SUMMARY OF DIVISION 


ACCOMPLISHMENTS
 

FISCAL YEAR 2012
 
Salt Marshes, Alaska NOAA Photo 
 

 

 

 

 

 

 

 

 

CONTENTS
 

FOREWORD 7
 

OVERVIEW OF THIS REPORT 19
 

PRESEN

GOAL OF ENVIRONMENTAL JUSTICE 

TING THE ENVIRONMENT AND NATURAL
 

REPORTING OUR PROGRESS TOWARD ACHIEVING THE
 

PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA’S
 

ENFORCING THE NATION’S CRIMINAL POLLUTION AND
 

PROMOTING NATIONAL SECURITY AND MILITARY
 

PROTECTING TRIBAL RIGHTS AND RESOURCES AND
 

21
 

25
 

RESOURCES DIVISION 

PROTECTING OUR NATION’S AIR, LAND, AND WATER 33
 

ENSURING CLEANUP OF OIL AND SUPERFUND WASTE 43
 

WILDLIFE AND NATURAL RESOURCES 51
 

WILDLIFE LAWS 59
 

DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS 69
 

PREPAREDNESS 87
 

ADDRESSING TRIBAL CLAIMS 99
 

SUPPORTING THE DIVISION’S STAFF 111 
Point Reyes, California DOI Photo 

Coronation Island, Alaska NOAA Photo 

6 | foreword
 
 

 

 

FOREWORD
 

Assistant Attorney General 

Ignacia S. Moreno 

I am delighted to present the ENRD Accomplishments Report for Fiscal 

Year 2012. Every day, in partnership with our client agencies, the U.S. 

Attorneys’ Offices, and our state, tribal, and local counterparts, the 

Environment and Natural Resources Division (ENRD or the Division) 

works to bring significant public health and other direct benefits to the 

American people through the reduction of pollution across the nation and 

the protection of important natural resources and wildlife. We defend 

client agency actions and rules when they are challenged in the courts. 

ENRD also handles a broad array of matters relating to our government-to-government relationship with and trust obligations to Native 

American tribes. As reflected in this report, the Division continued its 

distinguished record of legal excellence in fiscal year 2012. At the same 

time, ENRD continued to win recognition as one of the “Best Places to 

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

Advancing the Division’s Core Mission and Achieving Environmental 

Justice for the Benefit of All Americans 

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

(1) strong enforcement of civil and criminal environmental laws to ensure clean air, clean water, 

and clean land for all Americans; (2) vigorous defense of environmental, wildlife and natural 

resources laws and agency actions; (3) effective representation of the United States in matters 

concerning the stewardship of our public lands and natural resources; (4) vigilant protection 

of tribal sovereignty, tribal lands and resources, and tribal treaty rights; and (5) protection of 

the public fisc. The remainder of this report describes the myriad ways in which the Division 

advanced its core mission over the past year. 

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

all Americans enjoy the benefits of a fair and even-handed application of environmental 

and natural resources law. I am very proud to say that ENRD has taken a leadership role in 

advancing the goals of environmental justice. Our progress in making environmental justice a 

real and meaningful part of the Division’s work is described in a separate chapter of the report. 

foreword | 7 
 

 

Record-Setting Enforcement Results 

ENRD’s environmental enforcement efforts— 

both civil and criminal—have achieved 

dramatic reductions in emissions and 

discharges of harmful pollutants to America’s 

air, water and land. Over the past four years, 

the Division has achieved record recoveries. 

Since 2009, we have obtained more than $28 

billion in corrective measures through court 

orders and settlements. We also secured 

almost $2.375 billion in civil and stipulated 

penalties, cost recoveries, natural resource 

damages, and other civil monetary relief, 

including more than $1.43 billion recovered 

for the Superfund. During that time period, 

we concluded 170 criminal cases against 

319 defendants, and obtained 155 years in 

confinement and almost $256 million in 

criminal fines, restitution, community service 

funds and special assessments. 

The results obtained from ENRD’s civil 

and criminal cases in fiscal year 2012 alone 

were outstanding. We secured over $397 

million in civil and stipulated penalties, cost 

recoveries, natural resource damages, and 

other civil monetary relief, including almost 

$133 million recovered for the Superfund. 

We obtained over $6.9 billion in corrective 

measures through court orders and 

settlements, which will go a long way toward 

protecting our air, water and other natural 

resources. We concluded 47 criminal cases 

against 83 defendants, obtaining nearly 21 

years in confinement and over $38 million in 

criminal fines, restitution, community service 

funds and special assessments. 

S

ince 2009, we have obtained more 

than $28 billion in corrective measures 

through court orders and settlements. 

We also secured almost $2.375 billion in civil 

and stipulated penalties, cost recoveries, 

natural resource damages, and other civil 

monetary relief, including more than $1.43 

billion recovered for the Superfund. During 

that time period, we concluded 170 criminal 

cases against 319 defendants, and obtained 

155 years in confinement and almost 

$256 million in criminal fi nes, restitution, 

community service funds and special 

assessments. 

In fiscal year 2012, we secured over $397 

million in civil and stipulated penalties, 

cost recoveries, natural resource damages, 

and other civil monetary relief, including 

almost $133 million recovered for the 

Superfund. We obtained over $6.9 billion in 

corrective measures through court orders and 

settlements, which will go a long way toward 

protecting our air, water and other natural 

resources. We concluded 47 criminal cases 

against 83 defendants, obtaining nearly 21 

years in confinement and over $38 million in 

criminal fines, restitution, community service 

funds and special assessments. 

Holding Those Responsible for the Deepwater Horizon Oil Spill 

Accountable 

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

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

destroyed the Deepwater Horizon offshore drilling rig in the Gulf of Mexico and triggered a 

massive oil spill amounting to millions of barrels of discharged oil that took 87 days to contain. 

Eleven people aboard the rig tragically lost their lives; many other men and women were 

injured. In December 2010, as part of multidistrict litigation in the U.S. District Court for the 

8 | foreword
 
Eastern District of Louisiana, the United States brought a civil suit against BP, Anadarko, MOEX 

and Transocean for civil penalties under the Clean Water Act and a declaration of liability under 

the Oil Pollution Act. Critical steps forward in this civil litigation occurred over the past year. 

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

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

violations of the Clean Water Act—the largest civil penalty paid to date under the Clean Water 

Act—and will spend at least $20 million to facilitate land acquisition projects in several Gulf 

States that will preserve and protect in perpetuity habitat and resources important to water 

quality. 

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

which includes ENRD, conducted the criminal investigation leading to the action, under the 

leadership of the Department’s Criminal Division. On November 14, 2012, the Department filed 

a 14-count criminal information charging BP with 11 counts of felony manslaughter, one count 

of felony obstruction of Congress, and violations of the Clean Water Act and Migratory Bird 

Treaty Act in connection with the spill. BP agreed to plead guilty to all 14 criminal charges— 

admitting responsibility for the deaths of 11 people and the events that led to this unprecedented 

environmental catastrophe. The company also agreed to pay $4 billion in fines and penalties. 

Under the terms of the agreement with BP, about $2.4 billion of the criminal recovery funds will 

Deepwater Horizon Site USCG Photo 

foreword | 9
 
 

be dedicated to environmental restoration, preservation and conservation efforts throughout 

this region—including barrier-island creation and river-diversion projects in Louisiana. An 

additional $350 million will aid in the development of state-of-the art oil spill prevention and 

“This resolution of criminal allegations 

and civil claims against Transocean 

brings us one significant step closer 

to justice for the human, environmental 

and economic devastation wrought by the 

Deepwater Horizon disaster. This agreement 

holds Transocean criminally accountable for its 

conduct and provides nearly a billion dollars in 

criminal and civil penalties for the benefit of the 

Gulf States. I am particularly grateful today to the 

many Justice Department personnel and federal 

investigative agency partners for the hard work 

that led to today’s resolution and their continuing 

pursuit of justice for the people of the Gulf.” 

— Attorney General Eric Holder
 

Transocean Plea and Agreement
 

Announcement
 

response technologies, education, research 

and training. And more than $1 billion will 

go to the U.S. Coast Guard’s Oil Spill Liability 

Trust Fund, to be available for cleanup and 

compensation for those affected by oil spills 

in the Gulf and throughout the United States. 

Transocean also has agreed to plead guilty 

to violating the Clean Water Act and to pay 

a total of $1.4 billion in civil and criminal 

fines and penalties, for its conduct in the 

Deepwater Horizon explosion, fire and oil 

spill. Pursuant to the terms of a proposed 

partial civil consent decree lodged on 

January 3, 2013, the Transocean defendants 

agreed to pay $1 billion to resolve federal 

Clean Water Act civil penalty claims, a record 

amount that significantly exceeds the $70 

million civil penalty paid by MOEX. Under 

the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived 

Economies of the Gulf Coast States Act of 

2012 (RESTORE Act), approximately 80% 

of the penalty will be used to fund projects in and for the Gulf States for the environmental and 

economic benefit of the region. 

Landmark Decisions Reducing Greenhouse Gases 

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

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

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

and protection of the public fisc. In a landmark example of this work in the past year, the 

Division, with agency counsel, successfully defended rulemakings under the Clean Air Act that 

reduce the emission of greenhouse gases that contribute to global warming. Through a series 

of regulations, EPA (1) found that emissions of greenhouse gases from motor vehicles may 

reasonably be expected to endanger public health and welfare (known as the “endangerment 

finding”); (2) set standards for greenhouse gas emissions from motor vehicles; (3) specified 

how, and to what extent, regulation of greenhouse gas emissions from motor vehicles would 

trigger stationary source Clean Air Act permit requirements; and (4) established the measures 

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

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

unanimous panel of the D.C. Circuit in Coalition for Responsible Regulation v. EPA upheld 

EPA’s greenhouse gas-related regulatory actions against all challenges. This victory was due in 

no small part to the outstanding briefing and argument by the Division’s attorneys. 

10 | foreword
 
Safeguarding the Nation’s Air 

The Division’s petroleum refinery enforcement initiative has produced settlements or other 

court orders that have addressed more than 90% of the nation’s refining capacity, and will 

reduce air pollutants by more than 360,000 tons per year. Among the reduced air pollutants 

are nitrogen oxide, sulfur dioxide, and volatile organic compounds, which cause respiratory 

problems and are significant contributors to acid rain, smog and haze. Under the settlement 

achieved in fiscal year 2012 in United States v. BP Products North America, Inc., for example, 

BP will pay an $8 million penalty, invest more than $400 million to install state-of-the-art 

pollution controls at its petroleum refinery in Whiting, Indiana, and spend an additional $9.5 

million on projects to reduce the emission of greenhouse gases. The United States was joined 

in this settlement by the State of Indiana as well as by several environmental organizations and 

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

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

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

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

provided by the local community, BP agreed to the reduction in greenhouse gas emissions 

and to perform a Supplemental Environmental Project to install, maintain and operate a $2 

million fence-line emission monitoring system at the refinery and to make the data available to 

the public on a public website on a weekly basis. This will ensure that residents have access to 

critical information about pollution that may be affecting their community. 

Protecting America’s Waters 

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

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

entered 42 settlements in these cases, requiring long-term control measures and other relief 

estimated to cost violators more than $20.1 billion. These cases involve one of the most pressing 

infrastructure issues, the discharge of untreated sewage from aging collection systems found in 

older urban areas, where low-income and minority communities often live. Eleven such consent 

decrees with municipalities or regional sewer districts were entered in fiscal year 2012. Collectively, these consent decrees provide for the expenditure of more than $6.3 billion in improvements, the payment of more than $4 million in civil penalties, and the performance of Supplemental Environmental Projects valued at more than $2.4 million. 

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

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

history. Under the terms of a consent decree resolving claims of violations of the Clean Water 

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

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

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

injunctive relief, which is historic in its scope and importance to the people of St. Louis, also 

will significantly advance the use of large-scale green infrastructure projects to control wet 

weather overflows. MSD must invest at least $100 million in an innovative green infrastructure 

program, for the benefit of environmental justice communities in St. Louis. The city also paid 

a $1.2 million civil penalty to the United States. We worked closely with staff from the U.S. 

Attorney’s Office for the Eastern District of Missouri, who provided invaluable assistance in 

achieving this historic settlement. 

foreword | 11
 
Another case that demonstrates the Division’s strong commitment to enforcing the Clean 

Water Act to ensure the protection of human health and the environment is United States v. 

Freedman Farms, Inc. Freedman Farms is a 4,800-head hog farm in Columbus County, North 

Carolina. It is a “Concentrated Animal Feeding Operation” (CAFO), which is a large livestock 

or poultry animal feeding operation that meets the regulatory thresholds for Clean Water 

Act regulation due to the number of animals involved. These operations generate significant 

volumes of animal waste which, if improperly managed, can result in signifi cant environmental 

and human health risks. Investigators determined that more than 332,000 gallons of hog waste 

had been discharged over a five-day period from the CAFO into Browder’s Branch, a stream that 

leads to the Waccamaw River. Freedman Farms was sentenced to five years of probation and 

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

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

waste and lying about its cleanup. The company also is required to implement a comprehensive environmental compliance program and institute an annual training program. William 

B. Freedman, the president of Freedman Farms, was sentenced to six months in prison to be 

followed by six months of home confinement. We prosecuted this important case jointly with 

the U.S. Attorney’s Office for the Eastern District of North Carolina, and with the strong investigative support of the State of North Carolina, EPA and the U.S. Army Corps of Engineers. The 

nearly $1 million in restitution, to be made in a series of five payments to the North Carolina 

Coastal Land Trust, will be used to acquire and conserve land along streams in the Waccamaw 

watershed, which includes some of the most extensive cypress gum swamps in the state. 

Ensuring the Proper Use of Pesticides 

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

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

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

registration documents, distributing pesticides with misleading and unapproved labels, and 

distributing unregistered pesticides. The case was jointly investigated by EPA and the State 

of Ohio and jointly prosecuted by ENRD, EPA and the U.S. Attorney’s Office for the Southern 

District of Ohio. The company was sentenced to pay a $4 million fine and contribute $500,000 

to organizations that protect bird habitat for committing 11 criminal violations of the Federal 

Insecticide, Fungicide and Rodenticide Act (FIFRA), which governs the manufacture, distribution and sale of pesticides. Sheila Kendrick, Scotts’ federal registration manager, also pleaded 

guilty to FIFRA and false-statement violations and was sentenced to 90 days of incarceration. 

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

obligation to comply with the laws governing the sale and use of its products and was appropriately sentenced to pay the largest criminal penalty in the history of FIFRA enforcement to date. 

Preserving Public Lands 

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

the country’s national forests. Inventoried roadless areas offer outstanding opportunities 

for recreation and provide habitat for numerous fish, plant and wildlife species. The Forest 

Service’s 2001 Roadless Rule prohibits road-building and commodity-purpose timber harvests 

in these areas. In October 2011, the Tenth Circuit reversed a Wyoming district court judgment 

that had set aside and permanently enjoined the 2001 Roadless Rule. The court rejected all 

challenges raised by the State of Wyoming under the Wilderness Act, the National Forest 

12 | foreword
 
Management Act, the Multiple-Use Sustained-Yield Act, and the National Environmental Policy 

Act. After the Tenth Circuit decision, the Division worked closely with the Department’s Office 

of the Solicitor General in successfully opposing the State of Wyoming’s petition in the U.S. 

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

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

in all states but Idaho and Colorado, which have state-specific rules developed collaboratively by 

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

Defending the Country’s Energy Agenda 

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

energy. The country’s energy development policy includes responsible development of fossil 

fuel and renewable energy. The Division is actively defending challenges to permits and rightsof-way issued by the Bureau of Land Management of the Department of the Interior to promote 

the development of renewable energy projects on western public lands. ENRD is defending 

more than 20 cases involving solar, wind and transmission projects located in California, 

Oregon, Tennessee, Delaware, Massachusetts and Vermont. We successfully defeated motions 

for temporary restraining orders and preliminary injunctions for the North Sky River Wind 

Project, Ocotillo Wind Energy Project, and Sunrise Powerlink Project in California. We also 

defeated requests for injunctive relief in two cases challenging smaller pilot projects for solar 

and wind energy in Tennessee and Delaware. 

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

preliminary injunction against the Ivanpah Solar Energy Generating System (ISEGS). The 

ISEGS is the largest solar project under construction in the world. When completed next 

year, the $2.2 billion system will use more than 170,000 computer-controlled mirrors to aim 

1,000-degree rays at boilers mounted on three 459-foot towers, turning water into enough 

steam-generated electricity to power 140,000 homes. Our defense of the project in Western 

Watersheds Project v. BLM resulted in the first appellate decision to address new solar projects 

sited on federal land. The Ninth Circuit concluded that the district court correctly analyzed the 

balance of public interests favoring the project. 

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

Department’s civil and criminal enforcement actions. We defended cases challenging aspects 

of the federal government’s response to contain the oil spill following the explosion, regulatory 

actions to prevent future recurrence of oil spills, and approval of responsible exploration and 

production plans and lease sales in the Gulf of Mexico and Alaskan waters. In 2012, the Fifth 

and Eleventh Circuit Courts of Appeals issued important opinions in Deepwater Horizon 

defensive cases handled by ENRD. 

—In May 2012, the Fifth Circuit dismissed 12 petitions for review for failure to exhaust administrative remedies and four others as moot in Gulf Restoration Network v. Salazar and Center 

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

approval of lessee-proposed exploration and development plans in the days shortly before and 

after the Deepwater Horizon explosion, fire and oil spill. 

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

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

suspend deepwater drilling in the Gulf of Mexico in the aftermath of the Deepwater Horizon oil 

foreword | 13 
 

 

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

2010. The Secretary ordered a new suspension of deepwater drilling in the Gulf on July 12, 2010 

and, after finding that the concerns underlying the suspensions had been addressed, ordered 

the suspension lifted on October 12, 2010. The district court found that the second suspension 

decision rendered the Secretary in contempt of its preliminary injunction order. In reversing 

the contempt finding, the Fifth Circuit concluded that the district court abused its discretion in 

invoking its contempt power because the Secretary’s actions and statements leading up to the 

issuance of the July 2010 drilling suspension did not clearly and convincingly violate the court’s 

June 2010 order. 

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

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

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

rejected several challenges to the environmental assessment developed for the action under 

the National Environmental Policy Act, emphasizing that a reviewing court must be “extremely 

deferential ‘when an agency’s decision rests on the evaluation of complex scientific data within 

the agency’s technical expertise.’” 

Promoting National Security and Military Preparedness 

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

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

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

agency projects to secure the nation’s borders and waters, and U.S. development of all forms of 

domestic energy to reduce our dependence on foreign oil. We also exercised the federal government’s power of eminent domain to acquire lands or review title to lands needed to fulfi ll critical 

military and homeland security functions. 

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

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

miles off the Atlantic coast of Florida. The USWTR facility will enhance and improve the Navy’s 

anti-submarine warfare training activities essential to the Navy’s ability to detect and defeat 

submarines operating in littoral (shallow water) environments where environmental conditions 

coupled with new noise reduction technologies make detection increasingly difficult. The USWTR 

will be the only training range of its kind on the East Coast, designed to provide ships, submarines 

and aircraft in the Atlantic Fleet with a realistic and challenging littoral training environment that 

mirrors the areas in which the Navy finds itself increasingly operating. In Defenders of Wildlife v. 

U.S. Dep’t of the Navy, plaintiffs alleged that the Navy’s decision to construct the USWTR violated 

the National Environmental Policy Act and the Endangered Species Act. After extensive briefing 

and oral argument, the district court ruled in favor of the United States on all claims, allowing the 

Navy to begin implementing the next steps of this vital project. 

Protecting Tribal Rights and Resources and Addressing Tribal Claims 

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

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

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

litigation work to ensure that tribes receive the protections of the natural resources and environ14 | foreword
 
 

 

mental laws; and the respectful and responsible defense of lawsuits brought by tribes against the 

federal government. I would like to highlight two significant ENRD activities this past year—the 

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

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

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

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

of Justice and the Department of the Interior and help ensure that eagle and other migratory 

bird populations remain healthy and sustainable. At the same time, eagles and other federally 

protected birds play a unique and important role in the religious and cultural life of many Indian 

tribes. On October 12, 2012, Attorney General Holder issued a new Department policy addressing 

the ability of members of federally recognized Indian tribes to use the feathers and other parts of 

eagles and other federally protected birds, an issue of great cultural and religious signifi cance to 

many tribes and their members. ENRD led the initiative to develop the policy, working closely 

with the U.S. Attorneys’ Offices, the U.S. Fish and Wildlife Service, and the Bureau of Indian 

Affairs and Solicitor’s Office of the Department of the Interior. The policy was developed after an 

extensive series of consultations with tribal leaders and organizations, involving an initial request 

for tribal input followed by a series of teleconference consultation sessions and in-person consultation sessions and meetings with tribal representatives in Indian Country. 

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

Numerous federally recognized tribes and certain Indian groups have brought suit against the 

United States since 2002 alleging that the Departments of the Interior and Treasury violated 

the federal government’s trust duties and responsibilities to the tribes by failing to provide “full 

and complete” historical trust accountings and failing to manage the tribes’ trust funds and 

non-monetary trust assets or resources in an adequate manner. By 2009, the United States was 

defending approximately 97 breach-of-trust lawsuits brought by 114 Indian tribes in federal 

district courts in the District of Columbia and Oklahoma and in the Court of Federal Claims. 

Since that time, the United States has been involved in processes to resolve these cases. 

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

tribes’ claims regarding the government’s management of trust funds and non-monetary trust 

resources. The settlements also set forth a framework for promoting tribal sovereignty and 

April 2012 Announcement of the Settlement of Tribal Trust Lawsuits 

foreword | 15
 
 

improving or facilitating aspects of the tribes’ relationship with the United States, while reducing 

or minimizing the possibility of future disputes and avoiding unnecessary litigation. Under the 

settlements, the parties will implement measures that will lead to strengthened management 

of trust assets and improved communications between the Department of the Interior and the 

tribes. The tribes and the United States also have established an alternative dispute resolution 

process to address any disputes that may arise regarding the future management of the tribes’ 

trust funds and non-monetary trust resources. 

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

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

are a powerful example of how, working together, we can resolve conflicts, despite decades of 

costly and burdensome litigation. They are an important legacy of the Obama Administration 

and set a path forward for reaffirming the trust relationship of the United States with tribal 

governments. At the Department of Justice, we will continue, through our cases, to vigilantly 

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

Handling ENRD Cases in the Supreme Court 

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

Supreme Court also regularly solicits the Department’s views on whether to grant petitions 

for writs of certiorari in cases that implicate Division interests. We support the Solicitor 

General’s Office as it formulates positions in the Supreme Court in cases handled by the 

Division in lower courts and in non-government cases that are of interest to the Division. 

The 2011-2012 U.S. Supreme Court term proved to be an active one for ENRD. The Supreme 

Court decided four cases arising out of the Division’s work. PPL Montana, L.L.C. v. State 

of Montana unanimously reversed a Montana Supreme Court decision which had held that 

riverbeds occupied by petitioner’s hydroelectric facilities were state property because they 

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

EPA unanimously held that administrative compliance orders issued under the Clean Water 

Act are subject to judicial review under the Administrative Procedure Act before EPA brings 

an enforcement action. Salazar v. Patchak concluded that an individual had prudential 

standing under the Administrative Procedure Act to challenge the Department of the Interior’s 

decision to acquire land in trust for an Indian tribe and that the United States’ waiver of 

sovereign immunity in the Administrative Procedure Act applied because the individual did 

not bring an action to quiet title under the Quiet Title Act for which there is no waiver of 

sovereign immunity as to challenges involving trust lands. And, finally, Southern Union Co. 

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

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

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

in violation of the Resource Conservation and Recovery Act. Our recent cases before the 

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

Protecting the Public Fisc 

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

investment in ENRD. The Division strives to reduce monetary recoveries from litigation 

brought against the United States to the greatest extent possible, secure signifi cant monetary 

recoveries and corrective measures through affirmative civil and criminal litigation, and operate 

16 | foreword
 
as efficiently as possible. ENRD estimates that its handling of defensive and condemnation 

cases closed in fiscal year 2012 saved more than $1.8 billion (a comparison of claims made in 

those cases with the amounts ultimately imposed). For example, the Division’s resolution of 

cases seeking compensation under the Fifth Amendment to the U.S. Constitution for the alleged 

taking of private property saved nearly $30 million in fiscal year 2012. 

Cost Savings and Efficiencies 

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

significant reductions in annual Division expenditures. ENRD saved tens of millions of dollars 

by streamlining its administrative operations, expanding its use of state-of-the-art information 

and communications technology as an alternative to costly travel, and implementing in-house 

litigation support services, among other measures. For example, over the past four years, the 

Division’s in-house automated litigation support lab alone has saved us more than $19 million in 

discovery processing, database hosting, scanning, digital Bates numbering, and other litigation 

support services. 

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

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

one of the “Best Places to Work in the Federal Government.” Among all federal agency subcomponents surveyed by PPS and the Office of Personnel Management, ENRD’s overall ranking 

has been in the top five for each of the past three years, including two #1 rankings. Within the 

Department of Justice, ENRD has been the highest-rated subcomponent in all three years. 

During this period, employee satisfaction has remained consistently high, and the Division has 

been recognized among the top subcomponents for effective leadership, empowerment, fairness, 

teamwork, and strategic management. I take this opportunity to congratulate ENRD’s managers 

for these impressive results. 

Diversity and Quality of Life 

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

and quality of life. 

Recognizing Division Staff and Partners 

The extraordinary work reflected in this report is due to the dedication, expertise and professionalism of the Division staff. Thank you for the sacrifices that you and your families make 

each day in service to the American people. To our colleagues at the U.S. Attorneys’ Offices, 

client agencies, and state, tribal and local governments, I am grateful for our shared vision and 

close partnership. As this report shows, we achieve the best results when we work together. 

Ignacia S. Moreno 

Assistant Attorney General 

Environment and Natural Resources Division 

January 17, 2013 

foreword | 17
 
Kilauea Point, Hawaii DOI Photo 

Hughes Creek, Washington NOAA Photo 

18 | overview
 
OVERVIEW 


OF THIS REPORT
 

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

achieved significant results for the American people across its many practice areas. The 

chapters of this report briefly describe the organization of the Division, highlight its progress 

toward the goal of achieving environmental justice in protecting all communities from environmental harm, and describe the Division’s key accomplishments. The key accomplishments 

chapters, which reflect the components of the Division’s mission, are: protecting our nation’s 

air, land, and water; ensuring cleanup of oil and Superfund waste; promoting responsible 

stewardship of America’s wildlife and natural resources; enforcing the nation’s criminal 

pollution and wildlife laws; defending vital federal programs and interests; promoting national 

security and military preparedness; protecting tribal rights and resources and addressing tribal 

claims; and supporting the Division’s staff. 

overview | 19
 
North Fork Toutle River Photo by Jeff rey Bank 

Cascade Mountain Range, Washington 

Skyline Drive Photo by Jeff rey Bank 

Shenandoah Mountains, Virginia 

20 | enrd
 
PRESENTING THE 

ENVIRONMENT AND 

NATURAL RESOURCES DIVISION

The Division has a main offi ce in Washington, D.C., and 

fi eld offi ces in: Denver, Colorado; San Francisco, California; 

Sacramento, California; and Anchorage, Alaska. ENRD has a 

staff of about 650, more than 400 of whom are attorneys. The 

Division is organized into nine litigating sections plus the Offi ce 

of the Assistant Attorney General and the Executive Offi ce.

The Division has responsibility for cases involving more than 150 

ur 

rs. 

statutes and represents virtually every federal agency in courts

across the United States and its territories and possessions. O

litigation docket contains almost 6,800 active cases and matte

About one-half of ENRD’s lawyers bring cases against those 

who violate the nation’s civil and criminal pollution-control 

laws. Others defend environmental challenges to government 

programs and activities, and represent the United States in 

matters concerning the stewardship of the nation’s natural resources and public lands. The 

Division is responsible for the acquisition of real property by eminent domain for the federal 

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

cases concerning Indian rights and claims. 

One of the Division’s primary responsibilities is to enforce federal civil and criminal environmental laws such as the Clean Air Act (CAA), the Clean Water Act (CWA), the Oil Pollution 

Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA or Superfund), and the Safe Drinking 

Water Act. The main federal agencies that the Division represents in these areas are the U.S. 

Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps or 

USACE). The ENRD sections that carry out this work are the Environmental Enforcement 

Section, the Environmental Defense Section, and the Environmental Crimes Section.

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

related to the management of public lands and associated natural and cultural resources. 

All varieties of public lands are affected by ENRD’s litigation docket, ranging from entire 

ENRD LITIGATING 

SECTIONS

— Appellate

— Environmental Crimes

— Environmental Defense

— Environmental Enforcement

— Indian Resources

— Land Acquisition

— Law and Policy

— Natural Resources

— Wildlife and Marine Resources

enrd | 21
 ’

WHAT WE DO
 

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

policy work on behalf of United States regarding: 

— Prevention and Cleanup of Pollution 

— Environmental Challenges to Federal Programs and Activities 

— Stewardship of Public Lands and Natural Resources 

— Property Acquisition for Federal Needs 

— Wildlife Protection 

— Indian Rights and Claims 

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

largest environmental law practice in the country. 

ecosystems, such as the nation’s most significant sub-tropical wetlands (the Everglades) and 

the nation’s largest rain forest (the Tongass), to individual rangelands or wildlife refuges. 

Examples of ENRD’s land and natural resources litigation include original actions before the 

U.S. Supreme Court to address interstate boundary and water allocation issues; suits over 

management decisions affecting economic, recreational, and religious uses of the national parks, 

national forests, and other public lands; and actions to recover royalties and revenues from 

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

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

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

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

the Corps; the Department of Transportation; and the Department of Defense. The Natural 

Resources Section is primarily responsible for these cases. 

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

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

Species Act (ESA), which protects endangered and threatened animals and plants; the Marine 

Mammal Protection Act (MMPA), which protects animals such as whales, seals, and dolphins; 

and the Magnuson-Stevens Fishery Conservation and Management Act, which regulates increasingly depleted fishery resources. The Environmental Crimes Section also brings criminal prosecutions under these laws and under the Lacey Act against people who are found smuggling 

wildlife and plants into the United States. The main federal agencies that ENRD represents 

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

National Marine Fisheries Service (NMFS). 

Division cases frequently involve allegations that a federal program or action violates constitutional provisions or environmental statutes. Examples include regulatory takings cases, in 

which plaintiff claims he or she has been deprived of property without just compensation by a 

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

National Environmental Policy Act (NEPA) by, for instance, failing to issue an environmental 

22 | enrd
 
impact statement (EIS). Both takings and NEPA cases can affect vital federal programs such 

as those governing the nation’s defense capabilities (including military preparedness exercises, 

weapons programs, and military research), renewable energy development, and food supply. 

These cases also involve challenges to regulations promulgated to implement the nation’s 

anti-pollution statutes, such as the CAA and CWA, or activities at federal facilities that are 

claimed to violate such statutes. The Division’s main clients in this area include the Department 

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

handle these cases. 

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

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

projects such as national parks or the construction of federal buildings including courthouses, 

and for national security-related purposes. The Land Acquisition Section is responsible for this 

litigation. 

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

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

defending against challenges to statutes and agency action designed to protect tribal interests, 

and bringing suits on behalf of federal agencies to protect tribal rights and natural resources. 

The rights and resources at issue include water rights, the ability to acquire reservation land, 

and hunting and fishing rights, among others. The Natural Resources Section also defends 

claims asserted by Indian tribes and tribal members against the United States. The main federal 

agency that the Division represents in connection with this work is the Bureau of Indian Affairs 

(BIA) in Interior. 

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

the trial courts, and works closely with the Department of Justice’s (the Department’s) Offi ce of 

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

The Law and Policy Section advises and assists the Assistant Attorney General on environmental and natural resources legal and policy questions, particularly those that affect multiple 

sections in the Division. It handles the Division’s response to legislative proposals and congressional requests, ENRD’s comments on federal agency rulemakings, and amicus participation in 

cases of importance to the United States, as well as other special projects on behalf of Division 

leadership. Other Law and Policy Section duties include serving as the Division’s ethics and 

professional responsibility officer and counselor, alternative dispute resolution counselor, 

and liaison with state and local governments. Attorneys in the Law and Policy Section also 

coordinate the Division’s involvement in international legal matters as well as the Division’s 

Freedom of Information Act and Privacy Act work. 

The Executive Office is the operational management and administrative support section 

for ENRD, providing financial management, human resources, information technology, 

procurement, facilities, security, litigation support, and other important services to the 

Division’s workforce. The Executive Office takes advantage of cutting-edge technology to 

provide sophisticated automation facilities to ENRD employees. By utilizing groundbreaking 

technologies and innovative business processes—and by in-sourcing traditional contractorprovided services and equipping employees to better serve themselves—the Executive Offi ce is 

able to achieve significant annual cost savings for the American public. 

enrd | 23
 
 

 

ENRD CLIENT AGENCIES
 

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

United States Department of Agriculture www.usda.gov 

United States Forest Service www.fs.fed.us 

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

United States Department of Commerce 

National Marine Fisheries Service www.nmfs.noaa.gov 

National Oceanic and Atmospheric Administration www.noaa.gov 

United States Department of Defense 

United States Air Force www.af.mil 

United States Army www.army.mil 

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

United States Marine Corps www.marines.mil 

United States Navy www.navy.mil 

United States Department of Energy www.energy.gov 

Environmental Protection Agency www.epa.gov 

General Services Administration www.gsa.gov 

United States Department of Homeland Security www.dhs.gov 

United States Customs and Border Protection www.cbp.gov 

Federal Emergency Management Agency www.fema.gov 

United States Coast Guard www.uscg.mil 

United States Department of the Interior www.doi.gov 

Bureau of Indian Aff airs www.bia.gov 

Bureau of Land Management www.blm.gov 

Bureau of Ocean Energy Management www.boem.gov 

Bureau of Reclamation www.usbr.gov 

Bureau of Safety and Environmental Enforcement www.bsee.gov 

National Park Service www.nps.gov 

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

United States Fish and Wildlife Service www.fws.gov 

United States Geological Survey www.usgs.gov 

United States Department of Transportation www.dot.gov 

Federal Aviation Administration www.faa.gov 

Federal Highway Administration www.fhwa.dot.gov 

Federal Transit Administration www.fta.dot.gov 

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

United States Maritime Administration www.marad.dot.gov 

United States Department of Veterans Aff airs www.va.gov 

24 | enrd
 
REPORTING OUR 

PROGRESS TOWARD 

ACHIEVING THE GOAL OF 

ENVIRONMENTAL JUSTICE

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

be free from exposure to hazardous waste and toxic substances. Environmental justice does 

not mean special treatment, but equal treatment and full protection under the nation’s environmental, civil rights, and health 

laws. Ensuring that environmental justice is considered in 

all aspects of our work is a core 

mission of ENRD. 

Environmental justice was 

fi rst addressed by the federal 

government when Executive 

Order 12898 was issued in 1994. The Department has committed to the following goals for 

achieving environmental justice, as refl ected in the Department of Justice Guidance Concerning 

Environmental Justice (1995):

— Protect environmental quality and human health in all communities; 

— Use environmental, civil rights, 

criminal, and civil laws to achieve fair 

environmental protection; 

— Promote and protect community 

members’ rights to participate meaningfully in environmental decision making 

that may affect them; 

— Analyze data that will assist the 

Department in law enforcement, 

mediation, and counseling efforts 

involving environmental justice matters; 

and 

“Environmental justice is the fair treatment and meaningful involvement 

of all people regardless of race, color, national origin, or income with 

respect to the development, implementation, and enforcement of 

environmental laws, regulations, and policies.” 

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

“The bur

still fall

comm

den of environmental degradation 

s disproportionately on low-income 

unities and communities of 

color–and most often, on their youngest residents: 

our children. This is unacceptable. And it is 

unconscionable. But through the aggressive 

enforcement of federal environmental laws in every 

community, I believe we can–and I know we must–

change the status quo.”

— Attorney General Eric Holder

environmental justice | 25
 

— Promote full and fair enforcement of the laws, increase opportunity for access to environmental benefits, and minimize activities that result in a disproportionate distribution of environmental burdens. 

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

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

environmental justice into its work. 

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

with other federal agencies and Department components. Second, we highlight the Division’s 

actions to further environmental justice through its own work and litigation docket. 

COLLABORATIVE WORK WITH OTHER FEDERAL AGENCIES AND DEPARTMENT COMPONENTS IN FISCAL YEAR 2012 

Actively Participating in the Interagency Working Group on 

Environmental Justice (IWG) 

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

that there is a coordinated federal response to environmental justice issues. The IWG, which 

was originally established in 1994 under Executive Order 12898 and reinvigorated under this 

Administration, is charged with providing guidance to federal agencies on environmental justice 

issues; coordinating the development of agency environmental justice strategies; coordinating 

research, data collection, and analysis; holding public meetings; and developing interagency 

model projects on environmental justice. The creation of the IWG underscores the importance 

of federal agencies working collaboratively to address environmental justice issues. 

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

senior staff-level meetings and identify how the Department can support and further the IWG’s 

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

Implementing an Interagency Memorandum on Environmental Justice 

The Department continues to 

implement the Memorandum 

of Understanding on Environmental Justice and Executive 

Order 12898 (MOU) signed by 

the Department and 16 other 

federal agencies in August 2011. 

The Division played an important 

leadership role in the conception 

and development of the MOU 

in 2011 and continues to play 

an important role in its implementation. The MOU promotes Assistant Attorney General Ignacia S. Moreno with Other Members of the 

Interagency Working Group on Environmental Justice 

26 | environmental justice
 
interagency collaboration and public access to information about agency work on environmental 

justice, and specifically requires each agency to publish an environmental justice strategy, to 

ensure an opportunity for ongoing public input on implementation of those strategies, and to 

produce annual implementation progress reports. 

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

efforts of the IWG, such as: 

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

justice strategies: (1) implementation of NEPA; (2) implementation of Title VI of the Civil 

Rights Act of 1964, as amended (Title VI); (3) addressing impacts from climate change; and 

(4) addressing impacts from commercial transportation and supporting infrastructure (called 

“goods movement”). The IWG formed committees for NEPA, Title VI, and, more recently, goods 

movement. The Division actively participates in the NEPA committee. 

— In February 2012, the Department released the Department of Justice 2011 Implementation 

Progress Report on Environmental Justice, its first annual report on the work and achievements of the Department in this area. ENRD contributed significantly to the accomplishments 

reported in that document. 

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

Attorney General Bruce Gelber attended the IWG Deputies’ Meeting chaired by White House 

Council on Environmental Quality Deputy Director Gary Guzy and EPA Deputy Administrator 

Robert Perciasepe. Among other topics, each agency shared its views on proposed initiatives. 

— In June 2012, Cynthia Ferguson was selected as the Division’s environmental justice 

coordinator. Among other tasks, she is responsible for coordinating environmental justice 

issues throughout the Division and serves as the ENRD representative on the IWG. 

Increasing Communication and Awareness Across Federal Agencies 

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

dialogue on and awareness of environmental justice issues. In fiscal year 2011, ENRD, along 

with EPA’s Office of General Counsel, organized a group of career attorneys from agencies across 

the federal government to discuss legal issues that arise with respect to environmental justice. 

In fiscal year 2012, the group continued to serve as an important forum for open dialogue, 

continuing education, and informal counseling among the federal agencies. The discussions 

fostered by this effort improve each agency’s ability to understand not only how to implement 

environmental justice initiatives, but also how to respond to environmental justice concerns 

within the parameters of existing law. 

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

issues. This past year, we participated in training sessions for personnel from the Department of 

Energy (DOE), for example. 

environmental justice | 27
 
 

Participating in Community and Other Outreach 

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

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

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

initiatives and speak directly to federal agency representatives about environmental issues that 

affect them. These meetings are often held in conjunction with other environmental and public 

health-related meetings to maximize the opportunities for reaching a broad spectrum of stakeholders. 

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

continuously improve how we address environmental justice concerns in the work that we do. 

For example, this year, Division representatives participated in a tour and listening session 

in Corpus Christi, Texas. We gain valuable feedback from these sessions, and look forward to 

continuing our participation in more of them. 

DIVISION-SPECIFIC FISCAL YEAR 2012 ENVIRONMENTAL JUSTICE ACHIEVEMENTS 

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

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

Conducting Outreach on Environmental Justice Issues 

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

partners, state and local officials, and community representatives to organize direct outreach on 

environmental justice issues. For instance, in August 2012, Assistant Attorney General Ignacia 

Moreno and U.S. Attorney Kenneth Gonzales held a listening session on environmental and 

natural resources issues affecting New Mexico tribes in Albuquerque, New Mexico. 

Assistant Attorney General Ignacia Moreno and 

other ENRD senior staff spoke about environmental justice on a number of occasions. 

Examples are the 2012 Environmental Justice 

Conference and Training Program, a Hispanic 

Bar Association of the District of Columbia 

event, the ALI-ABA Conference on Criminal 

Enforcement of Environmental Laws, a New 

York Bar Association event, the World Bank 

“Colloquium on Environmental Justice: Access 

to Information and Public Participation,” the 

D.C. Bar “Environmental Justice and Federal 

Environmental Policy—A Conversation” event, and the July 2012 National Environmental 

Justice Advisory Council meeting in Crystal City, Virginia. 

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

regarding environmental justice. In July 2012, with Cynthia Giles, EPA’s Assistant Adminis28 | environmental justice 

Assistant Attorney General Ignacia S. Moreno at the 

World Bank’s “Colloquium on Environmental Justice: 

Access to Information and Public Participation” 
 

 

trator for Enforcement and Compliance Assurance, Assistant Attorney General Ignacia Moreno 

convened the first in a series of sessions with representatives from the corporate community to 

discuss environmental justice in enforcement matters. The listening session provided a forum 

for a fruitful discussion that would, among other things, raise awareness within the corporate 

community of the importance of environmental justice and encourage consideration of environmental justice as a basic component of enforcement and compliance matters. The corporate 

community has an essential role to play in the conversation on environmental justice and ENRD 

will continue to look for appropriate ways to engage the corporate community in a productive 

dialogue on these important matters. 

Increasing Awareness Within the Division 

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

among its attorneys and staff. For example, in 2012, ENRD’s Environmental Enforcement 

Section conducted highly successful environmental justice training for attorneys at its Advanced 

Civil Environmental Enforcement Seminar. Several U.S. Attorneys’ Offices also attended 

the training, which focused on incorporating the principles of environmental justice into 

civil environmental enforcement work and, more specifically, on how to identify and address 

environmental justice issues that arise. The section collaborated with the Department’s Civil 

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

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

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

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

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

helping to enhance the attending attorneys’ understanding of community concerns. 

Integrating Environmental 

“In all of the work that we do, we Justice Principles into ENRD are mindful of the principles of Litigation and Outcomes ‘environmental justice.’ That is, we 

strive to ensure that all communities enjoy the Through enforcement of the nation’s benefit of a fair and even-handed application of environmental and natural resources environmental laws, and we conduct outreach to laws, ENRD seeks to ensure that all provide affected communities with a meaningful communities enjoy the benefit of a fair and 

opportunity to participate in decisions that even-handed application of the law, and affect their wellbeing.” have a meaningful opportunity for input in — Assistant Attorney General the consideration of appropriate remedies 

for violations of the law. Ignacia S. Moreno 

We continue to see the Division’s 

commitment to environmental justice 

demonstrated in litigation results. For example, the following cases concluded by the Environmental Enforcement and Environmental Crimes Sections in fiscal year 2012 have furthered the 

principles or goals of environmental justice: 

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

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

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

environmental justice | 29
 
systems and treatment plants, at an estimated cost of $4.7 billion over 23 years, to eliminate 

overflows of untreated raw sewage, including basement backups, and to reduce pollution levels 

in urban rivers and streams. The injunctive relief, historic in its scope and importance to the 

people of St. Louis, also will significantly advance the use of large-scale green infrastructure 

projects to control wet weather overflows by requiring MSD to invest at least $100 million in an 

innovative green infrastructure program, focused in environmental justice communities in St. 

Louis. 

— Residents in Memphis, Tennessee, 

will see significant public health and 

environmental benefits as a result of the 

comprehensive CWA settlement reached 

in United States v. City of Memphis to 

address overflows of untreated sewage. 

The City of Memphis will spend an 

estimated $250 million to make improvements to its sewer systems as well as 

maintenance-and-repair programs. The 

parties conducted community outreach 

and incorporated environmental 

justice considerations into the remedy. 

For example, the settlement requires 

Memphis to consider “community input” 

as a factor in prioritizing preventative 

maintenance and the long-term assessment of its sewer system. Memphis is required to assess 

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

10% of the system assessed, nearly all of the assessment will be in neighborhoods with environmental justice concerns. The city also will prioritize rehabilitation of approximately six percent 

of its system and nearly all of this rehabilitation work will be done in neighborhoods with 

environmental justice concerns. 

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

endangerment” to public health presented by the discharge of untreated sewage into a tributary 

upstream of the intake for drinking water supplied by the Town of Fort Gay. Fort Gay is a very 

small, low-income municipality in West Virginia. In a consent order, the town agreed to halt 

the discharge of untreated sewage and make urgently needed repairs to its sewage pumping 

stations. When Fort Gay subsequently violated the order, ENRD negotiated a consent decree 

entered in January 2012 to resolve CWA and Safe Drinking Water Act violations at the town’s 

waste water and drinking water treatment plants. The decree provides for $1.8 million in 

injunctive relief in the form of extensive capital improvements and other measures to ensure 

proper operation, maintenance, and reporting relative to the plants. The decree also appoints 

the Wayne County Commission as receiver over both facilities until the capital improvements 

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

Fort Gay residents. 

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

more than $400 million to install state-of-the-art pollution controls and cut emissions from its 

petroleum refinery in Whiting, Indiana. The United States was joined in this settlement by the 

State of Indiana as well as by several environmental organizations and citizens who had asserted 

View of Memphis, Tennessee 

USACE Photo 

30 | environmental justice
 
claims against BP. As a result of the direct participation of the environmental groups and 

citizens in the settlement negotiations and input provided by the local community, BP agreed 

to perform a Supplemental Environmental Project or SEP. The SEP requires BP to install, 

maintain, and operate a $2 million fence-line emission monitoring system at the refinery and to 

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

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

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

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

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

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

million at the refinery on projects to reduce the emission of greenhouse gases. 

— Salvaging company 

Watkins Street Project, 

L.L.C., and three individuals 

were convicted by a 

jury of conspiracy, CAA 

violations, obstruction of 

justice, and false-statement offenses related to 

the illegal demolition of a 

Chattanooga, Tennessee, 

factory which contained 

large amounts of asbestos. 

During the demolition of 

the factory, visible asbestos 

dust emissions engulfed 

surrounding businesses, 

residences, and a daycare 

center. Asbestos removed 

from the factory was left in 

open piles on the property. 

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

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

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

three-year term of supervised release, and ordered to pay a fine of $20,000. David Wood, a 

supervisor for Watkins Street Project, L.L.C., was sentenced to serve 20 months of incarceration, followed by a three-year term of supervised release. James Mathis, an owner of Mathis 

Construction, Inc., was sentenced to serve 18 months of incarceration, followed by a three-year 

term of supervised release. The company was ordered to pay a fine of $30,000. In addition, 

defendants were held jointly and severally liable for $27,899 in restitution for the costs 

associated with the emergency response and cleanup of the former plant. 

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

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

into the handling of these cases as well. Several examples of this aspect of ENRD’s environmental justice effort in fiscal year 2012 are described below. 

Demolition of Asbestos-Laden Factory in Chattanooga, Tennessee 

environmental justice | 31
 
— Recent amendments to 

federal transportation law 

underscore the need to ensure 

that transit systems serve 

lower-income communities. 

A major goal of federal 

transportation planning and 

funding decisions made by the 

Department of Transportation 

is to further such “transportation equity.” In Honolulu 

Traffic.com v. Federal Transit 

Admin., the Division vigorously 

defended the Federal Transit 

Administration’s decision to 

approve the City of Honolulu’s 

rapid rail project, which 

will serve lower-income 

communities in western Oahu 

and reduce traffic congestion in 

and out of Honolulu. 

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

number-two infrastructure priority project to bring light rail from Los Angeles International 

Airport through the minority and low-income Crenshaw neighborhood to intersect with another 

rail line in Los Angeles. The project will provide the broad benefits of public transportation, and 

we are working closely with the federal and local agencies involved to ensure that they have fully 

considered and addressed community impacts from building an above-ground light rail instead 

of a subway. 

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

a challenge to the Detroit River International Crossing project. Community-, ethnic-, and 

business-based organizations challenged the proposed construction of a new crossing in the 

Delray area of Detroit connecting Detroit, Michigan, and Windsor, Ontario. Plaintiffs claimed 

that the Department of Transportation illegally targeted the primarily Hispanic and poor 

community in siting the project in Delray. We closely scrutinized the claims and determined 

that the agencies had developed comprehensive mitigation measures and done extensive work 

to consider the impacts on the Delray area and the potential impacts to other environmental 

justice communities from different siting options. We also concluded that much of the impacted 

community welcomes the expected employment and 

economic opportunities from the project. The district 

court found that the agency considered community 

issues, noting that throughout the NEPA study process, 

the Federal Highway Administration took a careful look 

at impacts to low-income and minority communities. 

Moreover, the district court held that there was no 

evidence in the administrative record that the agency 

downgraded the mitigation measures or that it 

otherwise misled the community. 

FTA Diagram 

International Freight Flows Through Michigan 

FHA Map 

32 | environmental justice 
 

PROTECTING 


OUR NATION’S
 

AIR, LAND, AND WATER
 

Obtaining Company-Wide Relief for Violations 

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

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

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

litigation, and can obtain a negotiated settlement of important technological upgrades on an 

efficient scale. Communities located near a range of facilities benefit from pollutant reduction 

and, where appropriate, environmentally benefi cial projects. 

During fiscal year 2012, the Division obtained an important company-wide settlement in United 

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

enforcement initiative to reduce air pollution from cement plants. There, a consent decree 

resolved claims that the company failed to comply with the CAA at six of its Portland cement 

manufacturing facilities in Indiana, West Virginia, Pennsylvania, and Puerto Rico. Essroc 

paid a civil penalty of $1.7 million and agreed to 

invest approximately $33 million in pollution control 

technology that will result in substantial reductions 

of sulfur dioxide (SO2) and nitrogen oxide (NOx) 

Essroc Cement Silo 

Photo Courtesy of Tim and Selena Middleton 

“These comprehensive measures at multiple Essroc 

facilities will achieve substantial reductions in 

harmful air pollution and result in cleaner, healthier 

air for many people across the country. This will bring Essroc 

into compliance with the nation’s Clean Air Act and marks 

significant progress in addressing the nation’s largest sources 

of air pollution and protecting the most vulnerable among 

us, especially children and the elderly, from respiratory and 

other health problems.” 

— Ignacia S. Moreno 

United States v. Essroc Cement Corp. Press Release 

air, land, and water | 33 
emissions at the Essroc facilities. On full implementation, SO2 and NOx emissions will be 

reduced by approximately 7,500 tons per year. Additionally, Essroc will spend $745,000 to 

mitigate the effects of past excess emissions by replacing old engines in several off-road vehicles 

at its facilities. The replacement engines will achieve approximately a 50-80% reduction in NOx 

emissions per replacement engine. 

Reducing Air Pollution from Power Plants 

ENRD has continued to litigate 

civil claims under the CAA against T

wenty-two settlements with operators of operators of coal-fi red electric coal-fired electric power generating plants as power generating plants. Violations of September 30, 2012, will result in reductions in these cases arise from companies of over 2.1 million tons of sulfur dioxide and nitrogen engaging in major life-extension oxide, once the more than $13 billion in required projects on aging facilities without pollution controls are fully functioning. installing required state-of-the-art 

pollution controls, resulting 

in excess air pollution that has 

degraded forests, damaged waterways, contaminated reservoirs, and adversely affected the 

health of the elderly, the young, and asthma sufferers. Through fiscal year 2012, 22 of these 

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

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

Last year, the Division obtained 

one more settlement under 

this initiative in United States 

v. Dairyland Power Coop. 

Under the consent decree, the 

company will install approximately $150 million worth of air 

pollution controls at three of its 

coal-fired power plants located 

in Alma and Genoa, Wisconsin, 

and permanently retire three 

additional coal-fired units at 

the Alma plant. The permanent 

retirement of these units will 

ensure that they do not restart 

without first complying with 

the CAA. The actions taken by 

Dairyland to comply with the 

Dairyland Power Cooperative near Genoa, Wisconsin 

Photo Courtesy of Royalbroil 

consent decree will result in annual reductions of SO2 emissions by 23,000 tons and NOx 

emissions by 6,000 tons from 2008 levels, in addition to significant reductions of particulate 

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

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

34 | air, land, and water
 
 

 

Addressing Air Pollution from Oil Refi neries 

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

petroleum refining industry. Three additional settlements were obtained under this initiative 

during fiscal year 2012. 

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

to spend more than $45 million in new pollution controls to resolve CAA violations at its 

refinery in Port Reading, New Jersey, which, when fully operational, will reduce annual air 

emissions of NOx by 181 tons per year and result in additional reductions of volatile organic 

compounds (VOCs). Hess also paid a civil penalty of $845,000, split evenly between the United 

States and the State of New Jersey. 

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

L.L.C., requires that refiner to invest more than $4.25 million in pollution controls and $6.5 

million in operating costs to resolve claims under the CAA, Superfund, and Emergency Planning 

and Community Right-to-Know Act (EPCRA) at its Coffeyville, Kansas, refinery. Once the 

controls are installed, annual emissions of NOx and SO2 will be reduced by more than 300 

tons per year from this facility. Coffeyville also paid a civil penalty of $975,000, which will be 

shared with the State of Kansas, and will perform a SEP that is valued at more than $1.2 million 

and will benefit the surrounding communities by reducing emissions of harmful air pollutants, 

reducing the frequency of future acid gas flaring incidents, and conserving 15 million gallons of 

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

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

entered the sixth amendment to the consent decree in United States v. Sinclair Tulsa Refining 

Co. There, two subsidiaries of Sinclair Oil Corp. paid stipulated penalties of $3.844 million and 

agreed to spend $10.5 million on additional pollution control equipment and other projects, 

which will reduce emissions of NOx and SO2 by approximately 24,385 and 59 tons per year, 

respectively. 

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

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

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

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

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

in United States v. Marathon Petroleum Co. The settlement requires Marathon to implement 

cutting-edge pollution control, monitoring, and operating systems, which it developed in close 

“This agreement is a great victory for the environment and will result 

in cleaner and healthier air for the benefit of communities across the 

country in Illinois, Kentucky, Louisiana, Michigan, Ohio and Texas. By 

spurring corporate ingenuity, this settlement will dramatically reduce emissions 

from all 22 flares at Marathon’s six refi neries.”

 — Ignacia S. Moreno 

United States v. Marathon Petroleum Co. Press Release 

air, land, and water | 35 
 

 

 

— 

-

FLARES
 

A fl are is a mechanical 

device, ordinarily elevated 

high off the ground, used 

to combust waste gases. 

The more waste gas a 

company sends to a fl are, 

the more pollution occurs. 

The less effi cient a fl are is 

in burning waste gas, the 

more pollution occurs. EPA 

wants companies to fl are 

less, and when they do 

flare, to fully combust the 

harmful chemicals found in 

the waste gas. 

EPA Website and Photos 

cooperation with EPA. Marathon began 

installing the systems in 2008 to improve 

the combustion efficiency of its flares 

and, through the end of 2011, eliminated 

approximately 4,700 tons per year of VOCs 

and 110 tons per year of hazardous air 

pollutants from the air. The settlement 

includes a “cap” on the amount of waste 

gas Marathon may flare, which is the 

first time a company has agreed to such 

a limitation. Marathon estimates that it 

will spend a total of $51.5 million on flare 

controls. The consent decree also requires 

Marathon to implement a mitigation 

project that will further reduce VOC 

and benzene emissions at its refi nery in 

Detroit, Michigan, and to pay a $460,000 

civil penalty to resolve its violations of the 

CAA. 

Well-Operating Flare Poorly Operating Flare 

Ensuring the Integrity of Municipal Wastewater Treatment Systems 

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

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

entered 40 settlements in these cases, requiring long-term control measures and other relief 

estimated to cost violators more than $20 billion. These cases involve one of the most pressing 

infrastructure issues in the nation’s cities—discharges of untreated sewage from aging collection 

systems. Low-income and minority communities often live in older urban areas. Raw sewage 

contains pathogens that threaten public health and may cause beach closures as well as the 

issuance of public advisories against consumption of fish. Clean Water Act enforcement also 

protects national water treasures like the Chesapeake Bay. 

Eleven consent decrees with municipalities or regional sewer districts were entered in fi scal year 

2012. Collectively, they provide for the expenditure of more than $6.3 billion in improvements, 

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

more than $2.4 million. A few examples are the following cases: 

— United States v. Metropolitan 

St. Louis Sewer Dist. (MSD), 

“We are fully committed to vigorous enforcement which also was mentioned in the 

of the Clean Water Act, and will continue to environmental justice chapter, is 

the environmental enforcement work in partnership with EPA to advance the 

settlement requiring the largest goal of clean water for all communities in our nation’s cities. 

injunctive relief in the nation’s The people of St. Louis, including those who live in minority 

history. Under the terms of a and low-income communities, will receive tangible, lasting 

consent decree resolving claims benefits from this signifi cant settlement.”

of violations of the CWA, MSD — Ignacia S. Moreno 

agreed to make extensive improve- United States v. Metropolitan St. Louis 

Sewer Dist. Press Release 

36 | air, land, and water 
 — 

ments to its sewer systems and treatment plants, at an 

estimated cost of $4.7 billion over 23 years, to eliminate 

overflows of untreated raw sewage, including basement 

backups, and to reduce pollution levels in urban rivers 

and streams. The injunctive relief, historic in its scope 

and importance to the people of St. Louis, also will 

significantly advance the use of large-scale green infrastructure projects to control wet weather overflows 

by requiring MSD to invest at least $100 million in an 

innovative green infrastructure program, for the benefit 

of environmental justice communities in St. Louis. The 

city also paid a $1.2 million civil penalty to the United 

States. 

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

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

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

only municipal sewage, not stormwater, and serves over 500,000 people. The system includes 

approximately 2,600 miles of sewer lines, 55,000 manhole covers, and 66 lift stations. The 

consent decree provides for targeted relief for priority areas, consisting primarily of the most 

aged sewer pipes, within eight-and-a-half years. These actions and other related relief are 

estimated to cost the county approximately $700 million. The county also agreed to conduct 

a stream cleanup project at an estimated cost of $600,000, focusing on segments of the South 

River, South Fork Peachtree Creek, and Snapfinger Creek. The county also paid a $453,000 civil 

penalty, split evenly between the United States and the State of Georgia. 

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

under which the city agreed to make an estimated $506 million worth of improvements to 

its combined sewer system to significantly reduce overflows of raw sewage to the St. Joseph 

River, which is a tributary of Lake Michigan. The city’s sewer system has a history of being 

overwhelmed by rainfall when a portion of the sewage that would otherwise flow through the 

city’s treatment plant is instead discharged into the river through some or all of 36 outfalls. 

After implementing the improvements required under the consent decree, the city will reduce 

the number of raw sewage discharge events by 95%. The city also paid civil penalties totaling 

$85,000, split evenly between the United States and the State of Indiana, and agreed to 

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

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

St. Louis, Missouri 

Photo Courtesy of Tyson Blanquart 

Green infrastructure uses vegetation, soils, and 

natural processes to manage water and create healthier 

urban environments. At the scale of a city or county, green 

infrastructure refers to the patchwork of natural areas that 

provides habitat, flood protection, cleaner air, and cleaner 

water. At the scale of a neighborhood or site, green infrastructure refers to stormwater management systems that 

mimic nature by soaking up and storing water. 

EPA Website 

— A consent decree entered in 

United States v. City of Memphis 

(Tennessee), also discussed in the 

environmental justice chapter, 

represents the combined efforts 

of the United States and the State 

of Tennessee working with the 

Tennessee Clean Water Network 

to resolve claims under the CWA 

and the Tennessee Water Quality 

Control Act relating to the city’s 

air, land, and water | 37 

 

 

 

— 

longstanding overflows of untreated raw sewage. The consent decree requires the city to 

establish specific programs designed to eliminate the unauthorized discharges of raw sewage 

and to implement a continuing sewer assessment and rehabilitation program to ensure that 

the integrity of sewer infrastructure is maintained to prevent system failures that would likely 

result in unauthorized overflows, at an estimated cost of $250 million. The consent decree also 

requires the city to perform corrective measures in certain specifi cally identified priority areas. 

The city also agreed to pay a $1.29 million civil penalty, half to be paid to the United States and 

half to be paid through the performance of state projects, including the implementation of an 

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

the Mississippi River. 

EXAMPLES OF GREEN INFRASTRUCTURE 

Rainwater Harvesting. Green Parking. Many 

Rainwater harvesting of the green infrastrucsystems collect and store ture elements described 

rainfall for later use. When above can be seamlessly 

designed appropriately, integrated into parking 

rainwater harvesting systems lot designs. Permeable 

slow and reduce runoff pavements can be installed 

and provide a source of in sections of a lot and 

water. These systems may rain gardens and bioswales can be included in medians 

be particularly attractive in and along a parking lot perimeter. Benefi ts include 

arid regions, where they can urban heat island mitigation and a more walkable built 

reduce demands on increas- environment. 

ingly limited water supplies. 

Green Roofs. Green roofs 

Bioswales. Bioswales are are covered with growing 

vegetated, mulched, or media and vegetation that 

xeriscaped channels that enable rainfall infi ltration 

provide treatment and and evapotranspiration 

retention as they move of stored water. Green 

stormwater from one place roofs are particularly cost 

to another. Vegetated swales effective in dense urban 

slow, infiltrate, and fi lter areas where land values are 

stormwater flows. As linear features, vegetated swales high and on large industrial 

are particularly suitable along streets and parking lots. or offi ce buildings where 

stormwater management 

Permeable Pavements. costs may be high. 

Permeable pavements 

are paved surfaces that Urban Tree Canopy. Many 

infiltrate, treat, and/or cities set tree canopy 

store rainwater where it goals to restore some of 

falls. Permeable pavements the benefits provided by 

may be constructed from trees. Trees reduce and 

pervious concrete, porous slow stormwater by interasphalt, permeable interlocking pavers, and several cepting precipitation in 

other materials. These pavements are particularly cost their leaves and branches. 

effective where land values are high and where fl ooding	 Homeowners, businesses, and cities can all participate in 

or icing is a problem.	 the planting and maintenance of trees throughout the 

urban environment. 

EPA Website 

38 | air, land, and water
 
— Consent decrees entered in United States v. City of Euclid (Ohio); United States v. Boston 

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

municipalities to spend $100 million, $56 million, and $25 million, respectively, to make 

improvements to their wastewater collection systems to eliminate unauthorized discharges of 

sewage into local waterways. 

Protecting the Nation’s Waters and Wetlands 

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

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

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

court entered the latest consent decree with a residential homebuilder under the initiative to 

resolve claims of CWA violations in connection with its construction projects. In United States 

v. Ryland Group, Inc., d/b/a Ryland Homes, one of the nation’s largest homebuilders paid a 

civil penalty of $625,000 to resolve alleged CWA violations at its construction sites in 13 states 

and agreed to implement a company-wide program to improve compliance with stormwater 

runoff requirements at current and future construction sites around the country. The States of 

Colorado, Florida, Illinois, Indiana, Maryland, and Nevada, and the Commonwealth of Virginia 

joined in the settlement and will receive a portion of the $625,000 civil penalty. 

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

North America, Inc., with LaFarge and four of its American subsidiaries, resolving claims of 

unpermitted discharges of stormwater and failure to comply with stormwater permits at 21 

stone, gravel, sand, asphalt, and ready-mix concrete facilities in five states. Lafarge is one of 

the largest suppliers of construction materials in the United States and Canada. The company 

agreed to implement a nationwide evaluation and compliance program at 189 of its similar 

facilities in the United States to ensure that it 

meets CWA requirements, paid a $740,000 civil 

penalty, and agreed to implement two SEPs at an 

estimated cost of almost $3 million. 

This year, the Division also obtained significant 

victories under its vigorous program to protect 

wetlands and other waters of the United States 

from illegal fill activity. In United States v. 

Wright Bros. Constr. Co. & State of Georgia Dep’t 

of Transp., a civil enforcement action for the 

unpermitted discharge of fill material in seven 

primary trout streams at four sites in Georgia, 

we negotiated a consent decree under which 

defendants are obligated to restore portions of two 

streams, purchase mitigation credits for impacts 

to streams that cannot be restored, and pay a civil 

penalty of $1.5 million. We also obtained favorable 

consent decrees in United States v. Century 

Homebuilders ($400,000 civil penalty) and United 

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

Sedimentation and Fill in Primary Trout Stream in Georgia 

air, land, and water | 39 

Reducing Air and Water Pollution at Other Diverse Facilities 

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

of civil enforcement actions against industrial facilities. In addition to the company-wide 

settlement with Essroc Cement Corp. discussed above, the Division obtained another settlement 

in its national enforcement initiative to reduce air 

pollution from cement plants in United States v. 

CalPortland Co. There, CalPortland, which owns 

and operates a number of these facilities, agreed 

to resolve claims that it violated the CAA at its 

manufacturing plant near Mojave, California. The 

company paid a $1.425 million civil penalty and 

agreed to install and operate appropriate emission 

controls at its kiln. The settlement resolved claims 

that the company had modified its plant without 

obtaining the required permit. 

Courts entered consent decrees with operators 

of aluminum recycling and processing facilities 

in three cases resolving alleged violations of the 

National Emission Standards for Hazardous Air 

I

n fiscal year 2012, the Division secured 

agreements with industrial defendants 

under the Clean Air Act to spend an 

estimated $397 million on corrective 

measures to reduce harmful air emissions, 

to pay more than $28.8 million in civil 

penalties, and to perform $17 million in 

mitigation projects and more than $2.5 

million in Supplemental Environmental 

Projects to offset the harm caused by their 

unlawful emissions. 

Pollutants (NESHAPs) applicable to their industry, Secondary Aluminum Production. In each 

case, defendant failed to control the emission of hazardous air pollutants (HAPs) as required by 

the CAA and implementing regulations. HAPs, also known as air toxics, are pollutants which 

are known or are suspected to cause cancer or other serious health effects such as birth defects 

or reproductive effects in humans. Each defendant paid a civil penalty and agreed to take 

measures to control the unlawful emissions. 

— In United States v. J.L. French, L.L.C., two related companies paid a civil penalty of $80,000 

to resolve claims in connection with their facilities in Sheboygan, Wisconsin, and Glasgow, 

Kentucky. 

— In United States v. Hydro Aluminum 

North America, Inc., the company paid a I

n fiscal year 2012, the Division settled cases with civil penalty of $310,000 to resolve claims in industrial defendants under the Clean Water Act connection with its facility in St. Augustine, valued at more than $20 million in injunctive Florida. 

relief (this does not include over $23 million in
 

Supplemental Environmental Projects) and over
 — In United States v. Spectro Alloys $87 million in civil penalties. Corp., the company paid a civil penalty of 

$600,000 to resolve claims in connection 

with its facility in Rosemont, Minnesota. 

In 2008, in a CAA case, the United States demanded $72 million in stipulated penalties and 

interest from Volvo Truck Corp., claiming that Volvo had violated the provisions of a 1999 

consent decree by allowing its facilities to be used by a sister company to produce engines that 

did not meet accelerated emission standards as provided in the consent decree. In April 2012, 

in United States v. Volvo Powertrain Corp., the court agreed with the U.S. position and ordered 

Volvo to pay the entire $72 million. 

40 | air, land, and water 
 

 

The Division also improved the nation’s 

water quality by concluding a number 

of civil enforcement actions against 

industrial and commercial facilities. 

Among the industries agreeing to settle 

their noncompliance with the CWA are 

a seafood processor, a coal company, 

and a racetrack: 

— One of the world’s largest seafood 

processors paid a $2.5 million civil 

penalty and will invest an estimated 

$30-40 million in seafood processing 

waste controls under the terms of 

a consent decree entered in United 

Trident Seafoods Cannery in Alaska 

Photo Courtesy of James Brooks 

States v. Trident Seafoods Corp. These 

measures will reduce Trident’s fi sh processing 

discharges to Alaskan waters by a total of 

more than 105 million pounds annually. 

— The second largest supplier of coal in the 

United States paid a $4 million civil penalty 

to settle CWA claims at four of its mining 

complexes in Virginia, West Virginia, and 

Kentucky under a consent decree entered in 

United States v. Arch Coal, Inc. In addition to 

the penalty, Arch Coal also will take measures 

that will prevent an estimated two million 

pounds of pollution from entering the nation’s 

waterways each year. 

— In United States v. Sterling Suffolk 

Racecourse, L.L.C., the owner of the 

Suffolk Downs racetrack facility in “This agreement will benefit the quality Revere and East Boston, Massachu- of Alaskan waters, which host a critical setts, paid a civil penalty of $1.25 habitat for the seafood industry. The million to resolve CWA violations 

[seafood processing waste control] upgrades at its facility, will spend more than will enable Trident to achieve and maintain $3 million to prevent polluted water compliance with the Clean Water Act, and will from entering nearby waterways, and 

will perform three projects worth protect Alaskan waters, eliminate waste, and 

approximately $742,000 that will create efficiencies that will serve as a model 

provide water quality monitoring and of best business practices for the seafood 

protection efforts for more than 123 processing industry.” 

square miles of watershed. 

— Ignacia S. Moreno 

United States v. Trident Seafoods Corp. Press 

Release 

Akutan, Alaska FAA Photo 

air, land, and water | 41 

Ensuring the Safe Treatment, Storage, and Disposal of Waste 

North America’s largest lead producer agreed to spend approximately $65 million to correct 

violations of several environmental laws at 10 of its lead mining, milling, and smelting facilities 

in southeast Missouri under the terms of a consent decree entered by the court in United States 

v. Doe Run Resources Corp. The company paid a $7 million civil penalty to resolve claims that 

it violated the CAA, CWA, RCRA, EPCRA, Superfund, and comparable Missouri environmental 

statutes. The company also will establish financial assurance trust funds, at an estimated cost of 

$28 million to $33 million, for the cleanup of its lead smelter in Herculaneum, Missouri, which 

the company is closing for business reasons by 2014, and six mining and milling sites when 

they are eventually closed. The company also will spend an estimated $5.8 million on stream 

mitigation activities along Bee Fork Creek and an additional $2 million on community-based 

mitigation projects to reduce pollution from other sources in southeastern Missouri. 

Lead Smelter of the Doe Run Company in Herculaneum, Missouri 

Photo Courtesy of Kbh3rd 

42 | air, land, and water
 
 

ENSURING CLEANUP OF 


OIL AND SUPERFUND WASTE
 

I

n fiscal year 2012, the Division secured the commitment 

of responsible parties to clean up hazardous waste sites at 

costs estimated in excess of $123 million; and recovered 

approximately $98 million for the Superfund to fi nance future 

cleanups and more than $16 million in natural resource 

damages. 

Handling Civil Affirmative Litigation in Response to the Deepwater 

Horizon Explosion, Fire, and Oil Spill in the Gulf of Mexico 

On April 20, 2010, explosion and fire destroyed the Deepwater Horizon offshore drilling rig 

in the Gulf of Mexico and triggered a massive oil spill amounting to millions of barrels. The 

discharge continued for 87 days, at which time BP regained control of the well. 

Immediately, ENRD and the Department’s Civil Division—along with local U.S. Attorneys’ 

Offices, the Gulf States, and client agencies—launched a civil investigation into the matter. In 

December 2010, as part of a multidistrict litigation in the Eastern District of Louisiana, the 

United States brought suit against BP, Anadarko, MOEX, and Transocean for civil penalties 

under the CWA and a declaration of liability under the Oil Pollution Act. 

Since filing, ENRD, along with the Civil Division, has taken or defended several hundred 

depositions, has produced some 96-million pages in discovery, and continues preparation 

for the first of what is expected to be several phases of trial. In Phase One of the trial, which 

is currently scheduled for February 25, 2013, the United States intends to prove BP grossly 

negligent for purposes of civil penalty and recovery of natural resource damages (NRD), 

as applicable, and that violations of federal safety and operational regulations caused and 

contributed to the oil spill. 

oil & superfund waste | 43 

 

 

 

 

 

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

in the Deepwater Horizon oil spill explosion, fire, and oil spill. According to the terms of the 

settlement, MOEX pays $70 million in civil penalties to resolve alleged violations of the CWA 

and spends at least $20 million to facilitate land acquisition projects in several Gulf States that 

will preserve and protect in perpetuity habitat and resources important to water quality. Of 

the $70 million in civil penalties, $25 million goes to the States of Alabama, Florida, Louisiana, 

Mississippi, and Texas. 

Transocean also has agreed to plead guilty to violating the CWA and to pay a total of $1.4 billion 

in civil and criminal fines and penalties, for its conduct in relation to the Deepwater Horizon 

explosion, fire, and oil spill. Pursuant to the terms of a proposed partial civil consent decree 

lodged on January 3, 2013, the Transocean defendants (Transocean Ocean Holdings, L.L.C., 

Transocean Offshore Deepwater Drilling, Inc., Transocean Deepwater, Inc., and Triton Asset 

Leasing G.M.B.H.) agreed to pay $1 billion to resolve federal CWA civil penalty claims, a record 

amount that significantly exceeds the $70 million civil penalty paid by MOEX. The unprecedented $1 billion civil penalty is subject to the Resources and Ecosystems Sustainability, Tourist 

Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE Act), 

“Today’s announced settlement will aid the Gulf region’s recovery from the Deepwater 

Horizon oil spill and require Transocean to take important steps that will help guard 

against such incidents happening in the future. This resolution is the culmination of 

the tremendous efforts of many attorneys and staff in the Justice Department’s Criminal, Civil 

and Environment and Natural Resources Divisions–dedicated public servants whose hard work 

continues on behalf of the American people.” 

— Acting Associate Attorney General Tony West 

Transocean Plea and Agreement Announcement 

“The development and exploration of a domestic source of energy 

is vitally important, and it can and must be done in a responsible 

and sound manner. This unprecedented settlement under the 

Clean Water Act demonstrates that companies will be held fully accountable 

for their conduct and share responsibility for compliance with the laws that 

protect the public and the environment from harm. This settlement will 

provide immediate relief and benefits to the people of the five Gulf States, 

and requires Transocean to implement significant safety measures, as well as 

stringent auditing and monitoring to reduce the risk of any future disasters.” 

— Assistant Attorney General Ignacia S. Moreno 

Transocean Plea and Agreement Announcement 

44 | oil & superfund waste
 
which provides that 80% of the penalty will be to be used to fund projects in and for the Gulf 

States for the environmental and economic benefit of the region. This civil resolution reserves 

all other claims, including those for NRD and cleanup costs. Under the partial civil settlement, 

the Transocean defendants also must observe various court-enforceable strictures in drilling 

operations, aimed at reducing the chances of another blowout and discharge of oil and at 

improving emergency response capabilities. Examples of these requirements include certifications of maintenance and repair of blowout preventers before each new drilling job, consideration of process safety risks, and personnel training related to oil spills and responses to other 

emergencies. These measures apply to all rigs operated or owned by the Transocean defendants 

in all U.S. waters and will be in place for at least fi ve years. 

Case development for the Phase Two trial continues. It involves dozens of additional 

depositions and development of expert opinions concerning the amount of oil discharged from 

the well and whether defendants moved with sufficient speed to stop the discharges. Trial for 

that phase is tentatively set for June 2013. 

Recovering Damages and Penalties for Other Oil Spills 

The Division, working closely with 

the State of California, the City and 

County of San Francisco, and the City 

of Richmond, California, obtained a 

comprehensive settlement with the 

owners and operators of the marine 

vessel Cosco Busan, which struck the 

San Francisco-Oakland Bay Bridge in 

M/V Cosco Busan Oil Spill Photo Courtesy of Brocken Inaglory 

M/V Cosco Busan USCG Photo 

oil & superfund waste | 45 

 

2007. Under the terms of a consent 

decree entered in United States v. M/V 

Cosco Busan, the companies paid $44 

million to resolve claims for NRD, 

penalties, and response costs that 

resulted from the ship alliding with 

the bridge, and the subsequent oil spill 

in the San Francisco Bay. The event 

killed thousands of birds, 

impacted a significant 

portion of the bay’s 

2008 herring spawn, 

spoiled miles of shoreline 

habitat, and closed the Recovery of Oil from the M/V Cosco Busan bay and area beaches to Oil Spill recreation and fishing. USCG Photos The settlement achieves 

compensation for the 

significant natural resources that were injured as the result of the oil spill. It also forms the 

foundation for the restoration of precious lost natural resources and park system resources, and 

compensates the public for lost recreation uses for the benefit and enjoyment of the people of 

the San Francisco Bay and all Americans. 

Conserving the Superfund by Securing Cleanups 

and Recovering 

Superfund Monies 

The Division brings actions under 

CERCLA to require direct cleanup 

by responsible parties or to recover 

EPA’s cleanup costs. We also 

recover NRD on behalf of federal 

trustee agencies. 

In fiscal year 2012, we concluded 

a number of settlements requiring 

responsible parties to reimburse 

the United States for cleanup costs, 

to undertake the cleanup work 

themselves, or both. Examples 

include the following cases: 

— The United States and the State 

of Texas reached a comprehensive 

resolution of their interests at the 

complicated, multiparty Malone 

Superfund Site in Texas City, Texas, 

when the court entered a consent 

MALONE SUPERFUND SITE
 

• 	 The Malone Services 

Company Site is located 

in Texas City, Texas. 

The site, which covers 

approximately 150 acres, 

is located in an industrial 

and petrochemical area 

on the shores of Swan 

Lake and Galveston Bay. 

Approximately 10,000 

people live and/or work 

within a three-mile radius 

of the site. 

• 	 From 1964 to 1997, the 

site was a reclamation, 

storage, and disposal 

facility for waste oils 

and chemicals. Wastes 

received at the facility 

included acids and 

caustics from industrial 

cleaning and surface 

preparations; contaminated residues and 

solvents removed from 

processing and storage 

units during cleaning 

operations; spent drilling 

fluids; acids containing 

metals from etching 

and plating operations; 

inorganic slurries from 

sump cleaning; gasoline 

and crude oil tank 

bottoms; contaminated 

earth and water from 

chemical spill cleanup 

operations; general 

industrial plant wastes; 

phenolic tars; and waste 

oils. 

— EPA Fact Sheet 

46 	| oil & superfund waste
 
decree in United States v. Alcoa, Inc. More than 1,400 parties sent waste to this former waste 

processing and disposal site. The settlement requires 27 companies to clean up the site at an 

estimated cost of $56.4 million and to pay the United States $900,000 for its past and future 

costs. The federal and state natural resource trustees for the site will receive $3,109,000 to 

implement environmental restoration projects. 

— After trial and an appeal to the First Circuit in United States v. General Electric Co., the 

General Electric Co. (GE) paid more than $13 million to the United States in reimbursement 

of costs that it incurred in cleaning up the Fletcher’s Paint Superfund Site in Milford, New 

Hampshire. In February 2012, the First Circuit affirmed the district court’s finding in a CERCLA 

cost recovery action that GE was liable as having “arranged for the disposal” of a hazardous 

substance and affirmed the district court’s ruling that none of EPA’s cost recovery claims were 

barred by the statute of limitations. In this case, Frederic Fletcher, a small junk yard operator 

and paint manufacturer, had entered into an arrangement with GE in the 1950s to purchase a 

polychlorinated biphenyl-containing material called Pyranol that GE used in its manufacture of 

electric capacitors. When the material became contaminated with dirt or other materials, GE 

had no use for it and sold it to Fletcher at a 

cheap price. On appeal, GE argued, based 

on the Supreme Court’s intervening decision 

in Burlington Northern & Santa Fe Railway 

Co. v. United States, that GE lacked “actual 

intent” that disposal occur, and that indifference on GE’s part was not enough. The First 

Circuit rejected GE’s argument. 

— In United States 

v. NuStar Terminal 

Services f/k/a Support 

Terminal Services, 

Inc., the company paid 

$21 million to resolve 

the United States’ cost 

recovery claims for cleaning up soil and groundwater 

contamination resulting from the leakage of a pipeline at 

the Massachusetts Military Reservation. 

Protecting Against Interference with Cleanup Actions 

In El Paso Natural Gas Co. v. United States, a former uranium mill operator and the Navajo 

tribe brought suit under RCRA and the Uranium Mill Tailings Radiation Control Act, seeking to 

require the government to clean up a former dump site and another property used for disposal 

near a former uranium mill in Tuba City, Arizona. Having previously dismissed the Uranium 

Mill Tailings Radiation Control Act claims, the district court in March 2012 granted the U.S. 

motion to dismiss plaintiffs’ remaining claims, holding that section 113(h) of CERCLA removes 

jurisdiction over plaintiffs’ claims related to the Tuba City Landfill because EPA and BIA had 

already entered into an administrative order on consent providing for a CERCLA removal action 

at the site. 

The Massachusetts Military Reservation 

(MMR), Home to Five U.S. and State 

Military Commands 

Photo and Map Courtesy of MMR 

oil & superfund waste | 47 

 

Protecting the Public Fisc Against Excessive or Unwarranted Claims 

The Division also defends federal agencies that are sued for their activities at contaminated sites 

that are being remediated. In Litgo New Jersey, Inc. v. Mauriello, plaintiffs brought a CERCLA 

cost recovery action for alleged liability concerning the Somerville Iron Works Site in Somerville, 

New Jersey. In 2010, the district court found the United States liable under CERCLA for three 

percent of plaintiffs’ recoverable costs, or $51,878. Even though plaintiffs had dropped their 

claim for injunctive relief against the United States under RCRA, they filed a motion seeking 

$4,700,000 in attorney fees from the United States based on their RCRA claim. In April 2012, 

the court denied the motion, finding that because plaintiffs had not obtained any relief from the 

United States on the RCRA claim, plaintiffs were not a prevailing party. Alternatively, the court 

held that even if plaintiffs could be assumed to have “prevailed,” the circumstances of this case 

made an award of fees inappropriate. 

The Division settles claims seeking to impose liability for cleanup on federal agencies where a 

fair apportionment of costs can be reached. In fiscal year 2012, these included such multimillion-dollar settlements as Nu-West Mining Company v. United States (four phosphate mine 

sites located in and around Dry Valley in Caribou County, Idaho); General Electric v. U.S. Air 

Force (former Air Force Plant No. 36 in Evendale, Ohio); Ford Motor Co. v. United States 

(Ford’s Rouge Manufacturing Complex in Dearborn, Michigan); United States v. D & L Sales, 

Inc. (Aircraft Components Superfund Site near Benton Harbor, Michigan); and United States v. 

Bradley Mining Co. (the Sulphur Bank Mine Site in California and Elem Indian Colony and the 

Stibnite Mine Site in Idaho). 

Enforcing Cleanup Obligations in Bankruptcy Cases 

The Division files claims to 

protect environmental obligations F

rom the beginning of fiscal year 2009 through owed to the United States the end of fiscal year 2012, ENRD obtained when a responsible party goes agreements in 32 bankruptcy proceedings, under into bankruptcy. In fi scal year which debtors committed to spend an estimated $1.4 2012, ENRD secured significant billion to clean up hazardous waste sites, reimburse commitments of responsible the Superfund over $686 million, and pay more than parties to clean up hazardous waste $79 million in natural resource damages. Over that sites, reimburse the Superfund, same time period, the United States also recovered and pay damages for injuries to an additional $241 million for the Superfund and an natural resources, in the context of 

additional $101 million in natural resource damages several bankruptcy proceedings. 

as a result of payment of claims settled in earlier years. 

Pursuant to a settlement in the 

In re Johns Manville Int’l, Inc., 

bankruptcy proceeding, the debtor paid $7,196,654 to resolve claims for past costs incurred 

by EPA to clean up properties located in the Westbank Asbestos Superfund Site in Jefferson, 

Louisiana. Thousands of private, and some public, properties in the Westbank area of New 

Orleans were contaminated with asbestos-containing materials that had been removed from 

debtor’s landfill and transported to properties in the Westbank area for use as fill in the construction of driveways, walkways, and servitudes. After investigating 2,209 properties, EPA excavated 

and removed waste material from 1,365 properties. 

48 | oil & superfund waste
 
The court in the In re DPH Holdings Corp. f/k/a Delphi Corp. bankruptcy proceeding approved 

a settlement agreement under which the debtor and its affiliated reorganized debtors paid 

$857,582 to resolve their environmental liabilities at two Superfund sites in Ohio, the Tremont 

City Landfill Site near Springfield and the South Dayton Dump and Landfill Site in Moraine. 

The Division also received substantial payments from debtors as the result of settlement 

agreements obtained in bankruptcy proceedings in previous years, e.g., the In re Motors 

Liquidation Co. (formerly General Motors); In re Old Carco, L.L.C., f/k/a Chrysler; In re LTV 

Steel Corp., Inc.; and In re Lyondell Chemical Co. bankruptcy proceedings. 

oil & superfund waste | 49 

 

Inventoried Roadless Areas 

Designated Areas Outside of Inventoried Roadless Areas 

National Forest System Land Outside of Inventoried Roadless Areas - Not All Private Land is Shown on the Map 

I

nventoried roadless areas constitute roughly one-third of all National Forest System 

lands or approximately 58.5 million acres. Although the inventoried roadless areas 

comprise only 2% of the land base in the continental United States, they are found 

within 661 of the over 2,000 major watersheds in the nation and provide many social 

and ecological benefi ts. 

— U.S. Forest Service Fact Sheet 

50 | wildlife and natural resources
 
PROMOTING RESPONSIBLE 


STEWARDSHIP OF AMERICA’S 


WILDLIFE AND NATURAL 


RESOURCES
 

Protecting National Forest Roadless Areas 

The Division continues to successfully defend the efforts of the U.S. Forest Service to manage 

and preserve the 58 million acres of inventoried roadless areas within the nation’s national 

forests. Due to the resolution of longstanding litigation in fiscal year 2012, the 2001 Roadless 

Rule, which prohibits road-building and commodity-purpose timber harvests in inventoried 

roadless areas, remains the primary policy regarding these areas. In 2005, the Forest Service 

promulgated a replacement rule, but that action was invalidated and the 2001 Roadless Rule 

was reinstated by virtue of litigation in California and the Ninth Circuit. The Wyoming district 

court, taking up the 2001 rule for the second time, again held it invalid. On appeal, in October 

2011, the Tenth Circuit rejected all challenges to the 2001 Roadless Rule raised by the State of 

Wyoming under the Wilderness Act, the National Forest Management Act, the Multiple-Use 

Sustained-Yield Act, and NEPA. After that, the Division worked closely with the Department’s 

Office of the Solicitor General in successfully opposing in the U.S. Supreme Court the State of 

Wyoming’s petition for a writ of certiorari to review the Tenth Circuit’s decision. After a decade 

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

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

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

In The Ark Initiative v. Tidwell, the Division successfully defended a challenge brought against a 

Forest Service project to expand skiable terrain within the existing boundaries of the Snowmass 

Ski Resort in Colorado. When complete, the project will add approximately 230 acres of 

advanced off-trail skiing opportunities to the Burnt Mountain area of Snowmass. The decision 

was based in part on the Colorado Roadless Rule, which allowed timber cutting to create skiing 

terrain at Snowmass. The matter was litigated under a very short time-frame, with the decision 

being made in time for the project to be completed prior to the start of the 2012-2013 ski season. 

The court ruled that the Forest Service appropriately responded to plaintiff’s concerns. The 

court also held that the Forest Service could rely on the recently completed Colorado Roadless 

Rule. 

wildlife and natural resources | 51
 
In Jayne v. Sherman, we successfully defended the state-specific Idaho Roadless Rule in the 

district court, and the case remains pending on appeal. 

Finally, in the case of Alaska v. U.S. Dep’t of Agriculture, ENRD is litigating the last comprehensive challenge to the 2001 Roadless Rule, which was filed by the State of Alaska in district court 

in the District of Columbia. 

Protecting National Park Lands 

In County of Inyo v. Department of the Interior, 

Inyo County sought to quiet title to putative rightsof-way under a repealed federal statute known 

as “R.S. 2477” for four roads within Death Valley 

National Park, three of which were designated for 

closure under the California Desert Protection Act. 

That act enlarged the park and designated as part 

of the Death Valley Wilderness Area the area of the 

park in which three of the roads are located. In 

2012, the district court entered an order denying 

the county’s motion for summary judgment and 

granting the U.S. cross-motion, thus dismissing for 

lack of merit the county’s remaining claim. 

In County of San Bernardino v. United States, 

the County of San Bernardino sought to quiet title 

to 14 alleged rights-of-way established pursuant to R.S. 2477, in and around Mojave National 

Preserve–10 located on National Park Service land and four on BLM land. In 2012, the parties 

executed a settlement agreement prescribing actions by the parties as conditions precedent to 

the eventual entry of a judgment quieting title by the district court. 

A former National Park Service employee contended in Buono v. Norton that the continuing 

presence of a “Latin cross” on Sunrise Rock—a rock outcropping in a remote area of the Mojave 

National Preserve that Congress placed under the jurisdiction of the National Park Service 

in the California Desert Conservation Act of 1994—violates the Establishment Clause of the 

First Amendment to the U.S. Constitution. In VFW Post 385 v. United States, the Veterans of 

Foreign Wars sought to quiet title to the land surrounding the cross, to which it contends it is 

entitled under the 2003 federal land-transfer statute at issue in Buono. In 2012, the district 

court approved the parties’ settlement, vacated a permanent injunction, dismissed one case, and 

stayed the other pending completion of the land transfer. 

Defending BLM Management of Mineral Resources 

The Division litigated a challenge to BLM’s management of a uranium mine within 10 miles of 

the north rim of the Grand Canyon that resumed mining in 2009 after a 17-year hiatus. In 2011, 

the district court decided that BLM was not required to issue a new mining plan of operations 

and that BLM was not required to complete a new or supplemental NEPA review of its approval 

of the existing mining plan of operations or of its decision to approve an updated reclamation 

Death Valley National Park DOI Photo 

52 | wildlife and natural resources
 
 

 

 

-

 

 

bond for the mine. In 2012, the district court further decided that BLM had conducted adequate 

NEPA review of its decision to issue a free-use permit to mine gravel from public land for use 

in maintenance of a county road that provides access to the mine and many other resources. 

Plaintiffs have sought appellate review, but their motions for an injunction pending appeal (two 

before the district court and two before the court of appeals) have all been denied. 

Successful Implementation of the ESA 

Congress enacted the ESA “to provide a means whereby the ecosystems upon which endangered 

species and threatened species depend may be conserved [and] to provide a program for the 

conservation of such endangered species and threatened species . . . .” Congress authorized the 

Departments of the Interior and Commerce, acting through FWS and NMFS, respectively, to 

achieve this objective by listing imperiled species, designating critical habitat for such species, 

and applying the protections of ESA section 7 (requiring federal agencies to consult with the 

services if they propose to take an action that may affect listed species or their designated 

habitat) and section 9 (containing a prohibition against “taking” listed species). Such decisions 

are often challenged. 

In fiscal year 2012, ENRD achieved favorable results in such cases, thereby allowing effective 

implementation of the ESA and its protections. For example, in State of Alaska v. Lubchenco, 

the State of Alaska and Escopeta Oil Co. challenged the listing of a Distinct Population Segment 

(DPS) of the beluga whale in Cook Inlet, Alaska, as an endangered species under the ESA. 

BELUGA WHALES 

• 	 Beluga whales inhabit the Arctic and subarctic • In October 2008, NMFS issued a fi nal determination 

regions of Russia, Greenland, and North America. to list a Distinct Population Segment of the beluga 

Some populations are strongly migratory, moving whale, Delphinapterus leucas, found in Cook Inlet, 

north in the spring and south in the fall as the Alaska, as endangered under the Endangered Species 

ice forms in the Arctic. There are a few isolated Act. The Cook Inlet beluga whale is considered repro 

populations that do not migrate in the spring, ductively, genetically, and physically discrete from 

including those in the Cook Inlet, Alaska. the four other known beluga populations in Alaska. 

The decline of Cook Inlet beluga whales was due to • 	 Belugas are born dark gray. They turn white as they 

subsistence harvesting and other factors. mature, taking three to eight years to reach their 

adult coloration. Adult beluga whales can grow up — NOAA Fact Sheets and Rule 

to 16 feet long. Beluga whales do not have dorsal 

fins. Dorsal fins would be a major hindrance during 

the winter when they live in the loose pack ice of 

the Arctic. 

• 	 Beluga whales Iive for 35-50 years. They are prey 

to killer whales and polar bears. They also can 

die when entrapped by ice. Some beluga whale 

populations have been greatly reduced as a result 

of hunting practices. 

NOAA Photo 

wildlife and natural resources | 53
 
 

 

 ”

 

TREATMENT OF SPECIES AS ENDANGERED OR THREATENED DUE
 

TO SIMILARITY OF APPEARANCE: THE SHOVELNOSE STURGEON
 

• 	 Section 4(e) of the Endangered Species Act 

authorizes the treatment of a species as 

endangered or threatened if (a) the species 

so closely resembles in appearance a listed 

species that law enforcement personnel would 

have substantial difficulty in attempting to 

differentiate between the listed and unlisted 

species; (b) the effect of this substantial 

difficulty is an additional threat to an 

endangered or threatened species; and (c) 

such treatment of an unlisted species will 

substantially facilitate the enforcement and 

further the purposes of the act. Species 

are infrequently treated as endangered or 

threatened due to similarity of appearance. 

• 	 In September 2010, the U.S. Fish and Wildlife 

Service determined that the shovelnose 

sturgeon (Scaphirhynchus platorynchus) would 

be treated as a threatened species under the 

Endangered Species Act due to its similarity 

of appearance to the endangered pallid 

sturgeon (Scaphirhynchus albus). The pallid 

sturgeon was listed as an endangered species 

in 1990. The shovelnose sturgeon and the 

endangered pallid sturgeon are difficult 

to differentiate in the wild and inhabit 

overlapping portions of various U.S. river 

basins. Commercial harvest of the shovelnose 

sturgeon has resulted in the documented 

take of pallid sturgeon where the two species 

coexist and is a threat to the pallid sturgeon. 

• 	 Section 9 of the Endangered Species Act 

prohibits the “take of endangered or 

threatened species except where authorized 

by permit or special rule. By rule issued in 

September 2010, the U.S. Fish and Wildlife 

Service has prohibited the take of any 

shovelnose sturgeon, shovelnose–pallid 

sturgeon hybrids, or their roe when associated 

with or related to a commercial fi shing activity 

in those portions of its range that commonly 

overlap with the range of the endangered 

pallid sturgeon. This includes portions of 

the Missouri, Mississippi, Platte, Kansas, 

Yellowstone, and Atchafalaya Rivers. 

— FWS Fact Sheets and Rule 

Pallid Sturgeon 

FWS Photo Courtesy of Nebraska Game and Parks Commission 

54 	| wildlife and natural resources
 
Alaska argued that NMFS had failed to comply with applicable procedural requirements. 

Escopeta challenged the modeling employed by NMFS and argued that existing regulatory 

mechanisms are sufficient to protect the DPS. On cross-motions for summary judgment, 

the court granted the U.S. motion in its entirety, finding that NMFS had complied with all 

procedural and substantive requirements of the ESA and rationally considered the ESA listing 

factors based on the best available scientific data. 

Division attorneys had similar success in Dow Agrosciences, L.L.C. v. NMFS. In 2008, NMFS 

issued a biological opinion under ESA section 7 addressing the effects of the pesticides chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmon in the Puget Sound area. The 

biological opinion concluded that EPA’s registration of these pesticides is likely to jeopardize 

the continued existence of 26 of these species and destroy or adversely modify their designated 

critical habitat. Accordingly, it included a reasonable and prudent alternative which required, 

among other things, changes in pesticide labeling to implement larger buffers between the 

application of these pesticides and salmon habitat. This biological opinion was the first ever to 

address the effects of pesticides on ESA-listed salmon. A group of pesticide manufacturers led 

by Dow Agrosciences challenged virtually every aspect of the biological opinion. On extensive 

cross-motions for summary judgment, the district court ruled in favor of the United States, 

upholding NMFS’s biological opinion against all challenges. 

Similarly, in Illinois Commercial Fishing Ass’n v. Salazar, plaintiff, a commercial-fi shing trade 

organization, sued to set aside protections conferred upon the shovelnose sturgeon under 

the ESA’s “similarity of appearance” provision to benefit the look-alike endangered pallid 

sturgeon. FWS found that commercial fishing of the shovelnose sturgeon presents a significant 

impediment to the survival and recovery of the pallid sturgeon and issued a rule under the ESA 

prohibiting commercial shovelnose sturgeon fishing in areas where the two species overlap. On 

cross-motions for summary judgment, the district court entered judgment in favor of the United 

States on all claims, finding the FWS’s rule to be well-supported by the administrative record. 

Upholding the Constitutionality of Actions Directed by Congress for 

Endangered Species 

In March 2012, in the case of Alliance for the Wild Rockies v. 

Salazar, the Ninth Circuit rejected a constitutional challenge to an 

appropriations rider that required the Department of the Interior 

to reissue a rule removing the protections of the ESA from gray 

wolves in the Northern Rocky Mountain area outside of Wyoming. 

The court of appeals found that the rider directing reissuance 

of the rule “without regard to any other provision of statute 

or regulation that applies to issuance of such rule” effectively 

amended underlying law, and thus did not violate the constitutional Separation of Powers by directing a court to make particular 

findings under existing law. The court also found no constitutional 

problem with the fact that the rider also barred judicial review of 

the delisting rule’s reissuance. 

Northern Rocky Mountain Gray Wolf 

FWS Photo by C. Niemeyer 

wildlife and natural resources | 55
 
Successful Implementation of the Convention on International Trade 

in Endangered Species of Wild Fauna and Flora (CITES) 

The United States is a signatory to CITES, a multilateral treaty that aims to protect wildlife that 

is vulnerable to or adversely affected by trade, by regulating trade in species that are listed in its 

three appendices. The treaty ensures that trade is regulated and sustainable by way of standardized import and export permits. Species threatened with extinction are listed in Appendix I, the 

most protective of the CITES appendices, and may be traded only in exceptional circumstances. 

Congress has charged the Department of the Interior, through FWS, with enforcement of CITES. 

Among other duties, FWS performs the functions of the CITES Management Authority and 

Scientific Authority for the United States. This authority includes the review of all applications 

for import of CITES species and specimens. Effective implementation of this import permitting 

program is a cornerstone to CITES implementation. The ESA is the U.S. domestic law that 

implements CITES. 

In fiscal year 2012, ENRD attorneys achieved favorable results in CITES cases, 

thereby allowing effective implementation of its protections. For example, 

in Lawrence Franks v. Salazar, plaintiffs challenged FWS’s denial of their 

trophy-import permit applications for tourist-hunted African elephants taken in 

Mozambique. FWS had concluded that it could not make the requisite findings 

under the ESA special rule for African elephants or non-detriment under CITES 

because, despite having made repeated requests to the Government of Mozambique 

African over the course of several years, it never received adequate information on the status

Elephant of the species in Mozambique, the country’s management and protection of the

FWS Photo by species, and the benefits of sport hunting to the species. The district court granted John & Karen the U.S. motion for summary judgment in its entirety, rejecting all of plaintiffs’ Hollingsworth claims under the U.S. Constitution, CITES, the Federal Register Act, and the ESA. 

Similarly, Conservation Force v. Salazar involved plaintiffs’ applications to FWS 

related to trophy-import permits for the markhor, a wild goat species that lives in 

the rugged mountainous areas of Afghanistan, India, Pakistan, Turkmenistan, and 

Uzbekistan. In a series of rulings, the district court rejected plaintiffs’ challenges to 

FWS’s handling of these permit applications, including rejecting plaintiffs’ claims of 

Due Process violations under the U.S. Constitution. In so holding, the court found 

that plaintiffs did not have a constitutionally protected property-right interest in the Markhor import of markhor trophies and that the strict permitting requirements of CITES FWS Photo by and the ESA are the least restrictive means to promote the government’s compelling Rich Lowell 

interest in protecting imperiled species. 

Defending Interior’s Water-Use Determinations for the 


Central Valley Project
 

In March 2012, in San Luis & Delta-Mendota Water Auth. v. U.S. Dep’t of the Interior, the 

Ninth Circuit affirmed a district court ruling that Interior had properly accounted for certain 

releases of Central Valley Project (CVP) water from the Nimbus and New Melones Reservoirs. 

(The CVP is a system of canals, dams, and reservoirs that divert water for agricultural use in 

California’s Central Valley.) The court unanimously found that certain Central Valley water 

authorities had standing to challenge Interior’s 2004 accounting decisions. On the merits, the 

56 | wildlife and natural resources 
 

Central Valley Watersheds / Nimbus Dam 

DOI Images 

majority upheld Interior’s determination that certain 

CVP releases made in June 2004 in order to comply with 

California water-quality requirements did not have to 

be charged against the 800,000 acre-feet account set 

aside for the primary purpose of implementing the fish, 

wildlife, and habitat restoration purposes 

and measures authorized by the Central 

Valley Project Improvement Act and for the 

secondary purpose of meeting water-quality 

and endangered-species requirements. 

Determining the 

Navigability of Waters 

In PPL Montana, L.L.C. v. State of Montana, the U.S. 

Supreme Court issued a 9-0 decision that, consistent 

with the position taken by the United States in its amicus 

brief, reversed and remanded a Montana Supreme Court’s 

decision. The state court held that the Missouri, Clark 

Fork, and Madison Rivers were navigable for the purposes 

of determining title at statehood such that the state acquired ownership of the riverbeds under 

the Equal Footing doctrine. The Division assisted the Department’s Office of the Solicitor 

General in filing the amicus brief in this case. The United States was interested in this case 

because it owns the beds of waterways adjacent to federal lands where the waters were nonnavigable for title purposes at statehood and because the scope of its regulatory authority under 

certain statutes, including the CWA and the Rivers and Harbors Act, is based in part on waters 

being navigable for purposes of commerce. The Court rejected the Montana court’s failure to 

consider rivers on a segment-by-segment basis to assess whether the segment of the river under 

which the riverbed in dispute lies is navigable or not. The Court concluded that the fact that a 

river segment had to be circumvented by portaging would generally be sufficient to establish 

that it was nonnavigable for title purposes. It contrasted this with the “doctrinally distinct” 

question of navigability for purposes of determining the scope of federal regulatory authority, 

which may exist on waterways where portages enabled goods to be transported interstate on the 

waters in question. 

Defending NMFS Management of Ocean Fisheries 

The Magnuson-Stevens Fishery Conservation and Management Act and other related statutes 

charge NMFS with the task of managing ocean commercial fishing to provide for conservation 

and sustainable fishing while, at the same time, optimizing fishing yield. In fiscal year 2012, 

ENRD again successfully defended various fishery management actions necessary to meet both 

of these objectives. One such case was the Division’s successful defense of a fi shery management 

plan governing groundfish fisheries on the Pacific coast known as Amendment 20 to the Pacific 

Coast Groundfish Fishery Management Plan. This plan applied a catch-shares/limited-access 

privileges management approach for the first time to this fishery. The approach was designed 

to tighten restrictions on fishing for commercial groundfish in an effort to end overfi shing and 

rebuild stocks under the strict deadlines set by Congress. A variety of groups representing 

diverse interests challenged the agency’s adoption of the amendment in Pacific Coast Fed’n of 

wildlife and natural resources | 57
 
 

TUNA AQUACULTURE

• Aquaculture— also known 

as fi sh or shellfi sh farming— 

refers to the breeding, 

rearing, and harvesting of 

plants and animals in all 

types of water environments. 

• U.S. marine aquaculture primarily produces 

oysters, clams, mussels, shrimp, and salmon as 

well as lesser amounts of cod, moi, yellowtail, 

barramundi, seabass, and seabream. Marine 

aquaculture can take place in the ocean (that is, in 

cages, on the seafl oor, or suspended in the water 

column) or in on-land, manmade systems such as 

ponds or tanks. 

• Americans eat about 2.6 pounds of canned 

tuna per person per year, making canned tuna 

our second favorite seafood and one of our top 

seafood imports. All the tuna that we currently 

eat is wild-caught; however, tuna aquaculture is 

moving from the research stage to the commercially-viable stage as scientists experiment and 

fi gure out the production cycle from egg to 

harvestable fi sh.

— NOAA Website

T

here are more than 90 species of Fishermen’s Ass’ns v. Locke. The Division obtained groundfish managed under the Pacifi c summary judgment for NMFS on all issues, and Fishery Management Council’s Pacifi c that judgment was upheld by the Ninth Circuit in Coast Groundfish Fishery Management Plan September 2012. and under the Magnuson-Stevens Fishery 

Conservation Act and other federal laws. In San Joaquin River Group Auth. v. NMFS, 

plaintiff, an association of upstream water interests — NOAA Website 

on the San Joaquin River in California, challenged 

NMFS’s 2011 Pacific Salmon Fishery regulations. The 

association claimed that the measures were not protective enough of Sacramento River fall-run 

Chinook salmon (SRFC), a stock whose 2010 status had triggered an overfi shing concern 

under the Pacific Fishery Management Plan. Two key issues were whether the forecasting 

tool used to estimate SRFC abundance was accurate and whether the fishing measures struck 

the appropriate balance between long-term sustainability and harvest goals. After summary 

judgment briefing and argument, the district court granted judgment in favor of NMFS on all 

issues, allowing the regulations to take effect. 

The Division had similar success in Charter Operators of Alaska v. Locke, a challenge to NOAA’s 

regulations creating a limited-access system for charter vessels in the Guided Halibut Sport 

Fishery in southeast Alaska and the central Gulf of Alaska. Plaintiffs claimed that the regulations 

violate the Northern Pacific Halibut Act of 1982 and the Magnuson-Stevens Act and sought to 

enjoin them. The regulations were intended to reduce pressure on the halibut fishery to ensure a 

sustainable fishery for the future. ENRD obtained a favorable summary judgment ruling, thereby 

allowing the regulations to take effect and provide needed protections for halibut. 

ENRD also defended the NMFS action at issue in Kahea and Food & Water Watch v. NMFS. 

Plaintiffs challenged a Special Coral Reef Ecosystem Fishing Permit issued by NMFS to Kona Blue 

Water Farms (KBWF) pursuant to the Magnuson-Stevens Act. The permit allowed a pilot project for 

tuna aquaculture. In a ruling of first impression, the district court held that NMFS properly characterized KBWF’s project as “fishing” under the act and that it acted appropriately in issuing a permit. 

Albacore Tuna 

NOAA Photo 

58 | wildlife and natural resources
 
ENFORCING THE NATION’S
 

CRIMINAL POLLUTION AND 


WILDLIFE LAWS
 

F

rom January 21, 2009 through September 30, 2012, the Division 

concluded criminal cases against 227 individuals and 77 corporate 

defendants, obtaining over 134 years of confinement and more than 

$252 million in criminal fines, restitution, and other monetary relief. 

Keeping Our Nation’s Air Clean 

Between 2005 and 2007, the Pelican Refining Company, L.L.C., of Lake Charles, Louisiana, 

operated its refinery without properly functioning pollution prevention equipment as required 

by its CAA Title V permit. As a result, pollutants including benzene, toluene, ethyl benzene, 

xylene, and hydrogen sulfi de were 

illegally released into the atmosphere 

through Pelican’s main refinery 

stack, leaks at pipes and joints, the 

barge loading dock, and tanks with 

roofs that were improperly certified 

and fitted. Pelican pleaded guilty 

to two CAA felony violations and 

an obstruction-of-justice charge for 

submitting materially false deviation 

reports to the Louisiana Department 

of Environmental Quality, the agency 

that administers the federal CAA in 

Louisiana. Pelican was sentenced 

to pay a $12 million penalty, which 

includes a $10 million criminal fine 

and $2 million in community service 

payments that will go toward various 

environmental projects in Louisiana, 

including air pollution monitoring. 

enforcing criminal pollution and wildlife laws | 59 

Pelican Refi ning Co. 
 

Pelican also was directed to implement an environmental compliance plan and complete a 

five-year term of probation. Pelican Vice President Byron Hamilton pleaded guilty to two 

CAA negligent endangerment violations and was sentenced to serve one day of incarceration, 

complete a one-year term of supervised release, and pay a $5,000 fine. Pelican Manager Mike 

LeBlue pleaded guilty to one CAA negligent endangerment violation and was sentenced to serve 

one day of incarceration, followed by 90 days of home confinement and a one-year term of 

supervised release, and to pay a $4,000 fine. 

Safeguarding America’s Waters 

William Barry Freedman and his company, Freedman Farms, Inc., operated a 4,800-head 

hog farm in Columbus County, North Carolina. The farm is a “Concentrated Animal Feeding 

Operation” (CAFO), which is a livestock or 

poultry animal feeding operation that meets 

the regulatory thresholds of number of 

animals for various animal types. Animals 

are kept and raised in confined situations for 

a total of 45 days or more in any 12-month 

period, and feed is brought to the animals 

rather than the animals grazing or otherwise 

feeding in pastures or fields, or on rangeland. 

These operations generate signifi cant volumes 

of animal waste which, if improperly managed, 

can result in environmental and human health 

risks such as water quality impairment, fish 

kills, algal blooms, contamination of drinking water sources, and transmission of disease-causing 

bacteria and parasites associated with food and waterborne diseases. 

In December 2007, witnesses observed hog waste in the stream that led from the farm, known 

as Browder’s Branch. Investigators determined that more than 332,000 gallons of hog waste 

had been discharged from the CAFO into Browder’s Branch over a five-day period. State 

officials recovered only 169,000 gallons of the waste from the stream. Freedman falsely stated 

in documents that he properly disposed of the some of the waste. He and Freedman Farms were 

indicted for CWA violations, false statements, 

and obstruction of justice. Before the 

completion of the trial, the company pleaded 

guilty to a felony CWA charge and Freedman 

pleaded guilty to a misdemeanor CWA 

charge. The company was sentenced to pay a 

$500,000 fine and $925,000 in restitution. 

The company also was sentenced to make 

a $75,000 community service payment to 

the Southern Environmental Enforcement 

Network and implement an environmental 

compliance plan to include an annual 

environmental training program. Freedman 

was sentenced to serve six months of incarceration followed by six months of home 

confinement. 

Freedman Farms, Inc., Lagoon with Hog Waste 

Assistant Attorney General Ignacia S. Moreno announces the 

plea by Freedman Farms, Inc. 

60 | enforcing criminal pollution and wildlife laws
 
 

In December 2011, the Sixth Circuit affirmed the conviction of Charles D. Long, a plant manager 

at a waste management and treatment company near Detroit, Michigan. A jury convicted Long 

of violations of the CWA based on his bypassing the required treatment process and pumping 

untreated waste into the City of Detroit’s sewer system. Among other things, the appellate 

court rejected Long’s argument that the CWA is unconstitutionally vague. The Sixth Circuit 

also rejected his challenges to the jury instructions regarding the conspiracy, the suffi ciency of 

the evidence, the admission of “other acts” evidence in this prosecution, and the prosecutor’s 

remarks at closing argument. 

Investigating the Deepwater Horizon Explosion, Fire, and Oil Spill 

in the Gulf of Mexico 

During fiscal year 2012, the Department continued its criminal investigation of the catastrophic 

explosion, fire, and oil spill in the Gulf of Mexico that took place on April 20, 2010. Staffs from 

ENRD, the Department’s Criminal Division, and the U.S. Attorney for the Eastern District of 

Louisiana participate in the Deepwater Horizon Task Force, which was formed in March 2011. 

On November 14, 2012, the Department filed a 14-count information in the U.S. District Court 

for the Eastern District of Louisiana charging BP with 11 counts of felony manslaughter, one 

count of felony obstruction of Congress, and violations of the CWA and Migratory Bird Treaty 

Act in connection with the spill. BP agreed to plead guilty to all 14 criminal charges—admitting 

responsibility for the deaths of 11 people and the events that led to this unprecedented environmental catastrophe. The company also agreed to pay $4 billion in fines and penalties. Under 

the terms of the agreement with BP, about $2.4 billion of the criminal recovery funds will be 

dedicated to environmental restoration, preservation, and conservation efforts throughout 

this region—including barrier-island creation and river-diversion projects in Louisiana. An 

additional $350 million will aid in the development of state-of-the art oil spill prevention and 

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

the U.S. Coast Guard’s Oil Spill Liability 

Trust Fund, to be available for cleanup and 

compensation for those affected by oil spills 

in the Gulf and throughout the United States. 

As part of its guilty plea, BP will retain a 

monitor for four years, who will oversee 

safety, risk management, and equipment 

maintenance in relation to deepwater drilling 

in the Gulf, as well as an independent auditor 

who will conduct annual reviews to ensure 

compliance with the terms of this agreement. 

The company will also hire an ethics monitor 

to improve its code of conduct and foster 

robust cooperation with the government. 

In addition to the charges filed against BP, 

a federal grand jury in November 2012 

returned an indictment charging the two 

highest-ranking BP supervisors who were on 

board the Deepwater Horizon oil rig on the 

“The $4 billion in penalties and fi nes is 

the single largest criminal resolution 

in the history of the United States 

and constitutes a major achievement toward 

fulfilling a promise that the Justice Department 

made nearly two years ago to respond to the 

consequences of this epic environmental disaster 

and seek justice on behalf of its victims. We 

specifically structured this resolution to ensure 

that more than half of the proceeds directly 

benefit the Gulf Coast region so that residents can 

continue to recover and rebuild.” 

— Attorney General Eric Holder 

BP Exploration and Production, Inc., 

Plea Announcement 

enforcing criminal pollution and wildlife laws | 61
 
 

 

day of the explosion with 23 criminal counts—including 11 counts of seaman’s manslaughter, 

11 counts of involuntary manslaughter, and alleged violations of the CWA. The grand jury also 

charged a former BP executive who served as a deputy incident commander and BP’s secondhighest ranking representative at Unified Command during the spill response with hiding 

information from Congress and allegedly lying to law enforcement officials. 

The task force investigation remains ongoing. 

Protecting the Integrity of Pesticide Distribution, 

Sale, and Use Regulations 

Scotts Miracle-Gro, the world’s largest 

marketer of branded consumer lawn 

and garden products, pleaded guilty to 

11 violations of the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA). 

Under FIFRA, EPA must register pesticides. 

Registration assures that pesticides will 

be properly labeled and that, if used in 

accordance with specifi cations, pesticides 

will not cause unreasonable harm to the 

environment. Scotts’ federal registration 

manager submitted false documents to EPA 

and state regulators in an effort to deceive 

them into believing that numerous pesticides 

were registered with EPA. Accordingly, 

Scotts admitted to falsifying pesticide registration documents, distributing pesticides 

with misleading and unapproved labels, and 

distributing unregistered pesticides. Scotts 

also admitted to illegally applying insecticides to its wild bird food products. Specifically, Scotts applied the pesticides Actellic 

5E and Storcide II to 70 million units of its 

bird food products to protect its bird food 

from insect infestation during storage. This 

occurred despite the fact that the labels 

on containers of Storcide II state that the 

pesticide is extremely toxic to fi sh, birds, 

and other wildlife. Scotts sold this bird food 

for two years and continued selling it for six 

months after company employees specifically 

warned Scotts’ management of the dangers 

of these pesticides. Scotts was sentenced to 

“As the world’s largest marketer of 

residential-use pesticides, Scotts 

has a special obligation to make 

certain that it observes the laws governing the 

sale and use of 

its products. For 

having failed to 

do so, Scotts has 

been sentenced 

to pay the 

largest fine in the 

history of FIFRA 

enforcement. 

The Department 

of Justice will 

continue to 

work with EPA 

to assure that 

pesticides applied in homes and on lawns and 

food are sold and used in compliance with the 

laws intended to assure their safety.” 

— Ignacia S. Moreno 

Scotts Miracle-Gro Plea 

Agreement Press Release 

Photo by MichaelPloujnikov 

pay a $4 million fine and a $500,000 community service payment to organizations that protect 

bird habitats. Sheila Kendrick, Scotts’ federal registration manager, pleaded guilty to FIFRA 

and false-statement violations and was sentenced to 90 days of incarceration. 

62 | enforcing criminal pollution and wildlife laws
 
Reducing Pollution from Ocean-Going Vessels 

In fiscal year 2012, the penalties imposed 

in vessel pollution cases prosecuted by the Under the auspices of the Vessel Division totaled nearly $10 million and Pollution Initiative which began in the responsible maritime officials were sentenced 

late 1990s, the penalties imposed in to more than 37 months of confinement. 

vessel pollution cases prosecuted by ENRD This brought the penalties imposed as a from January 2009 through September result of ENRD’s Vessel Pollution Initiative, 

which began in the late 1990s, to more than 2012 have totaled more than $51.3 million, 

$330 million in criminal fines and more than and responsible maritime offi cials have 

26 years of confinement. The Division’s most been sentenced to more than 77 months of 

recent prosecutions of deliberate violations confi nement. 

include the representative cases below. 

Alejandro Gonzalez, a ship surveyor based 

in Miami, Florida, was responsible for inspecting and certifying the safety and seaworthiness 

of merchant vessels on behalf of foreign countries. In 2008, U.S. Coast Guard inspectors in 

San Juan, Puerto Rico, found that the M/V Cala Galdana was taking on water and requested 

records detailing the ship’s last dry-dock inspection. Gonzalez falsely told U.S. Coast Guard 

officials that the vessel had undergone maintenance 

work that had never occurred. Gonzales also issued a 

false safety certificate to another ship, the M/V Cosette, 

without conducting a proper survey. When the ship 

entered New York Harbor in 2009, Coast Guard inspectors 

discovered exhaust and fuel pouring into the engine room, 

endangering the safety of the crew and the ship. A jury 

convicted Gonzalez of three false-statement violations 

and obstruction of justice. He was sentenced to serve 21 

months of incarceration, followed by a one-year term of 

supervised release. 

In September 2011, the U.S. Coast Guard conducted an 

inspection of the M/V Gaurav Prem in the Port of Mobile, 

Alabama. During the inspection, crew members told 

inspectors that senior officers had caused the overboard 

discharge of oily bilge waste from the vessel many times 

during the voyage from South Korea to Mobile. Such 

discharges, although illegal, are required to be recorded 

in the vessel’s Oil Record Book, but they were not. On 

May 30, 2012, Target Ship Management Pte., Ltd., M/V Gaurav Prem’s operating company, 

pleaded guilty to violating the Act to Prevent Pollution from Ships (APPS) by failing to maintain 

an accurate Oil Record Book. Target was sentenced to pay a $1 million fine and to make a 

$200,000 community service payment to the National Fish and Wildlife Foundation. The 

company also must complete a three-year term of probation and implement an environmental 

compliance plan. The chief engineer and second engineer of the vessel also pleaded guilty, 

were sentenced to probation, and were ordered to leave the country. In a related case, the 

ship’s captain, Prastana Taohim, was convicted by a jury of two counts of obstruction of justice. 

The convictions stemmed from his ordering crew members to throw hundreds of plastic pipes 

enforcing criminal pollution and wildlife laws | 63 

M/V Cossette 
 

Pipes Being Discharged Overboard 

overboard. These pipes had been used to 

fumigate a grain shipment with insecticide. 

Captain Taohim then ordered that the 

ship’s Garbage Record Book be falsifi ed to 

conceal the disposal. On August 15, 2012, 

Captain Taohim was sentenced to serve a 

year-and-a-day of incarceration, followed 

by three years of supervised release. 

Guilty pleas were entered in seven 

additional cases involving deliberate 

violations by vessel operators and crew 

members: United States v. Giuseppe 

Bottiglieri Shipping Co., S.P.A.; United 

States v. Rudolf Hofer; United States v. 

Vano; United States v. Koeje Marine Co., 

Ltd.; United States v. Ilios Shipping Co., S.A.; United States v. Efploia Shipping Co., S.A.; and 

United States v. A.E. Nomikos Shipping. These companies and individuals were sentenced to 

pay a total of $5.9 million in fines, $1.7 million in community service payments, and $200,000 

toward environmental compliance plans, and to serve a total of four months of incarceration, with each serving a term of probation, for crimes including conspiracy, false statements, 

obstruction of justice, and Oil Record Book violations under APPS. 

Stopping Illegal Wildlife Traffi cking 

Federal criminal enforcement of 

wildlife statutes plays a key deterrent 

role and augments state, tribal, and 

foreign wildlife management efforts. A 

wildlife case can include prosecution 

of both individual and organizational 

perpetrators; disgorgement of proceeds 

from illegal conduct such as smuggling; 

punishment that includes community 

service to help mitigate harm caused 

by the offense; and forfeiture of 

wildlife and instrumentalities used to 

commit the offense. One key statute 

for prosecution of wildlife crimes is the 

Lacey Act. Division prosecutions in 

fiscal year 2012 included the following 

cases: 

“Wildlife trafficking has become more 

organized, more lucrative, more 

widespread, and more dangerous than 

ever before. . . . . By some estimates, the black market in 

wildlife is rivaled in size only by trade in illegal arms and 

drugs. Today, ivory sells for nearly $1,000 per pound. 

Rhino horns are literally worth their weight in gold, 

$30,000 per pound.” 

— U.S. Secretary of State Hillary Rodham Clinton 

November 8, 2012 Remarks at the Partnership 

Meeting on Wildlife Traffi cking 

— From 2009 to 2011, Enrique Gomez De Molina illegally imported wildlife and wildlife parts 

from Southeast Asia to the United States in violation of the Lacey Act. Among the illegal 

shipments De Molina procured were cobras, pangolins, hornbills, babirusa (a species of pig), 

orangutan skulls, Java kingfishers, and slow lores (a primate), none of which were properly 

declared when imported or, if allowed for export, accompanied by the required CITES permit. 

De Molina incorporated the various wildlife parts into taxidermy pieces at his studio in Miami, 

64 | enforcing criminal pollution and wildlife laws
 
 

 

EXAMPLES OF DE MOLINA TAXIDERMY
 

INCORPORATING WILDLIFE PARTS
 

SOME DE MOLINA TRAFFICKED WILDLIFE 

SHOWN IN THEIR NATURAL HABITATS 

L to R: 

Pangolin 

(Photo Credit: Sandip Kumar) 

Babirusa
 

Slow Loris
 

Java Kingfi sher 


(Photo Credit: Lip Kee Yap) 
Florida, and offered to sell the pieces through galleries and on the Internet for prices up to 

$80,000. De Molina pleaded guilty to a Lacey Act violation for smuggling wildlife and was 

sentenced to serve 20 months of incarceration, followed by a one-year term of supervised 

release, to pay a $6,000 fine, and to forfeit all of the smuggled wildlife in his possession. 

— Black coral colonies serve as habitat for numerous aquatic species. The coral itself is slow 

growing, taking hundreds or thousands of years to develop. Black coral is especially prized 

by some for use in jewelry and art. It can be polished to a high sheen, worked into artistic 

sculptures, and inlaid. Because of its scarcity, black coral is subject to strict trade regulations 

under CITES. GEM Manufacturing, L.L.C. (GEM), a company incorporated in the U.S. Virgin 

Islands, frequently purchased black coral from a Taiwanese company, Peng Chia Enterprise 

Co., Ltd., for use in its high-end jewelry and sculpture. None of the shipments of black coral 

from Peng Chia to GEM complied with CITES trade regulations. The shipments to the United 

States violated the Lacey Act because the boxes of wildlife were falsely labeled in international 

commerce. In January 2009, 10 boxes of black coral labeled “plastic of [sic] craft work” were 

shipped by Peng Chia to GEM. For this illegal importation and for many other illegal shipments, 

GEM pleaded guilty to violating the Lacey Act and was sentenced to pay a criminal fine of $1.8 

million, to be apportioned between the Lacey Act Reward Fund and the National Oceanic and 

Atmospheric Administration Asset Forfeiture Fund. GEM also was required to pay $500,000 

in community service payments for projects to study and protect black coral and to implement 

an auditing, tracking, and inventory control program during its three years of probation. The 

sanction also included a criminal forfeiture of jewelry and raw black coral that exceeded $2.17 

million in value. 

Gem Corp. Black Coral Bracelet 

Black corals, which are named for their skeletons, come in 

many colors. 

NOAA Photo Courtesy of Texas A&M University 

66 | enforcing criminal pollution and wildlife laws
 
Working With Others to Protect the Environment Through Pollution 

and Wildlife Prosecutions 

In fiscal year 2012, the Division continued to partner with state and local agencies and working 

groups to ensure that pollution and wildlife prosecutions are given the attention and importance 

they deserve. We developed and participated in major training events and meetings, including 

the following: 

— Division attorneys provided environmental crimes training to U.S. Coast Guard personnel, 

EPA Criminal Investigation Division agents, Wildlife Refuge officers, FWS agents, Occupational Safety and Health Administration officers, regional associations such as the Northeastern 

Environmental Enforcement Project and the Western States Project, Assistant United States 

Attorneys, academics, and the judiciary. 

— ENRD worked closely with United States Attorneys’ personnel on environmental task forces 

in Nebraska, the Southern District of Ohio, the Southern District of Texas, the Eastern and 

Western Districts of Virginia, the District of the District of Columbia, and elsewhere. 

— The Division co-hosted the biannual meeting of the Environmental Crimes Policy Committee, 

which is comprised of Division prosecutors and Assistant United States Attorneys, and provided 

basic and advanced environmental crimes training to Assistant United States Attorneys and 

agency counsel in its week-long Environmental Crimes Seminar at the National Advocacy 

Center. 

— The Division also participated in and presented at meetings of the Environmental Issues 

Working Group of the Attorney General’s Advisory Committee. 

enforcing criminal pollution and wildlife laws | 67
 
Deepwater Horizon Incident and Aftermath 

NOAA Photos 
DEFENDING 


VITAL FEDERAL PROGRAMS 


AND INTERESTS
 

Defending the U.S. Response to the Deepwater Horizon Explosion, 

Fire, and Oil Spill and Management of Oil and Gas Resources 

The Division continued to defend cases arising from the Deepwater Horizon explosion, fi re, and 

oil spill, which occurred in the Gulf of Mexico in April 2010. These cases challenge aspects of 

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

actions to prevent future recurrence of oil spills, and approval of exploration and production 

plans and lease sales in the Gulf of Mexico and Alaskan waters. Cases resolved in fi scal year 

2012 include the following district court cases: 

— In Center for Biological Diversity v. Salazar, the district court dismissed nearly all of 

plaintiff’s claims in 2011, including challenges to the Department of the Interior’s policy of 

using categorical exclusion reviews under NEPA when approving exploration, development, 

and production plans, and drilling permits. The court also dismissed claims relating to several 

planned lease sales as constitutionally and prudentially unripe for decision. In August 2012, the 

court dismissed all remaining claims–those directed at Lease Sale 213–pursuant to the parties’ 

stipulation of dismissal. 

— In Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., Regulation & Enforcement, 

plaintiff challenged oil and gas lease sales for deepwater wells in the Gulf of Mexico, alleging 

violations of NEPA, the ESA, and the Administrative Procedure Act arising from the Department 

of the Interior’s alleged failure to modify offshore oil and gas leasing operations, policies, and 

practices following the Deepwater Horizon explosion, fire, and oil spill. The U.S. District Court 

for the Southern District of Alabama granted the U.S. motion to dismiss all claims other than 

those relating to Lease Sale 213 in fiscal year 2011. The court granted summary judgment for 

Interior on those remaining claims in May 2012. 

— In Oceana v. Bureau of Ocean Energy Mgmt., Regulation & Enforcement, plaintiffs 

challenged Lease Sale 218, which is the first Outer Continental Shelf lease sale to be conducted 

in the Gulf of Mexico following the Deepwater Horizon explosion, fire, and oil spill. Plaintiffs 

voluntarily dismissed their NEPA claims with prejudice, and their ESA claims without prejudice, 

in September 2012. 

defending federal programs | 69
 
In fiscal year 2012, two appellate courts issued opinions in Deepwater Horizon defensive cases 

handled by ENRD. In May 2012, the Fifth Circuit dismissed 12 petitions for review for failure 

to exhaust administrative remedies and four others as moot in Gulf Restoration Network 

v. Salazar and Center for Biological Diversity v. Salazar. These petitions challenged the 

Department of the Interior’s approval of lessee-proposed exploration and development plans 

in the days shortly before and after the Deepwater Horizon explosion, fire, and oil spill. The 

petitions challenged the use of categorical exclusions under NEPA, and alleged that Interior 

should have considered new information regarding the Deepwater Horizon explosion, fi re, and 

oil spill. However, petitioners did not raise any of their claims before the agency as it considered 

the plans, despite a requirement in the Outer Continental Shelf Lands Act that judicial review 

of plan approval is available only to those who participate in the administrative proceedings 

challenged in court. The court found that petitioners had provided no basis for excusing their 

failures to exhaust. 

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

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

area of the Gulf of Mexico in Defenders of Wildlife v. Bureau of Ocean Energy Mgmt. The 

court rejected several challenges to the environmental assessment developed for the action 

under NEPA, emphasizing that a reviewing court must be “extremely deferential ‘when an 

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

expertise.’” The court found that Interior had adequately considered the risks and potential 

impacts of oil spills and adequately considered site-specific data and impacts in concluding that 

there would be no significant impacts on the environment from the drilling. The court found 

that Interior was not required to wait until environmental studies of the effects of the Deepwater 

Horizon explosion, fire, and oil spill were complete, but could act on the basis of existing 

information. The court also rejected a claim that Interior could not approve the exploration plan 

until it had completed reinitiated consultations under the ESA with NMFS and FWS which it 

had initiated after the Deepwater Horizon explosion, fire, and oil spill occurred. The court found 

that Interior could rely on the pre-Deepwater Horizon biological opinions, which had not been 

withdrawn, in conjunction with more recent studies and the fact that Interior retained authority 

under the Outer Continental Shelf Lands Act to suspend activities if it determined during the 

consultation that such action was necessary to avoid jeopardy to threatened or endangered 

species. 

Upholding Administrative Actions Related to Climate Change 

Over the past several years, EPA has developed a regulatory program under the CAA to 

regulate greenhouse gas emissions that contribute to global climate change. In one of the 

most significant environmental regulatory decisions of the past decade, a unanimous panel of 

the D.C. Circuit in Coalition for Responsible Regulation v. EPA upheld EPA’s four principal 

greenhouse gas-related regulatory actions. Through a series of regulations, EPA had (1) 

found that emissions of greenhouse gases from motor vehicles may reasonably be expected to 

endanger public health and welfare (known as the “endangerment finding”); (2) set standards 

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

regulation of greenhouse gas emissions from motor vehicles would trigger stationary source 

CAA permit requirements; and (4) established the measures that states and EPA must take to 

effectuate such stationary source requirements. Among other things, the court held that: (1) 

EPA had considered the proper factors and employed an appropriate legal standard in making 

the endangerment finding; (2) EPA had articulated a thorough and reasonable scientifi c and 

70 | defending federal programs 
 

-

” 

’

KEY FEDERAL CLEAN AIR ACT REGULATORY INITIATIVES
 

CHALLENGED IN THE D.C. CIRCUIT
 

“But for the reasons set forth
 

below, we conclude: 1) the
 

Endangerment Finding and
 

Tailpipe Rule are neither arbitrary nor 

capricious; 2) EPA’s interpretation of the 

governing [Clean Air Act] provisions 

is unambiguously correct; and 3) no 

petitioner has standing to challenge 

the Timing and Tailoring Rules. We thus 

dismiss for lack of jurisdiction all petitions 

for review of the Timing and Tailoring 

Rules, and deny the remainder of the 

petitions.” 

— Decision in Coalition for Responsible 

Regulation v. Environmental Protection 

Agency, 684 F.3d 102, 113-14 (D.C. Cir.), reh’g 

en banc denied, 2012 U.S. App. LEXIS 25997, 

26313 (D.C. Cir. 2012). 

Greenhouse Gas Endangerment and Cause 

or Contribute Finding (the “Endangerment 

Finding”) 

December 7, 2009 

EPA issued a final Clean Air Act regulation 

finding that six greenhouse gases constitute a 

threat to public health and welfare, and that the 

combined emissions from motor vehicles cause 

or contribute to the climate change problem. 

Standards to Reduce Greenhouse Gas 

Emissions and Fuel Use for New Passenger 

Cars and Light-Duty Trucks (the “Tailpipe 

Rule”) 

April 1, 2010 

EPA and the National Highway Traffi c Safety 

Administration announced a joint fi nal 

regulation under the Clean Air Act and the 

Energy Policy and Conservation Act estab 

lishing a historic national program that 

will reduce greenhouse gas emissions and 

improve fuel economy for new passenger cars, 

light-duty trucks, and medium-duty passenger 

vehicles, covering model years 2012 through 

2016. 

Timing Rule Establishing When Stationary 

Source Permitting Takes Effect (the “Timing 

Rule”) 

March 29, 2010 

EPA concluded that an air pollutant becomes 

subject to permitting under the Clean Air Act 

New Source Review Prevention of Signifi cant 

Deterioration and Title V Operating Permit 

Programs only when a regulation requiring 

control of that pollutant takes eff ect. 

Tailoring Rule for Regulation of Greenhouse 

Gas Emissions from Large Stationary 

Sources (the “Tailoring Rule”) 

May 13, 2010 

EPA issued a final regulation that establishes 

thresholds for greenhouse gas emissions that 

define when permits under the Clean Air Act 

New Source Review Prevention of Signifi cant 

Deterioration and Title V Operating Permit 

Programs are required for new and existing 

industrial facilities. This final rule “tailors the 

requirements of these permitting programs 

to phase in which facilities will be required 

to obtain such permits. Facilities responsible 

for nearly 70% of the U.S. greenhouse gas 

emissions from stationary sources are subject 

to permitting requirements under this rule. This 

includes the nation s largest greenhouse gas 

emitters—power plants, refineries, and cement 

production facilities. 

defending federal programs | 71
 
 

technical basis for the endangerment finding; (3) EPA had acted consistent with the statute in 

determining that it was required to issue emission standards for new motor vehicles in light 

of the endangerment finding, and costs and other implications of stationary source regulation 

of greenhouse gases were irrelevant to this duty; (4) at least some newly regulated petitioners 

could challenge how, and to what extent, regulation of greenhouse gas emissions from motor 

vehicles would trigger stationary source CAA permit requirements, but on the merits, the 

statute unambiguously supports the longstanding view reflected in those regulations, i.e., that 

emissions of any pollutant regulated under the act can trigger stationary source CAA permit 

requirements; and (5) no one had standing to bring their claims challenging EPA’s stationary 

source CAA permit requirements, primarily because the phased approach to greenhouse gas 

permitting reflected in EPA’s regulations eased, rather than tightened, the regulatory burden 

facing the petitioners. 

At the same time, the Division defended against efforts in two cases to force the federal 

government to do even more to address global climate change. In Alec L. v. Jackson, plaintiffs 

brought an unusual and broad-based challenge seeking to force seven federal agencies to 

take action with respect to climate change under a public-trust theory. We were successful 

in persuading the district court to dismiss the case on jurisdictional grounds. In Center for 

Biological Diversity v. EPA, plaintiffs alleged that EPA had unreasonably delayed in responding 

to rulemaking petitions and in making a finding under the CAA that greenhouse gas emissions 

from aircraft engines cause or contribute to air pollution endangering public health or welfare. 

In March 2012, the district court concluded that EPA had not unreasonably delayed in making 

such a finding, and denied plaintiffs’ motion for summary judgment. 

Defending EPA’s Air Quality Standards Revisions and Implementation 

Plans 

In two separate cases that the Division litigated during the past fiscal year, the D.C. Circuit 

upheld EPA’s rules revising National Ambient Air Quality Standards (NAAQS) against industry 

challenges that alleged the standards were too stringent and unsupported by science. In 

American Petroleum Inst. v. EPA, a unanimous panel rejected a challenge to EPA’s decision 

to update and strengthen the NAAQS for nitrogen dioxide. In National Environmental Dev. 

Association’s Clean Air Project v. EPA, a separate unanimous panel upheld EPA’s revised 

NAAQS for SO2. Both cases reaffirm important precedent regarding the signifi cant deference 

owed to EPA in making technical and scientifi c judgments. 

Protecting “Today’s action is the culmination of an intensive Water Quality seven-month process of discussions among EPA, the 

in the Everglades Florida Department of Environmental Protection, the 

South Florida Water Management District, and other key federal 

Efforts to restore water quality agencies, including Interior and the Department of the Army, 

in the Florida Everglades on the plan to clean up the Everglades.” 

took a major step forward in — EPA Region IV Administrator Gwen Keyes Fleming 2012. After months of inter- Announcing the June 13, 2012 Approval of Florida’s governmental collaboration Submission to Address Water Quality Requirements in and negotiation, the Florida the Everglades Department of Environmental 

72 | defending federal programs
 
 — 

-

Protection issued a CWA National Pollutant Discharge Elimination System permit requiring 

the South Florida Water Management District to implement an $880 million suite of projects. 

Issuance of the permit was at issue in Miccosukee Tribe v. EPA, a case handled by ENRD. These 

projects will promote efforts to restore water quality needed to protect natural populations of 

flora and fauna in Everglades National Park and elsewhere in the remaining Florida Everglades, 

as also required under a consent decree in United States v. South Florida Water Mgmt. Dist. 

This activity is a critical component of one of the largest ecosystem restoration efforts in human 

history–the Comprehensive Everglades Restoration Plan, which was approved by Congress in 

2000. 

Defending Water Quality Criteria for Nutrient Pollution in Florida 

In Florida Wildlife Fed’n v. EPA, a set of 13 consolidated cases, the Division was largely 

successful in defending EPA’s numeric water quality criteria for nutrients for most Florida 

waters. EPA made a determination in January 2009 that new or revised water-quality 

standards–in the form of numeric nutrient criteria– 

are necessary for Florida to meet the requirements 

of the CWA, and then promulgated such numeric 

Algae Covered Lake EPA Photo 

NUTRIENT POLLUTION 

• 	 Nutrient pollution is caused by excess nitrogen 

and phosphorus in the air and water. 

• 	 Too much nitrogen and phosphorus in carries pollutants, including nitrogen and 

the water causes algae to grow faster than phosphorus, into local waterways. 

ecosystems can handle. Signifi cant increases • 	 Wastewater: Sewer and septic systems are 

in algae harm water quality, food resources, responsible for treating large quantities of 

and habitats, and decrease the oxygen that waste, and these systems do not always 

fish and other aquatic life need to survive. operate properly or remove enough nitrogen 

• 	 Excess nitrogen in the atmosphere can and phosphorus before discharging into 

produce pollutants such as ammonia and waterways. 

ozone, which can impair our ability to breathe, • 	 Fossil Fuels: Electric power generation, 

limit visibility, and alter plant growth. industry, transportation, and agriculture have 

• 	 The primary sources of nutrient pollution are increased the amount of nitrogen in the air 

below. through use of fossil fuels. 

• 	 Agriculture: Animal manure, excess fertilizer • At Home: Fertilizers, yard and pet waste, 

applied to crops and fields, and soil erosion and certain soaps and detergents contain 

make agriculture one of the largest sources nitrogen and phosphorus, and can contribute 

of nitrogen and phosphorus pollution in the to nutrient pollution if not properly used or 

country. disposed of. The amount of hard surfaces 

and type of landscaping can also increase the • 	 Stormwater: When precipitation falls on cities runoff of nitrogen and phosphorus during wet and towns, it runs across hard surfaces— 

weather events. like rooftops, sidewalks, and roads—and 

EPA Fact Sheets 

defending federal programs | 73
 
nutrient criteria in November 2010. EPA’s actions were challenged by both environmental 

and agriculture industry groups. The district court in Florida issued a mostly favorable 

opinion in February 2012. First, the court upheld EPA’s determination of the need for numeric 

criteria. Second, the court upheld the criteria for lakes and springs and EPA’s decision to adopt 

downstream protective values (DPVs), but found against EPA as to the stream criteria and DPVs 

for unimpaired lakes. The court, however, suggested that EPA could support the stream criteria 

with a more thorough explanation of whether the criteria do prevent a harmful imbalance of 

natural populations of aquatic flora and fauna. 

Upholding Efforts to Deepen the Delaware River for Navigation 

In State of New Jersey Dep’t of Environmental Protection v. United States Army Corps of 

Eng’rs, the Third Circuit affirmed the judgments of two district courts upholding actions by the 

Corps in connection with a project to deepen the 102-mile shipping channel in the Delaware 

River. The State of New Jersey and a coalition of environmental groups led by the Delaware 

Riverkeeper Network alleged violations of NEPA, the Coastal Zone Management Act (CZMA), 

the CWA, and state water quality laws. The court upheld all aspects of the federal agency’s 

actions. The court concluded that the Corps’ NEPA analysis was procedurally and substantively 

adequate, the Corps’ decision that it was not required to revisit its CZMA consistency determination was valid, and the Corps was statutorily exempt from the CWA’s general requirements to 

obtain various state water-quality certifications and permits. 

Defending the Corps’ Permitting Decisions 

The Division handled litigation related to multiple decisions by the Corps to issue CWA section 

404 permits authorizing the discharge of dredge and fill materials into various waters of the 

United States. Examples include Sierra Club v. U.S. Army Corps of Eng’rs (denial of a motion 

for preliminary injunction seeking to halt construction of Segment E of the Grand Parkway 

project near Houston, Texas); Huron Mountain Club v. Corps of Eng’rs (denying a motion 

for preliminary injunction seeking to enjoin defendant Kennecott Eagle Minerals Co. from 

further development or operation of the Eagle Mine, a nickel and copper mine beneath the 

Salmon Trout River in Marquette County, Michigan); Charleston v. U.S. Army Corps of Eng’rs 

(dismissal on ripeness and standing grounds of suit challenging a plan by South Carolina to 

put an intermodal rail yard on the former Charleston Naval Base); Georgia River Network v 

U.S. Army Corps of Eng’rs (grant of summary judgment on claims by environmental groups 

and Leon County, Georgia, challenging the construction of a 960-acre fishing lake on Tired 

Creek, a tributary of the Ochlocknee River in southern Georgia); City of Dania Beach, Florida 

v. U.S. Army Corps of Eng’rs (denial of a motion for preliminary injunction against a permit 

authorizing the discharge of dredge and fill materials with respect to the expansion of the 

southern runway at the Fort Lauderdale-Hollywood International Airport). 

In the case of Bd. of Mississippi Levee Comm’rs v. U.S. EPA, ENRD also successfully defended 

EPA’s decision to veto a Corps’ permit under section 404(c) of the CWA. The Corps sought 

to build a major pumping station to reduce flooding in the Yazoo Backwater Area. The Board 

of Mississippi Levee Commissioners claimed that the pump project was exempt from certain 

requirements of the CWA, including section 404(c), because Congress approved it under section 

404(r). To meet the requirements of section 404(r), a project must be “specifi cally authorized 

by Congress” and the EIS under NEPA for the project must be submitted to Congress prior to 

74 | defending federal programs
 
project authorization or an appropriation of funds. The Fifth Circuit affirmed the district court, 

deferring to EPA’s determination that section 404(r) did not apply because there was insufficient evidence in the record that an EIS for this project was provided to Congress. 

Representing Federal Interests in 

Asian Carp Litigation 

Invasive species are one of the greatest 

threats to the Great Lakes ecosystem. 

Asian carp, which can grow to five feet and 

weigh more than 100 pounds, have come 

to dominate sections of the Mississippi 

River and its tributaries. If the carp were to 

become established in the Great Lakes, it is 

feared the species could create an ecological 

disaster by consuming the bottom of the food 

chain and negatively impacting the Great 

Lakes’ multibillion-dollar fishery industry. 

In fiscal year 2012, the Division continued 

to successfully represent the interests of 

the United States in litigation involving 

the migration of Asian carp into the Great 

Lakes through the Chicago Area Waterway 

System. In State of Michigan v. U.S. Army 

Corps of Eng’rs, the States of Michigan, 

Wisconsin, Illinois, Pennsylvania, and Ohio 

filed suit against the Corps, alleging that 

the Corps had created a public nuisance by 

operating structures around Chicago in such 

a way as to allow Asian carp to enter Lake Michigan. Plaintiffs sought a preliminary injunction, 

which the district court denied and the Seventh Circuit upheld. The appellate court held that 

the injunctive relief sought would only marginally decrease the likelihood of harm during 

the pendency of the litigation while imposing great costs on the government and the public. 

It concluded that any effort by the courts to intervene in the ongoing extensive interagency 

effort to stop the invasion of carp was 

unnecessary and might do more harm 

than good given the relative competency 

of the branches of government. 

Following affirmation by the Seventh 

Circuit of the denial of a preliminary 

injunction, the states filed a petition for 

a writ of certiorari in the U.S. Supreme 

Court. In February 2012, the Supreme 

Court denied certiorari. 

Asian Carp 

Photo Courtesy of Asian Carp Regional 


Coordinating Committee
 

Electric Dispersal Barriers in the Chicago Area Waterway 

Designed to Prevent the Inter-basin Transfer of Fish Between 

the Mississippi River and Great Lakes Basins via the Chicago 

Sanitary and Ship Canal 

Diagram Courtesy of the Asian Carp Regional Coordinating 

Committee 

defending federal programs | 75
 
 

Defending the Animal and Plant Health Inspection Service’s (APHIS’s) 

Biotechnology Regulatory Program 

The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture regulates 

the nation’s use and introduction of genetically engineered crops. In fiscal year 2012, the 

Division continued its defense of APHIS’s biotechnology regulatory program with respect to 

several genetically engineered crops. 

Alfalfa is the fourth-most-widely-grown crop in the United States, and weed 

management for the crop is a significant challenge. The case of Center 

Field of Alfalfa and Alfalfa Plant (Inset) 

USDA Photos by Doug Wilson 

“After conducting a thorough 

and transparent examination of 

alfalfa through a multi-alternative 

environmental impact statement and several 

public comment opportunities, APHIS has 

determined that Roundup Ready alfalfa is as safe 

as traditionally bred alfalfa.” 

— Agriculture Secretary Thomas Vilsack 

January 27, 2011 Announcement of 

Decision to Fully Deregulate Roundup 

Ready Alfalfa 

for Food Safety v. Vilsack raised 

challenges to APHIS’s deregulation of alfalfa that was genetically 

engineered to tolerate the 

herbicide known as “Roundup.” 

The Division defended APHIS’s 

interpretation of the limits of its 

regulatory authority under both 

the Plant Protection Act and the 

ESA as well as the sufficiency of its 

environmental impact disclosures. 

The district court issued a decision 

favorable to the United States on 

all counts. 

The Division also continued to defend APHIS 

in challenges to its decisions regarding sugar 

beets that also have been genetically modified 

to tolerate the same herbicide. Genetically 

modified sugar beets make up 95% of all 

sugar beets planted. In Grant v. Vilsack 

(Sugar Beets III) and Center for Food Safety 

v. Vilsack (Sugar Beets IV), ENRD defended 

APHIS from challenges brought by industry 

groups and environmental groups against 

its interim decision to partially deregulate 

the Roundup Ready sugar beet root crop 

production and to permit planting of the 

Roundup Ready sugar beet seed crop subject 

to mandatory conditions while it prepared an EIS under NEPA regarding full deregulation of 

Roundup Ready sugar beets. In July 2012, APHIS issued its final regulatory determination on a 

petition for full deregulation of Roundup Ready sugar beets after preparing an EIS. The district 

court dismissed as moot all claims against the interim decision. 

The Fish and Wildlife Service allows farming on national wildlife refuges, in some cases with 

genetically modified crops. ENRD successfully defended the FWS’s decision to enter into 

Cooperative Farming Agreements with private parties on refuges in the Midwest Region that 

would allow genetically modified corn and soybeans to be grown. In Center for Food Safety 

76 | defending federal programs
 
 

 

 — 

FARMING ON NATIONAL WILDLIFE REFUGE SYSTEM LANDS
 

IN THE MIDWEST REGION
 

• 	 For many years, the Fish and Wildlife Service has used row-crop farming as a tool in restoring native habitats, 

controlling noxious weeds, and providing food for migratory birds and resident wildlife. 

• 	 Its Midwest Region includes Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. Of 

the 54 national wildlife and 12 wetland management districts located in the Midwest Region, 31 are using 

row-crop farming as a method of managing wildlife habitat. In 2010, row crops were being raised on 20,418 

acres, or 1.6% of the lands within the refuge system in the eight-state region. 

• 	 In April 2011, the Midwest Region issued a final environmental assessment allowing the continued use for 

five years of genetically modified, glyphosate-tolerant corn and soybeans on refuge lands for the purpose of 

habitat restoration. 

FWS Fact Sheet 

v. Salazar, the district court found that FWS had adequately evaluated the adverse impacts 

associated with the use of genetically modified crops on refuge land. The court also found that 

the FWS did not violate the National Refuge System Administration Act. 

Supporting Investment in Transportation Infrastructure 

In fiscal year 2012, the Division continued to support the Department of Transportation’s 

investment in state and city efforts under applicable law to expand crucial transportation infrastructure across the nation with appropriate environmental protections. During construction, 

these projects will create jobs. Once completed, these projects further economic development in 

the regions in which they are located. 

The United States has contributed well over $1 billion towards 

Indiana’s effort to build, between Evansville and Indianapolis, the 

longest continuous new-terrain interstate highway in decades. In 

Citizens for Appropriate Rural Roads v. Federal Highway Admin., 

some property owners along the route filed a complaint and sought 

a preliminary injunction to stop the in-progress construction by 

alleging violations of NEPA, the Department of Transportation 

Act, the National Historic Preservation Act, the ESA, and the CAA. 

Plaintiffs raised concerns about impacts to the endangered Indiana 

bat. As part of its mitigation efforts, Indiana purchased two large 

caves that serve as important hibernacula for the Indiana bat. By 

working closely with state attorneys and the United States Attorney’s 

Office for the Southern District of Indiana, we successfully opposed 

the preliminary injunction, and work on the project has continued 

uninterrupted. 

Endangered Indiana Bat
 

FWS Photo by Rich Fields
 

defending federal programs | 77
 
In Sierra Club v. U.S. Army Corps of Eng’rs, 

the Division successfully defended the Texas 

Transportation Commission’s construction 

of Segment E of the Grand Parkway, which is 

part of the important outer beltway around 

Houston, in the face of challenges to the 

sufficiency of the Federal Highway Administration’s environmental analyses. 

Protecting the Public Fisc from 

Defective Takings Claims 

Over the past year, the Division has successfully defended numerous cases seeking 

compensation under the Fifth Amendment 

to the U.S. Constitution for the alleged taking 

of private property. The following cases are 

worthy of special note: 

— In January 2012, in Otay Mesa Property 

v. United States, the Federal Circuit vacated 

the trial court’s $3 million just-compensation 

award and remanded for the redetermination of an appropriate award. U.S. Customs 

and Border Protection had placed 14 seismic 

underground sensors on plaintiff’s property 

to help stop illegal immigration along the 

border with Mexico near San Diego, California. 

The United States filed a stipulation in the 

trial court describing the property interest 

taken as a permanent easement. Disagreeing, the trial court concluded that the government’s 

stipulation described a temporary easement and awarded compensation based on an analogy to 

the rental value of property in the area for skydiving and parachute training. The Federal Circuit 

agreed with the United States that it had stipulated to the taking of a permanent, not temporary, 

easement and that the trial court erred in basing its award on the rental value of property for 

skydiving and parachute training. 

— In a long-running battle over the nature of rights on federal grazing lands, the Federal 

Circuit vacated the Court of Federal Claims’ award of damages for a regulatory taking and 

compensation for range improvements, and reversed the finding of a physical taking of water 

rights in Hage v. United States. Plaintiff was a rancher who alleged that BLM’s and Forest 

Service’s efforts to enforce federal land management statutes worked a taking of his ranching 

operation by the government. The trial court awarded plaintiff $14,243,542 in compensation 

for regulatory and physical takings of Hage’s water rights, statutory compensation for range 

improvements, and interest. The Federal Circuit vacated the award of compensation on the 

regulatory taking claim, finding that it was not ripe due to Hage’s failure to seek special-use 

permits to maintain irrigation ditches. As to the physical takings’ claim, the court held that, 

pursuant to Nevada law, Hage could assert only a taking of water that he could put to beneficial 

Grand Parkway Segment E 

U.S. Department of Transportation Map 

78 | defending federal programs
 
use, and found that Hage had presented no evidence 

that the federal government took any water that he 

could have put to beneficial use. 

— In Banks v. United States, dozens of lakefront 

property owners along the shore of Lake Michigan 

alleged that the Corps’ construction and operation 

of harbor jetties caused extensive erosion to their 

properties. After two lengthy trials that included 

the use of several expert witnesses who undertook 

detailed examination of the physical characteristics 

of the shoreline, the court dismissed the case on 

statute-of-limitations grounds, resulting in a savings 

to the United States of more than $120 million. 

— In Casitas Municipal Water Dist. v. United States, 

a California municipal water provider alleged a Fifth 

Amendment taking and breach of contract resulting 

from certain actions they allegedly were required 

to undertake to protect the California steelhead, an 

endangered fish species. After a multiweek trial, the 

Court of Federal Claims dismissed the action, finding 

that the water district had not demonstrated that it 

had suffered a loss of water as a result of the government’s actions, thus defeating their $87 million claim. 

— In Big Oak Farms v. United States, individuals 

owning property within the Birds Point-New Madrid 

Floodway filed a class action alleging that the opening 

of the floodway by the Corps in the wake of historic 

water levels on the Mississippi River resulted in a 

Fifth Amendment taking. Plaintiffs’ $300 million 

demand in that case was defeated. The Court of 

Federal Claims concluded that the flooding was not 

“inevitably recurring” and, therefore, plaintiffs failed 

to state a claim upon which relief could be granted. 

Resolving Ongoing Constitutional 

Claims Deriving from the Federal Railsto-Trails Program 

The Division continues to defend nearly 10,000 

claims brought under the Fifth Amendment deriving 

from the implementation of the National Trails 

System Act. That statute has led to the conversion of 

abandoned railroad corridors throughout the United 

States into recreational trails. While these trails 

provide signifi cant benefit to countless communities, 

View of Lake Michigan 

California Steelhead 

NOAA Photo 

USACE Diagram 

defending federal programs | 79
 
they also have led to numerous lawsuits in which adjacent property owners argue that they 

should be compensated by the United States because the property interests conveyed to the 

railroads did not contemplate trail use. The Division is working diligently to bring these cases 

to a fair and efficient conclusion, and has successfully resolved numerous claims over the past 

year either through settlement or by obtaining court dismissal of those claims that did not 

have merit. Among those Court of Federal Claims cases in which we successfully have defeated 

takings claims are: Gregory v. United States; Rhutasel v. United States; Rogers v. United 

States; Thomas v. United States; Thompson v. United States; and Whispell Foreign Cars, Inc. v. 

United States. 

Acquiring Property for Public Purposes 

The Division exercises the federal government’s power of eminent domain to enable agencies 

to acquire land for public purposes ranging from establishing national parks to building federal 

courthouses to protecting the nation’s borders. These actions secure the Fifth Amendment 

guarantee of just compensation in amounts that are fair to property owners and to taxpayers. 

We also assist many federal agencies through consultation in acquiring lands, buildings, and 

leases without the expense of litigation. In appropriate cases, we also provide assistance to 

federal agencies to ensure that they obtain clear title for negotiated land acquisitions completed 

without the need for the Division to file condemnation actions. 

During fiscal year 2012, ENRD valuation and litigation advice to the General Services Administration (GSA) led to resolution of leasehold acquisitions where the disputes totaled over 

$33 million. When the Division’s pre-condemnation efforts are combined with its trial-level 

litigation efforts, the cost savings for the federal government in fiscal year 2012 quickly 

approaches $100 million. 

Examples of the Division’s actions to acquire land or review title to lands in fiscal year 2012 

include the following cases: 

— We provided guidance to the Forest Service in review of title 

for the acquisition of all right, title, and interest of the Stearns 

Company, Ltd., in mineral rights underlying Daniel Boone 

National Forest in Kentucky. Stearns conveyed its surface rights 

in approximately 46,842 acres of this land to the Forest Service 

in 1937, but reserved the underlying mineral rights. Litigation 

ensued in the 1970s over Stearns’ requests to mine the reserved 

Daniel Boone National Forest minerals. A separate dispute existed between Stearns and the

Forest Service Photo United States over environmental contamination arising from 

mining activities. Acquisition of the mineral rights allowed the 

Forest Service to consolidate ownership over thousands of acres of Daniel Boone National Forest 

and control all future mining on these lands. 

— We also reviewed title for 29.92 acres of land in Dona Ana County, New Mexico. The International Boundary and Water Commission plans to use this property for environmental preservation and long-term river management along the Rio Grande. 

— The case of United States v. 156.0 Acres of Land Located in Lake Umbagog in the Town of 

Errol, Coos County, New Hampshire, and the Society for the Protection of New Hampshire 

80 | defending federal programs 
Forests was filed in district court at the request of the FWS to acquire the 

majority of “Big Island,” which is located on Lake Umbagog, a 7,000-acre 

lake stretching between New Hampshire and Maine. The Society for the 

Protection of New Hampshire Forests negotiated to sell the property to 

FWS for $1,000,000, but was unable to convey clear title to an outstanding 

0.027778 interest that had vested in unknown successors of a defunct Fall at Lake Umbagog corporation. The condemnation action was filed with the consent of all 

FWS Photo by known interested parties to clear title and to add the land to Umbagog Karen and John 


Hollingsworth National Wildlife Refuge. 

— The Division has continued representation of the Corps in eminent domain actions filed 

to compensate landowners for property taken to enable emergency repair of levees following 

Hurricane Katrina. In one group of cases, the Corps installed a pumping system on land 

adjacent to the Mariner’s Cove townhome development adjoining the 17th Street Levee, 

requiring acquisition of 14 townhomes. The Corps reached agreements on compensation with 

each of the homeowners, but was unable to settle the Townhomes Association’s aggregate claim 

for $3,033,333 arising from a claimed right to levy ongoing assessments on the vacated lots. In 

November 2011, in United States v. 0.073 Acres of Land Situated in the Parishes of Orleans 

and Jefferson, Louisiana, and Mariner’s Cove Townhomes Ass’n, the district court held that 

the Townhomes Association did not have a continuing right to levy assessments on the taken 

properties, and was entitled to no recovery. 

Working with the U.S. Congress on Environmental and Natural 

Resources Litigation and Related Matters 

Through the Department’s Office of Legislative Affairs, 

the Division responds to relevant legislative proposals 

and congressional requests, prepares for appearances 

of Division witnesses before congressional committees, 

and drafts legislative proposals, including proposals 

implementing settlements of Division litigation. On May 

31, 2012, with Acting Assistant Attorney General for the 

Civil Division Stuart F. Delery and Assistant Attorney 

General for the Tax Division Kathryn Keneally, Assistant 

Attorney General Ignacia S. Moreno appeared at an 

oversight hearing before the Subcommittee on Courts, 

Commercial and Administrative Law of the House 

Committee on the Judiciary to discuss the work of ENRD 

and the other divisions. 

One example of federal legislation enacted in fiscal year 2012 with the assistance of ENRD is 

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

of the Gulf Coast States Act of 2012 (the RESTORE Act) (title I, subtitle F of Pub. L. No. 

112-141), which became law in July 2012. The RESTORE Act provides for 80% of any civil 

or administrative fines awarded in the ongoing enforcement action related to the Deepwater 

Horizon explosion, fire, and oil spill in the Gulf of Mexico to be paid into a special Gulf Coast 

Restoration Trust Fund, which will in turn be used for various coastal restoration purposes. 

The statute authorizes the trust fund monies to be expended for Gulf environmental and 

Assistant Attorney General Ignacia S. Moreno 

testifies before the Subcommittee on Courts, 

Commercial and Administrative Law of the 

House Committee on the Judiciary. 

defending federal programs | 81
 
Planting a Salt Marsh in Louisiana 

NOAA Photo 

economic restoration purposes, without 

further appropriation by Congress, and 

requires the Secretary of the Treasury 

to establish procedures related to 

the operation of the trust fund. The 

RESTORE Act also establishes the Gulf 

Coast Ecosystem Restoration Council, a 

federal entity comprised of senior-level 

representatives of the Department of the 

Interior, the Department of the Army, 

the Department of Commerce, EPA, 

the Department of Agriculture, and the 

U.S. Coast Guard, as well as representatives of the Governors of the States of 

Alabama, Florida, Louisiana, Mississippi, 

and Texas. The council is charged with 

developing a comprehensive plan “to 

restore and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, 

beaches, and coastal wetlands of the Gulf Coast region,” and may expend funds from the trust 

fund in accordance with this comprehensive plan. The statute requires a proposed plan to be 

issued by January 2, 2013, and an “Initial Comprehensive Plan” to be published by July 6, 2013. 

Although the Department is not an official member of the council, ENRD has been assisting 

other interested agencies in this process, with a particular focus on potential legal issues that 

may arise during implementation. 

Enforcing Environmental Law Through International Capacity Building 

The Division actively implements a wide-ranging program of international activities, often in 

collaboration with partners from other federal agencies. The Division’s international activities 

serve the goal of protecting and promoting effective environmental enforcement and support 

important Administration and Department objectives: 

— We successfully prosecute transnational environmental and natural resources crimes that 

involve foreign evidence or foreign assistance, or that rely on the violation of underlying foreign 

statutes. 

— We provide critical training for law enforcement partners in other countries to ensure that 

they may work effectively with us in investigating and prosecuting transnational environmental 

crimes. 

— We participate in the development and implementation of trade and investment agreements, 

treaties, international environmental agreements, and domestic implementing legislation in 

order to ensure that they protect and promote effective environmental enforcement. 

— We also help to develop and facilitate international partnerships and networks that promote 

effective prosecution of transnational environmental crimes. 

In carrying out these objectives in fiscal year 2012, ENRD attorneys spoke at joint training and 

cooperative activities and met with law enforcement counterparts in Brazil, Chile, China, France, 

82 | defending federal programs 
Gabon, Honduras, Indonesia, Peru, Portugal, Russia, South Africa, and Thailand. ENRD also 

met in Washington, D.C., with visiting officials representing governments and non-governmental organizations from Argentina, Australia, Belgium, Indonesia, Iraq, the Republic of 

Korea, Russia, Singapore, and Thailand. 

The Division continued to participate in domestic and international outreach in order 

to disseminate information about the 2008 amendments to the Lacey Act, which added 

enforcement tools to combat international trafficking in illegally harvested timber and wood 

products. For example, a prosecutor from ENRD’s Environmental Crimes Section spoke about 

the Lacey Act at a Congress of South American Environmental Prosecutors in Lima, Peru. 

ENRD attorneys also participated in U.S. delegations to Bilateral Forums on Illegal Logging and 

Associated Trade in China and Indonesia, and in the meeting of the Experts Group on Illegal 

Logging and Associated Trade at the Asia Pacific Economic Cooperation Forum in Russia. 

Division attorneys also conducted State Department-funded training programs for prosecutors 

and forestry officials on investigating and prosecuting illegal logging crimes in Brazil and Russia. 

ENRD and the EPA Environmental Appeals Board conducted a State Department-funded 

training program on environmental adjudication 

for the Supreme Court of Chile. The Division 

also led a training program on environmental 

governance for officials of the Environment 

and Oil Ministries of the government of Iraq in 

conjunction with the Department of Commerce 

Commercial Law Development Program. The 

Division also conducted training for the International Convention for the Prevention of 

Pollution from Ships and the International Law 

Enforcement Academy. 

We attended the INTERPOL International Chiefs 

of Environmental Compliance and Enforcement 

Summit held in July 2012 and the Division was 

involved in the INTERPOL Wildlife Crime and 

Pollution Crime Working Group. 

Finally, the Division participated in negotiations led by the Office of the U.S. Trade Representative for the environment chapter of the Trans-Pacific Partnership Trade Agreement with eight 

Asian and South American countries. 

Protecting the Interests of the United States in Litigation Involving 

Third Parties 

At times, ENRD participates as amicus curiae in cases in which the United States is not a party 

in order to protect the interests of the United States and its component agencies. We fi led briefs 

in a number of such proceedings in fiscal year 2012. One illustration is the case of Decker v. 

Northwest Environmental Defense Center (NEDC) and Georgia-Pacific West v. NEDC. This 

case concerns a citizen suit brought by NEDC under the CWA, and implicates a longstanding 

EPA rule addressing what silvicultural activities are and are not subject to National Pollutant 

Assistant Attorney General Ignacia S. Moreno speaks at the 

INTERPOL International Chiefs of Environmental Compliance 

and Enforcement Summit. 

defending federal programs | 83
 
Discharge Elimination System (NPDES) permitting requirements under the CWA. The United 

States participated in the district court and Ninth Circuit as amicus in support of defendants, 

the State of Oregon and the private timber entities, arguing that EPA regulations exempted 

stormwater discharges from logging roads from the NPDES permitting requirements and that 

EPA’s interpretation should be given deference. The Ninth Circuit disagreed, holding that the 

CWA precluded that interpretation of the EPA regulations. In its revised opinion after petitions 

for rehearing, the Ninth Circuit kept intact its entire opinion on the merits, but clarified in a new 

section that the court has subject matter jurisdiction to decide the issue. After issuance of the 

revised opinion, the State of Oregon and the timber defendants petitioned for writs of certiorari 

in the U.S. Supreme Court. On June 25, 2012, the Supreme Court granted the certiorari 

petitions. On September 4, 2012, the United States filed an amicus brief in the Supreme Court 

in support of petitioners. 

Another case in which the United States filed an amicus brief at the request of the U.S. Supreme 

Court was Corboy v. Louie. The Supreme Court of Hawaii found that plaintiffs, fi ve non-native 

Hawaiians, lacked standing under state law to challenge the preferential tax treatment 

afforded native Hawaiians who obtain a 99-year homestead lease under the Hawaiian Homes 

Commission Act. The Hawaii Supreme Court ruled that the taxpayers lacked standing because 

they had not established that they were interested in participating in the homestead lease 

program and thus failed to establish an injury in fact sufficient to confer standing. In its brief, 

the United States opposed the grant of a petition for a writ of certiorari in this case. On June 29, 

2012, the U.S. Supreme Court denied certiorari. 

The Division also conducts the Department’s review 

of citizen-suit complaints and consent judgments 

under the CAA and CWA. These statutes contain 

provisions allowing citizens to file suit for violations of 

the statutes, and require that citizen-suit complaints 

Chinook Salmon and consent judgments be served on the Department 

NOAA Image and EPA. When served with complaints, we offer our 

assistance to counsel for the parties, and we review all 

consent judgments to ensure that they comply with the requirements of the relevant statute 

and are consistent with the statute’s purposes. An example of the citizen-suit settlements that 

we reviewed in 2012 was fi led in Swinomish 

Indian Tribal Community v. Skagit County 

Dike Dist. The Swinomish Tribe, a federally 

recognized tribe with a reservation adjacent to 

Puget Sound in Washington State, brought suit 

under the citizen-suit provisions of the CWA 

and the ESA. The tribe claimed that defendants’ 

actions in replacing and maintaining tide gates 

and other drainage infrastructure in the Skagit 

River delta were harming Puget Sound Chinook 

salmon, which are listed as threatened under 

the ESA. Although the case settled in 2009, 

the parties notified the United States in 2012 

that they intended to amend the consent decree 

because necessary permits had not been obtained 

for a habitat restoration project contemplated Skagit River
 

NOAA Photo
 

84 | defending federal programs
 
Chinook Populations in Puget Sound
 

NOAA Map
 

under the initial settlement. Working with EPA, we provided suggested edits to the amended 

settlement document that were incorporated by the parties into the amended consent decree 

filed with the court. Under the amended consent decree, defendants agreed to pay $500,000 to 

be used to promote the recovery goals established in the federally adopted Puget Sound Chinook 

Salmon Recovery Plan. 

defending federal programs | 85
 
Marine Corps Recruit Depot Graduation, San Diego Photo by Jeffrey Bank 

A U.S. Navy nuclear-powered attack submarine proceeds through the Suez Canal to the 

Red Sea, part of a group of U.S. Navy vessels that recently passed through the canal 

from the Mediterranean Sea. U.S. Navy Photo by Chief Journalist Alan J. Baribeau 

86 | promoting national security and military preparedness
 
PROMOTING 


NATIONAL SECURITY AND 


MILITARY PREPAREDNESS
 

The Environment and Natural Resources Division makes a unique and important contribution to national security while ensuring robust compliance with the country’s environmental 

and natural resources laws. Increasingly, the Division is responsible for defending a variety of 

agency actions that support the security of the United States. 

Supporting Critical Military Training and Security Needs 

The Division successfully defended against 

a challenge to the Navy’s proposed new 

$100 million Undersea Warfare Training 

Range (USWTR), which is to be located 

75 miles off the Atlantic coast of Florida. 

The USWTR facility will enhance and 

improve the Navy’s anti-submarine warfare 

training activities, which are essential 

to the Navy’s ability to detect and defeat 

submarines operating in littoral (shallow 

water) environments where environmental conditions coupled with new noise 

reduction technologies make detection 

increasingly difficult. The USWTR will 

be the only training range of its kind on 

the East Coast, and it will provide ships, 

submarines, and aircraft in the Atlantic 

Fleet with a realistic and challenging littoral 

training environment that mirrors the areas 

in which the Navy finds itself increasingly 

operating. In Defenders of Wildlife v. U.S. 

Dep’t of the Navy, plaintiffs brought suit, 

alleging that the Navy’s decision to construct 

the USWTR violated NEPA and the ESA. 

Plaintiffs also challenged NMFS’s associated 

Location of Undersea Warfare Training Range 

U.S. Fleet Forces Command Image 

promoting national security and military preparedness | 87
 
biological opinion. After extensive summary judgment briefing and oral argument, the 

district court ruled in the Navy’s and NMFS’s favor on all claims, putting the Navy in position 

to begin implementing the next steps of this vital project. In so ruling, the court accorded 

“‘great deference to the professional judgment of military authorities concerning the relative 

importance of a particular military interest,’” and held that the Navy had reasonably decided not 

to adopt mitigation measures that would have required sailors and marines to train in a manner 

different than what would be required in an actual combat scenario. 

In February 2012, the Ninth Circuit affirmed 

the district court’s judgment in favor of DOE in 

the case of Tri-Valley CARES v. Department 

of Energy. This case represents plaintiffs’ 

second challenge under NEPA to the adequacy 

of DOE’s environmental reviews for construction of a new infectious biological-agents 

research facility at the Lawrence Livermore 

National Lab. In the instant appeal, plaintiffs 

challenged the adequacy of DOE’s analysis of 

the environmental impacts that could result 

from a terrorist attack on the facility. The 

Ninth Circuit held that DOE’s analysis of 

the risk of a terrorist attack was adequate in 

various respects. 

Defending Dredging Projects Necessary for National Defense and 

Economic Vitality 

In Town of Bald Head Island v. Army Corps of Eng’rs, plaintiffs challenged a Corps’ dredging 

project that was essential to the operation of the Military Ocean Terminal–Sunny Point 

(MOTSU), which is located between Wilmington and Southport, North Carolina, on the west 

bank of the Cape Fear River. The MOTSU is the largest ammunition terminal in the United 

States. Ammunition and weapons are transported to MOTSU from all over the United States, 

loaded onto ships at MOTSU, and 

transported to supply forward-deployed troops overseas. MOTSU 

serves a critical role in numerous 

operations plans supporting the 

European and Southwest Asia 

theaters. Ninety percent of the 

ammunition supplied to troops in 

Iraq and Afghanistan is shipped 

from MOTSU. Additionally, the 

dredging was required to keep 

the Port of Wilmington available 

for deep-draft ships and assure 

sound economic development for the Wilmington area. ENRD successfully defended against an 

injunction and prevailed on a motion to dismiss, ensuring unfettered access to Cape Fear River 

channels serving MOTSU and the Port of Wilmington. 

Lawrence Livermore National Laboratory 

DOE Photo 

Military Ocean Terminal — Sunny Point Army Photo 

88 | promoting national security and military preparedness
 
Supporting the Administration’s Renewable Energy Agenda
 

Solar Energy Project 

BLM Photo 

“We can’t have an energy strategy for 

the last century that traps us in the 

past. We need an energy strategy for 

the future–an all-of-the-above strategy for the 21st 

century that develops every source of Americanmade energy.” 

— President Barack Obama, March 15, 2012 

One component of U.S. efforts to 

reduce the country’s dependence on 

foreign oil is expansion of cleaner 

domestic sources of energy in the form of wind and solar power and renewable fuels. The 

Division is actively defending challenges to permits and rights-of-way issued by BLM to promote 

the development of renewable energy projects on western public lands. ENRD is handling more 

than 20 cases involving solar, wind, and transmission projects located in California, Oregon, 

Tennessee, Delaware, Massachusetts, and Vermont. We successfully defeated motions for 

temporary restraining orders and preliminary injunctions for the North Sky River Wind Project, 

Ocotillo Wind Energy Project, and Sunrise Powerlink Project in California. We also defeated 

requests for injunctive relief in two cases challenging smaller pilot projects for solar and wind 

energy in Tennessee and Delaware. 

The Division successfully opposed efforts in the Ninth Circuit to preliminarily enjoin the 

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

under construction in the world. The 377-megawatt solar complex uses mirrors to focus the 

power of the sun on solar receivers atop power towers. When completed next year, the $2.2 

billion system will use 173,500 computer-controlled mirrors to aim 1,000-degree rays at boilers 

mounted on three 459-foot towers, turning water into enough steam-generated electricity to 

power 140,000 homes. Our defense of the project in Western Watersheds Project v. BLM 

resulted in the first appellate decision to address new solar projects sited on federal land. The 

Ninth Circuit concluded that the district court correctly analyzed the balance of public interests 

favoring the project. 

The Genesis Solar Energy Project is another of the first 

large-scale renewable energy projects to be constructed 

on federal public land managed by BLM. When complete, 

the project will provide up to 250 megawatts of clean solar 

energy to southern California. The Division has successfully 

defended this important project in three different lawsuits. 

In California Unions for Reliable Energy v. U.S. Dep’t of 

the Interior, the district court granted our motion to dismiss 

the case for lack of standing because plaintiffs’ allegations 

Genesis Solar Energy Project 

BLM Image 

promoting national security and military preparedness | 89
 
90 | promoting national security and military preparedness
 
of injury to their domestic water supply were too speculative. In Colorado River Indian Tribes 

v. U.S. Dep’t of the Interior, an Indian tribe alleged that BLM failed to adequately consult with 

the tribe and conduct additional analysis with respect to artifacts uncovered during the ongoing 

construction of the project. The district court denied the tribe’s motion for emergency relief and 

found that BLM had adequately consulted with the tribe about the project. The court also found 

that BLM did not need to conduct additional analysis because the types of artifacts uncovered 

were precisely the types of artifacts that BLM expected to find when it authorized the project. 

In La Cuna de Aztlan v. U.S. Dep’t of the 

Interior, a group of individuals alleged 

that BLM violated various laws governing 

public lands and failed to adequately 

analyze the impacts of the project. The 

district court has granted the U.S. motion 

to dismiss certain of plaintiffs’ claims, and 

we continue to aggressively defend against 

the remaining claims. 

The Ocotillo Wind Energy Project will 

produce up to 465 megawatts of electricity. 

The project is located on 10,000 acres of 

BLM lands in western Imperial County 

in California. It is expected to generate 

enough electricity via wind turbines 

to power almost 94,500 homes and 

will employ 246 workers during peak 

construction times. The Division has been 

defending five separate actions regarding 

this project and has defeated each of the 

three requests for emergency injunctive 

relief filed to stop the 

development of the project. 

We have secured a dismissal 

in one of the cases. One 

example of our success in 

defending this project is the 

case of Desert Protective 

Council v. U.S. Dep’t of 

Interior. There, the district 

court denied plaintiffs’ 

motion for a preliminary 

injunction, fi nding that 

plaintiffs failed to show a 

likelihood of success on the 

merits, irreparable harm in 

the absence of preliminary 

relief, or a balance of 

equities tipping in their 

favor. 

Wind Turbine FWS Photo by Rachel London 

Location of Ocotillo Wind Energy Project DOI Map 

promoting national security and military preparedness | 91
 
’ 

’ 

’

We are working closely with BLM to defend a permit issued for the Cape Wind Project in 

Nantucket Sound, America’s first offshore wind project. In four separately filed cases that 

have been consolidated, environmental groups, fishermen, a local township, and an Indian 

tribe seek to overturn the decision by the Secretary of the Interior to approve the construction 

of the project 

under multiple 

statues. Putting 

together the 

very complex 

administrative 

record has led 

to substantial 

court 

proceedings. 

We have 

counseled the 

Department 

of the Interior 

and the U.S. 

Coast Guard on 

myriad record 

issues, resulting 

in resolution 

of all but three 

of the 12 issues 

plaintiffs had 

identifi ed in 

a motion to 

compel. 

CAPE WIND PROJECT 

• 	 Cape Wind Associates, L.L.C., has obtained a lease to construct and operate a 

commercial wind energy facility in federal waters between Cape Cod, Martha s 

Vineyard, and Nantucket Island off shore of Massachusetts. The project footprint is 

about 25 square miles, but the entire lease area (including a buffer zone) is 46 miles. 

• 	 The facility will include 130 3.6 megawatt wind turbine generators with a maximum 

blade height of 440 feet to be located on Horseshoe Shoal in Nantucket Sound. The 

project is planned to supply up to 75% of the electricity needs of Cape Cod as well 

as of the islands of Martha s Vineyard and Nantucket. 

• 	 The lease, which became effective on November 1, 2010, is of 33 years duration. 

— BOEM Fact Sheet and Map 

92 | promoting national security and military preparedness
 
In Backcountry Against Dumps v. Abbott and Protect Our Communities Foundation v. U.S. 

Forest Service, local community groups in southern California challenged federal approval of 

a land-use management plan and authorization of a right-of-way for the Sunrise Powerlink 

utility line, which is designed to enable the San Diego Gas & Electric Co. to transmit electricity 

from alternative energy projects. In 2011 and 2012, the district court denied plaintiffs’ motions 

for preliminary injunction and injunction pending appeal, finding that plaintiffs’ claims 

under NEPA, the Federal Land Policy and Management Act (FLPMA), the National Forest 

Management Act, and the ESA lacked merit. In 2012, the Ninth Circuit affirmed these decisions. 

Construction of Sunrise Powerlink is now complete, and the project is operating to deliver 

electricity to the San Diego area. 

Defending Fossil Fuel Development and Storage 

This Administration pursues an “all-of-the-above” energy development strategy, including 

safe and responsible development of various forms of fossil fuel energy. Several ENRD cases 

have furthered fossil fuel energy development. In Sierra Club v. Bostick, plaintiffs challenged 

the Corps’ application of Nationwide Permit 12 to the Keystone Pipeline Gulf Coast Project for 

development of oil and gas, and sought a preliminary injunction to forestall the commencement 

of project construction. In August 2012, the court denied the motion because plaintiffs failed 

to establish a substantial likelihood of success on the merits of their claims. As to their facial 

challenge to the validity of Nationwide Permit 12, the district court considered and rejected a 

series of attacks on the Corps’ interpretations of the CWA and its implementing regulations, 

finding that the Corps’ interpretations were not arbitrary or capricious. Similarly, the court 

rejected plaintiffs’ as-applied challenge, concluding that the planned activities under Nationwide 

Permit 12 would not have more than minimal adverse environmental effects, both individually 

and cumulatively, in light of the Corps’ planned mitigation. The court also briefly addressed the 

balance of equities, concluding that plaintiffs failed to establish that this project will have more 

than a minimal impact on the environment and that its benefits far exceed its costs. 

In May 2012, in Native Village of Point Hope v. Salazar, the Ninth Circuit rejected challenges 

to the Department of the Interior’s approval of an exploration plan under the Outer Continental 

Shelf Lands Act (OCSLA) for exploratory drilling by Shell in the Beaufort Sea off Alaska. The 

court first found that petitioners’ argument that the agency violated OCSLA by approving Shell’s 

exploration plan before certain revisions to Shell’s separate oil spill response plan had been 

approved was moot, in light of Interior’s recent approval of the spill plan. The court also held 

that Interior was not arbitrary or capricious in determining that the exploration plan contained 

an adequate description and discussion of Shell’s plans for using a well-capping-and-containment system in the event of a blowout. The court also found that Interior had not acted 

arbitrarily in finding that Shell provided a reasonable estimate of the time required for drilling a 

relief well in case of a blowout. 

We supported the DOE’s critical need to acquire land to serve as replacement storage capacity 

for a portion of the nation’s Strategic Petroleum Reserve. The U.S. Strategic Petroleum Reserve 

is the largest stockpile of government-owned emergency crude oil in the world. It is designed 

to provide the President with a supply response option to support the U.S. economy and for 

national defense. The case of United States v. 9.345 Acres of Land Situate in Iberville Parish, 

Louisiana, and Sidney Vincent Arbour, III, was initiated in November 2011, with a determination of $17.945 million in estimated just compensation to acquire an improved salt dome cavern. 

Because an existing salt dome facility used to store approximately 10 million barrels of oil was 

promoting national security and military preparedness | 93 
-

STRATEGIC PETROLEUM RESERVE 

• 	 The Strategic Petroleum release for oil to enter the 

Reserve (SPR) is a U.S. U.S. market. 

complex of four sites with 

deep underground storage • The Energy Policy 

caverns created in salt and Conservation Act 

domes along the Texas and authorizes some types of 

Louisiana Gulf Coasts. The SPR drawdowns—full and 

caverns have a capacity limited by the President and 

of 727 million barrels and test sale or exchange by 

store emergency supplies of the Secretary of Energy—if 

crude oil owned by the U.S. specified conditions are met. 

government. 

• 	 During the 34-year existence above ground tanks. Also, 

• 	 As of November 2012, the of the SPR, crude oil has because the salt caverns are 

SPR level was just below been acquired from 25 2,000-4,000 feet below the 

700 million gallons. The countries. surface, geologic pressures 

maximum drawdown seal cracks that develop in 

capacity per day is 4.4 • Crude oil is stored in the formation and prevent 

million barrels and it takes salt domes because it is leakage. 

approximately 13 days from at least five times less 

a Presidential decision to expensive than storage in — DOE Fact Sheet 

Crude Oil Pipeline at the SPR 

Bryan Mound Site, Freeport, 

Texas 

DOE Photo 

in danger of failure, we obtained the court’s approval for an immediate transfer of possession to 

enable DOE to prepare the replacement cavern for oil transport from the failing facility. 

The Division also successfully defended several BLM decisions concerning the leasing of coal 

on public lands in the Powder River Basin in Montana and Wyoming. In Powder River Basin 

Resource Council v. Salazar, the district court rejected claims that BLM’s decision approving a 

competitive sale of two coal leases violated NEPA, FLPMA, and the ESA, and also determined 

that plaintiffs lacked standing to assert their climate change-related NEPA and ESA claims. In 

WildEarth Guardians v. Salazar, the district court rejected allegations that BLM had acted 

arbitrarily and capriciously when it denied a petition to recertify the Powder River Basin as a 

Coal Production Region under BLM’s coal leasing regulations. (BLM had decertified the region 

as a Coal Production Region, which allowed land to be leased in the basin for coal production by 

application. Plaintiffs claimed that such leasing reduced competition and prevented BLM from 

adequately analyzing and addressing the environmental impacts of coal leasing in the basin.) 

Supporting the Strategic Border Initiative and Securing the Nation’s 

Borders 

In 2007, Congress mandated construction of fencing and related infrastructure at multiple 

points along the United States-Mexico border in order to enhance domestic security by 

curtailing smuggling, drug trafficking, and illegal immigration. The Division has worked closely 

with local U.S. Attorneys’ Offices, the Department of Homeland Security, and the Corps to 

94 	| promoting national security and military preparedness 
U.S.—Mexico Border The United States is on left side of photo; Mexico is on right side of photo. 

DHS Photo by Gerald L. Nino 

facilitate land acquisitions necessary for the construction of 225 miles of fencing (the Strategic 

Border Initiative). This has required acquisition by eminent domain of nearly 400 land parcels 

in Texas, New Mexico, Arizona, and California and extensive work to obtain timely possession 

for construction purposes and to address widespread title and survey issues. The Division has 

helped resolve more than 180 cases (most from fiscal year 2009 forward) under the Strategic 

Border Initiative. The Division also works more generally with the Department of Homeland 

Security and U.S. Attorneys’ Offices in litigating land acquisition cases to secure the nation’s 

borders. 

Fiscal year 2012 saw successful resolution of previously filed eminent domain actions as well 

as initiation of new ones as this important national security work continues. For example, an 

advantageous settlement was reached in United States v. 14.30 Acres of Land Situate in San 

Diego County, California and the County of San Diego, an acquisition by eminent domain 

to accommodate Strategic Border Initiative fencing. The United States’ appraised value 

was $1,145,000; the landowner’s appraised value was $6,200,000. The parties arrived at a 

settlement of $2,000,000 inclusive of costs, expenses, fees, and interest. In addition, for this 

same project, we filed the cases of United States v. 5.095 Acres, Located in San Diego County, 

California and the State of California; and United States v. 2.81 Acres in San Diego, County, 

California and the City of San Diego, with estimated just compensation totaling $595,332. 

At the request of the GSA and U.S. Customs and Border Protection, the Division also filed 

the following actions to acquire lands in Orleans, New York; Van Buren, Maine; and Hamlin, 

Maine, for expansion and modernization of land ports of entry: United States v. 3.851 Acres 

promoting national security and military preparedness | 95
 
’ 

’

 

of Roadway and Land Located in the Town of 

Orleans, Jefferson County, New York and the 

State of New York; United States v. 2.239 Acres 

of Roadway and Land Located in the Town of 

Orleans, Jefferson County, New York and the 

Jefferson County Highway Department; United 

States v. 0.50 Acres of Land Situated in the Town 

of Van Buren, Aroostook County, Maine and 

Aroostook Maid Farms, Inc.; United States v. 2.96 

Acres of Land Situated in Hamlin, Maine and 

Roland F. Corbin. 

LAND PORTS OF ENTRY 

• A land port of entry is the facility that 

provides controlled entry and exit in and 

out of the United States for people and 

materials. It houses the U.S. Customs and 

Border Protection and various other federal 

inspection agencies responsible for the 

enforcement of federal laws. A land port of 

entry consists of the land, the buildings, the 

on-site roadways, and parking lots occupied 

by the federal agencies. GSA is responsible 

for the initial construction and ongoing 

maintenance of most of the nation s land 

ports of entry. 

• On an average day, about $2 billion in trade 

crosses the nation s 167 border crossings, 

along with more than 350,000 vehicles, 

135,000 pedestrians, and 30,000 trucks. 

— GSA Fact Sheets 

Land Port of Entry Facility GSA Photo 

Acquiring Additional Property to Improve Military Preparedness and 

National Security 

We also acquire lands and review title to lands needed to fulfill other critical military and 

homeland security functions. The following cases illustrate this work in fiscal year 2012: 

— In June 2012, the Ninth Circuit affi rmed the final resolution of United States v. 32.42 Acres 

in San Diego County, California, and San Diego Unified Port District, a case which the Division 

filed at the U.S. Navy’s request to acquire all remaining interests in filled tidelands in San Diego 

Bay used as the Navy’s Anti-Submarine Warfare Training Center (ASW). In 2005, the United 

States acquired the property by eminent domain through a condemnation suit filed in the 

district court. The San Diego Unified Port District (a state agency) initially claimed its interest 

was worth in excess of $50 million. After an April 2010 trial, the jury set just compensation at 

$2,910,000. On appeal, the California State Lands Commission asserted that the U.S. government’s title in the property was limited because the Equal Footing and Public Trust Doctrines 

prohibit the United States from exercising its power of eminent domain to extinguish Califor96 | promoting national security and military preparedness
 
nia’s “public trust” rights in the ASW property. It claimed that its “public trust” rights become 

“quiescent” during the United States’ ownership and would “re-emerge” if the land is later sold 

to a private party. The Ninth Circuit rejected the commission’s arguments that the United 

States’ taking of the property does not extinguish public trust rights, holding that the United 

States established new title in the property through its use of eminent domain and that the 

federal government took its interest unencumbered and free of California’s public trust. 

— A similar appellate victory was achieved in United States v. 

300 Units of Rentable Housing, located on approximately 57.81 

acres of Eielson Air Force Base, Fairbanks, Alaska, and Polar 

Star Alaska Housing Corp. We filed this condemnation action 

to confirm the government’s continuing right to use and occupy 

300 units of military housing built by a private company on 

land leased from the U.S. Air Force at Eielson Air Force Base in 

Alaska. The private company claimed it was entitled to over $26 

million in damages. The district court ruled against the claim 

in 2008, holding that no compensation was owed by the United 

States. In February 2012, the Ninth Circuit affirmed the district 

court on all points. 

— The Division initiated United States v. 2.52 Acres More of Less, Situate in San Bernardino 

County, California and United States v. 10.00 Acres of Land More or Less, Situate in San 

Bernardino County, California at the Army’s request to allow expansion of the National 

Training Center at Fort Irwin, California. These cases are the first of over a dozen acquisitions 

for this project. Each month, the National Training Center provides 4,000-5,000 troops with 

essential training opportunities, including the force-on-force and live-fire training of heavy-brigade-sized military forces necessary to maintain and improve military readiness and promote 

national security. 

— We also initiated United States v. 55.12 Acres in Evergreen, Conecuh County, Alabama; 

United States v. 41.32 Acres in Evergreen, Conecuh County, Alabama; and United States v. 

0.13 Acres in Evergreen, Conecuh County, Alabama at the Navy’s request to enable runway 

extension clear zones at Outlying Landing Field Evergreen for Naval Air Station Whiting Field in 

Milton, Florida. These cases are part of a nationwide effort to consolidate outer-landing fields 

and address light and development encroachment upon these important training facilities for 

pilots. 

— The Department of Homeland Security requested review of title to seven parcels of land 

in Anniston, Alabama, purchased at a cost of 

$3,500,000 for the Federal Emergency Management 

Agency’s Center for Domestic Preparedness. The 

center provides all-hazards training to state, local, 

and tribal responders on chemical, biological, radioThe Center for Domestic Preparedness, which is located

in Anniston, Alabama, specializes in providing advanced

hands-on, all-hazards training for America’s state, local,

and tribal emergency responders in their mission to

prevent, deter, respond to, and recover from terrorist

acts and other catastrophic events. 

DHS Photo 

Eielson Air Force Base, Fairbanks, 

Alaska 

U.S. Navy Photo 

promoting national security and military preparedness | 97
 
logical, nuclear, and explosive weapons in its capacity as the only federally chartered weaponsof-mass-destruction training center. 

— The Division reviewed title for 0.1368 acres of land located on the 2600 block of Barry Road, 

S.E., in Washington, D.C. The General Services Administration will use this land in creating an 

access road to the Department of Homeland Security complex. 

— We reviewed and approved title for U.S. Air 

Force acquisition of a conservation easement to 

limit development of over 51.894 acres of land 

for the benefit of the nearby Warren Grove Air 

National Guard Base in Burlington County, New 

Jersey. 

Warren Grove Range, New Jersey 

DOD Map 

98 | promoting national security and military preparedness
 
PROTECTING TRIBAL RIGHTS 


AND RESOURCES AND 


ADDRESSING TRIBAL CLAIMS
 

In fiscal year 2012, the Division handled a robust and diverse array of matters affecting Indian 

tribes and their members. This includes litigation to protect and defend tribal resources and 

rights; policy and litigation work to help ensure that communities in Indian Country—like all 

communities across the country—receive the protections of the natural resources and environmental laws; and the respectful and responsible defense of lawsuits brought by tribes against 

the federal government. The United States has a government-to-government relationship 

with tribes, and we seek to work collaboratively with tribes in carrying out this work wherever 

possible. 

Working Closely with Tribal Leaders and Communities 

In the past year, ENRD senior management met with tribal leaders, visited tribal lands, and saw 

first-hand their unique environmental and natural resources challenges. For example: 

— On December 2, 2011, Assistant Attorney General Ignacia Moreno and Deputy Assistant 

Attorney General Ethan Shenkman participated in the annual White House Tribal Nations 

Conference. Ms. Moreno represented the Department at a breakout session focused on 

natural and cultural resources, and Mr. Shenkman attended a session focused on the government-to-government relationship. ENRD staff also participated in region-focused tribal 

meetings held in conjunction with the White House Tribal Nations Conference. 

— On February 2, 2012, Deputy Assistant Attorney General Shenkman spoke at the Second 

Annual Oil & Gas Summit hosted by the Mandan, Hidatsa, and Arikara Nation on the Fort 

Berthold Reservation in North Dakota. 

— In September 2012, Deputy Assistant Attorney General Shenkman and other Division representatives joined United States Attorney Tim Purdon and other United States Attorneys in a 

meeting with North Dakota Indian tribes. 

— Deputy Assistant Attorney General Shenkman addressed ENRD’s Indian Country priorities 

in a speech at the University of Colorado Law School’s American Indian Law Program in 

September 2012. 

protecting tribal resources | 99
 
— The Division has long supported the treaty fishing rights of tribes in the Pacific Northwest. 

Healthy, productive fish habitat is necessary to ensuring that the treaty rights of taking fish 

are meaningful and not merely a paper right to dip nets into water and bring them out empty. 

In September 2012, Deputy Assistant Attorney General Shenkman and other Division representatives travelled to Seattle for a listening session and discussion with representatives 

from the Northwest Indian Fisheries Commission and leaders from most of the 20 western 

Washington tribes who have asserted that various federal agency activities in the Puget Sound 

and Washington coast region 

negatively impact salmon and 

salmon habitat. 

— In November 2012, 

Assistant Attorney General 

Moreno and Division staff 

took part in listening sessions 

hosted by the United States 

Attorney’s Office for the 

Eastern District of Wisconsin, 

in which they visited with a 

wide array of tribal officials 

on the reservations of the 

Oneida Nation of Wisconsin 

and the Menominee Indian 

Tribe of Wisconsin. 

— ENRD offi cials also 

addressed important Indian 

law subjects at the Federal 

Bar Association’s National 

Indian Law Conferences in Washington, D.C., in November 2011 and in Albuquerque, New 

Mexico, in April 2012; and addressed the National Congress of American Indians at its Mid-Year 

Conference in Lincoln, Nebraska, in June 2012, as well as its Annual Convention in Portland, 

Oregon, in October 2011. 

Preserving the Culture and Religion of 

Federally Recognized Indian Tribes 

On October 12, 2012, Attorney General Holder issued a new Department policy addressing the 

ability of members of federally recognized Indian tribes to use the feathers and other parts of 

eagles and other federally protected birds, an issue of great cultural and religious significance 

to many tribes and their members. ENRD led the initiative to develop the policy, working 

closely with the U.S. Attorneys’ Offices, FWS, and the Indian Affairs and Solicitor’s Offices of the 

Department of the Interior. The policy was developed after an extensive series of consultations 

with tribal leaders and organizations, involving multiple requests for tribal input and meetings 

with tribal representatives in Indian Country. The Division’s efforts to engage with tribal leaders 

and obtain tribal input on this issue included an in-person consultation with tribal leaders at 

the Midwest Alliance of Sovereign Tribes, several national telephonic consultation sessions, as 

Sign Welcoming ENRD to the Listening Session in Wisconsin 

100 | protecting tribal resources
 
Example of Headdress Made from Eagle and Other Feathers 

DOI Photo 

EAGLE FEATHERS POLICY
 

“This policy will help ensure a 

consistent and uniform approach 

across the nation to protecting 

and preserving eagles, and to honoring 

their cultural and spiritual signifi cance 

to American Indians. The Department of 

Justice is committed to striking the right 

balance in enforcing our nation’s wildlife 

laws by respecting the cultural and religious 

practices of federally recognized Indian tribes 

with whom the United States shares a unique 

government-to-government relationship.” 

— Attorney General Eric Holder 

October 12, 2012 Announcement of 

the Policy on Tribal Member Use of 

Eagle Feathers 

Bald Eagle (top)
 

DOI Photo
 

Golden Eagle (below)
 

DOI Photo by David Restivo
 

“From time 

immemorial, many 

Native Americans 

have viewed eagle feathers 

and other bird parts as sacred 

elements of their religious 

and cultural traditions. The 

Department of Justice has 

taken a major step forward 

by establishing a consistent 

and transparent policy to 

guide federal enforcement of 

the nation’s wildlife laws in a 

manner that respects the cultural and religious practices 

of federally recognized Indian tribes and their members.” 

— Assistant Attorney General Ignacia S. Moreno 

October 12, 2012 Announcement of the Policy on 

Tribal Member Use of Eagle Feathers 

Bald Eagle DOI Photo 

Bald Eagle (top) DOI Photo 

protecting tribal resources | 101
 
well as in-person discussions at the Mid-Year Conference of the National Congress of American 

Indians, the Native American Fish and Wildlife Society’s Southwest Regional Conference, and 

other tribal listening sessions. 

The policy clarifies and expands longstanding Department practice, consistent with the policy 

and practice of the Department of the Interior, of not prosecuting tribal members for possessing 

or using eagle feathers or the feathers or other parts of any federally protected birds while 

continuing to prosecute tribal members and nonmembers alike for killing protected birds or 

buying or selling their feathers or other parts. 

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

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

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

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

populations remain healthy and sustainable. At the same time, eagles and other federally 

protected birds play a unique and important role in the religious and cultural life of many Indian 

tribes. Many Indian tribes and tribal members have historically used, and today continue to 

use, federally protected birds, bird feathers, or other bird parts for tribal cultural and religious 

practices. 

The policy helps to address the concerns of tribal members who are unsure of how they may 

be affected by federal wildlife law enforcement efforts. This uncertainty may hinder or inhibit 

tribal religious and cultural practices. The policy balances accommodation of the cultural and 

religious needs of federally recognized tribes that regard the eagle or other birds as sacred with 

the need to protect at-risk bird populations. 

Defending the Tribal Recognition Process 

The Department of the Interior has established an administrative process for acknowledging 

groups as federally recognized tribes. Recognition acknowledges an Indian community’s 

continuous existence, establishes a formal government-to-government relationship between the 

United States and a tribe, and recognizes the tribe’s sovereignty over its members and internal 

disputes. We represent Interior in cases challenging its recognition determinations. 

The integrity of this process was successfully defended in Sandy Lake Band of Mississippi 

Chippewa v. Salazar and David Laughing Horse Robinson v. Salazar. In Sandy Lake, 

individuals sought to be recognized as a separate tribe, although they were incorporated into 

another federally recognized tribe. The court dismissed the case because, among other reasons, 

the purported tribe did not attempt to establish the regulatory criteria for recognition under the 

acknowledgment process established by the regulations. In David Laughing Horse Robinson 

v. Salazar, a non-federally recognized Indian group and its purported chairman sought federal 

recognition based upon a nineteenth-century treaty. In dismissing the plaintiffs’ third amended 

complaint, the court held that the claimed historical recognition of the group in a treaty, even if 

true, did not excuse the group from exhausting administrative remedies contained in the federal 

acknowledgment regulations, and, absent exhaustion, a judicial determination of the group’s 

tribal status would violate Separation of Powers under the U.S. Constitution. The court deferred 

to the expertise of BIA in determining whether a group is the historical tribe and whether it 

satisfies the criteria for tribal status. 

102 | protecting tribal resources
 
We prevailed in Muwekma v. Salazar, a case in which a group of Native Americans sought 

review of the Department of the Interior’s final determination that the Muwekma Ohlone Tribe 

was not acknowledged to be a federally recognized tribe. In 2006, the district court remanded 

the case to the Department of the Interior to explain why it had recognized two other California 

tribes without requiring them to file a petition under the acknowledgment regulations. The 

Department of the Interior concluded on remand that the other tribes were not similarly 

situated, and this decision was upheld by the district court, which found that Interior had 

carefully applied the acknowledgment criteria and logically explained its reasoning with respect 

to the various evidence presented by the Muwekma as part of its recognition application. 

Supporting Tribal Authority Over Tribal Lands and Resources 

In fiscal year 2012, the Division continued to address questions related to reservation 

boundaries, the status of tribal land, and tribal governmental authority over that land. For 

example: 

— In a case of first impression, ENRD secured dismissal of a case that raised the issue of the 

applicability of local stormwater management fees to Indian trust lands. The Oneida Nation of 

Wisconsin sued the Village of Hobart, Wisconsin, seeking to prevent the village from assessing 

a stormwater fee on tribal trust land on which the Oneida Tribe maintains its own stormwater 

system. The village filed a third-party complaint against the United States, alleging that the 

United States is liable for the fee. The district court agreed with the U.S. position that section 

313 of the CWA, which waives the sovereign immunity of the United States respecting the 

control and abatement of water pollution under the CWA, does not apply to Indian trust lands, 

and dismissed the case. 

— The Division filed, for the first time, an amicus brief in a tribal court. The brief, fi led in 

Village of Pender v. Parker, supported the Omaha Tribe’s argument that an act of Congress did 

not alter or diminish the tribe’s reservation boundary. The Division’s brief was based on the 

position articulated in an opinion of the Solicitor’s Office of the Department of the Interior. 

— For almost 60 years, the Department of the Interior has actively promoted tribe-specific 

employment preferences in leases relating to a particular tribe’s trust resources. In 1988, the 

Equal Employment Opportunity Commission (EEOC) took the position that Title VII of the 

Civil Rights Act—which prohibits national origin discrimination—prohibited such tribe-specific preferences by private employers. The Department of the Interior, in contrast, takes the 

position that such preferences, when they involve resources held in trust for the tribe, are based 

on political (tribal) sovereignty, rather than national origin. This distinction is significant 

because if the classification is political rather than based on national origin, it falls beyond the 

scope of Title VII. In EEOC v. Peabody Western Coal, the Secretary of the Interior was pled into 

an EEOC enforcement action in the district court in Arizona due to Interior’s role in approving 

the mineral leases in question. As a result, ENRD, on behalf of Interior, asserted the validity of 

the tribal employment preference provisions in a series of leases involving Navajo Nation lands. 

ENRD prevailed in the district court. 

protecting tribal resources | 103
 
104 | protecting tribal resources
 

“By signing this agreement today, the 

Obama administration is taking 

another step toward honoring the 

U.S.’s promises to Indian nations and helping 

communities gain access to clean, safe water 

supplies. This settlement honorably closes a 

long chapter of litigation and will bring real 

benefits to the Navajo people and surrounding 

communities.” 

— Interior Secretary Ken Salazar 

On His December 17, 2010 Signature of 

the Navajo-San Juan River Basin Water 

Rights Agreement 

USDA Map 

Defending Tribal and 

Federal Interests in Water 

Adjudications 

The Division continues to assert water 

rights claims for the benefit of federally 

recognized Indian tribes and their 

members in some 29 complex water rights 

adjudications in nearly every western 

state in the United States. Settlements 

are often the preferred way to resolve 

these complex matters. Division attorneys 

are actively involved in negotiating final 

agreements and seeking court approval 

under six landmark tribal water rights 

statutes enacted by Congress over the past 

four years (Taos Pueblo, 

Aamodt, Navajo-San Juan 

River Basin, Crow Tribe, 

White Mountain Apache 

Tribe, and Duck Valley). 

These settlements, once 

approved and implemented, 

will resolve complex and 

contentious Indian water 

rights issues in four western 

states. With regard to the 

Crow Tribe Water Right 

Settlement in Montana and 

the Navajo-San Juan River 

Basin in New Mexico, the 

United States has signed 

the settlement agreement 

and Division attorneys 

have joined the tribe and 

the state in seeking the 

approval of the adjudicating 

court. Division attorneys 

are in the final stages of 

negotiating settlement 

agreements for the others. 

Each settlement is uniquely 

adapted to the needs of 

the tribes and non-Indians 

involved in the particular 

river basins, but they all 

resolve complex water 

rights controversies that 
One View of the Klamath Basin 

FWS Photo 

have existed for decades and ensure that the tribes have access to water on their reservations. 

These settlements provide certainty as to the nature and extent of tribal water rights, and 

thereby promote economic development both on-reservation and in the adjacent, often rural, 

communities. 

Settlements are not possible in every case. In those 

situations, resolution of these complex water issues 

falls to the adjudicating court or administrative 

agency. The Division in the past year successfully 

defended claims for the benefit of the Klamath 

Tribes in the Klamath 

Basin Adjudication in 

Oregon. The Oregon T

he Klamath Tribes: administrative law 

judge affi rmed sufficient the Klamaths, water rights to support the Modocs, and productive habitat for the Yahooskin. fish, wildlife, and edible 

plants on the Klamath See http://www.klamathtribes.org. Reservation in southern 

Oregon. 

Upholding Agency Authority to Acquire Land in Trust for Tribes 

The Division continued to successfully defend the Department of the Interior’s authority to take 

land into trust for tribes. The authority to acquire land for tribes is important to furthering 

tribal self-government and self-sufficiency. The following cases are examples of this important 

work: 

— We successfully defended appeals involving the acquisition in trust of land for the Sisseton 

and Yankton Sioux Tribes. The Eighth Circuit affirmed the district court decisions, rejecting 

claims that BIA has a structural bias and refusing to entertain challenges to the constitutional 

authority of the Secretary of the Interior to take land into trust. 

— In a case involving the Karuk Tribe, the Division defended on appeal a district court opinion 

interpreting an important aspect of the agency’s trust acquisition policy deferentially. The 

court found that the Department of the Interior had properly determined that there was a need 

for land to be taken into trust and rejected claims that the agency had improperly applied its 

regulations. 

— In Redding Rancheria v. Salazar, the Division successfully defended the Department of the 

Interior’s regulations implementing authority to take land into trust that is intended to be used 

for Indian gaming. The Indian Gaming Regulatory Act (IGRA) bars gaming on land acquired 

after 1988 with certain exceptions, including an exemption for tribes that were restored to 

federal recognition. The Department of the Interior rejected Redding Rancheria’s claim that 

230 acres of newly acquired lands qualified for the exception. The tribe filed suit challenging 

regulations interpreting the IGRA. The court held that Interior had the authority to promulgate 

the regulations and had interpreted the IGRA’s ambiguous “restored lands” exception in a 

permissible manner, consistent with the intent of Congress. 

protecting tribal resources | 105
 
 

Addressing the U.S. Supreme Court’s Carcieri Decision 

In 2009, in Carcieri v. Salazar, the Supreme Court limited the Department of the Interior’s 

trust land acquisition authority to those tribes that were “under federal jurisdiction” when the 

Indian Reorganization Act was enacted in 1934. The decision created uncertainty regarding 

Interior’s trust acquisition authority, resulting in a backlog of trust applications. The Division 

worked closely with Interior to develop a framework for interpreting “under federal jurisdiction” in trust land acquisition cases. During fiscal year 2012, we continued to assist Interior in 

removing the backlog and defended agency determinations 

under the framework. For example, the Division is actively 

defending Interior’s decision to take approximately 152 acres 

of land into trust for the benefit of the Cowlitz Tribe. 

Empowering and Partnering with Tribes to 

Address Environmental Issues 

Aff ecting Tribes 

Through strong enforcement of environmental laws, we 

ensure that all Americans—including Native Americans—have 

the benefit of a safe and healthy environment. To facilitate 

enforcement in Indian Country, on October 16-18, 2012, the Department conducted its first-ever 

joint federal-tribal training course on wildlife and pollution enforcement issues. 

The course was sponsored by the Department’s National Indian Country Training Initiative and 

held at the National Advocacy Center. Working with other parts of the Department, EPA, and 

the Department of the Interior, ENRD developed this training over the past year in response 

to tribal requests for additional training for both federal and tribal officials who are involved in 

enforcing the wildlife and pollution laws that protect tribal lands and resources. 

The course was designed for tribal and federal law enforcement officers and prosecutors, as 

well as other tribal and federal officials who work to protect tribal lands and resources. The 

training brought together 120 federal and tribal officials as students and faculty. More than 

Participants in the October 16-18, 2012 

Joint Federal-Tribal Training on Wildlife 

and Pollution Enforcement 

“This settlement will result in cleaner 

air for residents living on the Uintah 

and Ouray Reservation and allow the 

responsible development of energy resources 

in accordance with the Clean Air Act. It also will 

establish the Tribal Clean Air Trust Fund to fund 

environmental projects for the benefit of tribal 

members.” 

— Ignacia S. Moreno 

United States v. Questar Gas Mgmt. Co. Press 

Release 

60 different tribes signed up to participate 

as students and faculty. The course was 

designed to promote federal-tribal partnerships in this area and to help tribes develop 

the capacity to assume a greater role in 

enforcement of laws affecting tribal lands, 

consistent with the Department’s focus on 

strengthening tribal self-governance. Topics 

included civil and criminal jurisdiction in 

Indian country, federal environmental and 

natural resources statutes, investigative and 

courtroom techniques, development of tribal 

wildlife codes, and models for federal-tribal 

cooperation in law enforcement. 

106 | protecting tribal resources
 
In fiscal year 2012, ENRD also handled various environmental cases for the benefit of Indian 

tribes. For example: 

— Under the consent decree entered in United States v. Questar Gas Mgmt. Co., Questar paid a 

$3.6 million penalty under the CAA to resolve violations at five natural gas compressor stations 

on the Uintah and Ouray Reservation in Utah. Questar also paid $350,000 into a Tribal Clean 

Air Trust Fund to be established by tribal member intervenors. The consent decree requires 

Questar to reduce its emissions by removing certain equipment, installing additional pollution 

controls, and replacing its natural gas powered instrument control systems with compressed air 

control systems. The actions required in the settlement will eliminate approximately 210 tons of 

NOx, 219 tons of carbon monoxide, 17 tons of hazardous air pollutants, and more than 166 tons 

of VOCs per year. It also will conserve 3.5 million cubic feet of gas each year, which could heat 

approximately 50 U.S. households. The reduction in methane emissions (a greenhouse gas that 

is a component of natural gas) is equivalent to planting more than 300 acres of trees. 

— The Division successfully defended the Indian Health Service’s efforts to supply modern sewer 

and water supply systems for housing on the Santa Ysabel Reservation in San Diego County. In 

Mesa Grande Band of Mission Indians v. IHS, a nearby tribe sought to enjoin the installation 

and connection of sanitary facilities for homes on land that has been subject to a land dispute 

by the tribes. At the time the case was filed, occupants of the homes needing service purchased 

water from a communal water tank and hauled it daily to their homes. ENRD argued against an 

expedited motion for injunctive relief in the case, which the court denied. On the strength of the 

arguments presented, the nearby tribe voluntarily dismissed its complaint. 

Defending Against Tribal and Individual Indian Breach-of-Trust Claims 

Since 2002, numerous federally recognized tribes and certain Indian groups have brought suit 

against the United States alleging that the United States—in particular, the Departments of the 

Interior and Treasury—violated the federal government’s trust duties and responsibilities to the 

tribes by failing to provide “full and complete” historical trust accountings and failing to manage 

the tribes’ trust funds and non-monetary trust assets or resources in an adequate manner. The 

tribes requested declaratory and injunctive relief and compensatory damages. By 2009, the 

United States was defending approximately 97 breach-of-trust lawsuits brought by 114 Indian 

tribes in federal district courts in the District of Columbia and Oklahoma and in the Court of 

Federal Claims. 

In September 2009, counsel for 96 of the litigating tribes sent a letter to President Obama 

asking the administration to engage in expedited settlement discussions with their clients. 

Thereafter, federal government representatives undertook a two-year process of negotiating 

with tribal representatives and consultants. As part of this process to address the Settlement 

Proposal to the Obama Administration (SPOA), the federal government produced relevant 

information about certain tribal trust fund accounts and transactions to tribal representatives. The federal government also carefully developed certain trust data-driven methodologies 

for evaluating reasonable potential settlement values of the tribes’ trust accounting and trust 

mismanagement claims, which enabled the federal government to make fair and reasonable 

settlement offers to each tribe. In addition to the SPOA process, the Departments of Justice, the 

Interior, and the Treasury have been engaging in similar settlement processes involving other 

litigating tribes. 

protecting tribal resources | 107
 
 

As a result of the SPOA process negotiations, on April 11, 2012, the United States announced 

that it had executed individual settlement agreements with 41 tribes. Between April and 

September 2012, the government executed settlement agreements with 15 other tribes. Through 

these processes, the United States reached settlements with 56 tribes, 45 of which were involved 

in the SPOA process. The federal government is continuing its efforts to resolve the trust 

accounting and trust management claims of the remaining tribes in a manner that is fair and 

reasonable to the tribes and the United States. 

Under the settlement agreements, litigation brought by the settling tribes regarding the 

Department of the Interior’s accounting and management of the tribes’ trust accounts, trust 

lands, and other natural resources has ended. With monies from the Judgment Fund, which is 

used to pay settlements or final judgments against the federal government, the United States is 

compensating the tribes for their breach-of-trust claims, and the tribes have agreed to waive, 

release, and dismiss their claims with prejudice. Also, the tribes and the Department of the 

Interior have agreed to ongoing information-sharing procedures that will lead to strengthened 

management of the tribes’ trust funds and non-monetary assets, through improved communications between tribes and the Department of the Interior. Further, the settlement agreements 

contained certain dispute resolution provisions to reduce the likelihood of future litigation. 

“These settlements fairly and 

honorably resolve historical 

grievances over the accounting and 

management of tribal trust funds, trust lands 

and other non-monetary trust resources that, 

for far too long, have been a source of confl ict 

between Indian tribes and the United States. 

Our commitment to tribes is the cornerstone 

of the Department of Justice’s policies 

and initiatives in Indian Country, 

and these settlements will enable 

the tribal community to pursue the 

goals and objectives they deem to be 

appropriate while marking another 

step in our shared future built upon 

mutual respect and strong bonds of 

trust between tribal governments and 

the United States.” 

— Attorney General Eric Holder 

April 11, 2012 Announcement 

of Settlement of Tribal Trust 

Lawsuits 

The SPOA process serves as a sound model for 

resolving pending or future tribal trust cases in 

a fair, reasonable, and expedited manner. This 

process also protects the public fisc by avoiding 

protracted and costly litigation. In addition to 

the SPOA process, the United States has used 

several different alternative dispute resolution 

(ADR) processes to achieve settlements of tribal 

trust accounting and trust mismanagement 

April 11, 2012 Announcement of Settlement of Tribal Trust Lawsuits 

DOJ Photo by Lonnie Tague 

108 | protecting tribal resources
 
claims since the filing of the first tribal trust cases in 2002. Between 2002 and September 2012, 

the government has resolved the claims of 64 tribes, using various different ADR methods. 

Limiting Duplicative Breach-of-Trust Claims Against the United States 

Many Indian tribes brought claims against the United States for breach of trust and mismanagement of trust funds and non-monetary trust assets in federal district court and the U.S. Court 

of Federal Claims simultaneously. A statute enacted by Congress in the 1860s, now codified 

at 28 U.S.C. section 1500, prohibits the filing of such multiple lawsuits against the federal 

government, by providing that the Court of Federal Claims lacks jurisdiction to adjudicate a 

lawsuit in that court if another lawsuit was pending in federal district court based on the same 

operative facts. In 2011, the Supreme Court reaffirmed this prohibition in United States v. 

Tohono O’odham Nation. In fiscal year 2012, the Division prevailed in its motions to dismiss 

five tribal trust cases filed in the Court of Federal Claims for lack of subject-matter jurisdiction 

under section 1500. 

We also secured dismissal in Blackfeet Housing Authority v. United States, a $30 million suit 

for breach of trust for the failure to provide safe and proper housing on a reservation under 

the Native American Housing Assistance and Self-Determination Act. The court held that the 

statute of limitations barred the action for breach of trust and, in any event, plaintiff failed to 

state a viable breach-of-trust claim. With regard to statute of limitations, the court held that 

actual knowledge is not required; rather, plaintiff is on notice of the material facts underlying 

the claim that are not inherently unknowable. In rejecting the breach-of-trust claim, the court 

ruled that the Blackfeet Housing Authority could not rely on general principles of trust law to 

state a claim for a breach of trust. The court held that control and involvement alone in the 

oversight of the provision of housing grants and assistance in the absence of the violation of 

statutory duties is insufficient to imply a damages remedy under the Tucker Act. 

Defending Against Other Miscellaneous Tribal Claims 

The Division also prevailed against tribal claims in cases that set important precedents for 

determining when it is appropriate to hold the United States liable. These cases involved multimillion-dollar claims against the public fisc. In Samish Indian Nation v. United States, the tribe 

contended that although it secured federal recognition as an Indian tribe in 1996, it should have 

been recognized since 1969. The tribe brought claims for federal program monies that the tribe 

would have received if it had been recognized. We prevailed both at the Court of Federal Claims 

and at the Federal Circuit, with the courts holding that that statutory language of the federal 

programs could not be fairly interpreted to create a damage remedy. The Federal Circuit, 

however, sustained the Court of Federal Claim’s holding that the tribe was entitled to monies it 

would have received had it been federally recognized under the Revenue Sharing Act. In fiscal 

year 2012, we successfully petitioned the Supreme Court for a writ of certiorari and received 

a summary grant of certiorari, a vacated judgment of the Revenue Sharing Act claim, and a 

remand directing dismissal. 

protecting tribal resources | 109
 
Attorney General Eric Holder acknowledges the exceptional work of the joint EPA-ENRD 

Greenhouse Gas Team at a small gathering preceeding the 2012 Employee Award 

Ceremony. 

Attorney General Eric Holder, Acting Associate Attorney General Tony West, and 

Assistant Attorney General Ignacia S. Moreno recognize ENRD’s Environmental Justice 

Team at the 2012 Employee Award Ceremony. 

110 | supporting the division’s staff
 
SUPPORTING THE 


DIVISION’S STAFF
 

Promoting Diversity at Work
 

ENRD takes seriously its 

commitments to refl ect the 

people it serves by drawing its 

workforce from all segments 

of society and to promote a 

culture of diversity and inclusion 

throughout the Division. During 

fiscal year 2012, the Division 

took a number of important 

steps in this area: 

— We formally adopted a Diversity Committee Charter to provide a permanent governance 

structure for this work and to define the committee’s responsibilities, authorities, and functions. 

The charter was designed to ensure that the Division will be able to comply with all Offi ce of 

Personnel Management and Departmental requirements and guidance. 

— A primary focus this year has been to update Division outreach materials. A team from the 

Diversity Committee rewrote the materials to include more information about the Division’s 

work, particularly about more recent casework and cross-cutting initiatives such as environmental justice. These materials are expected to have greater visual appeal to all applicants 

as well as more relevance for applicants interested in environmental law and public service 

positions. 

— We have strengthened ENRD hiring practices for all positions in three ways. First, the 

Diversity Committee worked with the Department’s Office of Attorney Recruitment and 

Management to develop resume review seminars for career managers and hiring officials. The 

seminars were designed to capture common parameters used in attorney hiring. We hosted 

three this year and hope to host more in the future. Second, we developed a strategy for 

diversifying applicant pools. Third, in the area of strengthening hiring practices, the Division 

established a process for reviewing workforce data. 

supporting the division’s staff | 111
 
— The Division has instituted procedures to improve the transparency of the hiring process 

for promotional opportunities within the Division. We also are analyzing ways to restructure 

management positions to provide additional promotional opportunities while also improving 

the efficiency of Division operations. 

— Law clerk hiring also has been a primary focus of the Diversity Committee this year. Despite 

curtailment of the Division’s travel budget, we have continued outreach efforts to attract law 

students to ENRD. We have continued to send ENRD ambassadors to career fairs that are 

local to D.C. and the ENRD fi eld offices, and we have been fortunate to partner within the 

Department to send Division outreach materials to other career fairs. Several ENRD attorneys 

also participated in the new DOJ Ambassadors Program that began this year. Additionally, 

despite the Department’s hiring freeze, the Department—and by extension, the Division— 

continues to “hire” a large number of unpaid law clerks, many of whom go on later to apply 

to the Attorney General’s Honors Program. A subcommittee of ENRD’s Diversity Committee 

has begun studying our law clerk program to identify best practices within the Division and 

highlight ways to strengthen the program for the Division. 

— We also required the Division management team, hiring officials, and Diversity Committee 

to participate in two seminars of the Attorney General’s Diversity Symposium (November 2011 

and June 2012); all other interested employees have been encouraged, but not required, to 

participate. 

— To better inform all ENRD employees of the diversity and inclusion information, activities, 

and resources available within the Division, we established an Intranet site in June 2012 which 

includes a message from the Assistant Attorney General, learning resources, news and events, 

ENRD’s Diversity Plan, and links to resources referenced in the training seminars and to 

additional information on related topics. 

ENRD recognizes that a more inclusive federal government is a more effective federal government and 

that all federal employees are entitled to perform their jobs free from discrimination, whether that 

discrimination is based on national origin, language, race, color, disability, ethnicity, gender, age, religion, 

sexual orientation, gender identity, socioeconomic status, veteran status, or family structures. As such, 

ENRD strives to reflect the people it serves by drawing its workforce from all segments of society and 

promotes an atmosphere of fairness and collaboration among its employees. 

— From Department and ENRD Policy Statements on Workforce Diversity 

Recognition of Division Staff 

This year, client agencies recognized the efforts of Division staff in many ways. Of particular 

note, on September 12, 2012, U.S. Forest Service Chief Tom Tidwell presented the Division’s 

Land Acquisition Section with the U.S. Forest Service Lands and Realty Meritorious Service 

Award. This award—the Forest Service’s highest—had never previously been given to a person 

or entity outside the U.S. Department of Agriculture. Since 1970, the Land Acquisition Section 

has condemned lands for addition to over 60 different parts of the National Forest System 

112 | supporting the division’s staff
 
in at least 25 states and 

territories. The Land 

Acquisition Section also 

has provided title review 

and valuation advice 

for tens of thousands of 

acres of land purchased 

by the Forest Service. 

Additionally, the U.S. 

Army Corps of Engineers 

presented its 2012 Chief 

Counsel’s Excellence in 

Client Care Award to the 

team of litigators from the 

Environmental Defense, 

Natural Resources, and Appellate Sections, as well as the Solicitor General’s Office, for their 

handling of extremely fast moving litigation in the district court, the Eighth Circuit, and the U.S. 

Supreme Court challenging the Corps’ operation of the Bird’s Point—New Madrid Floodway 

during the historic flooding along the Mississippi River in the spring of 2011. ENRD staff also 

received awards from other agencies, including Environmental Defense Section attorneys from 

EPA for their work on several pieces of CAA litigation; Environmental Enforcement Section 

attorneys from EPA for their work to ensure the integrity of municipal wastewater treatment 

systems, to enhance air quality in areas impacted by oil and gas development, and on Superfund 

matters; Natural Resources Section attorneys from the Corps for the handling of litigation in the 

Court of Federal Claims and from APHIS for defending its biotechnology program; and crossDivision teams from USDA for assistance in the development of the Forest Planning Rule and 

from NOAA for defense of the Pacifi c groundfish trawl rationalization program. 

Providing High-Quality and Cost-Effective Automated Services 

In fiscal year 2012, the Division provided high-quality and cost-effective automated litigation 

support (ALS) and other automated services: 

— ENRD led a Department-wide review of litigation support spending that resulted in the 

consolidated purchase of web-hosting hardware and software for all Department litigating 

components. This initiative is estimated to save the Department over $16 million in 

web-hosting fees over the next three years. The Division also led an effort to issue a Department-wide contract for e-discovery software, which also is expected to result in cost savings for 

the Department based on consolidation of licensing and maintenance fees. As appropriate, the 

contract will allow for standardization of operating procedures and training, and we also expect 

to gain efficiencies from these added consistencies. 

— We combined contracted and in-house ALS services to support ENRD casework. In addition 

to providing contract support for the Deepwater Horizon explosion, fire, and oil spill case—one 

of the largest cases ever undertaken by the Department—the Division’s Office of Litigation 

Support also provided contract support to a number of large and complex cases and initiatives, 

including Fox River, Goodrich, Nu West, Portland Cement, Tribal Trust, Tronox, the Western 

Water Adjudications, and the Vessel Pollution, Power Plants, and Clean Air Initiatives. ALS 

services were provided in-house for more than 200 cases through the Division’s Computer Lab 

supporting the division’s staff | 113 

Department Recipients of the 2012 U.S. Army Corps of Engineers Chief Counsel’s 

Excellence in Client Care Award 
at a significant savings. Using our onsite capabilities, we are able to provide such services as 

document scanning, e-discovery processing, Bates numbering, optical character recognition, 

media duplication, and audio/video digitization. We also supplied secure online database 

hosting services to support 128 cases using state-of-the-art advanced analytics searching and 

collaboration with agency personnel and expert witnesses. 

— The Division provided automated support for several congressional oversight information 

requests. The requests required the processing of over 50 million records from several 

components of the Department. 

— ENRD developed a pilot program to apply ALS technologies to the Division’s Freedom of 

Information Act (FOIA) Program. Through the pilot program, we timely processed nearly 

24,000 pages of records that were potentially responsive to eight FOIA requests. 

Providing Innovative Technology for ENRD’s Workforce 

In fiscal year 2012, ENRD expanded its program for providing e-discovery client consultation 

and assistance to defensive collections involving electronically stored information, assisting 

ENRD attorneys and client agencies to manage their electronic discovery obligations. We 

continued to provide guidance and training to employees within the Division, as well as 

throughout the Department and in other federal agencies, on e-discovery best practices. We 

held regular brownbag lunches, monthly training series hosted by the litigating components, 

and distance learning seminars for both civil and criminal practices at the National Advocacy 

Center. 

To provide the latest automated litigation tools to Division managers and frequent travelers, 

ENRD piloted an iPad program this year. iPads have proven to be extremely valuable for certain 

classes of personnel, and furnishing specific staff with such a lightweight and portable device 

for managing emails and documents has provided increased functionality and efficiencies to a 

subset of ENRD’s workforce. Based on the success of the pilot program, the Division plans to 

expand the program. 

ENRD made several upgrades and changes to its Intranet site, ENRDNet, to assist with various 

areas of litigation practice and Division administration. Section sites were developed for two 

sections, with resources designed exclusively 

for their litigating practices. 

Greening the Division 

The Division held its 9th annual Earth Day 

service celebration at Marvin Gaye Park 

in April 2012. Enthusiastic participants 

planted trees, removed trash, gardened, and 

landscaped. 

Earth Day 2012 

Acting Associate Attorney General Tony West and 

Assistant Attorney General Ignacia S. Moreno cut the 

ribbon on a new shed at Marvin Gaye Park. 

114 | supporting the division’s staff
 
Supporting Records and Systems Management 

To store the growing number of important records in the form of email and attachments, the 

Division introduced a new email archiving system. For managing file records pertaining to 

physical, hard-copy litigation files, ENRD’s records management software, database, and server 

were migrated to a new application and a vendor-supported platform, replacing legacy software 

that was no longer supported. 

The Division updated a number of out-of-date systems this year. ENRD was the fi rst litigating 

Division in the Department to update its email system to MS Exchange 2010, establishing 

lessons-learned and prototypes for the remaining components to follow. We also developed 

new systems for internal personnel management and attorney timekeeping. We also migrated 

the Division’s electronic learning system from one Departmental platform to another to avoid 

duplication, began implementation of the mandated requirement to maintain fully electronic 

offi cial personnel files (eOPF), and configured the Division’s computer infrastructure to allow 

access via Personal Identity Verification cards in addition to user names and passwords. 

Promoting Division Security 

To ensure the safety of Division personnel, facilities, and IT systems, ENRD volunteered to 

participate in security compliance audits at facilities in Washington, D.C., and the Sacramento 

fi eld office. The Department’s Security and Emergency Planning Staff evaluated ENRD on 

physical security, document security, contractor security, IT security, emergency planning, and 

health and safety planning. Minimal security issues were identified at the audited sites, and we 

were able to quickly resolve each item. The Division as a whole benefited from the thorough 

review. The Division performed additional self audits in the Denver and San Francisco field 

offices to ensure that these sites also were in compliance. 

Saving Division Resources 

Implementation of several cost-saving measures yielded significant 

reductions in annual Division expenditures. Fiscal year 2012 was 

the first full year that the Division was able to realize cost savings 

from implementation of measures identified by the Division’s $AVE 

Committee, saving the Division an estimated $300,000. Consolidating Division records warehouse storage space into shared 

warehousing for the Department saved an additional $350,000. 

Renegotiating the Division’s IT Help Desk contract resulted in a cost 

savings of nearly $200,000. 

supporting the division’s staff | 115