UNITED STATES DEPARTMENT OF JUSTICE 

ENVIRONMENT AND NATURAL RESOURCES 

DIVISION 

SUMMARY OF LITIGATION ACCOMPLISHMENTS 

FISCAL YEAR 2008 
 CONTENTS 

FOREWORD i

PROTECTING OUR NATION'S AIR, LAND, AND WATER 1

ENSURING CLEANUP OF OIL AND HAZARDOUS WASTE 4

PROMOTING RESPONSIBLE STEWARDSHIP OF 7

AMERICA'S NATURAL RESOURCES AND WILDLIFE 

CRIMINALLY ENFORCING OUR NATION'S 10

POLLUTION AND WILDLIFE LAWS 

DEFENDING VITAL FEDERAL 15

PROGRAMS AND INTERESTS 

PROMOTING NATIONAL SECURITY 21

AND MILITARY PREPAREDNESS 

PROTECTING INDIAN RESOURCES 23

AND RESOLVING INDIAN ISSUES 

SUPPORTING THE DIVISION'S LITIGATORS 25

Cover Photo Green Turtle (Chelonia mydas) (Virgin Islands National Park, St. John, Virgin 

Islands) ©: By Permission of Caroline S. Rogers
 FOREWORD 

I am proud to present this summary of the Environment and Natural Resources Division's 

litigation accomplishments for Fiscal Year 2008. This has been an outstanding year, in keeping 

with the Division's exemplary record of safeguarding the country's environment and natural 

resources. The Division handles cases involving more than 150 different statutes. We have a 

docket of more than 7,500 active cases and matters at every level of the federal court system as 

well as state courts. The Division both brings affirmative civil and criminal enforcement actions 

and defends federal agencies when their actions or decisions are challenged on the basis of our 

environmental or public lands and resources laws. As in past years, the Division achieved 

significant victories for the American people in each of the many areas for which it has 

responsibility. These responsibilities include protecting the nation's air, water, land, wildlife and 

natural resources, upholding our trust responsibilities to American Indians, acquiring needed 

lands for federal agencies, and otherwise defending important federal programs. 

Turning to overall enforcement results, I am pleased to report that in Fiscal Year 2008 the 

Division secured nearly $115 million in civil penalties and $9.3 billion in corrective measures 

through court orders and settlements. In addition, the Division concluded 58 criminal cases 

against 108 defendants, obtaining 21 years and 3 months of jail time and nearly $52 million in 

fines. 

Fiscal Year 2008 also featured some "firsts" in the history of federal civil and criminal 

enforcement. 

—The Largest Ever Single Environmental Settlement. As I previewed in the foreword to 

last year's accomplishments report, the Division concluded the largest environmental settlement 

in history when the court this year entered the final consent decree in United States v. American 

Electric Power (AEP), resolving claims under the Clean Air Act's new source review/prevention 

of significant deterioration provisions. Under the decree’s terms, AEP will install and operate 

$4.7 billion worth of air pollution controls on 16 coal-fired power plants. When the consent 

decree is fully implemented, these air pollution controls and other measures will reduce air 

pollution by 813,000 tons a year compared with pre-settlement emissions, making this the largest 

reduction in air pollution achieved by any single settlement. AEP also paid a $15 million civil 

penalty and will spend $60 million on projects to mitigate the adverse effects of its past excess 

emissions. An unprecedented coalition of 8 states and 13 citizen groups joined the United States 

in the settlement. 

—The Highest Superfund Cost Recovery. In United States v. W.R. Grace & Co., the 

Division recovered $252.7 million, the highest sum in the history of the Superfund program, in 

reimbursement of the United States' costs in connection with the cleanup of asbestos 

contamination in Libby, Montana. 

i
—The Largest Civil Penalty for Clean Water Act Permit Violations. In United States v. 

Massey Energy Co., the Division obtained a civil penalty of $20,100,500, the largest civil penalty 

ever levied against a company for wastewater discharge permit violations. Massey, the fourth 

largest coal company in the United States, also agreed to take additional measures at its facilities 

nationwide to prevent an estimated 380 million pounds of sediment and other pollutants from 

entering the nation's waters each year. These compliance measures are unprecedented in the coal 

mining industry. 

The Division also pressed forward this year with key environmental litigation initiatives: 

Power Plant Enforcement. The Division has successfully litigated a number of significant Clean 

Air Act claims against operators of coal-fired electric power generating plants. The violations at 

issue arose from companies engaging in major life extension projects on their aging facilities 

without installing required pollution controls. To date, 15 of these matters have settled on terms 

that will result in reductions of nearly 2 million tons of SO2 and NOx each year once the $11 

billion in required pollution controls are fully functioning. 

Vessel Pollution Prosecutions. The Division, in partnership with U.S. Attorney’s Offices across 

the country, continued its great success in the Vessel Pollution Initiative, a concentrated effort to 

prosecute those who illegally discharge pollutants from ships into oceans, coastal waters, and 

inland waterways or those who falsely document their activities. Over the past 10 years, the 

criminal penalties imposed in vessel pollution cases have totaled more than $200 million and 

responsible shipboard officers and shore-side officials have been sentenced to more than 17 years 

of incarceration. The initiative has resulted in a number of important criminal prosecutions of 

key segments of the commercial maritime industry, including cruise ships, container ships, tank 

vessels, and bulk cargo vessels. This year, the Division's appeal of United States v. Jho obtained 

the first appellate ruling on the scope of federal jurisdiction to prosecute log book offenses such 

as these and the meaning of the duty to maintain log books. 

Addressing Air Pollution from Oil Refineries. The Division has made significant progress in 

combating Clean Air Act violations within the petroleum refining industry. To date, the 

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

orders that have addressed more than 96 individual refineries and 87% of the nation's refining 

capacity, and will reduce air pollutants by more than 331,000 tons a year. 

Ensuring the Integrity of Municipal Wastewater Treatment Systems. The Division continued its 

efforts to protect the nation's waterways, by using the Clean Water Act to ensure the proper 

operation of municipal sewer systems. Since January 2006, courts have entered more than a 

dozen settlements in these cases, requiring long-term control measures estimated to cost in 

excess of $5 billion. The settlements the Division reached in Fiscal Year 2008 will ultimately 

reduce the volume of untreated sewage discharged into our waterways by tens of billions of 

gallons. This year, for example, the Division concluded a final, comprehensive settlement with 

the City of San Diego, resolving our action against the city stemming from unlawful discharges 

of sewage from its sewer system. Two previous decrees required the city to undertake interim 

ii
measures at an estimated cost of $274 million. The third and final consent decree will require the 

city to continue to undertake capital projects and perform operations and maintenance through 

2013, at a cost of an additional $1 billion, to prevent future spills of sewage from its system. 

Record-breaking enforcement cases such as these, however, are only a part of the 

Division's work. A significant aspect of our case docket involves defending vital federal 

programs, including military and national security programs or taking affirmative action to 

support such programs. This year, working with several U.S. Attorney’s Offices, the Division 

initiated almost 400 eminent domain cases referred by the Department of Homeland Security to 

acquire permanent interests in privately-owned lands along the United States/Mexico border 

needed to meet a Congressional mandate for secure fence construction. We also represented the 

Navy in several cases that challenged the Navy's use of mid-frequency active sonar throughout 

the world and in specific training exercises off the coast of California and Hawaii, as well as its 

use of low-frequency sonar, a new technology for anti-submarine warfare that is still in the 

experimental phase. These cases are critically important to the nation's security and military 

readiness, and our efforts culminated in success before the United States Supreme Court. On 

November 12, 2008, the Supreme Court, in Winter v. NRDC, reversed the Ninth Circuit's 

affirmance of a district court's preliminary injunction that imposed conditions on the Navy's use 

of sonar in training exercises in the Southern California Operating Area of the Pacific Ocean. 

The Supreme Court held that the lower courts had not given adequate weight to the harm the 

Navy said its training would suffer from certain of the conditions and that the lower courts had 

improperly assessed the equities and the public interest. 

The Division promotes responsible stewardship of our natural resources by defending 

federal agencies charged with such tasks as determining whether a species should be listed as 

endangered or threatened, managing fishery resources in a way that balances various interests, 

overseeing water conservation projects, managing activities on federal lands that range from 

grazing to oil and gas leasing, and protecting the nation's forests from the risks of wildfire. This 

year, the Division had important successes in facilitating the work agencies do in all these areas. 

The Division's work also secured critical water rights for the United States. In Fiscal 

Year 2008, the Division reached important settlements and secured favorable judgments ensuring 

access to the water necessary to maintain the vitality of natural resources and the water needed to 

support varied uses of the public lands, national forests, national parks, wildlife refuges, wild and 

scenic rivers, military bases, and federal reclamation projects throughout the West. As but one 

example, I joined the Secretary of the Interior, members of Congress, and representatives of the 

States of California and Nevada and the Pyramid Lake Paiute Tribe, among others, to sign an 

historic Truckee River Operating Agreement ("TROA"), the culmination of 15 years of 

negotiations the Division led. In addition to enhancing drought protection for the Cities of Reno 

and Sparks and securing Congressional approval of the interstate allocation between Nevada and 

California of the waters of Lake Tahoe, and the Truckee and Carson Rivers, TROA provides 

significant environmental benefits through more flexible and coordinated reservoir operations. 

This flexibility allows water to be stored and released for the benefit of threatened and 

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endangered fish species in Pyramid Lake, water quality in the lower Truckee River, and instream 

flows on the Truckee River and tributaries under the California Guidelines. 

The Division also remains at the forefront in carrying out the United States' trust 

responsibility to Indian tribes and resolving issues pertaining to American Indians. We work to 

protect tribal fishing and water rights, most notably this year in the case of United States v. 

Oregon. Many years ago, the United States prevailed in establishing the treaty fishing rights of 

four Columbia River Basin tribes. The taking of those fish, however, impacts anadromous 

species that are listed pursuant to the Endangered Species Act. The parties, after a decade of 

negotiations, concluded the Management Agreement for Fish Harvests on the Columbia and 

Snake Rivers in Washington, Oregon and Idaho for 2008-2017, consistent with the Endangered 

Species Act. This plan will improve fish habitat and allow the tribes to increase their catch as the 

populations of threatened species increase. 

I would like to close on a personal note. I've been with the Department of Justice, in 

various capacities, nearly 12 years and served in the position of Assistant Attorney General for 

more than 18 months. The Department is a place populated by dedicated public servants, 

committed to the high ideals of public service, and each has sworn an oath to see that the laws 

are well and faithfully carried out. Those in the Environment and Natural Resources Division do 

so, without exception, in a way that should make our citizens proud, and most certainly in a way 

that has made me proud to be their colleague. I extend to them my congratulations for this year's 

many accomplishments and offer them my best wishes for the future. It bears repeating that the 

Division's unparalleled service and commitment show what a powerful difference our national 

government makes in the lives of those we serve. 

Ronald J. Tenpas 

Assistant Attorney General 

Environment and Natural Resources Division 

January 2009 

iv
PROTECTING OUR NATION’S AIR, 

LAND, AND WATER 

Reducing Air Pollution from Power 

Plants. During the past year, the Division 

continued to successfully litigate Clean Air 

Act (CAA) claims against operators of 

coal-fired electric power generating plants. 

The violations arose from companies 

engaging in major life extension projects on 

aging facilities without installing required 

state-of-the-art pollution controls, resulting 

in excess air pollution that has degraded 

forests, damaged waterways, contaminated 

reservoirs, and adversely affected the health 

of the elderly, the young, and asthma 

sufferers. To date, 15 of these matters have 

settled on terms that will result in reductions 

of nearly 2 million tons of SO2 and NOx 

each year once the $11 billion in required 

pollution controls are fully functioning. 

In Fiscal Year 2008, the Division 

achieved the largest environmental 

settlement in history when the court entered 

the final consent decree in United States v. 

American Electric Power (AEP), resolving 

claims under the CAA's new source 

review/prevention of significant 

deterioration provisions. Under the decree’s 

terms, AEP will install and operate $4.7 

billion worth of air pollution controls on 16 

coal-fired power plants. When the consent 

decree is fully implemented, these air 

pollution controls and other measures will 

reduce air pollution by 813,000 tons every 

year compared with pre-settlement 

emissions, making this the largest reduction 

in air pollution achieved by any single 

settlement. AEP also paid a $15 million 

civil penalty and will spend $60 million on 

1 

projects to mitigate the adverse effects of 

its past excess emissions. An 

unprecedented coalition of 8 states and 13 

citizen groups joined the United States in 

the settlement. 

Addressing Air Pollution from Oil 

Refineries. The Division also made 

progress in its national initiative to combat 

CAA violations within the petroleum 

refining industry by obtaining a consent 

decree with Sinclair Oil. With this 

settlement, the Division's petroleum 

refinery enforcement initiative has 

produced settlements or other court orders 

that have addressed more than 96 

individual refineries and 87% of the 

nation's refining capacity, and will reduce 

air pollutants by more than 331,000 tons a 

year. 

Sinclair Oil agreed to spend more 

than $72 million for new and upgraded 

pollution controls to reduce air pollution 

from its 3 refineries. Under the terms of 

the consent decree, Sinclair will reduce 

annual NOx and SO2 emissions by 1,100 

tons and 4,600 tons, respectively. Sinclair 

also agreed to pay a civil penalty of $2.45 

million and spend $150,000 on 

supplemental environmental projects as 

part of the settlement. 

Reducing Air Pollution from Mobile 

Sources. The Division obtained a consent 

decree from a Taiwanese manufacturer and 

three American corporations in United

States v. McCulloch, resolving claims that 

the defendants failed to meet CAA 

standards. Under the consent decree, the 

companies agreed to pay a $2 million civil 

penalty for importing and distributing some 

200,000 chainsaws that would emit a total 
of 268 tons of excess hydrocarbons into the 

environment over their lifetime. 

Controlling Contaminated Storm Water 

Run-off. The Division also fought for 

cleaner water by enforcing Clean Water Act 

(CWA) provisions governing discharge of 

storm water, which contains pollutants such 

as suspended solids, lead, and copper. 

The Division achieved settlements 

with four of the largest home builders in the 

country: Centex, KB Home, Pulte, and 

Richmond. Together, they agreed to pay 

$4.2 million in civil penalties and to 

implement compliance programs at 

construction sites in 34 states and the 

District of Columbia that will prevent 1.2 

billion pounds of sediment from polluting 

our waterways each year. Pulte agreed to 

complete a supplemental environmental 

project at a minimum cost of $608,000. 

Home Depot settled its storm water 

violations, agreeing to pay a $1.3 million 

civil penalty for violations at more than 30 

construction sites in 28 states where its 

stores were being built. Home Depot also 

agreed to implement a nationwide 

compliance program with several St. 

Louis-area developers. 

Republic Services agreed to 

construct and operate a comprehensive 

remedy for the Sunrise Mountain Landfill 

and to pay a $1 million penalty to resolve 

violations of the CWA. The remedy will be 

designed to withstand a 200-year storm and 

is expected to cost $36 million. Upon 

completion, it will prevent the release of 

more than 14 million pounds of 

contaminants annually, including storm 

water pollutants. 

Ensuring the Integrity of Municipal 

Wastewater Treatment Systems. 

Through its aggressive national 

enforcement program, the Division 

continued to protect the nation's waterways 

by ensuring the integrity of municipal 

wastewater treatment systems. Since 

January 2006, courts have entered more 

than a dozen settlements in these cases, 

requiring long-term control measures 

estimated to cost in excess of $5 billion. 

The settlements the Division reached this 

year will reduce the discharge of untreated 

sewage into our waterways by tens of 

billions of gallons. 

The Division achieved a final, 

comprehensive settlement with the City of 

San Diego, resolving our CWA action 

against the city stemming from unlawful 

discharges of sewage from its sewer 

system. Two previous decrees required the 

city to undertake interim measures at an 

estimated cost of $274 million. The third 

and final consent decree will require the 

city to continue to undertake capital 

projects and perform operations and 

maintenance through 2013, at a cost of an 

additional $1 billion, to prevent future 

spills of sewage from its system. 

The Division also achieved an 

interim settlement with the City and County 

of Honolulu (CCH) that will correct the 

most significant problems in Honolulu's 

wastewater collection system. Under the 

terms of the consent decree, CCH will 

implement $300 million in projects. The 

United States and the State of Hawaii are 

continuing to work with CCH to resolve its 

remaining wastewater collection and 

treatment problems. 

2 
Protecting the Nation's Waters and 

Wetlands. The Division obtained a number 

of favorable settlements in enforcement 

actions to protect the nation's waters and 

wetlands from illegal fill. In United States 

v. Johnson, the Division sued an Arizona 

land developer and a contractor for 

violations of the CWA in bulldozing, filling, 

and diverting approximately five miles of 

the lower Santa Cruz River and a major 

tributary, the Los Robles Wash, without a 

permit from the Army Corps of Engineers. 

We negotiated a consent decree which, when 

entered, will require the defendants to pay a 

combined $1.25 million civil penalty, one of 

the largest penalties in the Environmental 

Protection Agency's (EPA) history under 

Section 404 of the CWA, which protects 

against the unauthorized filling of federally 

protected waterways. 

The Division also negotiated a 

favorable settlement of United States v. Sea 

Bay Development Corp., resolving 

allegations that the defendants discharged 

dredged or fill material into wetlands at an 

approximately 1,560-acre property in 

Chesapeake, Virginia, without a permit. 

Under several consent decrees, the 

defendants will pay civil penalties totaling 

$100,000. The consent decree with the site 

owner requires comprehensive restoration 

and mitigation on approximately 873 acres 

of the wetlands, which will be preserved in 

perpetuity under a conservation easement or 

deed restriction. 

United States v. Fabian is a CWA 

civil enforcement action for the 

unauthorized filling of wetlands located 

along the Little Calumet River in Indiana. In 

2007, the court granted our motion for 

summary judgment on liability. We 

3 

subsequently resolved the remedy through a 

consent decree, under which the defendant 

will pay a small civil penalty and convey 

approximately 93 small parcels of real 

estate, including the site where the filling of 

wetlands occurred, into a trust. The decree 

then obligates the trust to effectuate 

restoration and off-site mitigation to the 

maximum extent allowable by the trust 

assets. 

Reducing Air and Water Pollution at 

Other Diverse Facilities. The Division 

improved the nation's air and water quality 

by concluding regulatory enforcement 

actions against a variety of other facilities 

in diverse industries. In total, the Division 

obtained recoveries valued at more than 

$8.7 billion in injunctive relief; more than 

$105 million in civil penalties; and $25.4 

million in supplemental environmental 

projects. One significant case was United

States v. Massey Energy Co. There, the 

Division obtained the largest civil penalty 

ever levied against a company for 

wastewater discharge permit violations 

when Massey agreed to pay a $20,100,500 

civil penalty. Massey, the fourth largest 

coal company in the United States, also 

agreed to take additional measures at its 

facilities nationwide to prevent an 

estimated 380 million pounds of sediment 

and other pollutants from entering the 

nation's waters each year. These 

compliance measures are unprecedented in 

the coal mining industry. 

Protecting the Public Against Vinyl 

Chloride. The Division has begun taking 

enforcement actions against manufacturers 

of vinyl chloride, which EPA has classified 

as a Group A human carcinogen. Exposure 

to the chemical has been linked to adverse 
human health effects, including liver cancer, 

other liver ailments, and neurological 

disorders. 

In United States v Georgia Gulf 

(GG), the court entered a consent decree 

resolving claims under five statutes, 

including the CWA, CAA, and the Resource 

Conservation and Recovery Act (RCRA), 

arising out of violations at GG's facility in 

Aberdeen, Mississippi, a plant that 

manufactures PVC from vinyl chloride 

monomer. GG will pay a civil penalty of 

$610,000 and perform injunctive relief 

valued at $2.9 million. 

Enhancing Pipeline Safety. The Division 

obtained a judgment on the merits following 

a five-week bench trial in United States v. 

Apex Oil Co. In entering judgment for the 

United States, the court directed Apex to 

perform substantial injunctive relief valued 

at more than $150 million. Apex had owned 

and operated a refinery and associated 

pipelines and sewers in Hartford, Illinois, 

from which releases of gasoline and other 

petroleum-based substances had contributed 

to a substantial subsurface plume of 

petroleum-based substances. 

The Division secured additional 

relief in United States v. Magellan Pipeline 

Co. when the court entered a consent decree 

addressing 11 oil spills from Magellan's 

pipelines and other facilities. The consent 

decree requires Magellan to perform 

comprehensive injunctive relief valued at 

approximately $6.5 million to prevent future 

spills and to pay a civil penalty in the 

amount of $5.3 million. 

ENSURING CLEANUP OF OIL AND 

HAZARDOUS WASTE 

Conserving the Superfund by Securing 

Cleanups and Recovering Superfund 

Monies. The Division secured the 

commitment of responsible parties to clean 

up additional hazardous waste sites, at costs 

estimated in excess of $541 million, and 

recovered approximately $420 million for 

the Superfund to help finance future 

cleanups. Examples of some of the major 

Superfund cases resolved by the Division 

this year include: United States v. Atl. 

Richfield Company (the company agreed to 

pay $187 million to finance major cleanup 

along 120 miles of the Clark Fork River 

and other areas in southwestern Montana, 

with $103.7 million being available for 

remedial actions, $7.6 million to reimburse 

federal government for past costs, and 

$3.35 million for the federal government's 

natural resource damages (NRD); Atlantic 

Richfield will also pay the State of 

Montana an additional $72.5 million, which 

the state will use to finance additional 

natural resource restoration activities as 

part of the settlement); United States v. City 

of Jacksonville (the city agreed to clean up 

two Superfund sites at an estimated cost of 

$94 million); and United States v. Exxon 

Mobil Corp. (101 defendants will ensure a 

site-wide $48 million cleanup of the Beede 

Waste Oil site in Plaistow, New 

Hampshire, pay more than $9 million for 

future federal and state oversight costs, and 

pay $17 million in past federal and state 

response costs). 

Enforcing Clean-up Obligations In 

Bankruptcy Cases. The Division's 

bankruptcy practice has continued to grow, 

4 
and this year we achieved notable success in 

several proceedings. 

In United States v. W.R. Grace & 

Co., the Division recovered $252.7 million, 

the highest sum in the history of the 

Superfund program, in reimbursement of the 

United States' costs in connection with the 

cleanup of asbestos contamination in Libby, 

Montana. The action settled a bankruptcy 

claim brought by the federal government to 

recover money for past and future costs of 

cleanup of contaminated schools, homes, 

and businesses in Libby. In 2003, after a 

3-day trial, the federal district court in 

Montana awarded the United States more 

than $54 million for costs incurred by EPA 

through Dec. 31, 2001. That award was not 

paid due to W.R. Grace's filing for 

bankruptcy protection. The bankruptcy 

settlement resolved the 2003 judgment as 

well as continuing clean-up costs EPA has 

incurred since Dec. 31, 2001 and will incur 

in the future. EPA will place the settlement 

proceeds into a special account within the 

Superfund that will be used to finance future 

clean-up work at the site. 

In United States v. Apache Energy & 

Minerals Co., the court entered two consent 

decrees resolving three defendants' 

Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) 

liability at the California Gulch Superfund 

Site in Leadville, Colorado. The first, with 

Asarco LLC, resolves the United States' 

allowed unsecured claim in the Asarco 

bankruptcy proceeding by requiring the 

payment of $9.3 million for response costs, 

and $10 million for NRD. The second, with 

Newmont USA Limited and Resurrection 

Mining Company, requires these defendants 

to pay $8.5 million in response costs and 

$10.5 million for NRD, and to pay future 

oversight costs. Newmont and 

Resurrection are additionally required to 

undertake work to address the discharge of 

acid mine drainage at the site, at an 

estimated cost of $93 million.

 In one of the most challenging 

bankruptcy proceedings, In re: Asarco 

LLC, the United States has continued to 

litigate and reach settlements on our claims 

for clean-up work and NRD at more than 

50 sites, and is engaged in mediation in an 

effort to reach agreement on a plan of 

reorganization for the company. Asarco 

LLC, and its predecessor companies, 

operated in the mining, milling, and 

smelting industries for over 100 years. This 

left a legacy of environmental 

contamination in over 16 states. The 

bankruptcy, which was filed in 2005, is the 

largest environmental bankruptcy in history 

both in terms of the number of sites where 

Asarco is liable (approximately 80) and the 

total amount of Asarco’s liability at those 

sites. The environmental claims and 

liabilities asserted against Asarco in the 

bankruptcy by the United States and the 

states exceed $2 billion. 

Defending the Constitutionality of the 

Superfund Law. In addition to its 

enforcement actions to secure the cleanup 

of hazardous waste sites, the Division has 

also successfully defended lawsuits aimed 

at interfering with clean-up actions by EPA 

and other federal agencies. For example, in 

Goodrich Corp. v. EPA, Goodrich brought 

a complaint alleging that EPA has engaged 

in an unconstitutional "pattern and practice" 

of issuing unilateral administrative orders 

under CERCLA. In 2007, the court held 

that the statutory regime on its face satisfies 

5 
due process requirements; however, the 

court initially allowed Goodrich to file an 

amended complaint challenging EPA's 

"pattern and practice" of administering the 

statute. In December 2007, the court 

dismissed the due process claim against 

EPA with prejudice, concluding that Section 

113(h) of CERCLA deprived the court of 

subject matter jurisdiction over Goodrich's 

"pattern and practice" due process claim. 

Protecting the Government Against 

Unwarranted Claims of Clean-Up 

Liability. The United States filed a 

counterclaim to recover response costs 

incurred by EPA in Raytheon Aircraft Co. v. 

United States, a cost recovery action under 

CERCLA involving the Tri-County Airport 

in Herington, Kansas, which was owned and 

operated by the Army Air Corps during 

World War II. Following a 10-day bench 

trial, the court found the United States not 

liable for any portion of the clean-up costs 

incurred by Raytheon (approximately $6 

million) and found Raytheon liable for 

EPA's clean-up costs (approximately $3 

million), with prejudgment interest accruing 

since May 2000. 

Protecting the Public Fisc Against 

Excessive Clean-Up Claims. In Basic 

Management, Inc. v. United States, a 

contribution action under CERCLA 

concerning a former magnesium plant in 

Henderson, Nevada, owned by the United 

States during World War II, the court ruled 

that the plaintiff cannot recover any response 

costs paid by its insurance company and also 

declined to extend to CERCLA cases the 

collateral source rule that precludes 

defendants in tort cases from offsetting their 

tort liability with insurance recoveries. The 

effect of this ruling is to reduce the total of 

potentially recoverable costs to be allocated 

at trial from a claimed $70,000,000 to less 

than $1 million. 

In CERCLA contribution cases in 

which the United States is a liable party, we 

have obtained favorable settlements that 

ensure the United States will not pay more 

than its fair share of clean-up costs. These 

include such multi-million dollar 

settlements in Fiscal Year 2008 as E.I.

DuPont de Nemours & Co. v. United 

States; Southern California Gas Co. v. 

United States; United States v. Albemarle 

Electric Membership Corp.; CBS Corp. v. 

United States; BASF Catalysts LLC v. 

United States; Lewis Operating Corp. v. 

United States; and Hercules v. United 

States.

In State of Ohio v. DOE, a case 

involving claims for NRD under CERCLA 

in connection with the release of hazardous 

and radioactive material at the Department 

of Energy's (DOE) Feed Material 

Production Center, a former uranium 

processing facility in Fernald, Ohio, the 

Division completed negotiation of a 

consent decree requiring DOE to pay 

$13.75 million in NRD and assessment 

costs, record an environmental covenant 

restricting most types of future 

development at the site, and implement a 

natural resource restoration plan 

committing DOE to maintain a series of 

natural resource restoration projects at the 

site.

6 
adequate was reasonable and supported by PROMOTING RESPONSIBLE 

STEWARDSHIP OF AMERICA’S 

NATURAL RESOURCES AND 

WILDLIFE 

Defending Endangered Species Act

Listings and the Critical Habitat 

Program. The Endangered Species Act 

(ESA) requires either the United States Fish 

and Wildlife Service (FWS) or the National 

Marine Fisheries Service (NMFS), 

depending on the species, to determine 

whether a species should be listed as 

endangered or threatened under a set of five 

criteria and to designate critical habitat for 

listed species. In Fiscal Year 2008, we had 

notable success defending such 

determinations. 

In Arizona Cattle Growers’ Ass’n v. 

Kempthorne, the court upheld the FWS 

designation of critical habitat for the 

Mexican spotted owl against a variety of 

challenges. In Marincovich v. 

Lautenbacher, the court agreed with the 

Division that the factual and scientific 

determinations supporting the NMFS listing 

of the Lower Columbia River coho were 

rational and entitled to deference. The 

Division prevailed in Home Builders v. 

FWS, where the court upheld the FWS 

listing of the central California population of 

tiger salamander, concluding, among other 

points, that there was a rational connection 

between the threats to the species and the 

determination that it should be listed as 

threatened and that the Service had properly 

considered historical habitat loss. In 

Defenders of Wildlife v. Kempthorne, the 

court determined that the FWS decision not 

to list the Florida black bear because 

existing regulatory mechanisms were 

7 

the administrative record in the case. 

Finally, in Sierra Forest Products v. 

Kempthorne, the court upheld the FWS 

determination that listing the West Coast 

distinct population of the Pacific fisher was 

warranted, but precluded by higher priority 

listing actions. 

Defending NMFS Ocean Harvest 

Management. The Service is charged, 

under the Magnuson-Stevens Fishery 

Conservation and Management Act, with 

the difficult task of managing ocean 

commercial fishing not only to provide for 

conservation and sustainable fishing, but 

also to optimize yield. In several cases, the 

Division successfully defended the 

Service's balancing of these objectives. In 

S. Offshore Fishing Ass'n v. Gutierrez, the 

court upheld the emergency closure of a 

shark fishery where NMFS determined that 

overharvesting had occurred. Similarly, in 

Starbound LLC v. Gutierrez, the court 

upheld the Service's emergency rule 

prohibiting new entry into the 2007 Pacific 

Whiting Fishery where NMFS forecast 

overfishing if new entries were allowed. 

The Division prevailed in North Carolina 

Fisheries Ass'n v. Gutierrez, which upheld 

Service establishment of measures to end 

overfishing of certain snapper species. 

Restoring the Florida Everglades. The 

Division continued to contribute to the 

restoration and protection of the Everglades 

ecosystem – including the 1.3 million-acre 

Everglades National Park, the largest, most 

important subtropical wilderness in North 

America – by acquiring lands within 

Everglades National Park and the Big 

Cypress National Preserve, as well as lands 

critical to the Army Corps of Engineers' 
project to improve water deliveries in the 

area. 

Maintaining an Appropriate 

Management Regime for the Missouri 

River System. The Army Corps of 

Engineers manages the Missouri River 

System (consisting of six dams and 

reservoirs) for a variety of overlapping 

purposes, such as navigation, flood control, 

irrigation, and hydropower. In order to 

ensure that water resource decisions best 

serve these varied needs, the Corps issues a 

Master Manual that describes its water 

control plan. In 2006, the Corps made 

changes to the Master Manual to protect the 

endangered pallid sturgeon. In State of 

Missouri v. United States Army Corps of 

Eng’rs, the State of Missouri sued the 

Corps, alleging that it had violated the 

National Environmental Policy Act (NEPA) 

by using the Master Manual to provide a 

spring pulse of water for aquatic habitat 

maintenance without fully evaluating the 

environmental impacts. The Division 

successfully explained the Corps' actions 

and secured sound precedent that permits the 

Corps to balance water, navigation, energy, 

and agricultural needs, as well as protect 

endangered species. 

Facilitating Dredging Projects Critical for 

Commerce. The Port of New York and 

New Jersey must be dredged to maintain 

navigation and commerce estimated to 

generate about $200 billion annually in 

direct and indirect benefits. Due to past and 

present pollution, managing dredged 

material from the port has become 

increasingly difficult. NRDC v. United 

States Army Corps of Eng’rs challenged the 

environmental analysis of a Corps' project to 

deepen the navigational channels of the New 

8 

York/New Jersey Harbor. While the court 

found the Corps' analysis to be partly 

inadequate, the court agreed that the 

dredging should not be enjoined. The 

Division ultimately achieved a favorable 

settlement that allowed essential dredging 

to continue while the Corps provided 

additional environmental analysis of the 

ongoing project. In Jones v. Rose, the 

Division also defended NEPA claims raised 

against maintenance dredging and channel 

deepening in Portland, Oregon. The court 

granted summary judgment for the Corps 

on all counts. 

Litigating Federal Land Management 

Programs and Policies. The federal 

government manages vast swaths of land 

for a variety of purposes, some well-known 

(such as outdoor recreation) and others less 

well-known (such as pest control). Land 

management programs and policies are 

sometimes unpopular with one or more user 

groups and become the subject of litigation. 

The Division is successfully 

defending policies related to the Sierra 

Nevada Forest Plan Amendment 

(Framework) governing 11.5 million acres 

in 11 national forests in the Sierra Nevada 

region of California. These policies include 

desperately needed fuel treatments to 

reduce the threats of catastrophic wildfire 

as well as to meet the habitat needs of 

species dependent on old growth forests. 

The Framework is the subject of four 

related lawsuits, Sierra Forest Legacy v. 

Rey; California v. USDA; Pacific Rivers 

Council v. United States Forest Service;

and California Forestry Ass'n v. Bosworth.

Recently, the court issued a decision in 

favor of the Forest Service on virtually all 

claims in the four lawsuits. 
Other equally wide-ranging forest 

management activities of the Forest Service 

and the Bureau of Land Management have 

benefitted from the Division's legal efforts. 

For example, in Lands Council v. McNair,

the Division prevailed against a challenge to 

the Mission Brush Project, a forest 

restoration project, on the Idaho Panhandle 

National Forest, under the National Forest 

Management Act (NFMA), NEPA, and the 

Administrative Procedure Act (APA). The 

project is designed to restore old-growth 

forest structures and address excessive stand 

density that is facilitating forest destruction 

by fire, insect infestation, and disease. The 

Ninth Circuit, in an en banc decision, 

concluded that it had erred in an earlier case 

by creating a requirement not found in any 

relevant statute or regulation and defying 

established law concerning the deference 

owed to agencies. The court disagreed that 

the Forest Service had violated the NFMA, 

found that the record supported the Forest 

Service's conclusions with regard to the 

effect of the project on species diversity, and 

approved the Forest Service's use of the 

amount of suitable habitat for a particular 

species as a proxy for the viability of that 

species. The court also rejected Lands 

Council's claim that the Forest Service 

violated NEPA by failing to include a 

discussion of the scientific uncertainty 

surrounding its strategy for maintaining 

species viability. Finally, the court held that 

the district court properly denied a 

preliminary injunction, noting that the 

standard for determining the appropriateness 

of a preliminary injunction does not allow a 

court to abandon a balance of harms analysis 

simply because a potential environmental 

injury is at issue. 

In some instances, plaintiffs also 

challenge federal forest programs by 

seeking to invalidate ESA coverage for 

forest plans or projects. In Fiscal Year 

2008, the Division was successful in 

defending against several such claims. In 

Alliance for Wild Rockies v. United States 

Forest Service, the court upheld a FWS and 

Forest Service determination that the 

challenged timber project was consistent 

with road density standards for grizzly 

bears. In Western Watershed Project v. 

BLM, the court upheld a broad 

programmatic biological opinion for a 

BLM resource management plan. 

Ensuring the Limitations of Federal 

Jurisdiction Are Enforced. The APA and 

other special review provisions 

circumscribe federal jurisdiction, as do the 

requirements of standing and other 

jurisdictional prerequisites. This year, the 

Division successfully raised these defenses 

in appropriate cases. In John R. Sand & 

Gravel Co. v. United States, the 

Department, through the Solicitor General's 

Office with the support of the Division, 

prevailed before the Supreme Court in its 

view that the statute of limitations for 

bringing claims for compensation against 

the United States in the Court of Federal 

Claims was jurisdictional and could not be 

waived by failure to assert it at the trial 

court level. 

In Coos County Bd. of County 

Comm'rs v. Kempthorne, the lower and 

appellate courts agreed that the plaintiffs 

could not compel FWS to take action based 

on its five-year species status review 

because that internal process did not result 

in a final agency action subject to judicial 

review. Similarly, in Am. Forest Resource 

9 
Council v. Hall, the court dismissed a 

challenge to the Service's five-year status 

review for the marbled murrelet. 

The Division invoked the 

requirement to issue a 60-day notice of 

intent to sue under the ESA citizen suit 

provision, obtaining dismissal of claims in 

Defenders of Conewango Creek v. Echo 

Developers; Nez Perce Tribe v. NOAA 

Fisheries; and Man Against Extinction v. 

Hall.

We raised the defense of standing, 

obtaining dismissal of claims in Center for 

Biological Diversity v. Kempthorne, in 

which the plaintiffs sought relief under ESA 

regarding 50 species of foreign butterflies; 

Glasser v. NMFS, in which the plaintiff 

challenged a conservation plan, but did not 

allege injury with regard to the species 

covered by the plan; and Miccosukee Tribe 

v. United States, in which the tribe failed to 

allege that any of its members actually live 

in, hunt in, or otherwise use the area of 

Everglades National Park to be used for the 

challenged project. 

The Division continued to obtain 

favorable rulings on the defense of 

mootness. In Wilderness Soc’y v. Kane 

County, the court found the case moot 

because Kane County had rescinded the 

challenged ordinance. In Aquifer Guardians 

in Urban Areas v. FWS, the court dismissed 

the case because the challenged transmission 

line was completed and the Army Corps of 

Engineers had verified compliance with 

ESA restrictions. In National Parks and 

Conservation Ass'n v. United States Army 

Corps of Eng’rs, claims against the 

challenged discharge permit and its ESA 

compliance were determined to be moot 

where the permit had expired, there was no 

existing authorization to declare invalid or 

set aside, and there was no authorized 

filling to enjoin. 

Determining the Impact of the Religious 

Freedom Restoration Act on Land 

Management Agencies. In Navajo Nation 

v. United States Forest Service, four Indian 

tribes challenged the Forest Service's 

approval of an expansion of a ski resort on 

the San Francisco Peaks near Flagstaff, 

Arizona, under the Religious Freedom 

Restoration Act (RFRA). The expansion 

included snowmaking using reclaimed 

water, which in the view of Indian religious 

practitioners, desecrates the peak. The 

Ninth Circuit, in an en banc decision, held 

that the Forest Service's approval did not 

violate the RFRA because the proposal 

does not place a substantial burden on the 

plaintiffs' exercise of religion by forcing the 

plaintiffs to act contrary to their religion 

under the threat of a legal penalty or choose 

between their religion and the receipt of a 

government benefit. 

CRIMINALLY ENFORCING OUR 

NATION’S POLLUTION AND 

WILDLIFE LAWS 

Reducing Pollution from Ocean-Going 

Vessels. The Vessel Pollution Initiative is 

an ongoing, concentrated effort to detect, 

deter, and prosecute those who illegally 

discharge pollutants from ships into the 

oceans, coastal waters, and inland 

waterways, and those who falsely document 

their activities. Enforcement is primarily 

pursuant to the MARPOL Treaty, and its 

United States implementing legislation, the 

10 
Act to Prevent Pollution from Ships (APPS), 

which requires vessels to maintain log books 

recording all transfers and discharges of oily 

waste. When a vessel pulls into a U.S. port 

and presents a false log book, the 

consequences are severe. Over the past 10 

years, the criminal penalties imposed in 

vessel pollution cases have totaled more 

than $200,000,000 and responsible 

shipboard officers and shore-side officials 

have been sentenced to more than 17 years 

of incarceration. The initiative has resulted 

in a number of important criminal 

prosecutions of key segments of the 

commercial maritime industry, including 

cruise ships, container ships, tank vessels, 

and bulk cargo vessels. 

This year, the Division continued to 

have great success prosecuting deliberate 

violations as the representative cases below 

illustrate. 

The Division's appeal of United

States v. Jho obtained the first appellate 

ruling on the scope of federal jurisdiction to 

prosecute log book offenses and the meaning 

of the duty to maintain them under APPS. 

Here, the indictment charged the defendants 

with the failure to "maintain" oil record 

books for the M/T Pacific Ruby, a 

foreign-flagged oil tanker that delivered 

petroleum products to ports along the United 

States' gulf coast; and alleged that the 

defendants failed to record unlawful 

discharges of petroleum-contaminated 

wastewater that occurred at sea. The Fifth 

Circuit reversed the district court's dismissal 

of the indictment, holding that the regulatory 

duty to "maintain" the record books is not 

limited to the duty to make correct entries 

when discharges occur, but includes the 

obligation to "ensure that [the record book] 

is accurate . . . upon entering the ports of 

navigable waters of the United States." The 

court further determined that there are no 

principles of international law that prevent 

the United States from prosecuting entry of 

U.S. ports with inaccurate record books as 

violations of domestic law in port; and that 

various articles of the United Nations 

Convention on the Law of the Sea were 

inapplicable to violations of domestic law 

committed in port. 

In United States v. Nat’l Navigation 

Co. (NNC), the defendant, an Egyptian 

shipping operator, pled guilty to 15 felonies 

involving conduct aboard 6 vessels in 

NNC's fleet, including APPS and making 

false statements to federal officials. NNC 

was sentenced to pay a total penalty of 

$7.25 million – the largest ever in the 

Pacific Northwest for a case involving the 

falsification of ship logs to conceal 

deliberate pollution from ships. Of this 

amount, $2,025,000 will go toward funding 

community service projects. The company 

was also required to implement a 

comprehensive environmental compliance 

plan (ECP). 

In United States v. Mark 

Humphries, the defendant was convicted 

for violating APPS, obstruction of an 

agency proceeding, and two false statement 

violations. Humphries was sentenced to 

serve six months' incarceration followed by 

a two-year term of probation. Humphries 

was a former chief engineer for the M/V 

Tanabata, a vessel managed by Pacific Gulf 

Marine (PGM). In 2007, PGM was 

sentenced to pay a $1 million fine, make a 

community service payment of $500,000, 

complete a 3-year term of probation, and 

implement an ECP. 

11 
Guilty pleas or convictions were also 

reached in four additional cases involving 

vessel operators and crew members in 

United States v. B. Navi Ship Mgmt. Servs.; 

United States v. Reederei Karl Schlueter;

United States v. Pacific Operators Offshore; 

and United States v. Ionia Mgmt. S.A. These 

defendants were sentenced to pay a total of 

$7.55 million in fines and $700,000 in 

community service, with each individual 

serving a term of probation for crimes 

including APPS violations, false statements, 

obstruction of justice, and violations of the 

Outer Continental Shelf Lands Act. 

Protecting the Country's Wetlands. In 

United States v. Lucas, the defendants sold 

house lots and installed septic systems in 

wetlands, while representing that the 

properties were dry. The septic systems 

failed, rendering the properties uninhabitable 

and causing sewage discharges into the 

wetlands and adjacent waters. A jury 

convicted Lucas and the other defendants for 

conspiracy, mail fraud, and violations of 

Sections 402 and 404 of the CWA. The 

defendants asserted that under the Supreme 

Court's 2006 decision in Rapanos v. United 

States, which was decided after the 

convictions, EPA and the Army Corps of 

Engineers lacked regulatory authority over 

their actions. The Fifth Circuit affirmed the 

convictions, finding that the evidence was 

sufficient to satisfy the CWA jurisdictional 

standards set forth in the plurality, 

concurring, or dissenting opinions in 

Rapanos and rejecting an unconstitutional 

vagueness challenge due to abundant 

evidence that defendants should have known 

the wetlands might be regulated. 

Safeguarding Our Nation's Groundwater 

from Hazardous Waste Pollution. In 

United States v. Dennis Pridemore, the 

defendant, the former president and 

manager of Hydromex Inc., was charged 

with having illegally stored and disposed of 

hazardous waste including heavy metals 

cadmium, chromium, and lead that he had 

been paid to recycle into marketable 

products. Pridemore admitted that instead 

of doing so, he buried the wastes in 

trenches and produced faulty products that 

leached heavy metals into the surrounding 

soil and groundwater. He created false 

documents making it appear to regulators 

that he had customers for the products he 

claimed to be making and selling. 

Pridemore pled guilty to committing four 

RCRA violations, and to making two false 

statements. He was sentenced to serve 41 

months' incarceration followed by a 3-year 

term of probation. 

Securing and Protecting our Nation's 

Highways from the Illegal 

Transportation of Hazardous Waste. In 

United States v. Krister Evertson, the 

defendant arranged for the transportation of 

sodium metal and several above-ground 

storage tanks which contained sludge 

without proper shipping documents. 

Sodium metal and the materials in the tanks 

are highly explosive when mixed with 

water, and Everston failed to take 

protective measures to reduce the risk that 

the transported material would react and 

damage persons or property. Evertson was 

convicted of two RCRA storage and 

disposal violations and with violating the 

Hazardous Materials Transportation Safety 

Act. He was sentenced to serve 21 months' 

incarceration followed by a 3-year term of 

probation and to pay $421,049 in restitution 

for illegally transporting hazardous 

12 
materials and illegally storing hazardous 

waste.

Protecting the Environment, Public 

Health, and Worker Safety. In United

States v. Spencer Environmental Inc. (SEI), 

the corporate defendant pled guilty to a 

RCRA violation for accepting corrosive and 

ignitable hazardous wastes without a permit 

and to mishandling waste oil in violation of 

RCRA. SEI was sentenced to pay $150,000, 

half of which will go toward a community 

service payment. SEI's president, Donald 

Spencer, pled guilty to mishandling waste 

oil and was sentenced to serve six months' 

incarceration followed by a one-year term of 

probation.

In the United States v. W.R. Grace & 

Co, the Division obtained critical victories 

in several interlocutory appeals to the Ninth 

Circuit that will allow this important CAA 

case to go trial in early 2009. The company 

and several of its officers stand charged with 

conspiracy and substantive violations of the 

CAA for knowingly endangering the lives of 

workers at its vermiculite mine and of 

residents in the nearby town of Libby, 

Montana. The district court had entered a 

series of pre-trial rulings, in particular on the 

substantive elements of the CAA violations, 

that would have gutted the government's 

case. 

Cracking Down on Illegal Asbestos 

Removal. In United States v. Cleve-Allan 

George, the defendant, who had been 

convicted in 2005 on 16 counts, including 

CAA and false statement violations, was 

sentenced to serve 33 months' incarceration, 

followed by a 3-year term of probation. 

George and his co-defendant did not follow 

asbestos work practice regulations, and filed 

13 

false air monitoring reports related to a 

remediation project in a HUD-funded 

housing project. 

In United States v. Branko Lazic,

the defendant pled guilty to 1 CAA 

violation for the improper removal of 

asbestos at an elementary school, and was 

sentenced to serve 6 months' home 

confinement, followed by a 3-year term of 

probation, and to complete 50 hours of 

community service. 

In United States v. Robert Langill,

the defendant pled guilty to violating the 

CAA in connection with an illegal asbestos 

abatement at the U.S. Naval Air Station, 

Patuxent River, and was sentenced to serve 

60 days' incarceration, followed by 10 

months' home detention, and to serve a 

2-year term of probation. 

Safeguarding Our Fragile Ecosystem on 

the North Slope of Alaska. In United

States v. British Petroleum Exploration 

(Alaska), Inc. (BPXA), the corporate 

defendant failed to heed the many warning 

signs of imminent internal corrosion of oil 

transit lines that a reasonable operator 

should have recognized. This failure 

resulted in more than 200,000 gallons of 

crude oil on the North Slope spreading over 

2 acres of tundra. BPXA's failure to 

allocate sufficient resources, due to 

cost-cutting measures, led to the failure of a 

section of the oil transit line which had not 

been inspected for eight years. BPXA pled 

guilty to a CWA violation for the 

largest-ever spill of crude oil on the north 

slope of Alaska. BPXA was sentenced to 

pay a $20 million fine, followed by a 

3-year term of probation. Four million 

dollars will be used for research in support 
of the arctic environment in the State of 

Alaska on the North Slope, and $4 million in 

restitution will be paid to the State of 

Alaska. A second spill involving 

approximately 1,000 gallons of oil, that led 

to the shut down of Prudhoe Bay oil 

production on the eastern side of the field, 

was also covered by the plea agreement. 

Safeguarding Aquatic Life and Water 

Quality in and Around the Gulf of 

Mexico. In United States v. Citgo 

Petroleum Group, the defendant, who 

operated a Louisiana refinery, failed to 

maintain 2 storm water tanks and to build a 

planned third tank, which led to the 

discharge of 53,000 barrels of oil to the 

Calcasieu Estuary. The illegal discharge 

overran the company's storm water system 

resulting in limited commercial 

transportation on the waterways for 

approximately 10 days. Citgo pled guilty to 

a negligent violation of the CWA and was 

sentenced to pay a $13 million fine, the 

largest fine for a misdemeanor CWA 

violation. Additionally, the company 

implemented an ECP to ensure the estuary is 

protected from this kind of spill in the 

future.

In United States v. Rowan Cos., the 

corporate defendant operated and cleaned 

offshore drilling rigs, creating substantial 

amounts of waste from routine maintance 

and sandblasting operations, including 

hydraulic oil, chemicals, paint, and other 

materials that were dumped directly into the 

Gulf of Mexico. Rowan pled guilty to three 

felonies and was sentenced to pay a $7 

million dollar criminal fine along with $2 

million in community service payments. In 

addition, the company will add an 

environmental division and implement an 

14 

ECP to contain debris from future 

sandblasting operations. Nine supervisory 

employees of Rowan pled guilty and were 

fined and sentenced to terms of probation 

for their roles related to Rowan's violations. 

Keeping Nuclear Power Safe. In United

States v. David Geisen, the defendant was 

convicted of concealment and false writing 

violations for his role in a scheme to keep 

information from the Nuclear Regulatory 

Commission, and with making false 

statements to the Commission. Geisen was 

sentenced to serve four months' home 

detention. His co-defendant, Andrew 

Siemaszko, was convicted in a separate trial 

of three false statement violations and is 

awaiting sentencing. 

Protecting Endangered Sea Turtles from 

International Smugglers. In United States 

v. Esteban Lopez Estrada, the Division 

achieved notable success in the 

investigation and prosecution of four 

wildlife smuggling rings – two based in 

Mexico and two in China – engaged in 

illegal trafficking in endangered or 

otherwise protected sea turtles and other 

protected species, and products made from 

their parts. The defendants bought and sold 

exotic leathers, including sea turtle, caiman, 

ostrich and lizard skins, and manufactured 

boots and belts from the skins to sell to 

customers in the United States. Other sea 

turtle parts were used to manufacture and 

sell guitar picks and violin bows. The 

investigation, known as "Operation 

Central," was a long-term undercover 

investigation run out of a store front in 

Denver, Colorado. Thus far, 7 defendants 

have pled guilty to charges including 

conspiracy, smuggling, and money 

laundering and have been sentenced to a 
total of 107 months of incarceration. Four 

indicted defendants remain at large. 

Safeguarding U.S. Consumers from the 

False Labeling of Fish. In United States v. 

True World Foods Chicago LLC, True 

World imported fish commonly known as 

basa or Vietnamese catfish, but falsely 

labeled as sole, thereby reducing the amount 

of duty legally due. True World pled guilty 

to a Lacey Act violation for its role in 

purchasing and re-selling the falsely labeled 

frozen fish fillets and was sentenced to pay a 

$60,000 fine. The company further forfeited 

$197,930, which represented the purchase 

value of the fish. One company employee, 

David Wong, pled guilty to violating the 

Lacey Act for his role, while co-defendant, 

Henry Yip, pled guilty to a misbranding 

violation for his involvement in this scheme. 

Prosecuting Illegal Hunting and Fishing. 

In United States v. Eric Leon Butt, Jr., d/b/a 

Outdoor Adventures, Butt, a Colorado 

big-game outfitter, pled guilty to conspiracy 

to violate the Lacey Act stemming from the 

interstate sale and transport of deer, elk, and 

black bear. Sentencing is pending. His 

co-defendant, Scott LeBlanc, pled guilty to a 

misdemeanor violation of the Lacey Act and 

was sentenced to pay a $3,000 fine, pay 

$5,000 in restitution, and complete a 2-year 

term of probation, and is banned from 

hunting in Colorado for 5 years. A third 

co-defendant, Paul Ray Weyand, pled guilty 

to three misdemeanor Lacey Act violations. 

In United States v. Zane Fennelly,

the defendant, the captain of a commercial 

fishing vessel, pled guilty to disposing of 

and attempting to destroy three bags 

containing spiny lobsters that were illegally 

caught within the exclusive economic zone 

of the United States. Fennelly dumped the 

illegally caught lobsters as the United 

States Coast Guard was approaching his 

vessel. Fennelly was sentenced to serve 

four months' incarceration followed by a 

one-year term of probation. 

DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS 

Defending EPA's Air Pollution 

Standards for the Chemical 

Manufacturing Industry. NRDC v. EPA 

upheld EPA's final CAA rule setting 

National Emission Standards for Organic 

Hazardous Air Pollutants from the 

Synthetic Organic Chemical Manufacturing 

Industry. The court held that EPA could 

reasonably determine that a standard that 

reduced cancer risk to 1-in-10,000 was 

sufficient to satisfy the statute. Further, the 

agency could consider costs in assessing the 

"ample margin of safety” it was required to 

provide in the standard, given that Congress 

referenced in the statute a benzene standard 

in which EPA had also considered costs. 

Finally, the court upheld the record basis 

for EPA's decision, finding that EPA 

reasonably relied on industry-supplied data 

in reaching its decision and had reasonably 

responded to comments regarding the 

agency’s alleged failure to regulate all 

sources of emissions of hazardous air 

pollutants in the category. 

Upholding EPA's CAA Permitting 

Decisions and Enforcement Discretion. 

In Citizens Against Ruining the 

Environment v. EPA, the Seventh Circuit 

upheld EPA's decision not to object to 

15 
Illinois' issuance of CAA Title V operating 

permits to six Midwest Generation power 

plants. The court first found that the Illinois 

Attorney General lacked standing, having 

failed to explain why the court should 

entertain a challenge by one state agency to a 

decision of a second agency of the same 

state. The court also ruled that EPA 

reasonably interpreted the CAA in deciding 

that petitioners had not "demonstrated" the 

permittee's noncompliance with the Act, 

where EPA had commenced judicial 

enforcement proceedings against the 

permittee, the permittee was contesting 

those allegations, and they had not been 

judicially resolved. 

Similarly, in Sierra Club v. EPA, a 

petition for review of EPA's denial of a 

request to object to a CAA Title V permit 

for certain Georgia Power facilities, the 

Eleventh Circuit held that EPA acted 

reasonably and within its discretion in 

determining that a citizen petitioner had not 

made an adequate "demonstration" of a 

violation where the petition rested entirely 

on EPA's own allegations in an enforcement 

complaint that had not yet been adjudicated. 

Protecting Against Premature Challenges 

to Agency Action. In State of California v. 

EPA, the petitioners sought review of the 

EPA Administrator's letter to California 

Governor Schwarzenegger informing him of 

EPA's intent to deny California's request for 

a waiver of CAA preemption for California's 

proposed regulation of motor vehicle 

greenhouse gas emissions. EPA 

subsequently published a formal denial 

decision in the Federal Register. The court 

granted our motion to dismiss the challenge 

to EPA's letter, finding that the letter did 

not constitute reviewable final agency 

action.

Upholding EPA's Safe Drinking Water 

Regulations. In City of Portland, Oregon 

v. EPA, the court denied the petitioners’ 

request to overturn EPA's National Primary 

Drinking Water Regulations setting 

requirements to reduce levels of 

cryptosporidium and other microbial 

pathogens in drinking water. The court 

found that EPA had adequately considered 

and addressed all issues during the 

rulemaking. 

In another case involving regulation 

of drinking water, Miami-Dade County v. 

EPA, the petitioners sought review of a 

final rule entitled "Underground Injection 

Control Program -- Revision to the Federal 

Underground Injection Control 

Requirements for Class I Municipal 

Disposal Wells in Florida." The court 

found that EPA had reasonably addressed 

in the rule the risks posed by non-biological 

contaminants, pathogens, nutrients, and 

other contaminants, and that EPA 

permissibly compared the utility of 

underground injection with other forms of 

waste disposal. The court also held that 

EPA reasonably considered geologic 

variation in determining where the final 

rule would apply. Finally, the court upheld 

as reasonable EPA's resolution of a number 

of record-based issues, including findings 

EPA made in a risk assessment and its 

decision to require high-level disinfection 

before injection of wastes. 

Defending Against Liability for Damage 

Caused by Hurricane Katrina. In

16 
Louisiana Envtl. Action Network v. United 

States Army Corps of Eng’rs, the plaintiff 

sued the Corps of Engineers under RCRA, 

alleging the existence of an imminent and 

substantial endangerment and seeking to 

force the testing and any necessary cleanup 

of sediments deposited in the vicinity of the 

Pratt Drive breach of the London Avenue 

Canal following Hurricane Katrina. The 

court dismissed two complaints because 

RCRA does not abrogate the immunity that 

Congress conferred on the Corps in the 

Flood Control Act with regard to its flood 

control activities. 

Defending Agency Post-September 11 

Conduct. In Benzman v. Whitman, a case 

jointly handled by the Environment and 

Natural Resources and Civil Divisions, the 

plaintiffs who lived, worked, or went to 

school in southern Manhattan, alleged that 

they were injured by EPA official statements 

(including by then-Administrator Whitman) 

claiming air quality after the collapse of the 

World Trade Center was better than it 

actually was. As we argued, the Second 

Circuit held that the alleged actions by 

Whitman and EPA did not rise to a 

constitutional violation. The court noted the 

competing considerations to which both 

Whitman and EPA were subject, and held 

that imposing liability for actions taken 

under these circumstances could seriously 

hamper government decision-making. The 

court affirmed the dismissal of the claims, 

holding that the plaintiffs had failed to 

identify duties that EPA was required to 

carry out. 

Defending Untimely Challenges to Agency 

Action. West Virginia Highlands 

Conservancy v. Johnson involved a citizen 

suit under RCRA, alleging that EPA had 

failed to perform a nondiscretionary duty to 

conduct a study on coal mining wastes, 

prepare a report to Congress, and make a 

determination whether the regulation of 

coal mining wastes as hazardous is 

warranted. The court granted our motion to 

dismiss the complaint as untimely on 

alternative grounds. 

Enhancing the Nation's Energy 

Infrastructure. With the nation's growing 

imperative to efficiently and economically 

produce energy for its citizens and 

businesses, the Division's work in securing 

the rights-of-way and other requisites 

attendant to energy production and delivery 

has become increasingly important. For 

instance, the Division has been called upon 

to litigate disputes related to the 

designation of electricity transmission 

corridors in the Mid-Atlantic and the 

Southwest. In related cases, National

Wildlife Fed'n v. DOE, and Piedmont Envtl. 

Ctr. v. DOE, we succeeded in having 

NEPA, National Historic Preservation Act, 

and Energy Policy Act claims challenging 

designation of the Mid-Atlantic Corridor 

dismissed. 

Naturally, in order to provide oil 

and gas for energy production, it has to be 

located. The Division has defended suits 

over permits issued under the Outer 

Continental Shelf Lands Act to conduct 

seismic explorations in the Chukchi and 

Beaufort Seas off Alaska. After hearing the 

Division's arguments, the court found in 

Native Village of Point Hope v. Minerals 

Management Service that the agencies 

appropriately issued their authorizations on 

the basis of an environmental assessment 

17 
and finding of no significant impact, even 

though they were still studying longer-term 

potential impacts. In Center for Biological 

Diversity v. Kempthorne, the Division 

successfully defended the FWS’s issuance of 

a regulation and accompanying 

environmental assessment authorizing the 

incidental take of polar bears for five years 

during oil and gas operations in the Beaufort 

Sea. Of significance, the court concluded 

that the assessment adequately accounted for 

the combined effect of incidental take and 

climate change on polar bears. In yet 

another case, North Slope Borough v. 

Minerals Management Service, the Division 

presented persuasive evidence in support of 

an oil and gas lease sale in the Beaufort Sea 

challenged for its alleged impacts on polar 

bears, bowhead whales, and other wildlife. 

Defending the Federal Highway 

Administration's Traffic Projects. As the 

nation grows more and more mobile and 

increases in population, it is increasingly 

important that our roads and bridges be safe, 

efficient, and minimize environmental 

impacts. The Division continues to play a 

significant role in defending the Federal 

Highway Administration's (FHWA) projects 

designed to address both traffic control and 

safety. This year saw some significant 

victories for the Division. In one example, 

the plaintiffs in the consolidated cases of 

Audubon Naturalist Soc’y v. DOT and 

Environmental Defense v. DOT challenged 

the Intercounty Connector highway project 

linking I-95/US 1 with I-270 across Prince 

George’s and Montgomery Counties in the 

Maryland suburbs outside Washington, D.C. 

This high profile project has been in the 

works for years to alleviate congestion 

outside of the I-495 beltway, which is 

among the worst in the nation. Along with 

the State of Maryland, we successfully 

defended against the myriad claims raised 

under NEPA, the Department of 

Transportation Act Section 4(f), the CWA, 

the CAA, and the Federal Aid to Highways 

Act.

The State of Indiana has been 

searching for over half of a century for a 

major highway route across the 

southwestern quadrant of the state. The 

FHWA, along with the Indiana Department 

of Transportation, took a hard look at the 

benefits and detriments of a particular route 

to complete that search. While 

acknowledging differences of opinion as to 

the project, the court in Hoosier Envtl. 

Council v. DOT agreed that the FHWA and 

the Indiana Department of Transportation 

had properly analyzed the effects of the 

proposed new I-69 segment from 

Indianapolis to Evansville designed to 

facilitate the international trade route from 

the Canadian border at Huron, Michigan, to 

the Mexican border at Laredo, Texas. The 

court also found that there were no 

violations of the CWA, ESA, or the 

Department of Transportation Act. 

Securing Needed Water Rights for the 

United States. The Division is involved in 

litigating federal water rights claims for a 

variety of purposes. For example, the Great 

Sand Dunes National Park and Preserve 

Act of 2000 directs the Department of the 

Interior to obtain water rights under 

Colorado law to maintain groundwater 

levels under the Great Sand Dunes National 

Park and to protect the wetlands, 

streamflows, and other hydrologydependent surface resources of the park for 

18 
future generations. As a result of the 

Division's efforts, the Colorado water court 

granted the United States' claim and decreed 

to the National Park Service the rights to the 

groundwater underlying the park, which is 

critical to the look, the feel, and the ecology 

of the park. 

In another water rights development 

this year, the Assistant Attorney General 

joined the Secretary of the Interior, members 

of Congress, and representatives of the 

States of California and Nevada and the 

Pyramid Lake Paiute Tribe, among others, to 

sign the historic Truckee River Operating 

Agreement ("TROA"), the culmination of 15 

years of negotiations the Division led. 

Under the Truckee-Carson-Pyramid Lake 

Water Rights Settlement Act of 1990, the 

TROA is a prerequisite for Congressional 

approval of an allocation of the waters of 

Lake Tahoe, and the Truckee and Carson 

Rivers among the states, tribe, and 

stakeholders. In addition to enhancing 

drought protection for the Cities of Reno and 

Sparks, TROA provides significant 

environmental benefits through more 

flexible and coordinated reservoir 

operations. This flexibility allows water to 

be stored and released for the benefit of 

threatened and endangered fish species in 

Pyramid Lake, water quality in the lower 

Truckee River, and instream flows on the 

Truckee River and tributaries under the 

California Guidelines. 

Defending Federal Agency Program 

Assessments of Impacts on Species. In a 

variety of cases, plaintiffs assert that federal 

agencies have not adequately considered 

their obligations under species protection 

laws when carrying out actions. In Fiscal 

19 

Year 2008, the Division had favorable 

results in many such challenges. In Nat’l

Wildlife Fed’n v. Harvey, the court held 

that the FWS reasonably concluded that an 

Army Corps of Engineers project would not 

adversely affect the newly rediscovered 

ivory-billed woodpecker. Similarly, in 

Salmon Spawning and Recovery Alliance v. 

Lohn, the court found that the NMFS 

biological opinion on the fishery 

management plans of Washington State and 

17 Tribes for Puget Sound fisheries was 

reasonable. The Division successfully 

argued in Center for Biological Diversity v. 

HUD that HUD loan guarantees did not 

cause residential development requiring 

ESA consultation. 

Acquiring Property for Public Purposes. 

The Division exercises the federal 

government's power of eminent domain to 

enable agencies to acquire land for various 

purposes. In this work, the Division is 

mindful of its goal to achieve results 

equitable to individual landowners and to 

the taxpayers of the United States. This 

year, we assisted in the acquisition of 

property needed for new or expanded 

federal courthouses in Buffalo, New York, 

and Salt Lake City, Utah, and office space 

in Arlington, Virginia. Through 

settlements and trials, the Division saved 

about $32.7 million. We also worked with 

agencies to avoid the expense of litigation 

where possible. 

Working with the United States 

Congress on Environmental and Natural 

Resources Legislation 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 in connection with its 

work, including those implementing 

litigation settlements. In Fiscal Year 2008, 

the Division led the Department's review of 

legislation revising the Lacey Act. Until it 

was amended this year, the Lacey Act, the 

country's oldest national wildlife 

conservation statute, served primarily as an 

anti-trafficking statute to protect a broad 

range of fish and wildlife. This year’s 

amendments to the Lacey Act added new 

enforcement tools with respect to plants, 

including timber harvested in violation of a 

foreign country's laws and imported into the 

United States, as well as products made 

from illegally harvested plants. The 

amendments also require importers of plants 

and plant products to file a declaration upon 

importation.

The Division has also actively 

participated in an interagency group led by 

the Council on Environmental Quality 

tasked with implementation of the new 

provisions. Division attorneys have also 

spoken at conferences and meetings in the 

United States and internationally to explain 

the scope of the new Lacey Act provisions to 

government officials, industry 

representatives, and others. 

Enforcing Environmental Laws Through 

International Capacity Building. 

Attorneys from the Division speak at 

conferences in foreign countries and provide 

training on a variety of subjects pertaining to 

civil and criminal environmental 

enforcement. This year, the Division 

engaged in such capacity building in 

Guatemala, France, Norway, Austria, the 

United Kingdom, the Kingdom of Bahrain, 

Thailand, Laos, Malaysia, Indonesia, China, 

and South Africa. 

Division attorneys organized and 

served as instructors in workshops for 

judges, prosecutors, and investigators in 

Vietnam and Thailand, addressing 

prosecuting cases to combat trade in 

wildlife and wildlife parts in partnership 

with the Association of Southeast Asian 

Nations Wildlife Enforcement Network. 

The Division also conducted training for 

judges and law enforcement officials in 

Indonesia on prosecuting cases involving 

trafficking in illegally harvested timber. 

The Department of State funded this 

training pursuant to a Memorandum of 

Understanding Between the United States 

and Indonesia on Combating Illegal 

Logging and Associated Trade. The 

Division also received funding under the 

Central America-Dominican 

Republic-United States Environmental 

Cooperation Agreement to train judges in 

Central America on handling 

environmental enforcement cases. 

Division attorneys took part in 

several rounds of negotiations in Peru and 

Washington, D.C., with officials of the 

Government of Peru, to review and provide 

comments on environmental and forestry 

laws and regulations being enacted by Peru 

to meet its obligations under the United 

States-Peru Trade Promotion Agreement. 

Protecting the Interests of the United 

States in Litigation Involving Third 

Parties. The Division at times participates 

as amicus curiae in cases in which the 

20 
United States is not a party to protect the 

interests of the United States and its 

component agencies. Such participation 

may be in district court, in a court of 

appeals, or in the Supreme Court; we also 

participate at times in state court 

proceedings. The Division has filed briefs 

in a number of such proceedings in the past 

year. One example is a Fifth Circuit case 

involving the res judicata effect of a CWA 

consent decree on parallel citizen litigation, 

ECO v. Dallas. Here, the Division 

successfully argued that a citizen suit could 

not continue after the federal consent decree 

resolved all claims in the case. Such parallel 

claims are a recurring issue, and are 

especially prevalent in the largest and most 

complex enforcement matters. The 

favorable ECO opinion will help shape the 

case law and protect the settlement authority 

of the United States. 

PROMOTING NATIONAL SECURITY 

AND MILITARY PREPAREDNESS 

Protecting the Navy's Ability to Use 

Sonar in Training Exercises. The Division 

represents the Navy in several cases that 

challenge the Navy's use of mid-frequency 

active sonar throughout the world and in 

specific training exercises off the coast of 

California and Hawaii, as well as its use of 

low-frequency sonar, a new technology for 

anti-submarine warfare that is still in the 

experimental phase. These high-profile cases 

are critically important to the nation's 

security and military readiness. In 2008, our 

efforts have resulted in significant success. 

The plaintiffs challenged the Navy's 

plans to conduct 11 training exercises off the 

21 

coast of southern California in NRDC v. 

Dep’t of the Navy. Over a six-month 

period, this litigation involved three 

preliminary injunction hearings in district 

court; extensive use of classified materials, 

including submission of declarations from 

the Navy's highest ranking operational 

office (the Chief of Naval Operations); a 

site visit by the district court judge; the 

filing of emergency motions to stay before 

both the district and appellate courts, 

including one within hours of a court order; 

two oral arguments before the Ninth 

Circuit; settlement negotiations before the 

Ninth Circuit mediator; invocation of a 

statutory exemption by the President; and 

the filing of a petition for certiorari before 

the Supreme Court. Importantly, at each 

stage of this litigation, the Division has 

obtained relief allowing the Navy to 

proceed with training. 

In the worldwide Navy sonar case, 

Division trial attorneys aggressively 

engaged in jurisdictional discovery initiated 

by the plaintiffs. Following receipt of a 

discovery order in July of this year 

authorizing the Navy to take certain 

depositions and instructing the plaintiffs to 

respond to written discovery, the plaintiffs 

re-started settlement discussions, and a 

settlement very favorable to the Navy was 

reached. 

Supporting the Strategic Border 

Initiative. To enhance domestic security, 

the Illegal Immigration Act requires the 

Department of Homeland Security (DHS) 

to build fencing along the United 

States/Mexico border. The Act requires 

DHS to designate priority areas where 

fencing would be most practical and 
effective in deterring smugglers and aliens 

attempting to gain illegal entry into the 

United States and to complete construction 

of fencing in those areas by December 31, 

2008. DHS has identified over 350 miles of 

priority areas, and the Division has worked 

closely with DHS and the United States 

Army Corps of Engineers to facilitate land 

acquisitions necessary for construction in 

those areas. This effort has required 

acquisition by eminent domain of over 300 

parcels of land located in Texas, New 

Mexico, Arizona, and California. 

Some of these actions have been 

appealed to the Fifth Circuit. In United

States v. Muniz & Rivas, various landowners 

challenged possession orders issued by the 

district court granting the United States 

possession of a temporary right of entry as to 

the subject properties. Agreeing with the 

United States, the Fifth Circuit dismissed for 

lack of appellate jurisdiction. 

Acquiring Property to Improve Military 

Readiness and National Security. The 

Division also exercised the federal 

government's power of eminent domain this 

year to acquire land for military readiness 

and national security purposes, including for 

such diverse military installations as the 

U.S. Southern Command headquarters in 

Florida; Luke Air Force Base in Arizona; the 

Department of the Army's National Training 

Center in Fort Irwin, California; a Special 

Operations Force riverine training range in 

Mississippi; Dobbins Air Reserve Base in 

Georgia; and Travis Air Force Base's 

Anti-Terrorism Protection project 

requirements in California. 

We also supported the military in 

other crucial ways, such as reviewing and 

approving title for the acquisition of a 

hundred acres of land in Florida and 

Pennsylvania by the Department of 

Veterans Affairs for medical facilities and 

national cemeteries. 

The Division also asserted the 

federal government's power of eminent 

domain to assess environmental damage 

and then clean up contaminants stemming 

from military facilities in Montgomery 

County, Alabama, and Tooele Army Depot 

in Utah. 

Defending the Army's Chemical 

Weapons Demilitarization Program. The 

Division has successfully defended the 

Army against challenges to its program to 

destroy aging stockpiles of chemical 

weapons pursuant to international treaty 

obligations. In Sierra Club v. Army, the 

plaintiffs challenged the Army's destruction 

of a chemical nerve agent under RCRA. 

The destruction process involves 

neutralizing the deadly liquid agent at one 

location, then shipping the resulting 

product to a commercial hazardous waste 

incinerator. The plaintiffs alleged that the 

chemical agent is not fully neutralized in 

the treatment process and that trucking the 

resulting product thus presents risks. The 

court ruled in favor of the Army on all 

counts, allowing destruction of chemical 

weapons at the facility, which is vital to 

national security, to be completed without 

interruption.

An Oregon court issued a largely 

favorable decision in G.A.S.P. v. Army,

upholding state-issued permits for the 

22 
incineration of chemical weapons at the 

Army's facility in Umatilla, Oregon. The 

court remanded two relatively minor issues 

to the state permitting agency, but held that 

the facility may continue incinerating 

chemical weapons during the remand 

because petitioners had not shown that the 

operations had an adverse effect on public 

health or the environment. 

Defending FBI Weapons Training. In 

Pollack v. United States Dep't of Justice, the 

plaintiffs sought injunctive relief, $35.2 

million for environmental investigation and 

remediation, and $20 million in tort 

damages arising out of FBI and other federal 

agency firearms training at a regional 

training facility in Illinois, and live-fire 

training exercises by the Coast Guard in 

Lake Michigan. They contended that these 

activities violated the CWA, RCRA, and 

CERCLA, and constituted a public nuisance 

under the Federal Tort Claims Act. The 

court dismissed all claims for lack of subject 

matter jurisdiction, finding that the plaintiffs 

lacked individual and organizational 

standing insofar as they failed to 

demonstrate individualized harm from the 

alleged impacts to drinking water drawn 

from Lake Michigan and to their aesthetic 

interests in the vicinity of the training 

facility and Lake Michigan. 

PROTECTING INDIAN RESOURCES 

AND RESOLVING INDIAN ISSUES 

Defending Tribal and Federal Interests in 

Water Adjudications. In Fiscal Year 2008, 

the Division had continued success in 

representing the interests of Indian tribes in 

complex water rights adjudications. The 

23 

Division was instrumental in reaching a 

major water rights settlement between the 

United States, the Soboba Band of 

Luinseno Indians, and three California 

water districts. The agreement, approved 

by Congress on July 23, 2008, and signed 

into law on July 31, 2008, brought to an 

end almost 60 years of litigation and over 

10 years of settlement negotiations. The 

settlement provides that the Soboba Band 

has the paramount right to pump a 

stipulated amount of water for any use on 

the reservation, an amount guaranteed by 

the water districts should interference 

deplete the Band's groundwater reserves. In 

addition, the non-Indian water districts have 

contributed land to the Band and one of the 

districts will deliver water for the next 30 

years to recharge the groundwater. 

The Division also successfully 

defended a comprehensive settlement in 

United States v. Washington Dep’t of 

Ecology (Lummi Tribe), a lawsuit that 

sought to determine the Lummi Nation's 

rights to the use of groundwater underlying 

the Lummi Peninsula of the Lummi Indian 

Reservation. The Division, working with 

the State of Washington and private water 

users, entered into a settlement which 

protects the groundwater beneath the 

Lummi Peninsula. 

Protecting Tribal Hunting, Fishing, and 

Gathering Rights. The Division litigates 

to protect treaty-based tribal hunting, 

fishing, and gathering rights. Many years 

ago, the United States prevailed in 

establishing the treaty fishing rights of four 

Columbia River Basin tribes. The taking of 

those fish, however, impacts anadromous 

species (those which are born in fresh 
water, migrate to the ocean to grow into 

adults, and return to fresh water to spawn) 

that are listed pursuant to the ESA. In 

United States v. Oregon, the parties, after a 

decade of negotiations, concluded the 

Management Agreement for Fish Harvests 

on the Columbia and Snake Rivers in 

Washington, Oregon, and Idaho for 

2008-2017, which complies with the ESA. 

This plan will improve fish habitat and 

allow the tribes to increase their catch as the 

populations of threatened species increase. 

Upholding Agencies' Authority to 

Implement Indian Policies. The Division 

continued to achieve considerable success 

this year in defending the Secretary of the 

Interior's land trust acquisition authority 

against numerous constitutional, statutory, 

and administrative law challenges. The 

Division also successfully defended 

decisions by the National Indian Gaming 

Commission to approve tribal ordinances 

under the Indian Gaming Regulatory Act. 

For example, in City of Vancouver v. Hogen,

the Division obtained dismissal of a lawsuit 

that challenged the Commission's approval 

of a Cowlitz Indian Tribe ordinance which 

addresses important environmental and 

health/safety issues. In County of Sauk v. 

Kempthorne, the court found that the 

Secretary acted within statutory authority in 

approving the contested trust acquisition on 

behalf of a Wisconsin tribe, which will 

provide important economic and cultural 

benefits to the tribe. Finally, in Michigan

Gambling Opposition v. Kempthorne 

("MichGO"), the Division secured rulings 

from district and appellate courts that 

rejected environmental and constitutional 

claims related to a proposed acquisition in 

Michigan. 

Defending Tribal Trust Claims. The 

Division represents the United States in 

nearly 100 cases brought by Indian tribes 

demanding accountings and damages, and 

alleging breach of trust and other claims 

relating to funds and non-monetary assets 

(such as timber rights, oil and gas rights, 

grazing, mining, and other interests) on 

some 45 million acres of land. Many of 

these cases are in settlement negotiations 

and others are in the early stages of pre-trial 

preparation. The cases are complex and 

cover many decades of economic activity 

on tribal reservations. The Division has 

enjoyed great success in a program of 

engagement with the tribes on their claims 

and has fairly balanced its duties to defend 

client programs with an obligation to make 

whole any tribes wronged by asset 

management practices. The Division has 

settled some cases, had others dismissed on 

procedural grounds, and is prepared to go to 

trial in yet others. 

Litigating Under the Indian Gaming 

Laws. With the Indian gaming revenue at 

tribal casinos exceeding the combined 

revenue of Nevada and Atlantic City 

casinos, the Division continues to be 

involved in litigation defending the 

Secretary's actions related to Indian gaming. 

The Division was successful in securing a 

dismissal of State of Florida and Alabama 

v. Kempthorne, which challenged the 

constitutionality of regulations 

implementing federal Indian gaming laws. 

In three separate actions, we successfully 

opposed emergency injunctive relief 

seeking to prevent a tribal-state compact 

from going into effect in the State of 

Florida. In doing so, we secured very 

favorable language that gives the Interior 

24 
Secretary discretion and flexibility in the 

Department's sensitive role in approving 

tribal-state compacts. 

Navigating the Tribal Acknowledgment 

Process. No role of the Bureau of Indian 

Affairs in the Department of the Interior is 

more sensitive and at times more 

controversial than its responsibility to make 

decisions on whether a group should be 

federally recognized as a tribe. The decision 

means the group becomes sovereign over its 

members and internal disputes. A federally 

recognized tribe gains distinct federal 

benefits and may no longer be subject to 

state civil regulatory laws on its lands. 

Federal recognition also allows the tribe to 

establish Indian gaming activities that are 

consistent with federal law. As a result, the 

acknowledgment process has become a 

magnet for litigation. The Division had two 

prominent successes this year in upholding 

the acknowledgment process. In the first 

case, MOWA Band of Choctaw Indians v. 

United States, the court upheld the Interior 

Department's administrative consideration of 

the plaintiff's application for recognition and 

found that the Department had effectively 

notified the plaintiff of its decision, thus 

commencing the statute of limitations period 

which barred plaintiff's action. In the second 

case, Schaghticoke Tribal Nation v. 

Kempthorne, the plaintiff charged that 

political interference led to the denial of its 

petition for recognition. The court noted 

that, while the evidence showed that 

political actors had exerted public and 

private pressure on the Department, none of 

that political activity actually affected the 

outcome of the decision on the 

acknowledgment petition. 

25 

SUPPORTING THE DIVISION’S 

LITIGATORS

Expanding and Upgrading Technology 

Services and Resources. High priority 

was placed on technology services and 

resources in 2008. In keeping with the 

Division's unique responsibility to lead the 

Department in areas of environmental and 

energy efficiency, we replaced aging IT 

infrastructure and deployed new "virtual 

server" technology, which allowed the 

Division to purchase 37% fewer servers. 

The new servers include an energy-saving 

technology that exceeds EPA's Energy Star 

requirements. Together, these efficiencies 

will reduce the Division's power 

requirements and heat output by 50%. 

Technical support for Division staff also 

received a boost this year when the 

computer desktop support contract (help 

desk) was restructured to provide service 24 

hours a day, 7 days a week. 

The Division acquired software to 

save attorney time and effort during 

document review. We also continued to 

provide government attorneys with 

assistance in electronic discovery matters, 

including through training, client agency 

consultations, and documented standard 

practices. 

Several new features were added to 

the Division's Internet site, www.usdoj. 

gov/enrd, including a subscription service 

by which members of the public can sign 

up for email alerts about items of interest. 

The Division's internal Intranet site 

contains new connectivity tools to help 
employees more quickly access information 

and complete tasks necessary for their jobs. 

One such tool completed in 2008 is a 

web-based expert witness and litigation 

consultant tracking system. The Division 

also improved the ability of trial teams to 

collaborate on case materials with agency 

counsel, investigators, and expert witnesses 

by routinely making case information 

available through our secure Internet portal. 

We completed the Division's 

conversion to JUTNet, a managed enterprise 

local and wide area network that provides 

secured data telecommunications services to 

Division sites in Washington, D.C., and all 

field office locations. This Departmentwide system meets new federal information 

sharing and security requirements. 

Greening the Division. The Division is an 

active participant in the Department's 

Greening the Government effort. This year, 

the Division's Greening the Government 

Committee took concrete steps to reduce the 

environmental footprint of the Division, and 

also conducted research that should lead to 

future reductions in energy use and material 

waste.

Much of the committee's work to 

date has focused on informational outreach 

to Division employees to encourage 

environmentally-friendly behaviors while at 

work. "Best Practices" memoranda for 

paper conservation and energy use were 

distributed to staff, and weekly messages on 

the Division's Intranet have provided other 

tips for being "green" at work. To reduce 

paper waste, the committee has posted 

informational placards near recycling bins 

and the Division will be purchasing paper 

with a higher percentage of recycled 

content. And in a step that will conserve 

paper, all sections of the Division have 

elected to standardize double-sided printing 

as their default printing option. The 

Division has also enrolled in the 

EPA-ABA Climate Challenge, a program 

for law offices seeking to document 

improvements in their environmental 

performance. 

Supporting Litigation. The Office of 

Litigation Support participated in the 

Division's most complex cases in 2008, 

making use of contract staff and in-house 

expertise. Careful attention to case 

requirements analysis and attorney trial 

team needs allowed the Division to apply a 

$27 million litigation support budget to 

document management, processing, 

staffing, training, and trial support services 

for over 300 matters and initiatives. 

As part of ongoing efforts to 

provide better, more efficient services to 

attorneys at the most affordable rates for the 

government, we relocated contract 

litigation support operations for two of the 

Division's largest cases to a large, 

convenient, and less expensive support 

center location, later integrating other 

Division cases into the new support center. 

We closed a large document center in 

Boise, Idaho, and consolidated all western 

water case activities in Denver, Colorado. 

On-site trial support was provided 

for major civil and criminal cases across the 

country, in locations as diverse as 

Cincinnati, Ohio, Los Angeles, California, 

Portland, Oregon, Providence, Rhode 

Island, and Corpus Christi, Texas. 

26