work closely with investigative agencies throughout the government to prosecute high‐level traffickersin an

effort to take the profit out

of wildlife trafficking. ENRD

also works closely with

other Task Force agencies  

to increase capacity to

combat wildlife trafficking,

both at home and abroad.

For example, in fiscal year

2016, with funding from the

Department of State and as‐

sistance from USAID, ENRD

continued to implement a

series of regional capacity

building workshops on wild‐

life trafficking for judges  

and prosecutors in Africa.

ENRD conducted two work‐

shops, one for six southern

African countries (Angola,

Botswana, Malawi, Mozam‐

bique, Namibia, and Zambia) in Windhoek, Namibia, and a second for five west/central African nations (Gabon,

Ghana, Nigeria, Republic of Congo and Togo) in Accra, Ghana. In all, nearly 70 judges and prosecutors were

trained by ENRD prosecutors and lawyers as well as subject matter experts from federal enforcement partners

(NOAA, FWS and FBI), the U.N. Office on Drugs and Crime, and anti‐trafficking NGOs. The workshops included

sessions on evidentiary and prosecutorial issues unique to wildlife trafficking cases, money laundering, asset

tracing, corruption issues, and the related natural resource crimes of illegal logging and illegal fisheries.

Zambia Training Workshop Participants, Law and Policy Section

The high priority given by the Division to combating wildlife trafficking is also reflected in our efforts, often

taken in conjunction with other Task Force agencies, to build international commitment and cooperation in this

area, including:

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•	 Assistant Attorney General John C. Cruden led the U.S. inter‐agency delegation to the Hanoi Conference

on Illegal Wildlife

Trade in November

2016. The Confer‐

ence provided an im‐

portant opportunity

for the more than  

50 nations gathered

together to discuss

implementation of

the commitments

made at the prior

Conferences on Il‐

legal Wildlife Trade

held in Kasane in

2015 and in London

in 2014.

	 Assistant Attorney

General Cruden

joined the other Task

Force co‐chairs and

gave multiple presentations on counter‐wildlife trafficking and the vital role of public environmental

prosecutors at the World Conservation Congress of the International Union for the Conservation of

Nature held in Honolulu, Hawaii in September 2016.

Assistant Attorney General John Cruden with Prince William, Duke of Cambridge in

Vietnam, Department of Justice

	 Assistant Attorney General Cruden also joined the State Department and other agencies from the Presi‐

dent’s Wildlife Trafficking Task Force in discussing strategies for combating wildlife trafficking in connec‐

tion with the U.S.‐China Strategic & Economic Dialogue held in Beijing, China, in June 2016.

•	 Division attorneys

continued their

longstanding par‐

ticipation in the

U.S. delegation to
   

the Conference of
 

the Partiesfor the
 

Convention on In‐

ternational Trade in
 

Endangered Species
 

(CITES). The seven‐

teenth such Confer‐

ence of the Parties—
 

CoP17—was held in
 

September‐October
 

2016 in Johannes‐

burg, South Africa.
 

Division attorneys
 

joined FWS and
   

other federal agen‐

cies in advancing the
 

positions of the U.S.
 

on numerous propos‐

alsseeking stronger
 

CITES Display in the Hong Kong Airport, Department of Justice

64 | Promoting Responsible Stewardship of America’s Wildlife and Natural Resources
   

                           

                         

                                 

                                 

                       

         

             

protections for endangered and threatened species around the globe. They also attended the global

meeting of regional Wildlife Enforcement Networks and the meeting of Interpol’s Wildlife Crime Work‐

ing Group, both of which were held in conjunction with CoP17. This year’s meeting was considered by

many one of the most successful international efforts to improve the goals of CITES. All the proposals

the United States submitted were adopted, including proposals addressing law enforcement and other

efforts to combat wildlife trafficking.

Accra training in June 2016, Department of Justice

Promoting Responsible Stewardship of America’s Wildlife and Natural Resources | 65
             

   

   

                             

                             

                           

                           

                             

                           

                               

                     

     

           

                             

                             

                              

                           

                         

                                 

                                   

                 

ENFORCING THE NATION’S
 CRIMINAL POLLUTION
 AND WILDLIFE LAWS
 

The Environmental Crimes Section (ECS), in partnership with U.S. Attorneys’ Offices and a host of federal

investigative agencies, is responsible for prosecuting criminal violations that arise under a wide variety of

environmental statutes. As described below, ECS’s work this year included several successful multi‐district, as

well as transnational, prosecutions. ECS’s work can be broken into two broad categories: enforcement of the

laws designed to protect the environment, public, and workers from unlawful pollution; and enforcement of

laws designed to protect wild animals and plants from unlawful poaching, harvesting, profiteering, and other

harms. In addition, ECS’s prosecutions in each of these categories may include general criminal violations such

as conspiracy, false statements, obstruction of justice, smuggling, and wire fraud.

Incorporating New Practice Areas

Creating a Safer Workplace for all Americans

On December 17, 2015, the Department of Justice entered into a Memorandum of Understanding with the

Department of Labor establishing a process and framework for coordination with respect to enforcing federal

workplace safety statutes. On that same day, Deputy Attorney General Sally Yatesissued a Memorandum for

all U.S. Attorneyssetting forth amendments to the U.S. Attorneys’ Manual that transfer the responsibility for

criminal worker safety prosecutions, shared with U.S. Attorneys’ Offices, to ECS; specifically criminal prosecu‐

tions under the Occupational Safety and Health Act, the Mine Safety Act, the Migrant and Seasonal Agricultural

Worker Protection Act, and the Atomic Energy Act. The result has been an appreciable increase in the number

of worker safety investigations and prosecutions across the nation.

For example, in August 2016, Wood Group PSN entered into a global plea agreement to resolve criminal activ‐

ity in both the Western and Eastern Districts of Louisiana, and were fined a total penalty of $9.5 million in Unit‐

ed States v. Wood Group

PSN (E.D. La., W.D. La.). In

the Eastern District of Loui‐

siana, Wood Group pleaded

guilty to a Clean Water Act

violation for the illegal dis‐

charge of oil into the Gulf of

Mexico. The charge arose

out of the 2012 explosion

on an oil production plat‐

form that killed three work‐

ers, injured several more,

and discharged 500 barrels

of oil into the water. For

this offense, Wood Group

was sentenced to pay a $1.8

million fine, and make a Wood Group 2012 Oil Rig Explosion, Environmental Crimes Section

66 | Enforcing the Nation’s Criminal Pollution and Wildlife Laws
     

           

       

Flower Garden Banks, National Marine Sanctuary, NOAA

Rhino horns, Department of Justice

Enforcing the Nation’s Criminal Pollution and Wildlife Laws | 67
 
             

                           

       

                                 

                             

                                 

                                       

                                   

                                   

                                   

                             

                               

               

       

             

                                 

                               

                                     

                             

                                 

                           

                                 

community service payment of $200,000 to the National Marine Sanctuary Foundation to benefit the Flower

Gardens National Marine Sanctuary.

In the Western District of Louisiana, Wood Group PSN pleaded guilty to one false statement charge for creat‐

ing approximately 87 false documents that were required to be maintained under the Outer Continental Shelf

Lands Act. The company claimed in these documents to have inspected and serviced oil platforms when, in

fact, it had not. For this offense, the company was sentenced to pay a $7 million fine and make a $500,000

community service payment, which will be paid as follows: $300,000 to a FWS project that will entail the con‐

struction of oyster reef structures and the creation of an abatement area to protect the shoreline, marsh and

fisheries habitat. The reduction of erosion will also protect a nearby highway that is used as a major hurricane

evacuation route for the area. In addition, $100,000 will be allocated to the Barataria‐Terrebonne National

Estuary Program for habitat restoration, $50,000 will go to the Nature Conservancy for local projects, and

$50,000 will go to the Southern Environmental Enforcement Network.

Protecting the Welfare of Animals

In late 2014, the Department designated ENRD as the Main Justice component responsible for coordinating

enforcement efforts under the six major federal animal welfare statutes, including the Animal Welfare Act,

Animal Fighting Prohibition Act, Horse Protection Act, Humane Slaughter Act, Twenty‐Eight Hour Law, and the

Animal Crush Video Prohibition Act. Some of these offenses—such as dog fighting—are often committed by

highly organized interstate criminal enterprisesthat attract an array of other illegal activities which threaten

public safety. And even in

large‐scale commercialset‐

tings, such as animal exhibi‐

tors, slaughterhouses and

horse shows, the enforce‐

ment of animal welfare

laws is critical to ensuring

not only the integrity of our

legal system, but an       

even playing field for those

commercial actors who are

complying with humane

standards.

Since animal welfare en‐

forcement was added to

ENRD’s portfolio, we have

undertaken a comprehen‐

sive effort to build this new

program area. We have

conducted training and

outreach to Department attorneys and client agencies. We have established a working relationship with the

USDA, regularly discussing enforcement authorities, strategies, and cases.

Chained Dog in a Barrel, Environmental Crimes Section

This year, in a coordinated effort across numerous federal districts to combat organized dog fighting, we filed

criminal complaints in the District of New Jersey against nine defendants in a multi‐state dog fighting con‐

spiracy. On the civil side, the Animal Welfare Act also authorizes the civil forfeiture to the United States of any

animals involved in animal fighting ventures. When agents served warrants and raided multiple residences in

New Jersey, Indiana, and New Mexico as part of the criminal investigation of suspected dog fighting operations,

79 dogs were seized. Complementing the criminal prosecutions, attorneys from the Wildlife and Marine Re‐

sources Section successfully negotiated the surrender of 71 of the 79 dogs rescued from these suspected dog

68 | Enforcing the Nation’s Criminal Pollution and Wildlife Laws
     

                         

                                     

         

                                       

                           

                         

                           

                                             

                                     

                               

                             

                   

   

   

     

                                 

                             

                                 

                               

                                     

                             

             

                                     

                                 

                             

                               

                                     

                                   

         

                           

                                 

                                     

               

                             

fighting operations, making them potentially available for immediate adoption. ENRD attorneys in conjunction

with the United States Attorney’s Office for the District of New Jersey filed an in rem action seeking civil forfei‐

ture of the remaining dogs.

We were also pleased to engage more broadly with our federal and state partners in this new practice area. In

May, Deputy Assistant Attorney General Jean Williams represented the Department before the U.S. Sentencing

Commission to support increasing the recommended penalties for animal fighting violations. The Commission

voted to adopt this recommendation and, among other changes, it increased the recommended penalties for

the blood sport from a base offense level of 10 (a range of 6‐12 months) to a base offense level of 16 (a range

of 21 to 27 months). The Division also worked with the Office of Justice Programs to co‐host a roundtable dis‐

cussion on federal, state, and local cooperation in animal welfare enforcement, drawing over 100 leaders from

the federal and state law enforcement communities as well as national law enforcement and animal protection

organizations. The roundtable began an important dialogue on information‐sharing, cross‐referrals, and joint

task forces.

Protecting the Environment

Prosecuting renewable fuel fraud

ECS, in partnership with U.S. Attorneys’ Offices and criminal investigatorsfrom EPA, the Secret Service, the

Internal Revenue Service, the Securities and Exchange Commission, the Department of Transportation, and the

Federal Bureau of Investigation, continued its efforts to combat fraud in the renewable fuels arena. Through

the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, Congress obligated      

fuel producers and importers to produce specific annual volumes of renewable fuel. Accordingly, EPA cre‐    

ated Renewable Fuel Standards(RFS), and established Renewable Identification Numbers (RINs) to track these

volumes of fuel. EPA also developed an EPA‐moderated transaction system (EMTS) to facilitate RIN trading. By

buying and retiring RINs, petroleum producers and importers can meet their renewable fuel obligations. They

usually purchase the RINs from other,specialized, renewable fuel businesses, often through brokers, typically,

buying batches of several thousand RINs at a time, for thousands of dollars per batch.

Biodiesel is one of the most important renewable fuels covered by the RFS. Congress established tax credits

for people who blend biodiesel with petroleum diesel. The credit is designed to incentivize biodiesel produc‐

tion; blending (which can involve less than 1% petroleum diesel) is the event that triggers payment of the

subsidy.

Criminals have discovered it can be quite lucrative generate RINs without producing the volume of renewable

fuel that a RIN represents, and to obtain IRS’s blender’s tax credit for biodiesel that had already been blended

and used to obtain the credit. ECS and its partners successfully prosecuted several individuals and corpora‐

tions involved in such fraud in 2016.

For example, in the renewable fuel fraud case titled United States v. Chris Ducey, et al. (E‐biofuels) (S.D. Ind.), E‐

biofuels (a company owned and operated by Brian Carmichael and the Ducey brothers, Chris, Chad, and Craig)

manufactured biodiesel in a Middletown, Indiana plant. In late 2009, Joseph Furando, Katirina Tracy, Caravan

Trading Company, and CIMA Green began supplying E‐biofuels with biodiesel that had already been used to

claim tax credits and RINs, thus allowing Furando to purchase the biodiesel at prices more than $2 per gallon

less than biodiesel that was still eligible for the credits. The biodiesel was then illegally re‐certified and sold at

a much higher market price.

The defendants realized substantial per‐gallon profits through this scheme, sometimes in excess of $12,000 per

truckload. Over the course of approximately two years, they fraudulently sold more than 35 million gallons of

fuel for a total cost of over $145.5 million. The defendants realized more than $55 million in gross profits, at

the expense of their customers and U.S. taxpayers.

 Furando, Caravan Trading and CIMA Green pleaded guilty to all charges: conspiracy, wire fraud, false

Enforcing the Nation’s Criminal Pollution and Wildlife Laws | 69
             

                     

         

                                 

                                 

                     

                             

                           

                         

             

                             

     

                               

                               

                                 

                               

                         

                         

                     

                               

                                   

                       

         

                                   

                             

                               

                               

                             

                     

                                       

statements, obstruction, engaging in prohibited financial transactions, and money laundering. Furando

wassentenced to 20 years’ incarceration.

	 The Duceys pleaded guilty to conspiracy, false claims against the IRS, wire fraud, and lying to the EPA

and the IRS. In addition, Craig Ducey pleaded guilty to a related $58.9 million securities fraud, which

victimized more than 625 investors and shareholders of Imperial Petroleum, a publicly‐traded company

and the parent company of E‐biofuels. E‐biofuels pleaded guilty to similar charges. Chris Ducey was

sentenced to six years’ incarceration. Chad and Craig Ducey have not yet been sentenced.

	 Carmichael and Tracy pleaded guilty to conspiracy charges. Carmichael was sentenced to five years’

imprisonment; Tracy has not yet been sentenced.

	 All defendants, including the corporations, have been held jointly and severally liable for more than $56

million in restitution.

	 Jeffrey Wilson was the final defendant to be prosecuted in this multi‐state fraud scheme. Once Impe‐

rial Petroleum bought E‐biofuels in May 2010, Wilson, the company CEO and president, was soon made

aware that the facility was not making biodiesel. Despite this knowledge, he filed an annual report  

with the SEC in November 2010, stating that E‐biofuels was manufacturing fuel, and he continued to

present this false information to the public, investors, auditors and investigators. On July 20, 2016, af‐

ter an eight‐day trial, a jury convicted Wilson of securities fraud, filing false reports with the SEC, falsely

certifying reports to the SEC, lying to the company’s outside auditor, and lying to federal investigators.

During sentencing, the district court found that because Furando obstructed justice, it declined to adjust his

sentence for acceptance of responsibility. Furando appealed, but in United States v. Joseph Furando (7th Cir.),

on July 25, 2016, the Seventh Circuit affirmed the district court’s decision explaining that a defendant who

obstructs justice is presumed not to have accepted responsibility. The presumption can only be rebutted in

“extraordinary circumstances,” and Furando did not show that his alleged acceptance of responsibility was

exceptional. On the contrary, Furando continued committing violent physical assaults while on pretrial release

and, while detained, plotted to kill federal witnesses and sell drugs.

Another renewable fuel fraud conviction was obtained in United States v. Philip Joseph Rivkin (S.D. Tex.). Since

2008, Philip Rivkin operated and controlled several companies in the fuel and biodiesel industries, including

Green Diesel LLC, Fuel Streamers Inc., and Petro Constructors LLC, all based in Houston. As part of his scheme

to defraud, Rivkin claimed to have produced millions of gallons of biodiesel at Green Diesel’s Houston facil‐     

ity and then generated and sold RINs based upon this claim. In reality, no biodiesel was ever produced at the

Green Diesel facility. The scheme enabled Rivkin to generate and sell in excess of 59 million fraudulent RINs

resulting in at least $51 million in sales. In 2015, Rivkin pleaded guilty to a mail fraud count and a Clean Air Act

false statement violation.

On March 7, 2016, Rivkin was sentenced to 121 months’ incarceration, followed by three years’ supervised

release. Rivkin also was sentenced to pay more than $88 million in restitution and to forfeit $51 million for

generating and selling fraudulent biodiesel credits in the federal renewable fuel program.

Prosecuting illegal dischargesfrom mining operations

The Salmon River in Alaska is important for the spawning of all five species of Pacific salmon (chinook, chum,

coho, pink, and sockeye). After flowing through federal Bureau of Land Management land, the Salmon River

crosses the Togiak National Wildlife Refuge before entering the Pacific Ocean at Kuskokwim Bay. XS Platinum,

Inc. (XSP) operated a platinum mine along the Salmon River. During 2010 and 2011, the mine systematically

discharged large amounts of heavily polluted mine wastewater into the river. Turbid water was observed for

miles below the mine, extending all the way to the ocean.

Following a trial in October 2015, in the case of United States v. James Slade (D. Alaska), James Slade, former

70 | Enforcing the Nation’s Criminal Pollution and Wildlife Laws
     

       

           

                             

                               

                               

                               

Chief Operating Officer     

of XSP, was convicted on

two misdemeanor Clean

Water Act counts for vio‐

lating permit conditions

with respect to the mine’s

discharges. In addition,

Slade later pleaded guilty

to a felony Clean Water Act

violation for knowingly

violating permit condi‐

tions. He was sentenced in

March 2016 to 12 months’

incarceration. XSP General

Manager Robert Pate, who

previously pleaded guilty

to three felony Clean Water

Act counts for discharging

without a permit, violating

permit conditions, and mak‐

ing a false statement, was

sentenced in April 2016 to three years’ probation and a $60,000 fine. Plant operator James Staeheli pleaded

guilty to a misdemeanor Clean Water Act charge for violating permit conditions and was sentenced to three

years’ probation.

Contaminated water on a rocky shore, Environmental Crimes Section

Prosecuting illegal hazardous waste storage

In United States v. Max Spatig (D.

Idaho), Max Spatig was convicted

by a jury in June 2015 for violations

of the storage and disposal provi‐

sions of the Resource Conservation

and Recovery Act. Spatig oper‐

ated a concrete finishing business

known as M&S Enterprises. In June

2010, officials discovered approxi‐

mately 3,400 containers of waste  

at his residence, most of which was

derived from paint, some in heavily

corroded and leaking containers.

Investigators also found contain‐

ers of corrosive wastes, including

Spatig evidence photo, Environmental Crimes Section hydrochloric acid. The ensuing EPA

cleanup cost close to $500,000 and

was the second cleanup Spatig had caused. The State of Idaho Department of Environmental Quality conduct‐

ed a prior cleanup in 2005 at a different property owned by Spatig, in southeast Idaho.

On October 8, 2015, Spatig was sentenced to 46 months’ incarceration, followed by three years’ supervised

release, and was ordered to pay $498,652 in restitution to the U.S. EPA for cleanup costs.

Enforcing the Nation’s Criminal Pollution and Wildlife Laws | 71
             

   

                                 

                             

                                 

                             

                               

                           

                                   

                                

                         

                             

                                 

                     

                                   

                               

                             

                                 

                                    

                               

                               

                               

Vessel pollution prosecutions

Since the 1990s, the Division has had a robust program of prosecuting shipping companies and crew for the

intentional discharges of pollutants from ocean‐going vessels. At the end of fiscal year 2016, criminal penalties

imposed in these cases totaled more than $363 million in fines and more than 32 years of confinement.

In fiscal year 2016, the Division’s successful prosecution of these violations included the cases below:

	 United States v. Paul

Dancu (S.D. Ala.) –

Since January 2010,

Norwegian‐based

shipping company

Det Stavangerske

Dampskibsselskab

AS (DSD) was aware

that the oily‐water

separator (OWS)

aboard the ves‐    

sel M/T Stavanger

Blossom was inop‐

erable. Rather than

repair or replace the

OWS, the com‐ pany

used various

methods to bypass

the device and dis‐

charge oily wastes overboard. During the last months of the vessel’s operation, prior to its arrival in the

Port of Mobile in November 2014, the ship illegally discharged approximately 20,000 gallons of oil‐con‐

taminated waste water. Company employees also intentionally discharged fuel oil sludge directly into

the ocean after placing it in plastic garbage bags. They attempted to hide these discharges from the

Coast Guard by making false entries in the vessel’s oil record book and garbage record book. During an

inspection in Mobile, Second Engineer Xiaobing Chen and Fourth Engineer Xin Zhong lied to the Coast

Guard about the sludge discharges and ordered lower‐ranking crew members to do the same.

M/T Stavanger Blossom, Environmental Crimes Section

In November 2015, a jury convicted DSD, Chief Engineer Bo Gao, Chen, and Zhong of, variously, con‐

spiracy, violating the Act to Prevent Pollution from Ships (APPS), obstruction, and witness tampering

charges. DSD was sentenced to pay a $2 million fine, make a $500,000 community service payment

to the Dauphin Island Sea Lab Foundation, complete a three‐year term of probation, and implement

an environmental compliance plan. Gao and Chen were sentenced to six months’ incarceration, and

Zhong was sentenced to two months. Chief Engineer Paul Dancu previously pleaded guilty to a conspir‐

acy charge for his involvement in the illegal discharges of oily wastes from the M/T Stavanger Blossom

and was sentenced to five days’ incarceration, followed by immediate deportation.

	 United States v. Briese Schiffahrts GmbH & Co. KG (N.D. Fla.) – During an inspection of the vessel M/V

BBC Magellan at the Port of Pensacola in March 2015, the Coast Guard discovered an improperly at‐

tached rubber hose. Officials later determined that, between January and March 2015, the crew of the

BBC Magellan had installed and illegally used the hose to remove oily wastes from the vessel’s holding

tanks and discharged them directly into the ocean. The crew also failed to make the required entries

in the vessel’s oil record book. When questioned about the hose’s purpose and how oily wastes were

discharged from the ship, Grigorii Simagin, the chief engineer, instructed other crew members to lie to

the Coast Guard. Simagin pleaded guilty to violating APPS and witness tampering and was sentenced in

72 | Enforcing the Nation’s Criminal Pollution and Wildlife Laws
     

                                   

                             

                               

                           

                               

                                 

                                   

                         

                               

                                 

                                       

               

                               

                           

                               

                                   

                                 

                                 

                             

                                     

         

     

   

January 2016 to time served (10 months) and a $1,000 fine. The owner and operator of the M/V BBC

Magellan, Briese Schiffahrts GmbH & Co. KG MS Extum, and Briese Schiffahrts GmbH & Co. KG, respec‐

tively, pleaded guilty to a three‐count information alleging violations of APPS and witness tampering.

They were sentenced to pay jointly and severally a fine of $1.25 million and to make a community

service payment of $250,000, which will go to the Florida Keys National Marine Sanctuary. Additionally,

the vessel is barred from the United States for five years.

Operation Crash

“Operation Crash” is an ongoing nationwide effort led by FWS and ENRD, in conjunction with other investiga‐

tive agencies and U.S. Attorneys’ Offices, to investigate and prosecute those involved in the black market trade

of rhinoceros horns and other protected species, that continues to produce numerous successful prosecutions.

(A “crash” is a herd of rhinoceroses.) All rhinoceros species are protected under United States and interna‐

tional law, and the black rhinoceros is listed as endangered under the Endangered Species Act. Several major

dealersin the illegal rhino horn trade were successfully prosecuted in 2016.

	 United States v. Linxun Liao (S.D.N.Y.) – Canadian national Linxun Liao was a partner in an Asian art and

antiques business located in China. Liao’s role was to purchase items, including wildlife items, in the

United States and arrange for their export to China. Between March 2012 and May 2013, Liao made

online purchases of 16 rhinoceros horn products, more specifically libation cups, from auction houses

in the United States; he then smuggled the cups to China without the required declarations and per‐

mits. Liao did not declare the rhinoceros exports to the FWS or obtain the required permits. Liao’s co‐

conspirators sold the items at their antique business in China. The market value of the libation cups in

this case was more than $1 million. Liao was arrested in February 2015.

In November 2015, Liao was sentenced to two years of incarceration, followed by two years of super‐

vised release, for his role in trafficking the rhinoceros horn libation cups. Liao was also sentenced to

forfeit $1 million and 304 pieces of carved ivory found during a search of his U.S. storage site and is

banned from future involvement in the wildlife trade.

	 United States v. Lumsden Quan (D. Nev.) – In 2014, Lumsden Quan and a co‐defendant negotiated the

sale of two black rhinoceros horns by e‐mail and telephone, ultimately communicating with an under‐

cover agent. Quan’s co‐defendant offered to sell two black rhinoceros horns for $55,000 and agreed to

meet the buyer in Las Vegas. In March 2014, after directing another person to drive from California to

Las Vegas with the horns, Quan and his co‐defendant flew from California to Las Vegasto complete the

sale. Quan met the undercover agent in a Las Vegas hotel room, where he completed the transaction

for the agreed‐upon amount. In August 2015, Quan pleaded guilty to conspiring to violate the Lacey

Act and the Endangered Species Act, and to a substantive Lacey Act violation for his role in the illegal

sale of black rhinoceros horns.

Protecting Wildlife through Prosecutions

Prosecuting Illegal Logging

L

umber Liquidators,the largestretailerof hardwood flooring intheU.S., importedmillions of dollars’worth

of illegaltimberthat had been poached from Far East Russia, the home ofthe last 450 wild Siberian tigers.

Illegal logging is the primary risk to the tigers’ survival, as they are dependent on intact forests for hunting

and because Mongolian oak acorns are a chief food source for the tigers’ prey species. From April through

July 2013, Lumber Liquidators’ U.S. imports alone exceeded the amount permitted to be harvested from a

specific concession in Far East Russia by more than 800 per cent. The timber was then shipped from Russia

to China, where it was manufactured into hardwood flooring. Some of that same flooring was also falsely

declared upon entry into the U.S. as having come from wood harvested in Germany.  Additionally, seven

Enforcing the Nation’s Criminal Pollution and Wildlife Laws | 73
     

shipments declared upon

import as Indonesian ma‐

hogany were actually from

the Myanmar Timber En‐

terprise, a company under

sanction by the U.S. Trea‐

sury with which U.S. com‐

panies were prohibited

from conducting business.

I

n

case

Lumber

October 2015, in the

United States v.

Liquidators, Inc.

(E.D. Va.), Lumber Liquida‐

tors, Inc., pleaded guilty

to felony Entry of Goods

by Means of False State‐

ments and misdemeanor

Lacey Act violations re‐

lated to its importation of

timber products, marking

the first felony conviction

for trafficking in illegal tim‐

ber. Lumber Liquidators

was  sentenced  to  pay  a

$7.8 million fine, the larg‐

est criminal fine to    date

for Lacey Act violations. It

also must forfeit $969,175,

make $1.23 million in community service payments, complete a five‐year term of probation, to include the

implementation of an environmental compliance plan and independent audits, and pay more than $3.15 mil‐

lion in civil forfeiture.

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Tiger released from cage into habitat, Department of Justice

In December 2015, Quan was sentenced to a year and two days’ incarceration, followed by three years’
 

supervised release. Quan was also sentenced to pay a
 

$10,000 fine and was banned for three years from working
 

in the art and antique business.
 

	 United States v. Patrick Sheridan (W.D. Tex.) – Irish national
 

Patrick Sheridan and his co‐defendant Michael Slattery, Jr.,
 

conspired to traffic in horns from black rhinoceros. In 2010,
 

the defendants used a “straw buyer” to purchase two black
 

rhinoceros horns from a taxidermist in Texas. The horns
 

were subsequently sold in New York.
 

Sheridan was extradited from the United Kingdom in Sep‐

tember 2015 and subsequently pleaded guilty to a conspir‐

acy charge for his role in trafficking black rhinoceros horns.

In January 2016, Sheridan was sentenced to 12 months’

incarceration, followed by three years’supervised release,

and a $1,000 fine. Slattery was previously sentenced to 14

months in prison for his role in the conspiracy. Rhino horn from Quan, Department of Justice

| Enforcing the Nation’s Criminal Pollution and Wildlife Laws
     

               

                

               

           

           

             

               

                   

               

                 

               

                 

             

             

               

               

           

                 

                 

                   

             

           

           

                           

                             

                               

                                 

                                 

                                   

                                   

                                        

                                   

                                

                                         

                                 

                                     

                                 

                 

                               

                                   

                             

                                 

                             

                                 

                             

	 United States v. Joseph Chait (S.D.N.Y.) – Joseph
 

“Joey” Chait was a Senior Auction Manager of
 

the I.M. Chait Auction Gallery in Beverly Hills,
 

California. Undercover FWS agents consigned a
 

carved figure made from rhinoceros horn. An‐

other undercover agent then bought the carving
 

at auction for $230,000. Chait agreed to sell the
 

item even though he knew it was not an antique.
 

He also offered to fabricate paperwork to aid the
 

buyer in smuggling the rhino horn carving out of
 

the United States. Chait provided a fake invoice
 

stating that the item was made of plastic and cost
 

only $108. Chait also helped to smuggle items
 

made from rhinoceros horn, elephant ivory, and
 

coral out of the country on several other occa‐

sions.
 

In March 2016, Chait pleaded guilty to a two‐

count information charging a conspiracy to
 

smuggle wildlife and to violate the Lacey Act, and
 

a substantive felony violation of the Lacey Act. On
 

June 22, 2016, Chait was sentenced to a year and
 

a day of incarceration, followed by three years’
 

supervised release, and a $10,000 fine.
 

Auction poster from Chait, Department of Justice Protecting Federal Enforcement at the Appellate

Level

The Division preserved important criminal enforcement actions with several key appellate successes this year.

Tonawanda Coke Corp. (TCC) ran a coke production facility situated between Niagara Falls and Buffalo, New

York. For over four years, TCC knowingly emitted huge quantities of “coke oven gas” into the atmosphere

through a pressure release valve in its by‐products department in violation of its Clean Air Act permit. Coke

oven gas contains benzene, a known human carcinogen. And, for over a decade, TCC knowingly stored and

disposed of huge quantities of hazardous wastes on the ground at its facility without a permit under RCRA. A

jury convicted TCC of violating the CAA and RCRA. The district court sentenced TCC to a five‐year probation

term and, as a condition of probation, ordered TCC to fund two specified “impact studies” in an amount not

to exceed $12.2 million. The court also fined TCC $12.5 million. TCC appealed. On January 11, 2016, in United

States v. Tonawanda Coke Corp. (2nd Cir.), the Second Circuit affirmed the lower court’s decision, rejecting

TCC’s claims that it did not have fair notice that its conduct violated RCRA; that one of the RCRA counts should

have been dismissed as time‐barred; that it was entitled to a unanimity instruction specific to the RCRA storage

count; and that the district court should not have ordered, as a condition of probation, that the company fund

studies to evaluate the effects of the company’s illegal conduct on human health and the environment. The

court found no merit to any of these arguments.

On February 10, 2016, the First Circuit issued a favorable published decision upholding the conviction in United

States v. Andrew Zarauskas (1st Cir.). After a jury trial, Andrew Zarauskas was convicted in district court of

conspiracy, money laundering, and smuggling, all in connection with his importation of narwhal tusks into the

United States from Canada. The district court sentenced him to 33 months in prison. On appeal, Zarauskas

argued that the prosecutor’s conduct in examining witnesses and commenting on the evidence violated his

Fifth Amendment right not to testify and shifted the burden of proof from the government to the defense.

The First Circuit disagreed, finding that the district court’s instruction and the strength of the government’s

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evidence assured that the jury’s verdict was not prejudiced by any such violation. The First Circuit also rejected

Zarauskas’s claim that the district court erred in admitting certain records on the grounds the reports were

inadmissible hearsay, concluding that the reports had all of the indicia of non‐adversarial public records.

Robroy Macinnes and Robert Keszey were co‐owners of Glades Herp Farm in Bushnell, Florida, and Keszey

used to star in the Discovery Channel show “Swamp Brothers.” Undercover investigations by state and federal

wildlife officials revealed that the two were trading in Eastern timber rattlesnakes illegally taken from the wild

in New York, as well as Eastern indigo snakes, which are listed as threatened under the Endangered Species

Act. MacInnes and Keszey were convicted and sentenced, respectively, to 18 months and 12 months and one

day in prison. They appealed. On March 3, 2016, in United States v. Robroy MacInnes and Robert Keszey (3d

Cir.), the Third Circuit affirmed the defendants’ convictions. First, the court found that the district court did not

err in excluding a recorded conversation between the Government’s cooperating witness and a state investiga‐

tor because the witness “said little, if anything, of value.” Second, the court found that the district court did

not unfairly limit the scope of defendants’ cross examination. Third, the court held that cross‐examination on

certain topics was properly prohibited because the Government did not raise those issues in its direct exami‐

nation. Fourth, the court upheld the district court’s decision to exclude both expert and lay testimony from

a defense witness. Finally, because the court found no error at trial, it declined to address defendants’ argu‐

ment that the cumulative effect of the district court’s evidentiary rulings violated defendants’ rights under the

Confrontation Clause.

In 2006, Mark Sawyer and four co‐defendants formed A&E Salvage and purchased the salvage rights to a

former industrial site in eastern Tennessee in order to demolish the buildings and obtain salvageable material.

Despite the presence of large amounts of asbestos, A&E Salvage knowingly failed to comply with the asbestos

National Emission Standards for Hazardous Air Pollutants when demolishing the building. The defendants’

actions eventually led EPA to intervene and clean up the site at a total cost of over $16 million. The defendant

pled guilty to one count of conspiring to violate the Clean Air Act. The district court sentenced the defendant

to a 60‐month prison term, and held him and his co‐defendants jointly and severally liable for over $10 million

in restitution to the EPA. Sawyer appealed, and on June 3, 2016, the Sixth Circuit affirmed his conviction in

United States v. Sawyer (6th Cir.). The appellate court concluded that his 60‐month sentence was reasonable.

It also upheld the restitution award even though it was based on facts found by the judge as opposed to the

jury. The court rejected Sawyer’s argument that the Supreme Court’s decision in Southern Union required the

jury to find the facts supporting restitution awards.

The United States indicted four captains of commercial fishing vessels for violating the Lacey Act by selling

Atlantic striped bass that they landed after trips in federal waters off North Carolina in knowing violation of

federal regulations prohibiting such fishing. The district court (E.D.N.C.) dismissed the indictments on the

ground that the defendants’ conduct fell within an exception to the Lacey Act for activities “regulated by a fish‐

ery management plan in effect” under the Magnuson‐Stevens Act, relying on a plan prepared by an interstate

compact commission regulating bass fishing in state waters. This ruling meant that the United States could use

the Lacey Act to prosecute fishermen illegally fishing for striped bass in state‐regulated waters, but could not

prosecute fishermen illegally fishing for striped bass in federally‐regulated water. The United States appealed

the dismissals and, on July 5, 2016, the Fourth Circuit reversed the district court in United States v. Saunders

(4th Cir.). It held that the exception does not apply because the interstate commission’s management plan

does not purport to authorize the Secretary of Commerce’s regulations prohibiting bass fishing in federal

waters. Even if the interstate plan could be interpreted as attempting to provide the Secretary some sort of au‐

thority over fishing in federal waters, the court held, the plan could not have done so because the Secretary’s

power derives from federal statutes, not some grant of authority by a group of states. Finally, the court of ap‐

peals rejected the defendants’ arguments that the statutory scheme at issue was unconstitutionally vague.

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PROTECTING VITAL FEDERAL
 PROGRAMS AND INTERESTS
 

The Division supports the missions of its client agencies under the many federal environmental and natural re‐

source laws they implement in a number of ways.   The Division defends client agencies’ regulations and other

decisions taken to implement vital federal programs and interests. The Division also responds to congressional

and public inquiries, supports capacity building and engagement with law enforcement partners domestically

and internationally to protect our interests, and participates in litigation as amicus curiae where the govern‐

ment has an interest in the outcome or legal principles at issue in the case.

Protecting and

Promoting the

Development of

Transportation

Infrastructure

The Division successfully

defended the cooperative

efforts between the Federal

Highway Administration

(FHWA) and the Arizona De‐

partment of Transportation

to authorize and construct a

Gila River 22‐mile freeway in Protect‐ Indian Community, Google Maps

ing Arizona’s Resources and

Children v. Federal Highway Administration and Gila River Indian Community v. Federal Highway Administra‐

tion (D. Ariz.). The challenged project was designed to address future traffic needs in the Phoenix metropolitan

area. In a pair of consolidated cases, environmental groups, homeowner’s associations, and a tribe challenged

the project under NEPA, Section 4(f) of the Department of Transportation Act, and the National Historic Pres‐

ervation Act (NHPA). The district court ruled in the agency’sfavor and the Division continues to defend the

project on appeal. The Division worked closely with the State of Arizona in defending this project.

In Conservation Alliance of St. Lucie County v. Department of Transportation (S.D. Fla.), the Division successfully

defended the FHWA’s decision to approve construction of a six‐lane bridge across the North Fork St. Lucie River

Aquatic Preserve and Savannas Preserve State Park in southern Florida. The project is designed to address traf‐

fic congestion on two existing bridges in the City of Port Saint Lucie and meet future projected traffic demands.

The district court found that FHWA’s decision to approve the project was reasonable, supported by the record,

and included all possible planning to minimize harm to the protected resources.

The Division’s efforts also helped clear the path for a critical transportation project in one of the areas of the

country most plagued by congestion and transportation‐related air pollution. On one main thoroughfare in Los

Angeles, buses and vehicles move as slowly as 7 miles per hour. The Federal Transit Administration‐approved

subway line will move passengers to their destinations at 40‐65 miles per hour. The Division’s defense of the

Protecting Vital Federal Programs and Interests | 77
           

                   

               

Six‐lane bridge across the North Fork St. Lucie River, Google Maps

Katahdin Woods and Waters National Monument, National Park Service

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$6 billion, approximately nine‐mile Westside Subway Extension Project through Beverly Hills, Century City, and

Westwood in Los Angeles resulted in a decision that allows funding and preconstruction activities in further‐

ance of that project to proceed. In Beverly Hills Unified School District v. FTA and in City of Beverly Hills v. FTA

(C.D. Cal.), the school district and the city claimed the Federal Transit Administration and the Los Angeles

County Metropolitan Transportation Authority violated NEPA, Department of Transportation Act Section 4(f),

the Clean Air Act, and the NHPA. The district court issued a 216‐page opinion that identified flaws in the envi‐

ronmental analysis supporting the decision. Nonetheless, after expedited discovery and four rounds of briefing

regarding the most appropriate remedy, the court held that the public interest in the subway weighed in favor

of allowing the funding, contracting, and preconstruction activities to move forward while the governmen‐      

tal agencies complete supplemental analysis to cure defects in the earlier analysis. The Division coordinated

closely with Los Angeles County Metropolitan Transportation Authority on discovery,settlement discussions,

and briefing.

In Highway J Citizens v. United States Department of Transportation (E.D. Wis.), the Division—working closely

with the Wisconsin Department of Transportation—successfully repelled attempts to obtain a preliminary

injunction stopping improvements of Highway 164 in suburban Milwaukee. The highway is badly out‐of‐date

and has a crash rate that is 63% higher than the state‐wide average for similar roads. Our victory allows the

Wisconsin Department of Transportation to move forward with this important local infrastructure project.

In Detroit International Bridge Company v. U.S. Coast Guard (D.D.C.), the Division successfully obtained dis‐

missal of all claims in this long‐running dispute concerning the existing international bridge between Detroit,

Michigan and Windsor, Ontario, a key border crossing that carries nearly 25% of all commerce between Canada

and the United States. Canada and the State of Michigan are seeking to build the New International Trade

Crossing, a second international bridge, to increase border security and improve trade in the region.

The Division also helped move forward an airport expansion project. In earlier litigation, the environmental

groups in Sierra Club v. Department of Transportation (N.D. Cal.), successfully challenged the actions of the

Federal Aviation Administration (FAA) and the Town of Mammoth Lakes regarding a project to expand the local

airport under NEPA for failure to prepare an EIS. As a result, the court enjoined the defendants from com‐

mencing any construction or other work pending completion of an EIS. No appeal was taken, and the project

was abandoned without the completion of an EIS. Over a decade later, the town has begun to develop a simi‐

lar airport project. The Department obtained relief from the injunction to allow the FAA to conduct the appro‐

priate level of environmental review for the new airport project.

Defending EPA Decisions Regarding Administrative Petitions

In Environmental Integrity Project v. EPA (D.D.C.), a plaintiff sued EPA under the APA, alleging that EPA had

unreasonably delayed in responding to a 2011 administrative petition requesting that EPA designate ammonia

as a criteria pollutant under the CAA and establish an ammonia National Ambient Air Quality Standard. ENRD

moved to dismiss, arguing that plaintiff had not provided the required pre‐suit notice under the applicable

waiver of sovereign immunity in the CAA. On December 1, 2015, the court granted our motion to dismiss.

The court concluded that although the duty to respond to an administrative petition seeking a CAA rulemak‐

ing derives from the APA, both plaintiff’s cause of action for EPA’s alleged unreasonable delay in carrying out

that duty and the applicable waiver of sovereign immunity are found in section 304(a) of the CAA. Section

304(a) requires pre‐suit notice. Because plaintiffs failed to provide pre‐suit notice, the court held that plaintiffs

had “failed to satisfy a mandatory condition precedent to bringing suit and securing the government’s waiver

of its sovereign immunity under the CAA.” The court further held that because section 304(a) “expressly

forbids” suits filed without pre‐suit notice, plaintiffs could not rely on the APA section 702 waiver of sovereign

immunity as a backstop.

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Facilitating Disposal of

Nuclear Waste

In State of Washington v.

U.S. Department of Energy

(E.D. Wash.), ENRD ob‐

tained a largely favorable

consent decree amendment

in light of technical issues

that had undermined DOE’s

ability to comply with mile‐

stones for constructing the

Waste Treatment Plant and

removing mixed nuclear

and chemical waste from

underground storage tanks

at the Hanford Nuclear Res‐

ervation in southeast Wash‐

ington. In March 2016, the

court modified the consent decree to extend the time for DOE to complete the Plant from 2022 until 2036. In

addition, the court granted DOE an additional two yearsto complete the removal of waste from 19 tanks and

rejected proposals by the State that would have interfered with DOE’s ability to advance its waste treatment

mission.

HanfordNuclear Reservation, Wikipedia

Defending the Actions of the Animal and Plant Health Inspection Service

The Division continues to work successfully with the USDA’s Animal and Plant Health Inspection Service (APHIS)

to defend the Agency’s efforts to protect and improve the health and quality of our nation’s animals and ani‐

mal products.

For example, in Davis v. United States (S.D. Tex.), the Division successfully defended APHIS’s use of CO‐RAL, the

insecticide approved by APHIS and the EPA for dipping cattle, as the center‐piece of its cattle fever tick control

efforts in southern Texas. The program is a joint program of the Texas Animal Health Commission and APHIS.

In Center for Biological Diversity v. Vilsack (D. Nev.), the Division defended actions by APHIS and the Fish &

Wildlife Service to control the spread of saltcedar, an invasive species, through the release of the tamarisk leaf‐

eating beetle. The court ruled in favor of the government on the NEPA claims and one of the two ESA claims.

Defending Federal Water Rights and the Operation of Reclamation and Flood Control Projects

The Division participated as a real party in interest, at the invitation of the State of Nevada, in defending the

Nevada State Engineer’s highly favorable decision to limit future groundwater withdrawals in the vicinity of

Devil’s Hole National Monument and Ash Meadows National Wildlife Refuge. This decision in the proceed‐    

ing In re: Nevada State Engineer Ruling No. 5902 and Order No. 1197 (Fifth Judicial District Court, Nev.), was

predicated in part on the need to protect federal reserved water rights. The state district court, in upholding

the State Engineer’s actions, supported by evidence presented by the National Park Service, recognized that in

the case of Devil’s Hole “there is little or no room for error.”

The Division participated in the negotiations that led to a comprehensive settlement of litigation involving

the Truckee Meadows Water Authority and the Truckee‐Carson Irrigation District, under which the Truckee

Meadows Water Authority acquired the Truckee‐Carson Irrigation District’s interest in Donner Lake in Califor‐

nia. Although the United States was not a party to this settlement, the Division was able to secure significant

litigation benefits including the dismissal with prejudice of three lawsuits challenging the Truckee River Operat‐

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ing Agreement: (1) United States v. Orr Water Ditch Co. (D. Nev.); (2) Churchill County v. Jewell (D. Nev.); and (3)

Truckee‐Carson Irrigation District v. State Water Resources Control Board (D. Nev.).

The Division had several major accomplishments in state adjudications in Idaho last year. In the Snake River

Basin Adjudication (District Court, County of Twin Falls, Idaho), a general stream adjudication covering 87% of

the State, following five years of negotiations, the Division entered into a settlement agreement that secures

federal reserved water rights for instream flows to maintain Wild and Scenic River values for 16 Wild and Sce‐

nic Rivers on lands managed by BLM totaling 316 river miles in the Owyhee Canyonlands area of southwestern

Idaho. In the Coeur d’Alene‐Spokane River Basin Adjudication (District Court, County of Twin Falls, Idaho), a

general stream adjudication covering the Panhandle area north of the Snake River basin, the Division negotiat‐

ed a settlement agreement that provides for approval of the United States’ federal reserved water right claims

on behalf of the Forest Service for the St. Joe Wild and Scenic River.

The Division successfully concluded three years of negotiations over a set of agreements among the FWS,

the Storrie Project Water Users Association (of which the FWS is 60% owner), and the City of Las Vegasin the

New Mexico state general stream adjudication. These agreements resolved a number of contentious matters

related to the water rights in the Gallinas sub‐basin of the Pecos River. The agreements provide for the sale of

storage space in Storrie Reservoir from the Association to the City and the settlement of a number of disputes

among those parties, including ongoing administrative and judicial litigation. The agreements also concluded

the litigation over the City’s application to enlarge Bradner Reservoir.

The Division successfully adjudicated the decree in Colorado Water Division No. 5 approving the Forest Ser‐

vice’s application for absolute and conditional water rights for a well operated by Copper Mountain Ski Area in

the White River National Forest.

Plaintiffs challenged the Corps’ approval of the Fargo/Moorhead flood risk reduction project that was being

constructed to prevent flooding the cities of Fargo, North Dakota and Moorhead, Minnesota in Richland/Wilkin

Joint Powers Authority v. Army Corps of Engineers (D. Minn.). The Richland/Wilkin Joint Powers Authority

alleged that the Corps should have considered different alternatives to the project under NEPA and failed to

address public comments with respect to the project. The Court ruled in favor of the Corps on all counts.

Acquiring Property for Public Purposes

When federal agencies acquire private property for public use, ENRD strives to ensure that all landowners

receive just compensation and taxpayers pay no more than market value. In addition to ENRD’s work to guar‐

antee justice under the Fifth Amendment, the Division reviews title for federal land acquisitions and provides

guidance to client agencies on the Attorney General’stitle regulations before public money is spent.

This year, the Division worked closely with the Department of the Interior and its National Park Service on sev‐

eral notable acquisitions to protect our nation’s cultural and natural resources. In particular, the Division en‐

abled the approval of title on three significant historical sites: the Sewall‐Belmont House in Washington, D.C.,

Christopher Park near the Stonewall Inn in New York City, and Werowocomoco in Gloucester County, Virginia.

The Division also reviewed title on two noteworthy acquisitions for environmental protection, one in Maine

and the other in Everglades National Park.

Sewall‐BelmontHouse

ENRD applied the Attorney General’stitle regulations to permit the National Park Service to accept donation of

the historic Sewall‐Belmont House from the National Woman’s Party (NWP) for designation as the Belmont‐

Paul Women’s Equality National Monument. The Sewall‐Belmont House, which is adjacent to the Hart Senate

Office Building and across the street from the Supreme Court, served as the headquarters for the NWP begin‐

ning in 1929. The NWP organized and lobbied for women’ssuffrage, and the monument pays tribute to NWP’s

founder and the struggle for equality and women’srights.

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Stonewall National Monument

ENRD advised the National Park Service on the acquisition and later designation of the Stonewall National

Monument in New York City. The Stonewall Inn, Christopher Park, and the surrounding neighborhood was

the scene of the Stonewall Uprising in 1969, which is credited as the catalyst for the modern LGBTQ civil rights

movement. The President designated Christopher Park as the Stonewall National Monument to commemorate

this historic moment and elevate public discourse on LGBTQ civil rights.

Werowocomoco

ENRD approved title under provisions of the Attorney General’stitle regulations when the National Park Ser‐

vice acquired 264 acres known as Werowocomoco—a historic site in Gloucester County, Virginia, once home

to Chief Powhatan and his daughter, Pocahontas, and where Powhatan may have met Captain John Smith in

1607—for addition to the Captain John Smith Chesapeake National Historic Trail.

Katahdin Woods and Waters National Monument

The National Park Service was able to accept the donation of 87,500 acres in Penobscot County, Maine, for

designation as the Katahdin Woods and Waters National Monument. The monument protects the Maine

North Woods’ rich biodiversity, scenic beauty, and historical landscape, while still allowing visitors to enjoy

traditional recreational uses valued by the region.

Everglades National Park

ENRD also facilitated one of the final

acquisitions for Everglades National Park.

Since the 1989 Everglades National Park

Protection and Expansion Act, the National

Park Service has acquired more than 8,000

tracts totaling over 109,000 acresin South

Florida for inclusion in the Park. This year,

ENRD assisted in the acquisition of one of

the last of six tracts necessary to complete

the expansion. ENRD approved title for

the acquisition of 40.69 acres along the

Tamiami Trail with the ultimate goal of re‐

storing natural hydrological and ecological

conditions to Everglades National Park.

Litigating Condemnation Cases

Although ENRD works closely with federal

agencies to acquire property without re‐

sorting to condemnation, ENRD continued

its history of successful condemnation liti‐

gation and negotiated settlement this year. Everglades National Park, National Park Service

ENRD exercised the power of eminent domain in United States v. 131,675 Rentable Square Feet of Space

Located at 400 South 18th Street in St. Louis (E.D. Mo.), to acquire a 33‐month leasehold interest on behalf of

General Services Administration for the continued occupation of a Veterans Benefits Administration office. The

landowner claimed additional compensation for the uncertainty of whether the United States would condemn

the property for a subsequent term after the expiration of the lease. Following a favorable ruling by the court

on the United States’ motion on this issue, the parties settled the case on the eve of trial for $5,000,000, a sav‐

ings to the government of $2,670,000.

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The Division also reached a favorable settlement in United States v. 102.871 Acres of Land Situate in Cameron

Parish (W.D. La.), a condemnation action on behalf of the U.S. Army Corps of Engineers to provide a disposal

site for dredged spoil from the operation and maintenance of the Sabine Neches Waterway, a major thorough‐

fare from and to the Gulf of Mexico for deep‐draft commercial marine traffic. The site had been subject to a

50‐year easement for spoils placement; by this suit, the Corps acquired title to the remaining surface estate.

The landowner claimed ownership of adjacent river accretions on the bank and thus additional damages, as‐

serting a total market value of $1,100,000. Following excellent motions practice and discovery, ENRD negoti‐

ated a settlement of $60,570.42.

Defending Against Challenges Brought Under the National Historic Preservation Act

The Division frequently successfully defends challenges to agency decisions that allegedly result in impacts to

cultural and historical sites. In most cases, these challenges assert that an agency failed to properly complete a

National Historic Preservation Act (NHPA) Section 106 analysis, which generally requires an agency to take into

account the potential effects of its undertakings on properties that could be listed on the National Register of

Historic Places.

For example, in Battle Mountain Band of the Te‐Moak Tribe of Western Shoshone Indians v. Bureau of Land

Management (D. Nev.), the Division successfully defended the BLM’s approach to protecting sensitive tribal

properties under the NHPA. The Battle Mountain Band sought emergency injunctive relief to block the con‐

struction of a power line by a mining concern operating under a right of way. The Band alleged that BLM had

failed to carry out its responsibilities under NHPA Section 106 and a programmatic agreement with respect to

recently‐identified Traditional Cultural Properties. The court denied the Band’s motion, finding that under the

terms of the governing Programmatic Agreement, BLM was not required to reopen its NHPA Section 106 pro‐

cess with respect to these new properties.

In Epstein v. United States Army Corps (E.D. La.), property owners alleged harm to their historical properties

resulting from construction of the Southeast Louisiana Urban Flood Control Project (SELA). As part of this

project, the Corps and the Louisiana State Historical Preservation Officer signed a Programmatic Agreement

under the NHPA. That agreement memorialized the Corps’ process for identifying potential historical proper‐

ties that could have been impacted by the SELA project. The property owners claimed that the Corps did not

comply with the Programmatic Agreement, resulting in damage to their properties, and moved to immediately

suspend construction on this important project. The court dismissed the complaint, finding that there was no

private right of action in the NHPA and

that property owners failed to plead a

claim as required by the APA.

Protecting the Public Fisc

National Trails System Act Cases

In 1983, Congress enacted the National

Trails System Act, 16 U.S.C. § 1247(d)

(Trails Act) which established the Rails‐to‐

Trails program. When a railroad company

abandons a railroad, there is the option to

preserve the corridor for potential future

rail use by “railbanking” the corridor. In

the interim, if there is a local sponsor,

it can be used for other purposes, such

as trail use. The Division is presently

defending approximately 120 cases in‐

volving some 10,000 parcels of property New York City High Line, Wikipedia

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brought under the Fifth Amendment by landowners alleging that the operation of the Trails Act has resulted

in a taking of their property rights in railroad corridors throughout the country. Landowners adjacent to these

railroad corridors allege that the “conversion” of these corridors from railroad use to trail use under the Trails

Act results in a taking of their rights to regain unencumbered fee title to the lands within the corridor upon

the cessation of rail service. As a result, landowners frequently sue the United States for compensation. The

Division is actively working to identify pending Trails Act cases that may be fully or partially resolved through

settlement, and has a number of cases that are in settlement negotiations.

The Division has also successfully litigated certain significant issues in other Trails Act cases. For example, the

Division successfully opposed the certification of class actions in Atkins v. United States (E.D. Mo.), Edward

Huffman Living Trust v. United States (E.D. Ark.), and Brown v. United States (Fed. Cir.). The Federal Circuit de‐

cided several such cases this past fiscal year, issuing favorable rulings to the government on various issues that

arise in this kind of litigation. In Rogers v. United States (Fed. Cir.), the Division successfully defended an appeal

from the trial court’s ruling that the United States was not liable for a taking because the railroad company

acquired fee simple title by deed to lands comprising a right‐of‐way in Sarasota County, Florida. The Rogers ap‐

peal included the certification of state law questions to the Supreme Court of Florida, which confirmed that no

state law, policy or other factual considerations operate to limit the interest acquired by the railroad regardless

of the language used in the deed.

The Division was also successful in Haggart v. United States (Fed. Cl.), in which the Federal Circuit held that,

because the applicable fee‐shifting statute already provides for reimbursement of a reasonable fee, the trial

court may not award class counsel a percentage of the class action settlement or “common fund” as a fee.

Haggart was a class action suit involving the conversion of a railroad corridor east of Seattle, Washington, to

trail use. The Court of Federal Claims approved a settlement for 250 class members that included $110 million

in just compensation, $27 million in accrued interest, and $2.5 million in statutory attorney fees under the Uni‐

form Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654(c) (URA). The

Court of Federal Claims then awarded class counsel an additional $33 million in attorney fees, to come out of

the just compensation award, under the “common‐fund” doctrine. Several of the class members objected to

the settlement, arguing they had not received from class counsel sufficient information to assess whether their

share of the overall award was appropriate. They also objected to the common‐fund fee award. The United

States joined the dissenting class members in this appeal, arguing that there had been inadequate disclosure

and that class counsel should not be awarded common‐fund fees as the statutory fee award, which is required

to be a “reasonable” fee, adequately compensated them. On January 8, 2016, the court of appeals agreed on

both counts, and reversed the lower court’s approval of the settlement agreement. Class counsel then asked

the Supreme Court to review the common‐fund fee award issue, which it declined to do.

Another Rails Act case, Romanoff Equities, Inc. v. United States (Fed. Cir.), involved the “High Line,” an elevated

railroad corridor that was constructed in the 1930s that runs along the western edge of New York City. Rail‐

road traffic ceased in the early 1980s. Ultimately, it was converted to trail use and has become a well‐used

tourist and recreational trail. Romanoff Equities, Inc., an owner of land underneath and adjacent to the rail

line, sued in the Court of Federal Claims, arguing that the conversion of the corridor to trail use deprived it of

its property. The Court of Federal Claims rejected that claim, and Ramonoff appealed. On March 10, 2106, the

Federal Circuit affirmed the judgment in favor of the United States. It found that the 1932 easement granted

by Romanoff’s predecessor to the railroad was broad enough in scope to include the present day trail uses.

It also rejected Romanoff’s argument that the easement automatically terminated when the railroad ceased

operationsin the 1980s.

Defending the Corps’ Decisions as to Post‐Hurricane Katrina Projects

On August 23, 2016, the Fifth Circuit issued a favorable decision in Louisiana v. United States Army Corps of

Engineers (5th Cir.), reversing in part and vacating in part the district court’s adverse judgment against the U.S

Army Corps of Engineers. Louisiana had challenged the Corps’ decision requiring the State to share in rehabili‐

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tation costs by paying $500 million in costs for undertaking projects that will restore wetlands that were erod‐

ed, by some accounts, by the Corps’ operation and maintenance of the Mississippi River‐Gulf Outlet, as well as

the costs of maintaining a rock structure that keeps the Outlet closed to deep‐draft vessels. Citing provisions in

several appropriations and authorization statutes, the district court ruled that Congress had clearly required

the Corps to undertake the ecosystem‐restoration projects at full federal expense of more than $1.3 billion,

and it held that even if the statute were ambiguous, the Corps could not reasonably interpret its obligations

otherwise. The Fifth Circuit reversed that ruling.

As a threshold matter, the Fifth Circuit held that Louisiana’s challenge to the portion of the Corps’ decision con‐

cerning the ecosystem‐restoration project must be dismissed because the agency has not yet taken final action

under the APA. Specifically, the court concluded that the Corps’ decision about how to cost‐share the project,

set forth in a report to Congress, was tentative and interlocutory because going forward with the project is

contingent on finding a non‐federal sponsor to share the costs, which Louisiana has refused to do. The court

also held that the report has no legal consequences on the State for that refusal, and thus, the State’s chal‐

lenge to the Corps’ cost‐sharing must be dismissed for failure to challenge final agency action. On the merits,

the Fifth Circuit reversed the district court’s judgment that overturned the Corps’ decision, through a memo‐

randum of agreement, requiring Louisiana to pay the costs of maintaining the closure structure, which the

court held constitutes a reasonable interpretation of ambiguous appropriations and authorization statutes.

Protecting the Interests of the United Statesin Litigation Involving Third Parties

Filing Amicus Briefs

The Division participates as amicus curiae in cases in which the United States is not a party and in which United

States participation may help protect or advance the interests of the United States. Our amicus briefs do this

by explaining how the resolution of particular legal questions could impact important federal programs and

otherwise providing information and viewpoints that may be helpful to the judges tasked with resolving cases.

On March 25, 2016, the Alaska Supreme Court issued a decision in State v. Central Council of Tlingit and Haida

Indian Tribes of Alaska, an important case in which the Division filed an amicus brief. The case involved the

State of Alaska’srefusal to enforce child support orders issued by the first Alaska Native tribe to receive certi‐

fication of its child support program by the U.S. Department of Health and Human Services. The Tribes sought

a declaratory judgment that its tribal court system had subject‐matter jurisdiction over child‐support matters

and an injunction requiring the State to recognize the tribal court’s child support orders. On behalf of the Unit‐

ed States, we filed a brief in support of tribal jurisdiction. In its decision, the Alaska Supreme Court, adopting

arguments that we put forward as amicus, held that “tribal courts have inherent subject matter jurisdiction to

decide the child support obligations owed to children who are tribal members or are eligible for membership,

and that state law thus requires the State’s child support enforcement agency to recognize and enforce a tribal

court’s child support orders.” The Court reached this determination even though the tribes in Alaska (with one

exception) do not have reservation lands. The Court went on to affirmatively decide that tribal courts have

inherent jurisdiction to decide child support cases that involve non‐member parents of children who are tribal

members or are eligible for tribal membership. The court noted that this left questions of personal jurisdiction

open for future resolution in particular cases.

The Division also participated as amicus in Sierra Club v. Talen Montana, (D. Mont.), a citizen suit action against

the owner of several Montana power plants in which the plaintiff groups claimed that defendant had violated

Clean Air Act provisions relating to modifications made to emitting facilities. In the course of the litigation,

plaintiffs argued that an EPA applicability determination issued to a separate facility was relevant to the Court’s

analysis of whether the defendant had violated the Act. The defendant disagreed, arguing that such EPA ap‐

plicability determinations could not properly be cited in analyzing another facility, pointing to EPA’s briefing in

a previous case that discussed such applicability determinations. The United States’ amicus curiae brief ex‐

plained why the EPA applicability determination was relevant to the Court’s determination, and that the previ‐

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ous brief cited by the defendant was not to the contrary. The Department also participated at oral argument

before the Court. After the Court issued a ruling that agreed with the position set forth in the United States’

brief, the parties subsequently entered into a consent decree that requires defendant to comply with speci‐

fied emission limits at various generation units. The Division also participated as amicus in a Clean Water Act

citizen suit, discussed below in the context of the Division’s review of citizen suit complaints and settlements.

Reviewing Citizen Suit Complaints and Settlements

The Division also conducts the Department’s review of citizen suit complaints and consent judgments as re‐

quired by the Clean Air Act and the Clean Water Act. These statutes authorize citizens to file suits to enforce

many of the statutes’ key provisions, and require that citizen suit complaints and consent judgments be served

on the Department and EPA. The Division reviews consent judgments to ensure that they comply with the

requirements of the relevant statute and are consistent with the statute’s purposes. ENRD also provides as‐

sistance to counsel for the parties, where requested.

Harpeth River Watershed Association v. City of Franklin (M.D. Tenn.) is a Clean Water Act citizen suit based on

allegations that a sewage treatment plant owned and operated by the City of Franklin, Tennessee, discharged

pollutants in violation of its National Pollutant Discharge Elimination System (NPDES) permit. The Defendant

City argued, inter alia, that the scope of the federal NPDES program was relatively narrow, and that certain

permit violations (violations of overflow prohibitions, nutrient management plans, and monitoring provisions)

were not federally enforceable. The United States, through an amicus brief, disagreed. The district court held

that the challenged provisions were federally enforceable. As a result of the Court’s favorable decision, the

parties agreed to a settlement that provided robust relief, including $10 million for work on the City’s sewer

system, significant monitoring, and up to $150,000 for additional studies. The parties, at our request, con‐

firmed that they will inform the United States regarding the recipients of any funding provided for additional

studies, and that funds from the $10 million will be exclusively used to upgrade the City’s sanitary sewer collec‐

tion system and forstorm water management projects.

Responding to Congressional Proposalsfor Environmental and Natural Resources Legislation

and Related Matters

The Division responds to a variety of legislative proposals and congressional requests, prepares Division wit‐

nesses to testify before congressional committees, and draftslegislative proposals, including proposals imple‐

menting settlements of litigation handled by the Division. In fiscal year 2016, we continued our work in these

areas.

One example of federal legislation enacted this year of importance to the work of the Division in which ENRD

was engaged is the Illegal, Unreported, and Unregulated Fishing Enforcement Act, which became law on

November 5, 2015 (Pub. L. No. 114‐81). Among other things, this law amends existing laws to provide the

National Oceanic and Atmospheric Administration and the U.S. Coast Guard with authority to enforce against

illegal, unreported, or unregulated fishing though vessel forfeiture and civil and criminal penalties. Another

example is the Eliminate, Neutralize, and Disrupt Wildlife Trafficking Act, which became law on October 7 (Pub.

L. No. 114‐231). This law extends the various authorities of the Presidential Task Force on Wildlife Trafficking

of which the Division is a co‐chair; requires designation of and reporting on major wildlife trafficking countries;

extends programs to strengthen the capacity of partner countries to counter wildlife trafficking; and provides

some added authority to make some wildlife trafficking violations predicate offense under money laundering

statutes, among other things.

Reviewing Federal Administrative Rulemakings

The Department serves as part of the interagency review team for federal rulemakings developed pursuant to

Executive Order 12866. The Division reviewed a substantial number of such rules in fiscal year 2016. Of note

were the Division’s work on Interior’s final rule entitled “Procedures for Reestablishing a Formal Government‐

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to‐Government Relationship with the Native Hawaiian Community” (43 C.F.R. part 50) and final regulations

implementing the Indian Child Welfare Act (25 C.F.R. part 23). The latter work was undertaken as part of the

Attorney General’sinitiative to promote compliance with the Indian Child Welfare Act, which is also discussed

in this report’s sections addressing Protecting Tribal Rights and Resources and Addressing Tribal Claims and the

Division’s amicus practice.

Responding to Freedom of Information Act Requests

ENRD continues to be one of the Department’s highest‐performing components in its Freedom of Information

Act (FOIA) work. In fiscal year 2016, the Division completed processing of approximately ninety requests, and

ended the year with only five backlogged requests and zero backlogged consultations. ENRD was also able to

close all of the oldest pending requests from 2015.

The Division continues to explore the use of new technology to expedite processing, increase proactive disclo‐

sures, and reach out to requesters to ensure efficient processing of their requests. ENRD has also worked to

expand FOIA training opportunities for ENRD, providing guidance about both legal and practical FOIA issues

during new attorney orientation and section meetings. Our FOIA staff continues to engage with the wider FOIA

community as well, serving on a Department‐wide FOIA working group to develop interagency coordination

guidelines and attending FOIA public forums to better understand how to serve the requester community.

Supporting Domestic and Global Enforcement Efforts by Working with International
 

Partners on Capacity Building and Other Activities
 

Protecting Vital Federal Programs and Interests |

The Division implements a robust and diverse international portfolio designed first and foremost to support

our efforts to successfully prosecute environmental law and natural resource crimes that are transnational in

nature. Such crimes may often involve the illegal import or export of regulated species or products (rang‐

ing from illegally trafficked wild animals or timber to efforts to dispose of hazardous wastes or ozone deplet‐

ing substances). Such cases can involve foreign evidence or foreign assistance, or may be predicated on the

violation of underlying foreign statutes. Division attorneys also provide critical training for law enforcement

partnersin other countries. Such

training enhances the “rule of law”

globally and helps develop effec‐

tive partners who can more ably

combat environmental and natural

resource crimes in their own coun‐

tries, as well as work more effec‐

tively with us in investigating and

prosecuting transnational environ‐

mental crimes. Attorneysfrom the

Division also support Administra‐

tion priorities and efforts to comply

with international commitments  

by participating in negotiation    

and implementation of trade and

investment agreements, interna‐

tional environmental agreements,

and domestic implementing legisla‐

tion to ensure that they protect and     

promote effective environmental enforcement.

In collaboration with, and with the financial support of, partners from other federal agencies, in fiscal year

Attorney General Conference in Ghana, Department of Justice

87
           

                           

                           

                   

                     

                               

                       

                                   

               

2016, ENRD attorneys

implemented capacity

building workshops or

spoke at conferences   

and meetings in Aus‐

tria, Bangladesh, Brazil,

Burma, Cameroon, China,

Colombia, France, Gabon,

Ghana, Honduras, Ice‐

land, Indonesia, Laos, Li‐

beria, Namibia, Panama,

Peru, Singapore, South

Africa, Thailand, United

Kingdom, Vietnam, and

Zambia. ENRD attorneys

also participated in and

spoke at conferences,

trade negotiations, and

meetingsin Washington,

D.C., with officials from

other governments and

non‐governmental organizationsfrom several other countries.

ENRD International Training, Department of Justice

Through the Division’s capacity‐building efforts, we seek to help law enforcement partners, particularly in

countries where illegal poaching of wildlife and deforestation occur, to strengthen their investigative and

evidence‐gathering capabilities and improve their judicial and prosecutorial effectiveness. These training

programs help to develop more effective partners to investigate and prosecute transnational environmental

crimes, while also increasing our ability to enforce criminal statutes such as the Lacey Act and Endangered

Species Act that have extraterritorial dimensions. These training initiatives also foster positive relationships

with prosecutors in other countries in a way that better enables us to share information and assist in pros‐

ecuting transnational crimes.

In particular, Division

attorneys promoted the

Administration’s priorities

to combat wildlife traffick‐

ing and illegal logging by

developing and presenting

a series of capacity build‐

ing workshops on these

topics for environmental

investigators, prosecutors,

and magistrates in South‐

ern, Western, and Central

Africa in the past year.

This included a Congo

Basin regional workshop

on illegal logging law

enforcement in Douala,

Cameroon for enforce‐ Cameroon Illegal Logging Rural Timber, Law and Policy Section

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ment officials from Cameroon, Gabon, the Republic of Congo, and the Democratic Republic of Congo. For

each of these training programs in Africa, the Division partnered with the United Nations Office on Drugs and

Crime and experts from other federal agencies. Experts from INTERPOL also participated in the illegal log‐

ging training. A Division attorney also partnered with the Environmental Law Institute and European Union in

conducting three workshops for forestry and law enforcement officials, prosecutors, and judges in Liberia on

forestry governance.

Division attorneys also implemented a variety of environmental capacity building programs in Central and

South America in the past year. Attorneys implemented capacity building programs on enforcing illegal

logging laws for prosecutors and other law enforcement officials in Brazil, Colombia, Honduras, and Peru. In

Honduras, a Division attorney worked with the Department of the Interior’sInternational Technical As‐

sistance Program and Honduran officials to develop an officially sanctioned university certificate course on

timber trafficking law enforcement for prosecutors and other officials in the Honduran Public Ministry. In

Colombia, Division attorneys helped to organize and implement training workshopsfor enforcement officials

on prosecuting wildlife trafficking and illegal logging cases, as well as a workshop on enforcement and needs

assessment with respect to illegal mining. The mining workshop included instruction on mercury investiga‐

tion techniques, methods to assess injuries to natural resources resulting from illegal mining, and response

actions that can be taken with respect to those injuries.

In Asia, the Division participated in training programs for prosecutors in Burma, Laos, Thailand, and Vietnam

on wildlife trafficking law

enforcement organized  

by the UN Office on Drugs

and Crime. A Division

attorney also participated

in a wildlife trafficking

training program focused

on tiger poaching in

Bangladesh, one of the

last remaining countries

where tigers are found in

the wild. Another envi‐

ronmental prosecutor

from the Division partici‐

pated in a workshop for

prosecutors in Indonesia

on maritime law enforce‐

ment and enforcement of

isheries laws. And a Divi‐

sion attorney participated

in an effort to evaluate

and propose changes to

f Assistant Attorney General John Cruden (right) and LPS AttorneyTom Swegle (left)

in Beijing, Department of Justice

the laws of Burma regarding wildlife trafficking.

In April 2016, Assistant Attorney General John Cruden was a keynote speaker at the World Environmental

Law Congress held in Rio de Janeiro, Brazil on the importance of environmental enforcement. Mr. Cruden

also spoke on the importance of dedicated environmental prosecutors and the Division’s efforts to coun‐

ter wildlife trafficking at the World Conservation Congress of the International Union for the Conservation of

Nature held in Honolulu, Hawaii. In June 2016, Mr. Cruden joined other members of the Presidentially

established Wildlife Trafficking Task Force to engage for the fourth year with counterparts in China to discuss

efforts to combat wildlife trafficking. These discussions occurred in connection with the annual U.S.‐China

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Strategic & Economic Dialogue, held this year in Beijing, China. During that trip Mr. Cruden also met with

senior officials in China’s Ministry of Environmental Protection, spoke at a workshop for private attorneys on

citizen suit environmental litigation, and spoke about the Division’s work to approximately 175 members of

the public at the U.S. Embassy‐sponsored Beijing American Center.

Division attorneys also held leadership positions in important INTERPOL bodies relating to environmental

law enforcement and actively participated in meetings of these groups. Environmental Crimes Section Chief

Deborah Harris serves on the Advisory Board of INTERPOL’s Environmental Security Sub‐Directorate. Deputy

Section Chief Joe Poux chairs the Pollution Crimes Working Group.

ENRD attorneys also participated in negotiations, led by the Office of the U.S. Trade Representative, of the

environment chapter of the Trans‐Pacific Partnership Trade Agreement with eleven countries in Asia and the

Americas, and the Transatlantic Trade and Investment Partnership Agreement with the European Union. The

United States is working to incorporate conservation provisions in these trade agreements to deter traffick‐

ing in illegally taken flora and fauna. A Division attorney also served as a U.S. representative to the meetings

in Lima, Peru, of the Experts Group on Illegal Logging and Associated Trade, one of the working groups of the

Asia Pacific Economic Cooperation (APEC) forum. And Division attorneys also participated in the U.S. delega‐

tion to the 17th Conference of the Parties of the Convention on International Trade in Endangered Species of

Wild Fauna and Flora in Johannesburg, South Africa.

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PROMOTING NATIONAL SECURITY,

ENERGY SECURITY, AND
 MILITARY PREPAREDNESS

Promoting National Security and Military Readiness

The Division often defends the environmental compliance of Department of Defense agencies as they seek

to efficiently perform their national defense mission. For example, in Zbitnoff v. James (D. Vt.), the Division

prevailed in a case challenging the U.S. Air Force’s decision to base a squadron of F‐35 aircraft at Burlington

International Airport.

Defending the United States’ Energy Agenda

Oil and Gas Development

In White Earth Nation v. Kerry (D. Minn.), tribes and environmental groups filed suit against the State Depart‐

ment alleging that it permitted Enbridge to re‐construct a pipeline across the international border with Canada

in violation of NEPA. They also alleged that the State Department approved interconnections with a separate

pipeline that allow Enbridge to transport more oil across the border than is allowed by the existing Presiden‐

tial permit and that doing so violated NEPA. On December 9, 2015, the court issued an order granting sum‐

mary judgment in favor of the State Department. The court found that the State Department’s actions were

Presidential in nature and therefore were not reviewable under the Administrative Procedure Act. The court

reasoned that, in responding to inquiries from Enbridge regarding its existing Presidential permits, the State

Department was carrying out the directives of the President in Executive Order 13337, and therefore its ac‐

tions were Presidential actions.

In Louisiana v. Salazar

(D.D.C.), state plaintiffs chal‐

lenged the Bureau of Ocean

Energy Management’s

decision to correct its

methodologies for sharing

revenue among the United

States, Louisiana, Alabama,

Texas, and Mississippi from

oil and gas development

on the Outer Continental

Shelf in the Gulf of Mexico.

The states challenged the new methodologies alleging that they violated the Outer Continental Shelf Lands

Act (OCSLA) and the Submerged Lands Act. The Division successfully defended against these claims and ob‐

tained summary judgment as to all substantive legal issues. The court held that the Bureau’s correction of its

methodologies reflected a reasonable interpretation of the statutory language, finding that “the defendants’

persuasive force is strong, as their interpretation of the revenue‐sharing provision is consistent with the plain

language, legislative history, and the purpose of the OCSLA.”

The Division also frequently defends lawsuits involving the regulation of oil and gas activities on Indian trust

lands. During the past fiscal year, the Division defended several high‐profile cases that alleged that Interior’s

Outer Continental Shelf Oil Rig, Bureau of Ocean Energy Management

Promoting National Security, Energy Security and Military Preparedness | 91
         

   

                     

F‐35 Aircraft, Wikipedia

Ocotillo Wind Energy Facility on Public Landsin Southern California, Google Maps

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proposed regulations for oil and gas activities were unlawful and that the Interior Department did not under‐

take proper NEPA analyses before authorizing oil and gas activities on tribal lands.

In Southern Ute Indian Tribe v. Interior (D. Colo.), the Tribe challenged BLM’s final rule regarding hydraulic

fracturing, alleging that it violates the Indian Mineral Leasing Act and the Indian Reorganization Act. The Tribe

promulgated its own regulations and therefore alleged that BLM’s final rule cannot be enforced on the Tribe’s

reservation. The District Court for the District of Wyoming enjoined implementation of the BLM rule in July.

Interior and the Tribe commenced settlement negotiations which ultimately proved successful asthe parties

reached an agreement to end the litigation. Under the terms of the settlement, BLM and the Tribe agreed that

the Tribe will act as the primary regulatory authority for purposes of administering hydraulic fracturing activi‐

ties on the Tribe’slands. The settlement will also facilitate cooperation between the Tribe and BLM in regulat‐

ing oil and gas activities on the Tribe’slands.

The Division represented Interior in defending its management of oil and gas development in Osage County,

Oklahoma, in five cases.

	 In Hayes v. United States (N.D. Okla.), a land surface owner challenged Interior’s compliance with NEPA

in approving leases and permits to drill on the property. The land surface owner alleged that Interior

could not rely on a 1979 EA because the EA was outdated and did not adequately address the impact of

hydraulic fracturing. Although the court found that the 1979 EA was inadequate, the Division success‐

fully defended against a Rule 19 motion.

	 In Donelson v. United States (E.D. Okla.), multiple plaintiffs filed a proposed class action of Osage Coun‐

ty surface owners seeking to challenge Interior’s NEPA compliance in approving leases and permits to

drill. The Division

obtained dismissal

on the grounds that

plaintiffs could not

assert their claims

as a class and also

defeated the re‐

quest for class certi‐

fication discovery.

	 In two related
 

cases—Osage
 

Minerals Council v.
 

Jewell (OMC) (N.D.
 

Okla.) and Osage
 

Producers Associa‐

tion v. Jewell (OPA
 

I) (N.D. Okla.)—the
 

Division defended
 

challenges to new

oil‐and‐gas drill‐

ing regulations in Osage County. After the plaintiffs in the consolidated OMC/OPA litigation obtained    

a preliminary injunction against the new rule, the Division successfully negotiated a voluntary remand

of the rule to correct the specific rulemaking irregularities that supported the motion for a preliminary

injunction.

Osage County Oil Drilling, the Department of the Interior

	 Finally, in Osage Producers Association v. Jewell (OPA II) (N.D. Okla.) the plaintiff challenged hundreds of

agency actions and alleged instances of inaction related to oil and gas leases and drilling permits claim‐

ing that the agency had unlawfully delayed or denied action on pending applications. The Division suc‐

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cessfully obtained dismissal of these challenges as an improper programmatic challenge under the APA.

The Court afforded the plaintiff an opportunity to amend its complaint to correct this deficiency, which

it neglected to do, resolving the litigation in our favor.

Renewable Energy

One component of the continuing efforts to increase domestic energy supplies is expansion of cleaner domes‐

tic sources of energy like wind and solar power. The Division has defended challenges to permits and rights‐

of‐way in approximately 40 cases involving solar and wind projects across the country. Our successes over the

last several years included favorable rulings in cases involving the Ivanpah Solar Project, the Genesis Solar

Project, the North Sky River Wind Energy Project, the Ocotillo Wind Energy Project, the West Tennessee Solar

Farm Project, the Deerfield Wind Project, the Blythe Solar Project, the Rice Solar Project, the Cape Wind Proj‐

ect, and the Tule Wind Project. These decisions have enabled substantial development of renewable energy

resources across the country. These cases often raise issues at the intersection of energy security issues and

natural resources issues.

In Western Lands Project v. Bureau of Land Management (S.D. Cal.), citizens groups sued under NEPA, chal‐

lenging the Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern

States and accompanying Record of Decision. The Division obtained a favorable ruling on all claims from the

district court in 2014; the Ninth Circuit court of appeals affirmed this year. The decision allows BLM to proceed

with its plan to streamline environmental siting and evaluation of solar energy projects on public lands.

The Genesis Solar Energy Project was one of the first large‐scale renewable energy projects to be constructed

on federal public land managed by BLM. The project provides up to 250 megawatts of clean solar energy to

southern California. The Division has successfully defended this important project from three different law‐

suits, most recently in La Cuna de Aztlan v. Interior (C.D. Cal.). In that case, a group of individuals alleged that

the BLM violated various laws governing public lands and failed to adequately analyze the impacts of the proj‐

ect. In 2014, the district court entered judgment in favor of the government on all claims. They then appealed

the decision on some, but not all, claims. In 2016, the Ninth Circuit issued an opinion upholding the district

court’s decision.

The Division also successfully defended FWS’s assessment of the effects of the Panoche Valley Solar Project, a

proposed 2,154‐acre solar project in Northern California. In Defenders of Wildlife v. FWS (N.D. Cal.), plaintiffs

challenged a biological opinion issued by FWS under the Endangered Species Act addressing the effects of the

Panoche Valley Solar Project. After emergency injunction proceedings seeking to halt the project, the Court

denied emergency relief in all respects.

In Garden Peninsula Foundation v. Heritage Sustainable Energy, LLC (W.D. Mich.), plaintiffs brought claims chal‐

lenging the operation of Heritage Wind Farm in western Michigan against FWS under the ESA and the Bald and

Golden Eagle Protection Act. Division attorneys successfully obtained an order dismissing all claims against

FWS.

The Division was similarly successful in Center for Environmental Science, Accuracy & Reliability v. National

Park Service (E.D. Cal.), a case brought by agricultural groups challenging the annual operations of the Hetch‐

Hetchy Water and Power Project in Yosemite National Park in water year 2014. The groups alleged that the

Park Service violated NEPA by failing to prepare an Environmental Impact Statement and the ESA by failing to

consult with the FWS and NMFS concerning the effect of Project operation on delta smelt, spring and winter‐

run chinook, and the green sturgeon. After extensive summary judgment briefing, Division attorneys obtained

favorable judgment dismissing plaintiff’s challenge under the Endangered Species Act to the National Park

Service’s operation and management of the Hetch‐Hetchy Water and Power Project located inside Yosemite

National Park.

The Division also had significant victories in the federal appellate courts in cases involving the intersection of

94 | Promoting National Security, Energy Security and Military Preparedness
   

energy              security issues and natural resources issues.

	 Desert Protective Council v. Interior (9th Cir.), was one of three cases challenging a BLM decision grant‐

ing a right‐of‐way for the construction and operation of the 112‐turbine Ocotillo Wind Energy Facil‐      

ity on public lands in southern California. DPC alleged violations of NEPA and the Federal Land Policy

and Management Act, based primarily on the project’s impacts to raptors and bats. The district court

rejected those challenges, and on November 19, 2015, the Ninth Circuit affirmed. It held that BLM suf‐

ficiently evaluated and disclosed the impacts of the project, and that the agency’s inclusion of certain

raptor studies and data in a final mitigation plan, but not in the draft, was not a violation of NEPA. The

Court also rejected DPC’s challenges to the methodology of BLM’sraptor surveys, and deferred to  

BLM’s decision not to require turbine curtailment as mitigation for impacts to raptors other than golden

eagles.

•	 The Tule Wind Power Project, a privately‐developed project, is located in eastern San Diego County,

California. It is designed to generate up to 200 megawatts of clean power, enough to serve approxi‐

mately 60,000 homes. In Protect Our Communities Foundation and Backcountry Against Dumps v.

Bureau of Land Management (9th Cir.), the plaintiffs, who opposed the Project, sued BLM, challenging

its approval of a right‐of‐way across federal lands. They asserted that the approval of the right‐of‐way

violated NEPA and the Migratory Bird Treaty Act. The district court rejected these claims, and plaintiffs

appealed. On June 7, 2016, the Ninth Circuit affirmed. It rejected plaintiffs’ NEPA arguments, holding

that the agency had articulated a legally sufficient purpose and need for its action, analyzed a reason‐

able range of alternatives, adequately considered mitigation, and took a hard look at the Project’s

potential impacts on avian species, climate change, noise and electromagnetic fields. The court held

that BLM’s approval of the right‐of‐way did not constitute a “take” of birds because the MBTA “does not

contemplate attenuated secondary liability on agencies like BLM that act in a purely regulatory capacity,

and whose regulatory acts do not directly or proximately cause the take of migratory birds.” The Court

also rejected the notion that BLM’s action in approving a Project that may lead to third‐party “take” of

migratory birds in the future violated the “contrary to law” provision of the APA because BLM did not

authorize the take of migratory birds and, in fact, required the Project proponent to comply with the

MBTA as a condition of the right‐of‐way.

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PROTECTING TRIBAL RIGHTS AND
 

RESOURCES AND ADDRESSING
 

TRIBAL CLAIMS
 

Supporting Tribal Authority Over Tribal Lands and Resources

Affirming Reservation Boundaries

In Nebraska v. Parker, the U.S. Supreme Court concluded that an 1882 statute opening the western part of the

Omaha Reservation to homesteading did not diminish the Reservation’s boundaries, unanimously affirming the

decision of the Eighth Circuit. The Village of Pender and several liquor retailers brought this challenge seeking

to avoid the Tribe’sliquor regulations. The district court remanded the matter to Omaha Tribal Court for con‐

sideration, and the Division filed an amicus brief in the tribal court proceeding supporting the Tribe. Following

the Tribal Court’s determination that the 1882 statute did not diminish the Reservation, the challenge returned

to federal district court. The United States then intervened in support of the Tribe and Nebraska intervened

for Pender. The district court concluded that the Reservation’s boundaries remained intact, as did the Eighth

Circuit. The Supreme Court, in a unanimous opinion authored by Justice Thomas, concluded that the statutory

text of the statute “bore none of the[] hallmarks of diminishment” that might reflect congressional intent to

diminish the Reservation. The Court reaffirmed that only Congress can diminish reservation boundaries, and

nothing in the language of the statute or the circumstances surrounding its passage evidenced an unequivocal

congressional intent to diminish the Reservation.

Defending Tribal Court Jurisdiction

On June 23, 2016, the U.S. Supreme Court issued a per curiam decision in Dollar General Corporation v. Mis‐

sissippi Band of Choctaw Indians, affirming the judgment below by an equally divided Court (4‐4 tie). Dollar

General had sought review of a Fifth Circuit decision holding that the tribal court of the Mississippi Band of

Choctaw Indians had jurisdiction to adjudicate a civil tort claim brought by tribal members against a nonmem‐

ber corporation that operates a store on tribal trust land pursuant to a lease with, and business license from,

the Tribe. The claim arose from the store manager’s alleged assaults upon a tribal member who was, pursu‐

ant to an agreement with the Tribe, working at the store as an intern. The petitioner corporation had made

sweeping arguments before the Supreme Court urging it to hold that tribal courts had no authority to adjudi‐

cate civil cases involving nonmember defendants. The United States filed an amicus brief in support of tribal

court jurisdiction.

Defending Bureau of Indian Affairs Regulations that Protect Tribal Interests

The Division successfully defended comprehensive revised Department of the Interior regulations governing

rights‐of‐way over Indian lands in Western Energy Alliance v. Interior (D.S.D.). Western Energy Alliance, an as‐

sociation of more than 450 companies and individuals engaged in oil and natural gas extraction, exploration,

and development, filed suit and moved for a preliminary injunction to block implementation of the Bureau of

Indian Affairs’ revised regulations, which are codified at 25 C.F.R. Part 169. The agency overhauled its right‐of‐

way regulations, which had not been updated for over three decades, to clarify and streamline the process for

granting rights‐of‐way across tribal and individual Indian lands and to empower tribes and their members in

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Crow Fair, Montana, Alex Berger

Crow Fair, Montana, Alex Berger

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the right‐of‐way granting process. Western Energy Alliance challenged the regulation’s protections for tribal

jurisdiction, arguing that tribes lack jurisdiction over right‐of‐way lands. The Alliance further alleged that the

revised regulations altered the property rights of grantees by allowing owners to terminate new rights‐of‐way

without agency involvement. Concluding that the plaintiff “failed to shoulder the heavy burden of demonstrat‐

ing a facial challenge to the [final regulations] is likely to succeed on the merits,” the court denied Western

Energy Alliance’s request for a preliminary injunction. The plaintiff subsequently dismissed its lawsuit.

Protecting Tribal Fishing Rights

The United States intervened in Penobscot Nation v. Janet Mills (D. Me.), a suit brought by the Penobscot

Indian Nation against Maine’s Attorney General to protect the hunting and fishing rights of its members in the

60‐mile stretch of the Penobscot River adjacent to the islands constituting the Penobscot Reservation, which is

known as the “Main stem” of the River. The suit also claimed that the Penobscot Reservation, as defined by the

Maine Implementing Act, a state law ratified by the federal Maine Indian Claims Settlement Act (Settlement

Acts), includes some or all of the 60‐mile stretch of River. At summary judgment, the district court affirmed

that the Settlement Acts “intended to secure the Penobscot Nation’sretained right to sustenance fish in the

Main Stem, as it had done historically and continuously.” The court, however, held that for all other purposes,

the Reservation did not in‐

clude the Penobscot River.

The Nation and the United

States have appealed to

the First Circuit Court of

Appeals.

Defending Tribal

Water Rights

A significant portion of the

Division’s work involves

securing tribes’ federal

rights to water, one of

increasingly scarce natu‐

ral resources in the western United States. Many of these cases are resolved through complex, multi‐party

settlements involving tribes, states, and the United States. These settlements generally require ratification by

federal legislation in order to alter tribal rights and provide critical funding for infrastructure projects designed

to solve water‐related problems (e.g., safe drinking water unavailability or concerns related to the ESA). The

Division works closely with Interior at the negotiation and legislative phases of these settlements. Following

congressional ratification, the Division, working in conjunction with the other parties to the settlement, moves

to have the adjudication court affirm the settlement through a decree. This phase often involveslitigation to

overcome challengesto entry of the settlement.

Penobscot Reservation, Google Maps the most valuable and

As in past years, the Division worked with Interior and other parties to reach water rights settlements for vari‐

ous tribes that, when approved by Congress, solve substantial water problems and end lengthy litigation or

prevent litigation in the future. We also worked with the parties to support the development of legislation that

would effectively ratify and implement these settlements. Congress ratified four such settlements this year, as

part of the Water Infrastructure Improvementsfor the Nation Act of 2016.

For example, ENRD assisted Interior in negotiations with the Chickasaw and Choctaw Tribes of Oklahoma, the

State of Oklahoma, and Oklahoma City to resolve certain tribal water resources regulatory issues and address

the water rights of Indian allottees. These negotiations resulted in a unique settlement. Legislation to ratify

thissettlement has been enacted.

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Similarly, after six years of negotiations, the United States and the Pechanga Band of Luiseno Mission Indians

completed a water rights settlement with the main water district in a southern California basin in early 2016.

The settlement, which has been ratified by Congress, resolves claims to water by the United States on behalf of

the Pechanga Band in a decades‐old case, United States v. Fallbrook Public Utility District et al. (S.D. Cal.).

ENRD’s years of work with Interior to settle the water rights of the Blackfeet Nation led to successful resolu‐

tion of a wide variety of complex and outstanding issues regarding implementing legislation which Congress

enacted this year.

In addition, ENRD worked closely with Interior and OMB to address a variety of issues that have prevented

implementation of a settlement that Congress enacted in 1988 addressing the water rights of five Southern

California Bands in the San Luis Rey River basin. After years of failed efforts, these talks led to an agreement

that was contingent on Congress amending the 1988 San Luis Rey Indian Water Rights Settlement Act , which it

did.

The Division has also worked closely with Interior, the Office of Management and Budget, and the House Com‐

mittee on Natural Resources to address new procedures that the Committee put in place to address Indian

water rights settlements. As a result of these efforts, the Justice and Interior Departmentssent joint letters

to the Committee supporting the legislation that would implement the Blackfeet, Pechanga, and San Luis Rey

settlements.

Once a settlement passes Congress, it is typically subject to objection by any potentially harmed water user.

The Division completed the defense of the Crow Tribe’s water settlement, with the Montana Supreme Court

issuing a favorable opinion rejecting the challenges of the last group of opponents, and the Supreme Court de‐

nying review. And a federal court in New Mexico entered the final judgment resolving the Taos Pueblo’s water

rights under a 2010 congressionally approved settlement.

Not all tribal water rights claims are resolved through settlement. The Division obtained a significant favorable

ruling in the Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (C.D. Cal.) litigation, in

which ENRD had intervened seeking a judicial declaration of the rights to groundwater of the Agua Caliente

Band of Cahuilla Indians. In 2015, the court held that the United States reserved groundwater for the Band

when it established the Agua Caliente Reservation. That holding is presently on appeal before the Ninth Circuit.

Pending its resolution, the district court stayed litigation on most remaining issues, but ordered briefing on

whether defendants could raise certain equity‐based, affirmative defenses (laches, balance of the equities, and

unclean hands) to declaration of the existence and scope of the watersreserved. The United States and the

Tribe moved for partial summary judgment on that issue, and the court granted the motions.

Defending Retrocessions of Civil and Criminal Jurisdiction

A federal district court, in Klickitat County v. Interior (E.D. Wash.), rejected a claim by the County that Interior

should not have accepted the State of Washington’s partial retrocession of civil and criminal jurisdiction over

the Yakima Reservation without resolving a dispute about the boundaries of the Reservation.

Upholding Agency Authority to Acquire Land in Trust for Tribes and Defending Trust Lands

The Division continued to have considerable success in defending decisions by Interior to take land into trust

for the benefit of tribes under the Indian Reorganization Act (IRA).

In Confederated Tribes of the Grand Ronde Cmty. v. Jewell (D.C. Cir.), the D.C. Circuit affirmed a district court

decision which upheld the Assistant Secretary–Indian Affairs’ decision to acquire land in trust for the Cowlitz

Indian Tribe of the State of Washington for gaming and related purposes. Two suits were filed in the case, one

from the Confederated Tribes of the Grand Ronde Community of Oregon, and another from Clark County,

Washington, the City of Vancouver, Washington, and others who opposed the proposed casino.

Protecting Tribal Rights and Resources and Addressing Tribal Claims | 99
           

The litigation was the first “test

case” for evaluating Interior’s in‐

terpretation of the phrase “under

Federal jurisdiction” in the first

definition of “Indian” in the IRA,

following the 2009 Supreme Court

decision in Carcieri v. Salazar, 555

U.S. 379 (2009). In Carcieri, the

Supreme Court held that the word

“now” in the phrase “now under

Federal jurisdiction” referred to

1934, when the IRA was enacted,

concluding that the Secretary’s

authority to acquire land in trust

was limited to those tribes that

were “under Federal    jurisdiction”

in 1934. The Supreme Court, how‐

ever, did not opine on the mean‐

ing of “under Federal jurisdiction.”

           

                               

                               

                                   

                               

                               

                                 

                               

                               

     

                               

                               

                                     

                           

                                   

                                     

                             

                                 

                                       

                               

   

BIA Regions Map, Bureau of Indians Affairs

As part of its decision to acquire land in trust for the Tribe, Interior engaged in a thorough statutory interpre‐

tation analysis of the phrase “under Federal jurisdiction,” concluding that it was ambiguous and its meaning

could not be readily ascertained by the statute or its legislative history. Examining the statute against the his‐

torical relationship between Indian tribes and the federal government, Interior concluded that the framework

for determining whether a tribe was “under Federal jurisdiction” in 1934 required an examination of historical

evidence in or prior to 1934 reflecting that the federal government took some action for, asserted authority

over, or otherwise recognized an obligation to the tribe, such that a jurisdictional relationship was formed, and

that such jurisdictional relationship remained intact in 1934.

The D.C. Circuit agreed that the phrase was ambiguous, deferring to Interior and upholding its conclusion that

the Tribe was “under Federal jurisdiction” in 1934. The D.C. Circuit further held that the phrase “recognized

Indian tribe” that precedes “now under Federal jurisdiction” in the first definition of “Indian” in the IRA was

ambiguous and rejected plaintiffs’ arguments that the statute must be read as requiring recognition as of 1934.

The D.C. Circuit upheld Interior’s determination that the Tribe had a significant historical connection to the sub‐

ject property such that it was eligible for gaming under the Indian Gaming Regulatory Act, concluded that the

agency fully complied with NEPA, and rejected plaintiffs’ claim that the agency had to “investigate” the expan‐

sion in the Tribe’s membership following its 2002 federal acknowledgment before deciding to acquire land in

trust for it.

The court in Stand Up for California! v. Interior (D.D.C.) rejected, in a comprehensive 170‐page opinion, chal‐

lenges by a citizens group and Picayune Rancheria of Chukchansi Indians to three separate but related deci‐

sions of the Secretary of the Interior concerning accepting a parcel of land into trust for the North Fork Ran‐

cheria of Mono Indians. The plaintiffs challenged the agency’s determinations under five separate laws, the

IRA, the Indian Gaming Regulatory Act (IGRA), NEPA, the Clean Air Act, and the APA. The Court granted the

United States’ and the North Fork Tribe’s motions for summary judgment on all claims related to the IGRA and

IRA determinations and dismissed the challenge to the tribal‐state compact as moot, because that compact is

no longer in effect and the Secretary, pursuant to IGRA, had since issued Secretarial Procedures providing an

alternate basis for gaming on the tribal lands at issue. The Court also held that any part of the claims predi‐

cated on challenges to the Governor of California’s concurrence were dismissed for failure to join an indispens‐

able party.

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In Butte County, California v. Hogen (D.D.C.), the court, following remand from the D.C. Circuit to the Secretary

of the Interior for further consideration of documents submitted by the County, granted the Division’s motion

for summary judgment and affirmed Interior’s decision to take land into trust for the purpose of gaming for the

Mechoopda Indian Tribe of the Chico Rancheria.

In County of Amador, California v. Interior (E.D. Cal.), the court granted the Division’s motion for summary judg‐

ment in a lawsuit filed by Amador County, California challenging Interior’s decision to acquire approximately

228 acres of land in trust for the Ione Band.

The status of trust lands arose in a different context in Poarch Band of Creek Indians v. Hildreth (11th Cir.). In

that case, the Poarch Band of Creek Indians sued the tax assessor of Escambia County, Alabama (Hildreth) in

federal court when he attempted to assess approximately $23 million in ad valorem taxes and penalties against

the Band for land situated within the County that the United States holds in trust for the Band. Hildreth did so

based on his belief that under the Supreme Court’s 2009 decision in Carcieri v. Salazar, the Secretary of the

Interior lacked authority to have taken this land into trust years earlier. The district court issued a preliminary

injunction against Hildreth, which he appealed. On July 11, 2016, the Eleventh Circuit affirmed. It first rejected

the tax assessor’s argument that the district court lacked jurisdiction of the Band’ssuit due to the Tax Injunc‐

tion Act, holding that by enacting 28 U.S.C. 1362, Congress intended to broaden federal‐court jurisdiction to

include claims arising under federal law brought by Indian tribes to the same extent as suits brought by the

United States, which is not subject to the Tax Injunction Act. On the merits, the appellate court noted that the

Band’s likelihood of success was “strong” in light of its prior decision in PCI Gaming, which involved the same

underlying challenge regarding the Secretary’s trust acquisition. The Division filed an amicus brief in support of

the Band.

Protecting Indian Treaty

Rights

The United States and the tribal

signatoriesto the 1854‐1855

Stevens Treaties with Pacific

Northwest Indian Tribes brought

litigation in 2001 seeking to en‐

force a treaty‐based duty upon  

the State of Washington to refrain

from constructing and maintain‐

ing culverts under State roads that

block access to fish habitat so that

anadromous fish runs are reduced.

The district court, interpreting the

treaty to prevent certain kinds of

environmental degradation, ruled

in the Tribes’ and United States’

favor. It also dismissed the State’s

counterclaims against the United States and entered an injunction requiring the State to correct most barrier

culverts by 2030 at the latest. The State appealed in United States v. Washington (9th Cir.).

Salmon,Wikipedia

On June 27, 2016, the Ninth Circuit affirmed the finding of a treaty violation, the issuance of the injunction,

and the dismissal of the counterclaims. The court rejected the State’s argument that the treaties’ reservation

of the right of taking fish at usual and accustomed grounds did not impose any obligation on the State to en‐

sure that anadromous fish will, in fact, be available. Reviewing the history of the treaties and relevant princi‐

ples of treaty construction, the Court concluded that “the Indians reasonably understood Governor Stevens to

promise not only that they would have access to their usual and accustomed fishing places, but also that there

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would be fish sufficient to sustain them.” The Court found important that there had been a showing that State

culverts blocked approximately 1,000 linear miles of streams suitable for salmon habitat, and that if these

culverts were replaced or modified to allow free passage of fish, several hundred thousand additional mature

salmon each year would be available to the Tribes, whose members currently cannot obtain a moderate living

from fishing.

The Court also rejected the State’s claim that the United States had waived any treaty violation because some

of the culverts were designed according to standards set by the Federal Highway Administration and some had

received federal approvals under the Clean Water Act and the Endangered Species Act. The Court stressed

that such actions by agents of the United States cannot render unenforceable otherwise valid Indian treaty

rights. The Court also affirmed the dismissal of the State’s counterclaim that sought to require the United

States to fix its culverts before the State had to act. While the United States has in some cases been found

to have waived sovereign immunity to counterclaims seeking recoupment, the injunctive relief counterclaims

here did not qualify as recoupment since they did not seek monetary relief. An en banc petition for rehearing

has been filed by the State and is pending.

Protecting Tribal Rights Under Leasing Agreements

The court in Elk Petroleum, Inc. v. Rocky Mountain Regional Director, Bureau of Indian Affairs (D. Mont.) re‐

jected a claim that an Indian Mineral Development Agreement between Elk Petroleum and the Crow Tribe is

unenforceable. An Interior appeals body had upheld a Bureau of Indian Affairs Regional Director’s determina‐

tion that Elk Petroleum was responsible for payments under the Agreement and that it had not paid bonus  

and rental amounts. The court granted the Division’s motion for summary judgment, and entered a judgment

against Elk Petroleum that it is liable for payments under the Agreement in the amount of $869,176.89. The

court determined that the administrative decision to affirm the Regional Director’s approval of the Agreement

was not arbitrary, capricious, or an abuse of discretion, and that by failing to assert a due process claim against

Interior in its pleadings any such claim had been waived.

Indian Child Welfare Act

In December 2014, the Attorney

General announced that the De‐

partment of Justice would focus

additional resources on promot‐

ing compliance with the Indian

Child Welfare Act (ICWA). ENRD is

leading this initiative, with support

from the Office of Tribal Justice,

the Civil Rights Division, the Office

of Justice Programs, and other DOJ

components.

Congress enacted ICWA in 1978

to “protect the best interests of

Indian children and promote the

stability and security of Indian

tribes and families.” The statute

was passed in response to con‐

cerns over the consequences to

Indian children, Indian families,

and Indian tribes of abusive child‐

welfare practices that resulted in Indian Child Welfare Act, State of Utah

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the separation of large numbers of Indian children from their families and tribes through adoption or foster

care placement, usually in non‐Indian homes. ICWA provides important procedural and substantive standards

to be followed in state‐administered proceedings involving Indian children and addresses key jurisdictional

issues regarding whether child welfare proceedings involving Indian children are to be heard in state or tribal

courts.

The Department’s ICWA initiative has focused on four primary components. First, we have actively sought out

opportunities to participate in precedent‐setting litigation addressing important ICWA issues. Since the an‐

nouncement of the initiative, the United States has participated as amicus curiae in five state‐court and feder‐

al‐court cases addressing key issues relating to the interpretation and implementation of ICWA. We had some

significant successes in such cases in fiscal year 2016:

	 In In re Isaiah, we argued that compliance with ICWA’s provisions requiring notice to parents and tribes

of child welfare proceedings applied in both foster‐care and termination‐of‐parental‐rights proceedings,

and that the failure to comply with this requirement in the termination proceeding could be appealed

even if the failure was not appealed in the foster‐care proceeding. On July 7, 2016, the California

Supreme Court issued a decision consistent with the United States’ amicus brief. The Court’s opinion

recognizes the affirmative and continuing duty on juvenile courts and social service agencies to inquire

about a child’s Indian status and, where appropriate, to provide notice to the parents and the child’s

tribe(s).

	 In In re Abbigail A., the United States filed a brief at the California Supreme Court’s request address‐

ing whether certain California Rules of Court are preempted by ICWA. We answered in the negative,

but further argued that the rule requiring a juvenile court to treat all children eligible for membership

as if they were an “Indian child” appeared to go beyond the state law definition of “Indian child.” We

argued that a different rule that directs the juvenile court to pursue tribal membership for a child who

is already an Indian child as defined in ICWA did not conflict with either federal or state law. On July

14, 2016, the California Supreme Court issued an opinion that adopted the outcome and much of the

reasoning urged in the United States’ brief.

Second, we have partnered with the Department of the Interior and the Department of Health and Human

Services to make sure that all the tools available to the federal government are used to promote compli‐      

ance with ICWA. In June 2016, Interior published a comprehensive regulation addressing the implementation of

ICWA and in April 2016, the Department of Health and Human Services proposed regulations that would

require state title IV‐E agencies to collect and report Adoption and Foster Care Analysis and Reporting System

(AFCARS) data elements related to ICWA. In addition to assisting those agencies in their ICWA‐related regula‐

tory efforts, ENRD has partnered with them in an interagency process to develop other ICWA compliance tools.

Third, ENRD has engaged in targeted actions to increase awareness of ICWA’srequirements and promote com‐

pliance with the statute, including participating in training and outreach around the country.

The fourth and final component is ENRD’s defense of lawsuits that seek to undermine both the statute and

agency efforts to promote compliance with the statute. In National Council for Adoption v. Jewell (E.D. Va.),

the Division obtained dismissal of all claims challenging Interior’s issuance of non‐binding guidelines interpret‐

ing ICWA. Within days of the oral argument, the court agreed with our position and held that the Council

and other parties lacked standing, that there was no final agency action regarding the guidelines, and that the

guidelines were an interpretative rule that did not require notice and comment rulemaking. The court also

concluded that equal protection, due process, and Indian Commerce Clause claims could not be asserted, and

further stated that even if those claims had been active, there was no authority to support the argument that

the Guidelines violate these constitutional provisions. Finally, the court determined that the Guidelines do not

“commandeer” state entities in a manner inconsistent with the Tenth Amendment of the Constitution.

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Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act

(IGRA) was enacted to promote

tribal economic development

through gaming on tribal lands,

and the National Indian Gaming

Commission (NIGC) was created

by IGRA to regulate and sup‐ port

tribal gaming. The Division

defends decisions made by the

NIGC as well as decisions made by

Interior that may affect gaming on

tribal lands.

National Indian Gaming Commision

In State of Kansas v. National Indian Gaming Commission (D. Kan.), ENRD secured the dismissal of a lawsuit by

the State of Kansas and a county board of commissioners that challenged a National Indian Gaming Commis‐

sion legal opinion that a 124‐acre strip of land acquired in Kansas by the Quapaw Tribe of Indians of Oklahoma,

and put in trust by Interior, qualifies for gaming under the “last recognized reservation exception” to IGRA. The

court granted ENRD’s motion to dismiss, holding that the Commission’s general counsel’slegal opinion regard‐

ing gaming eligibility on the Quapaw tract in Kansas is not a “final agency action” subject to judicial review, and

that a challenge to Interior’s promulgated regulations governing the “last recognized reservation exception” is

time‐barred. The court also granted the tribal defendants’ motion to dismiss, holding that the tribal officers

and entities had not waived their sovereign immunity and that the claims did not satisfy a recognized excep‐

tion to tribal immunity.

In Jamul Action Committee and the Jamul Community Church v. Stevens (E.D. Cal.), the court dismissed all but

one claim in a citizen group’s challenge to NIGC’s actions in connection with a pending gaming management

contract. The remaining claim alleged that the NIGC failed to comply with NEPA when evaluating the Indian

tribe’s proposal to build a casino. The plaintiffs filed a motion for writ of mandamus seeking to require the

Commission to comply with NEPA. The district court denied the writ. Plaintiffs subsequently appealed the deci‐

sion but the appellate court sided with the Commission.

In Amador County Office of Board of Supervisors v. Jewell (D.D.C.), the court granted ENRD’s motion for sum‐

mary judgment on the D.C. Circuit’s remand for a merits determination of whether the Buena Vista Rancheria

qualifies as a reservation and thus “Indian lands” under IGRA. Interpreting the terms of the 1983 and 1987

judgments in the Tillie Hardwick litigation regarding the termination of California tribes, the court determined

that the County unambiguously bound itself to treat the Rancheria as a reservation for all purposes and is thus

precluded from now arguing otherwise. In the alternative, the court found that the Interior Secretary has been

delegated authority to determine whether specific lands qualify as a reservation for purposes of IGRA and that

the Secretary’s approval of the Tribe’sinitial Tribal‐State Compact in 2000, combined with an approval of an

amendment to the Compact in 2004, evidenced the Secretary’streatment of the Rancheria as a reservation.

Tribal Claims against the United States

The Division secured an important decision in Ramona Two Shields v. United States (Fed. Cir.) interpreting the

scope of the release of liability provision in the Cobell settlement, regarding Interior’s management of indi‐

vidual Indian trust accounts. The liability release in Cobell precluded parties to that settlement from bringing

later suits based on two types of mismanagement at issue there. In Two Shields, individual Indians alleged a

breach of trust relating to oil and gas leases in North Dakota. The Federal Circuit held, however, that the claims

presented were the same kind of land administration claims at issue in the Cobell litigation, so they were pre‐

cluded by the Cobell liability release. This resolution secured the benefit of the bargain for the United States

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in that $3.4 billion dollar settlement that resolved historic accounting claims of thousands of individual Native

Americans.

In Wyandot Nation of Kansas v. United States (Fed. Cl.), a non‐federally recognized Indian entity sued for an

accounting and money damages related to alleged mismanagement of payments under an 1867 Treaty and

alleged mismanagement of a cemetery held in trust for a separate, federally recognized Indian Tribe. The court

granted our motion to dismiss all claims, holding that the entity’s claims were time‐barred and that plaintiff did

not have standing to assert its cemetery claims. The court also held that the plaintiff was not a federally rec‐

ognized tribe pursuant to the List Act and was therefore not entitled to receive an accounting under the Trust

Fund Management Reform Act.

Resolution of Tribal Claims of Historical Trust Accounting and Mismanagement

The Department of the Interior manages about 2,500 tribal trust accounts for more than 250 federally‐recog‐

nized tribes. In addition, it manages almost 56 million acres of tribal trust lands and more than 100,000 leas‐

es on those lands for various uses, including housing, timber harvesting, farming, grazing, oil and gas extrac‐

tion, business leasing, rights‐of‐way and easements. In a series of long‐running disputes, tribal governments

claim that Interior and the Department of the Treasury failed to provide legally required trust accountings,

that Interior and Treasury mismanaged their trust funds, and that Interior also mismanaged their natural

resources. These cases have been both highly contentious and resource‐intensive. In 2016, ENRD continued

its initiative to resolve these lawsuits without the need for decades of resource‐draining litigation. Between

January 1 and September 26, 2016, alone, ENRD reached settlements with 17 tribes for almost $493 million.

The 2016 settlements continued the success of the current administration in settling these lawsuits. Since

January 20, 2009, ENRD has settled the claims of 104 tribes for $3.35 billion, resulting in the resolution of 69

lawsuits without the need for protracted litigation. The settlements represent a significant milestone in the

improvement of the United States’ relationship with Indian tribes, and they will allow the federal government

and the tribes to move beyond the distrust exacerbated by years of litigation. In announcing the 2016 settle‐

ments, Attorney General Lynch noted that “[t]hese historical grievances were a barrier to our shared progress

toward a brighter future,” but that with the settlements “those barriers have been removed and decades of

contention have been ended honorably and fairly.”

Among the cases settled during 2016 were several notable high‐dollar claims:

	 ENRD resolved the “breach of trust” claims of the Jicarilla Apache Nation, which spanned almost 70

years and numerous trust fund and natural resource mismanagement claims. This case was marked

by a prior adverse ruling from the United States Court of Federal Claims on the merits of the Nation’s

trust fund mismanagement claims for the period between 1974 and 1992. Conversely, it also fea‐

tured a successful challenge in the Supreme Court to the lower court’s decision that the United States

was not protected by the attorney‐client privilege when Interior Department lawyers provided legal

advice to the Secretary of the Interior in her capacity as trustee. The United States paid $124 million

to settle all of the Nation’s claims regarding the management of the tribe’strust funds and natural

resources. The agreement also pavesthe way for more cooperation and improved relations between

the United States and the Nation in the future.ENRD settled the long‐standing claims of the Colorado

River Indian Tribes (“CRIT”), without the need for protracted litigation. As part of the settlement

agreement, the United States paid CRIT $45 million, and in return CRIT dismissed its “breach of trust”

claims with prejudice, accepted certain trust account statements as the accountings required by law,

and agreed to improved communications and informal dispute resolution with the United States re‐

garding any future trust account disputes.

•	 ENRD resolved the claims of the San Carlos Apache Tribe and the Southern Ute Tribe under similarly

favorable terms and conditions for $68 million and $126 million, respectively.

Protecting Tribal Rights and Resources and Addressing Tribal Claims | 105
       

     

                              

                                 

                                 

                     

                         

                             

                                 

                             

                           

   

                             

                                 

                                

                             

               

                               

                         

                           

                           

                               

                           

                                 

                                     

                                   

                               

                               

                               

                               

                                 

     

SUPPORTING THE
 DIVISION’S STAFF
 

Promoting Diversity at Work

ENRD continues to be an active participant in the Department’s Diversity Inclusion and Dialogue Program

(DIDP) through the work of its Diversity Committee and by sponsoring 20 participants and 2 facilitators in 2016.

The purpose of the DIDP is to facilitate a deeper understanding of diversity and inclusion issues among DOJ

employees. The program focuses on enhancing personal growth and effectiveness through communicating,

listening, introspection, and building acceptance for differing perspectives. The DIDP provides a safe, open,

structured, and confidential environment where employees can freely discuss and explore the full spectrum of

diversity and inclusion topics and how these aspects of diversity affect our ability to work together. The Diver‐

sity Committee also has initiated a practice of sharing articles with management and employees, as appropri‐

ate, regarding various topics such as working across generations, engaging employees, and diversity in environ‐

mental practice.

The Division also provided trainings on implicit bias and micro‐inequities to all managers and hiring commit‐

tee members. This training has been integrated in the standard training suite mandated for all new managers.

Additionally, resume screening training has been made available to all hiring committee members. The goal of

these trainings is increase sensitivity to issues of unconscious bias along the entire continuum of employment,

from the hiring process through day‐to‐day work life.

In support of its law clerk program and participation in the Attorney General’s Honors Attorney program, the

Division relaunched the ENRD Ambassadors program in 2016. The ENRD Ambassadors Program facilitates rela‐

tionships with 189 law schools around the country by fostering personal relationships between Division attor‐

neys and school faculty. The 75 ambassadors also compile information about their assigned schools including,

but not limited to, updating contact information for career services offices, affinity groups, litigation clinics, and

environmental law staff. This information is utilized to inform these law schools of upcoming employment op‐

portunities (both law clerk and attorney) with ENRD and to provide a channel to foster a greater understanding

of the Division’s work. These relationships have also resulted in visits to 20 law schools in 14 states, the District

of Columbia, and Puerto Rico this year by Division attorneys while on personal or work‐related travel. Also this

year, the Division has also participated in 9 conferences and hiring events across the nation, including the

Southeastern Minority Job Fair, the 2016 Lavender Law Conference & Career Fair, the 41st Annual Indian Law

Conference, and the Talk2Ten Event which was sponsored by 6 Historically Black Colleges and Universities. The

hiring pools of this year’s honors attorney and law clerk applicants reflect increased geographic diversity, which

the Division will continue to work to improve in the future through these and similar outreach efforts.

Recognition of Division Staff

	 In September 2016, the Partnership for Public Service, along with White House Chief of Staff Denis Mc‐

Donough and actor Michael Kelly (who plays “House of Cards” Chief of Staff Doug Stamper) presented

EES attorneys Thomas A. Mariani, Jr., Steven O’Rourke and Sarah D. Himmelhoch with the 2016 Samuel

J. Heyman Service to America Medals (the “SAMMIE” Award), in the category of Homeland Security

and Law Enforcement, for leading the government’s five‐year‐long litigation against BP over the mas‐

sive 2010 Deepwater Horizon oil spill. The trio led the Department of Justice and five states in securing

a record‐breaking $20.8 billion settlement, the government’slargest‐ever civil penalty against a single

defendant.

106 | Supporting the Divisions Staff 
   

ENRD            Earth Day Community Service Event, Department    of Justice

Supporting the Divisions Staff | 107
 
       

                             

                                 

                                     

       

     

       

       

       

     

       

       

       

         

         

     

     

     

       

       

       

         

   

       

       

       

                 

   

                                 

                               

                             

       

                             

                             

                               

                       

                         

                       

                             

                                   

                               

                           

	 The Attorney General’s Award for Distinguished Service was presented for Distinguished Prosecutorial

Achievement in the Deepwater Horizon Rig Disaster to the vanguard of the Department’s BP enforce‐

ment team, including EES’s Thomas A. Mariani, Jr., William D. Brighton, Patrick M. Casey, Scott M.

Cernich, Deanna J. Chang, Michael J. McNulty, Michael J. Zevenbergen, Nancy A. Flickinger, Steven R.

O’Rourke, Abigal E. André, Rachel A. Hankey, Sarah D. Himmelhoch, and Mark Fuller, as well as Ellen J.

Durkee of the Appellate Section, Judith B. Harvey of the Law and Policy Section, and several attorneys

from the Civil Division’s Aviation and Admiralty Section.

	 On May 4, 2016, the Department of Agriculture’s General Counsel’s Office awarded six ENRD attorneys

its Award for Excellence for their work representing the Forest Service in district court and court of ap‐

peals litigation in the case of United States v. Hage (D. Nev. and Ninth Circuit). Hage was an action by

the United Statesseeking

trespass damages and

injunctive relief against a

Nevada rancher for grazing

livestock on federal land

without permits and with‐

out payment of grazing

fees. The district court de‐

cided the case against the

United States in 2013, but

in January 2016 the Ninth

Circuit reversed, ordering

that, on remand, damages

and injunctive relief be

awarded and that the case

be reassigned to a new

judge because of the ex‐

treme bias of the original

judge. Pictured receiving

their awards are Stephen

Bartell, Bruce Trauben, and

Anna Stimmel from NRS

and Ann Peterson from Appellate. They are flanked on the left by Ken Paur, the lead Agriculture lawyer

on the case, and on the right by Jeff Prieto, former ENRD attorney and now Agriculture General Coun‐

sel. Other ENRD Team members unable to attend the ceremony were Cindy Huber (NRS) and former

Appellate attorney Vivian Wang.

Hage Team Accepting the Department of Agriculture’s Award for Excellence,

Department of Justice

	 The Attorney General presented a John Marshall Award for Support of Litigation to ENRD’s Pacific Salm‐

on Team—Michael R. Eitel, Carter H. Howell, and Andrea E. Gelatt in the Wildlife and Marine Resources

section, and Romney S. Philpott III and Kristofor R. Swanson in the Natural Resources Section—for their

outstanding litigation support in multiple cases involving salmon in the Pacific Northwest.

	 The Attorney General presented the John Marshall Award for Alternative Dispute Resolution to the

ENRD attorneys who successfully negotiated, defended, and implemented the Crow water rightssettle‐

ment—S. Craig Alexander, David W. Harder, and J. Nathanael Watson of the Indian Resources Section,

Stacy R. Stoller of LPS, Tyler G. Bair of NRS, and John L. Smeltzer of the Appellate Section.

	 Deputy Assistant Attorney General Jean E. Williams and former Special Counsel for Indian Affairs Gina L.

Allery were part of the team that received the Attorney General’s Award for Equal Employment Oppor‐

108 | Supporting the Divisions Staff 
   

                     

                             

                         

                           

                           

                         

                          

                               

                         

           

                                 

                               

                 

                                 

                                 

         

                                   

                           

                   

                                   

                                   

                                   

                           

           

                               

                                 

                                   

                               

               

                             

                                 

                 

                                   

                             

         

                               

                             

                               

                           

tunity for their outstanding leadership in furthering equal employment opportunity and diversity in the

Department of Justice.

	 EES National Bankruptcy Coordinator Alan Tenenbaum received a National Notable Achievement Award

from EPA for his work on the Nevada Environmental Response Trust, which was established in the

Tronox bankruptcy to clean up groundwater and other contamination near Henderson, Nevada. Mr.

Tenenbaum also received the Rachel Lehr Memorial NAAG/SABA Sprit Award for his work in fostering

federal and state cooperation in bankruptcy litigation. (NAAG is the acronym for the National Associa‐

tion of Attorneys General; SABA stands for the States Association of Bankruptcy Attorneys.)

	 EPA conferred Bronze Medals and a National Notable Achievement Award for an Enforcement Team

on EES attorneys Keith Tashima, Claire Woods, Patricia McKenna, and Marcello Mollo for their work on

United States v. Pechiney Plastic Packaging, Inc., et al. (D.N.J.) regarding the Pohatcong Valley Ground‐

water Contamination Superfund Site in New Jersey.

	 EES attorneys Mark Elmer and Jerry Ellington received a Gold Medal from EPA for their work on United

States and State of Colorado v. Noble Energy, Inc. (D. Colo.), which dealt with emissions from oil‐and‐

gas exploration and production activities north of Denver, Colorado.

	 Jason Dunn received a Silver Medal from EPA Region 9 for a settlement governing the Four Corners

power plant located on the Navajo Nation near Shiprock, New Mexico. United States, et al. v. Arizona

Public Service Co., et al. (D.N.M.).

	 EPA awarded Bronze Medals to Myles Flynt and Laura Rowley for their work in United States v. Virgin

Islands Water and Power Authority (D.V.I.), which addressed CAA violations at electric power generation

plants on the islands of St. Thomas and St. John.

	 Jason Barbeau in EES was awarded an EPA Bronze Medal for his work on United States v. Delek Refinery,

Ltd. (E.D. Tex.), a CAA case related to a fire and explosion at Delek’s oil refinery in Tyler, Texas.

	 EPA conferred a Bronze Medal on EES attorney Cara Mroczek for her work on United States v. E.I.

DuPont De Nemours and Co. (S.D. W.Va.),regarding releases of extremely hazardous substances from

DuPont’sfacility in Belle, West Virginia.

	 EES attorney Dan Smith received an EPA Bronze Medal for United States v. Bayer CropScience LP (S.D.

W.Va.), a Clean Air Act case regarding an explosion at the Bayer facility in Institute, West Virginia.

	 James Maysonett of the Appellate Section was awarded an EPA Bronze Medal from EPA Region 4 for his

work in reaching a favorable settlement in Kentucky Waterways Alliance v. EPA, (E.D. Ky.), a case involv‐

ing the intersection of the CWA and ESA.

	 Martin McDermott and Martha Mann of EDS received Bronze Medal’sfrom EPA Region 4 in October

2016, for their past work in the Saraland CWA Act section 404 enforcement case, which resulted in the

substantial restoration of aquatic resources in Dodge County, Georgia.

	 EPA Region 4 gave EES attorney Paul Cirino a Bronze Medal for Superior Service for his help in the

settlement of a civil action challenging aspects of EPA’s approval of Kentucky’s water quality standards

for selenium, and related issues.

	 Early in FY 2016, EPA awarded David Carson of EDS a Silver Medal Award for “exemplary work in [de‐

fending] EPA’s approval of the CAA Treatment as State application for the Wind River Reservation.”

	 In March 2016, AAG Cruden conveyed to EDS attorney Perry Rosen an award from EPA Region 1 recog‐

nizing Mr. Rosen’s tireless work in defending the agency in litigation involving challenges to EPA’s ap‐

proval of Cape Cod TMDLs (Total Maximum Daily Loads) and its oversight of the CWA Section 208/State

Revolving Fund programs to restore embayment water quality on Cape Cod. The litigation commenced

Supporting the Divisions Staff | 109
       

                             

                                 

                             

                                 

                               

             

                           

                             

                             

                                 

                         

                             

                               

                         

           

                           

                             

                                 

                              

                             

                               

                             

                       

           

                          

                                 

                               

   

               

over five years ago. Working together with federal, state, regional, and local agencies, EPA formally ap‐

proved an updated plan to reduce nitrogen levels that are harming the ecological health of ponds, bays

and other surface waters on the Cape. As expressed by the Region, “this is a considerable achievement,

which in the end would not have occurred without Perry Rosen, who is a truly great lawyer.”

	 EDS attorney Alan Greenberg received two Bronze Medal Awards from EPA Region 8 at its award cere‐

mony on December 2, 2015. The first award was for United States v. Hubenka and LeClair Irrigation Dis‐

trict, a CWA enforcement action arising from the unauthorized construction of four dikes in the Wind

River in Fremont County, Wyoming, in which we received a favorable judgment following a two‐week

trial. The second was for Gasco v. EPA, a combined action for judicial review of a CWA administrative

order and an enforcement counterclaim arising from gas drilling activities within the floodplain of and  

in wetlands adjacent to the Green River in Uintah County, Utah, that was resolved through a favorable

settlement.

Numerous ENRD employees were recognized with EPA Bronze Medals at the EPA Office of General Counsel’s

annual awards ceremony on November 1, 2016:

	 The Murray Energy v. EPA Litigation Team was recognized “for exceptional counsel and dedication in de‐

fending the Agency and meeting its discovery obligations in Murray Energy v. EPA,” an unusually com‐

plex and contentious mandatory duty suit under the CAA. ENRD staff included in the team award were

Laura Brown of EDS, Richard Gladstein of EES, Ashley Hamrick of OLS/CACI, Patrick Jacobi of EDS, Sonya

Shea of EDS, LaShawn Williams of in EDS, and Beth Walinskas in OLS.

	 Bronze Medals were awarded to the Boilers and CISWI Litigation Team “for exceptional work in defense

of three key EPA CAA rules limiting emissions of toxic air pollutants from major source boilers, area

source boilers, and commercial and solid waste incineration units.” That team included Norman Rave

and Perry Rosen, both of EDS.

	 The 316(b) Litigation Team was recognized “for exceptional legal counsel and support for defending the

EPA’s 316(b) Rule,” a CWA rule governing cooling water intake structures at existing facilities. The hon‐

orees included Simi Bhat and Perry Rosen of EDS, and Bridget McNeil and Clifford Stevens of WMRS.

	 Finally, EPA honored the Clean Water Rule Jurisdiction Litigation Team “for exceptional legal counsel

and litigation skill in defending EPA’s position that all Clean Water Rule challenges should be consoli‐

dated in a single Court of Appeals.” Among the team members receiving the Bronze Medal were Appel‐

late Section attorneys Aaron Avila, David Gunter and Bob Lundman, and EDS attorneys Dan Dertke, Amy

Dona, Andy Doyle, Jack Lipshultz, Martha Mann, Jessica O’Donnell, and Steve Samuels.

Adhering to Government Ethics and Professional Responsibility Standards

The Law and Policy Section provides the Division’s government ethics and professional responsibility counsel.

In addition to its regular day‐to‐day counseling on those issues, the section provided in‐depth advice on several

significant matters in fiscal year 2016. The section also provided live training on government ethics to every

ENRDattorney.

Strengthening Public Accessto Information on ENRD’s Litigation Priorities

To raise public awareness about the Division’s Animal Welfare Initiative, ENRD’s Office of Information Manage‐

ment published a new webpage on the Division’s public‐facing website. The content on the webpage conveys

details about the Division’s responsibility for affirmative litigation arising from the Nation’s animal protection

laws, and provides information and press releases related to recent animal welfare cases and matters. The Di‐

vision also published a new webpage describing the new Worker Endangerment Initiative and providing impor‐

tant information and press releases related to that initiative.

110 | Supporting the Divisions Staff 
   

                                     

                       

                                

                           

                               

                          

                               

                                 

                       

                             

                         

                           

Enhancing the

Division’sIn‐

House Learning

and Development

Opportunities

The Division continues     

to provide training to all

Division staff based on the

needs of each of ENRD’s

sections. In January 2016,

the Division staff were sur‐

veyed to assess their train‐

ing needs. As a result of the

survey, ENRD provided skills

courses in multi‐party nego‐

tiations, deposition training,

and working with expert

witnesses. Trainings were also provided to improve the writing and editing skills of all staff, with particular

attention paid to legal writing courses for attorneys and paralegal staff. All employees were offered courses in

grammar and proofreading. The Division continued its effort to provide training to professional staff by devel‐

oping a program specifically for paralegals and legal assistants designed to address the results from the training

survey. The survey also confirmed the need to continue ENRD’s commitment to trainings offered in the areas  

of effective communication and management. The Division held its first ever Professional Staff Management

Retreat in April 2016, with a follow‐up session in June 2016. Discussions at the retreat covered specific com‐

munication styles, difficult management topics, and techniques for engaging in constructive conversations.

Additionally, training is offered to new managers that focuses on the rights and responsibilities of Division

managers.

ENRD Academy, Department of Justice

In 2016, the Division hosted the second ENRD Academy, which is a series of events led by members of ENRD’s

various sections. The Academy offers a broad range of professional development opportunities for ENRD

attorneys and professional staff alike and seeks to expand our staff’s skills, understanding of the work of

ENRD’s different sections, and share innovative practices we have developed in case specific work. Further,

ENRD increased its effort throughout 2016 to provide opportunities to promote a healthy work‐life balance by

sponsoring mindful meditation sessions, trainings about prioritizing and organizing your time, and retire‐

ment planning seminars. The Division also continued its 10‐day training program for new honor grad attorneys

which commenced in September. This training provides CLE credit to the new honor grads and counts towards

the Department’s professional training requirement. The recent honors attorneysreceive practical advice and

guidance during this training on many topics including e‐discovery, working with client agencies and difficult

opposing counsel, deposition skills, negotiations, and oral advocacy skills. The Division provides quarterly re‐

ports to management of the training provided to assess current training needs and trends.

ENRD also held two panel discussions in the Great Hall this past year open to all Division employees and other

DOJ components. The first was an Alternate Dispute Resolution symposium held in October 2016, which fea‐

tured distinguished mediators and ENRD attorneys. The panels provided concrete advice on how to effectively

select and use mediators, as well as the litigation skills required to reach an effective resolution in our cases. In

November 2016, ENRD sponsored a symposium on the future of environmental law which consisted of three

lively panels comprised of the nation’sleading experts on the future of environmental enforcement, adminis‐

trative law, and natural resource law. In 2016, ENRD was pleased to sponsor several distinguished guests for its

Speakers Series. These guests included A. Stanley Meiburg, Acting Deputy Administrator of the Environmental

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Protection Agency; Lisa Heinzerling, Georgetown Law Professor; Donald Verrilli, former Solicitor General of the

United States; Elena Kagan, Associate Justice of the Supreme Court; and Sally Jewell, Secretary of the Depart‐

ment of the Interior.

Being a Good Steward of Taxpayer Dollars

In fiscal year 2016, the Division effectively managed approximately $258 million in budgetary resources from

a variety of sources. In light of continued fiscal challenges, the Division had to manage its funding prudently

in order to cover inflationary cost increases (such as higher rent costs, employee grade/step increases) and an

increasingly challenging workload. Approximately 75% of ENRD’s operating budget in fiscal year 2016 was

dedicated to personnel expenses. ENRD will continue to pursue cost‐saving opportunities and efficiencies to

ensure long‐term fiscal solvency in the face of future anticipated government‐wide fiscal uncertainty and likely

constraints.

Supporting the Division’s Litigation Needs

During 2016, ENRD’s Office of Litigation Support (OLS) took a primary role in providing the necessary staffing,

management, and technical infrastructure necessary to support the Division’s high‐profile litigation related to

the use of “defeat devices” on cars, trucks, motorcycles, and small engines designed to evade the emissions

controls required by the CAA for these mobile sources. Principal among the cases is United States v. Volkswa‐

gen, a massive effort that began in September 2015 and has continued to grow both in size and complexity

since the filing of the civil complaint in January 2016. OLS provided contract law clerks and paralegals to aug‐

ment the ENRD support staff assisting the large civil and criminal attorney teams assigned to the matter, and

directly processed over 5 million documents (and counting) received from the Volkswagen defendants.

OLS also continued to provide valuable technical assistance and guidance for several other high‐priority cases

in the Division during this year. For example, OLS contractor staff provided the sole pretrial and on‐site trial

support needed at the U.S. v. Ameren Missouri (E.D. Mo.) trial in St. Louis, Missouri, a three‐week civil CAA

case that is part of the Division’s Power Plants initiative. In addition, OLS staff continued to provide daily legal

and technical support for the tribal trust cases, assisting the attorney team in reaching settlement with 17

tribal governments in September 2016, and provided pretrial and onsite trial support at the second phase of

trial in Emhart Industries, Inc. v. New England Container Co., (D.R.I.), a Superfund action.

In 2016, the Division executed a near‐record number of expert witness contract actions with a total value of

more than $61.6 million. The procurement actions carried out by Office of the Comptroller staff engaged a

wide variety of experts, including many used during the Deepwater Horizon case and in other high‐profile liti‐

gation.

OLS Project User System (OPUS)

During 2016, OLS continued the successful implementation of its OLS Project User System (OPUS), a software

solution specifically designed by OLS management and technical staff to both streamline and effectively man‐

age responses to requests for the full range of automated litigation support services available to the Division.

These services include the full spectrum of processing options for electronically‐stored information; the host‐

ing of data in Relativity databases; hard copy scanning; and, most importantly, the support for all industry

standard document production formats. Over 6,250 requests were submitted and completed during the year,

an increase of 9% compared to last year. This increase demonstrates that OPUS is an effective means to track

the progress of requests to OLS and confirm that the processing decisions made (and often mandated by court

order) are documented and consistently followed.

OLS provides a full range of automated litigation support services that are available to the Division’s em‐

ployees. During 2016, OLS technical staff members processed approximately 10.4 million documents (a 62%

increase) and produced 4.6 million unique documents (an increase of 130%).

112 | Supporting the Divisions Staff 
   

     

                       

                                     

                             

                             

                                     

                                   

                          

                             

                               

         

   

           

                           

                                       

                             

                           

                         

       

                              

                             

                                         

                             

                           

Working with Client Agencies

During 2016, OLS continued its successful outreach efforts with ENRD attorney teams and client agency tech‐

nical staff and counsel to provide guidance on all aspects of collecting forensically sound electronically stored

information in support of the Division’s cases. OLS staff continue to provide advice to the Division’s case teams

on issues such as the scope of material to be collected, the use of search terms to find relevant documents, the

selection of custodians, and the necessary technology needed to effectively handle the data collected.

OLS staff continued their collaborative efforts with client agencies to assist those with either no defined col‐

lection process in place, or those with collection processes in the early stages of development. As part of this

collaboration, OLS staff provided licenses to the Harvester collection software owned by ENRD to assist those

agencies that do not currently own an effective collection tool for preserving metadata. OLS staff also pro‐

vided instruction and guidance on the use of this software to ensure that collection is done in compliance with

federal discovery rules and any agreements reached by the parties in each case. The expertise in the collection

of electronically‐stored information has made OLS staff a consistent resource for both ENRD attorney teams

and client agencies. OLS staff meet weekly with the technical staff at several client agencies to provide advice

for resolving issues encountered by their collection teams, which has significantly increased the quality of data

received for processing by OLS.

Automating Work Processes

ENRD’s Service Center continued to support Division attorneys and staff in fiscal year 2016 by processing more

than 33,890 electronic court filings and 649 scanning requests, and reproducing over 2 million pages of elec‐

tronic documents to paper format. In addition, the Office of Administrative Services (OAS), in conjunction with

the Justice Management Division’s(JMD) Procurement Services Staff, completed the re‐competition of the

Service Center contract, awarding another five‐year contract to incumbent service provider Novitex for copy‐

ing, scanning, graphics, mail, and records management services.

Employing Innovative Technology Solutionsfor ENRD’s Workforce

The Office of Information Management (OIM) continues to refine and enhance its web‐based Case Manage‐

ment and Time Reporting application (CMS Web), which was released in 2015. CMS Web is an invaluable

repository of case and time data, allowing ENRD to provide critical information needed to effectively pres‐ ent

Division costs in litigation, support our annual Superfund reimbursable funding agreement with EPA, and

respond to various audit and congressional inquiries. CMS Web is also an increasingly useful resource for

Division managers, allowing them to manage attorney workloads and case assignments, assess more efficient

organizational structures, and streamline docket reviews. In 2016, OIM rolled out several important new Divi‐

sion reports within CMS Web and provided training to several Sections, and the Executive Office, on how to

run reports.

OIM continues to support the Land Acquisition Section’s (LAS) use of the Appraisal Management application

(AMS Web). AMS Web is a pivotal tool that assists LAS in the planning and tracking of Appraisal Reviews. AMS

Web handles the intake of review requests, notifies the Chief Appraiser of pending reviews, generates frequent

appraisal activity reports, and provides accurate logs of Appraisal Unit workload. Additionally, AMS Web main‐

tains a database of appraisers, and pulls data from CMS Web in real‐time.

Cybersecurity upgrades and technology enhancements

The Office of Information Technology (OIT) deployed several new technologies and applications to all ENRD

PCs, laptops, and servers to further enhance the Division’s cybersecurity posture. Cybersecurity is a priority for

ENRD, as it is for the Department and the government as a whole. Over the past year, OIT has made significant

improvements that help protect the Division from security threats. OIT will continue to assess the cybersecu‐

rity needs of the Division and deploy appropriate security tools and applications where needed.

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OIT upgraded 650+ iPhones used throughout the Division to enhance productivity and improve mission effec‐

tiveness, and acquired 150 new laptops to replace aging inventory deployed throughout ENRD.

OIT upgraded the Division’s primary litigation support IT system to better support the Division’s mission, includ‐

ing increasing use of Relativity, one of the most critical of these systems. This upgrade provides more features

and capabilities that will significantly improve litigation support and mission effectiveness for the Division.

OIT also upgraded IT system hardware, including storage and server capacity and network bandwidth, for

several ENRD locations to support the IT demands of the Division’s litigation. OIT will continue to monitor de‐

mand and respond with appropriate upgrades where needed.

Supporting ENRD Travel Through the Division’s Web‐Based Travel‐Management System

The Office of the Comptroller continues to support the Division’s travel‐management system, “E2,” which was

first implemented in 2014. This system ended the resource‐intensive practice of handling paper forms for

employees seeking approval to travel and for securing reimbursement for travel expenses. Because E2 is inte‐

grated with CWTSato’s online booking engine and is a web‐based system, travelers, travel arrangers, approving

officials, and finance officials have greater flexibility and access to handle the travel needs of the Division. In

addition, E2 provides important audit‐ and compliance‐related checks‐and‐balances ensuring a higher level of

data integrity for the Division’stravel‐related transactions.

Implementation of E2 has enabled us to reduce travel card account aging by helping travelers get more timely

travel reimbursements. In addition, through training efforts, counseling, and a consistent notification system,

account delinquencies have decreased to less than 1%, making the Division one of the best performing compo‐

nentsin the Department.

Securing Resourcesfor Mission‐Critical Division Needs

Through the efforts of the Office of the Comptroller, the Division secured resources from the Department’s Col‐

lection Resources Allocation Board (CRAB) and from the Justice Management Division (JMD) to support ENRD

personnel, litigation support, expert services, and other litigation expenses. In 2016, ENRD received multi‐

million dollar awards of 3% funding from the CRAB to address the Division’s significant portfolio of high‐profile

environmental crimes and civil enforcement cases such as the Volkswagen case. In addition, the Office of the

Comptroller wasinstrumental in obtaining litigation support resources from the Department to address critical

initiatives, including our tribal trust litigation and several complex water rights cases.

Supporting Records and Systems Management

The Office of Administrative Services (OAS) establishes and promotes a records management program for the

Division in accordance with Department policy. OAS continued to work with key personnel within the Division

to plan, control, organize, and train personnel on records policies and procedures. In support of National Ar‐

chives and Records Administration (NARA) training requirements, OAS provided records management training

to all new employees and contractors and ensured that all existing personnel completed their annual records‐

managementtraining.

NARA’S Managing Government Records Directive (M‐12‐18) requires agenciesto develop recordsretention

policies for all records by the end of 2016. To meet this goal, OAS met with and completed consultations with

all section managers by September 30, 2016, to identify any collections that needed to be scheduled.

OAS continued to work with JMD’s Office of Records Management and Policy to establish guidance and pro‐

cesses for the Department’s Capstone implementation. Capstone is an email management approach developed

by NARA to categorize and schedule email based on the employee’s position/rank within the Department. OAS

also collaborated with OIT and E‐Discovery personnel to complete a Department‐mandated evaluation that

measured the status of ENRD’s email management program.

114 | Supporting the Divisions Staff 
   

                                  

                           

                                 

   

                 

   

                     

                               

                                 

                               

                   

During the year, OAS records personnel supervised the creation and organization of 13,219 litigation files in

the Division’s Records Management Tracking Database. Over 8,000 files were loaned to Division personnel, 962

cases were closed and 434 boxes of files were transferred to the warehouse or NARA for disposition.

Greening the Division

The Division held its 13th

annual Earth Day service

celebration at Marvin

Gaye Park in April 2016.

This year’s projects were

diverse, focusing not only

on the Park’s Green‐      

ing Center, but also on

upgrades to the Marvin

Gaye Amphitheater and

the Dix Street Community

Youth Garden. This year

over 80 ENRD volunteers

helped plant new gar‐

dens, remove brush and

dead trees, remove trash,

and weed and cut grass.

Because of ENRD’s hard

work on cleaning and re‐

storing the Amphitheater,

a local high school was

able to use the area for its graduation ceremony this year.

Assistant Attorney General Cruden and ENRD Staff Volunteer on Earth Day,

Department of Justice

ENRD also continued to lead the Department in green building initiatives. The Division maintained its trend

of lowering energy usage in the Patrick Henry Building (PHB) for the 10th consecutive year. PHB, where ENRD

is the primary tenant, received an Energy Star certification in 2014 and continues to meet the environmental

standards necessary to continue the LEED certification received in 2012.

Supporting the Divisions Staff | 115