ENRD FY 2000 SUMMARY OF LITIGATION ACCOMPLISHMENTS

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ENRD Home | Current Topics | ENRD FY 2000 

Summary of Litigation Accomplishments

UNITED STATES DEPARTMENT OF JUSTICE

ENVIRONMENT AND NATURAL RESOURCES 

DIVISION

FISCAL YEAR 2000 

SUMMARY OF LITIGATION ACCOMPLISHMENTS 

CONTENTS

FOREWORD

PROTECTING THE NATION'S AIR AND 

WATER

ENSURING CLEANUP OF 

HAZARDOUS WASTE

CARRYING OUT CRIMINAL 

ENFORCEMENT INITIATIVES

PROSECUTING THOSE WHO EXPOSE 

US TO HAZARDOUS SUBSTANCES

ENFORCING WILDLIFE LAWS AND 

DEFENDING WILDLIFE MANAGEMENT 

PROGRAMS

PROTECTING INDIAN RIGHTS AND 

RESOLVING INDIAN ISSUES

PRESERVING OUR NATURAL 

RESOURCES AND PUBLIC LANDS

DEFENDING VITAL FEDERAL 

PROGRAMS

SUPPORTING THE DIVISION'S 

LITIGATORS

FOREWORD

I am honored to present this summary of 

the Environment and Natural Resources 

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Division's accomplishments for fiscal year 

2000. As in past years, the Division's 

work has produced substantial gains for 

the American people for our environment, 

and I am proud to work with such a 

dedicated group of people so committed 

to public service to obtain such 

impressive results. 

Once again, we have had a record-setting 

year. Working together with the United 

States Attorney's Office in Idaho, we 

obtained the longest prison sentence ever 

for a particularly heinous environmental 

crime. In April 2000, a Wharton-educated 

businessman and attorney who 

sentenced one of his employees to a 

lifetime of severe brain damage by 

ordering him to clean up a tank containing 

sodium cyanide finally received his own 

sentence - seventeen years imprisonment 

and $6 million in restitution to the victim's 

family. We also obtained the largest 

Clean Air Act settlement in a case 

involving a stationary source, the largest 

Clean Air Act settlement for violations 

occurring at a single facility, and the 

largest civil penalty after trial of a 

wetlands enforcement case. This track 

record of strong enforcement continues in 

the new fiscal year as we resolve cases 

against a number of coal-fired power 

plants that failed to install pollution control 

equipment when making major 

modifications to their facilities. 

Record-breaking sentences and cases 

are impressive - in particular, we hope 

that they will impress upon potential 

lawbreakers the importance of 

compliance with our environmental laws - 

but they are only a small part of the story 

of the Division's work. On a daily basis, 

the Division's attorneys strive to achieve 

outcomes in their cases that protect the 

environment in immediate and tangible 

ways. We obtain agreements from 

violators to install effective pollutioncontrol equipment and to implement 

corporate-wide environmental 

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management systems, we overcome 

challenges intended to undermine 

environmental programs and regulations, 

we require polluters to clean up their 

messes, and we seek to ensure that the 

federal government itself conscientiously 

adheres to our nation's environmental 

laws. We are also implementing the 

requirements of the Clean Water Act by 

working with the States to develop 

schedules to implement water quality 

protections. 

The Division's work in protecting the 

environment of course encompasses our 

unflagging efforts on behalf of our 

wonderful public lands and natural 

resources. Our accomplishments in these 

areas include protection of public lands 

from overgrazing, wildlife and species 

habitat from destruction, and national 

forests from careless use and 

exploitation. Thus, for example, we 

successfully defended the Forest 

Service's decision not to offer new oil and 

gas leases in an area of the Rocky 

Mountain Front widely recognized for its 

natural beauty. We have also successfully 

defended against a challenge to the 

reintroduction of gray wolves into their 

former home in the Greater Yellowstone 

ecosystem and negotiated a program to 

restore lake trout in the Great Lakes as 

part of litigation over tribal fishing rights. 

We continue to contribute to the 

conservation and restoration of the 

Everglades' unique ecosystem by 

representing the National Park Service in 

its acquisitions through eminent domain 

of approximately 2,500 tracts of land for 

expansion of Everglades National Park 

and Big Cypress National Preserve. 

What we accomplish can sometimes 

undo years of damage to the 

environment. Through our work with our 

sister agencies, the parties responsible 

for an oil spill off Rhode Island's coast 

have agreed to implement programs to 

restore lobsters and loons, and to acquire 

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land for salt ponds and seabirds. 

Regarding the Bunker Hill Superfund Site 

in Idaho, we negotiated a novel consent 

decree with Union Pacific to cap mine 

tailings along its 71.5-mile railroad rightof-way in the Coeur d'Alene Basin and to 

convert the right-of-way into a world-class 

biking and hiking trail that will be 

maintained as a State park for most of its 

length and as a Tribal Park for a segment 

on the Couer d'Alene Tribe's Reservation. 

Our enforcement of the environmental 

laws has direct positive effects on public 

health. We have brought several actions 

under the Safe Drinking Water Act to 

ensure that citizens all over the United 

States can drink from public water 

supplies without fear. Air pollution strikes 

particularly hard against our elderly and 

children and the sick, and we have 

obtained commitments from companies 

violating the Clean Air Act that they will 

engage in projects to reduce air pollution 

and will help establish and fund a clinic to 

diagnose and treat respiratory diseases. 

Joining forces with the Department of 

Housing and Urban Development and the 

Environmental Protection Agency, we 

have secured settlements with several 

landlords requiring the implementation of 

lead paint abatement measures. Lead 

poisoning disproportionately affects 

disadvantaged children, and our work in 

this area is an important part of our effort 

to secure environmental justice for 

everyone. 

We have also obtained commitments to 

clean up hazardous waste sites and 

entered into prospective purchaser 

agreements (PPAs) that will facilitate the 

transition of contaminated sites and 

brownfields to property in productive use. 

One such site was the Pullman/Liquid 

Dynamics Site on the South Side of 

Chicago, formerly an industrial waste 

treatment plant, which was contaminated 

by approximately 266,000 pounds of 

hazardous wastes in drums, tank trailers, 

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vats, and tanks. We entered into a PPA 

with the Salem Baptist Church under 

which the Church will purchase, 

remediate, and redevelop a substantial 

portion of the site in return for a covenant 

not to sue for past response costs and a 

release for future liability for existing 

contamination. The Church plans to 

construct a campus consisting of a 

community center, a sanctuary, and a 

retail center. This site is the subject of 

only one of the 125 PPAs that we have 

entered into in the last 5 years. These 

PPAs have facilitated redevelopment 

projects on more than 1200 acres and 

created more than 1500 short-term and 

1700 permanent jobs. 

A primary responsibility of the Division is 

the implementation of the United States' 

trust responsibility to Indian tribes and the 

resolution of the issues pertaining to 

American Indians, some of our nation's 

most disadvantaged people. We work to 

protect fishing and water rights 

throughout Indian country, for example by 

successfully defending regulations 

implementing the treaty rights of four 

Pacific Northwest tribes to a portion of the 

whiting harvest. In another important 

victory for tribal interests, the United 

States Court of Appeals for the District of 

Columbia Circuit upheld a Clean Air Act 

regulation allowing tribes to regulate air 

quality within the boundaries of their 

reservations. 

The Division is committed to obtaining 

swift and sure justice for all Americans. 

We are prepared to litigate through trial 

(and appeal) if necessary, but when we 

can get better protection for the 

environment by employing alternative 

methods of dispute resolution (ADR) such 

as mediation, we do. In the last year, we 

have successfully resolved 133 cases 

through the use of ADR, and are 

engaging in ADR in over 220 cases. We 

have found that when employed in 

appropriate cases, ADR can provide a 

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valuable tool for resolving disputes and 

achieving compliance with the law in an 

expeditious and cost-effective manner 

across the range of our cases. Even in 

areas often characterized by bitter 

conflict, such as water rights disputes, we 

have had notable successes, for example 

an agreement with the State of Utah on 

protection of the water-related resources 

of Zion National Park, and Cedar Breaks 

and Hovenweep National Monuments. 

Our experience shows that ADR isn't a 

good idea -- it's a great one. 

We also make use of our expertise 

acquired through years of experience to 

help ensure that the nation's laws will 

continue to provide strong protection for 

our environment and natural resources by 

analyzing proposed legislation in these 

areas. We also work on issues such as 

international trade in hazardous 

chemicals, transboundary movement of 

hazardous wastes, protection of the 

world's oceans and coral reefs, vesselbased pollution and accidental 

introduction of harmful exotic species, 

and liability for nuclear accidents. 

As I look back over my tenure as 

Assistant Attorney General, I note that 

one of the Division's most important 

accomplishments has been the 

improvement in the working relationships 

we have with our client agencies, the 

United States Attorney's Offices, and 

state and local officials around the 

country. In the last year alone, these 

strengthened relationships have played a 

central role in the implementation of 

criminal enforcement initiatives such as 

the lab fraud initiative and in the 

successes we have obtained in civil and 

criminal cases generally. Indeed, our 

cooperation has even extended into the 

international sphere in the case of the 

capture of wildlife smuggling kingpins 

such Keng Liang Wong. Such 

cooperative efforts have paid off in 

improved environmental and resource 

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protection for people all over the United 

States, and they will continue to do so for 

years to come. 

The Division's Executive Office has 

provided important support in achieving 

these accomplishments through its 

effective work on the computer, 

personnel, and budgetary issues that all 

organizations face. The Division's fine 

legal support assistants also deserve 

special recognition for all their work 

behind the scenes, and in this respect, 

the Support 2001 program has helped 

immeasurably in accomplishing the 

Division's work. 

In the final analysis, it is the dedication 

and hard work of the Division's attorneys 

and support staff that bring about these 

successes. It has been an enormous 

privilege and pleasure for me to work with 

all these people in public service who 

consistently show the highest levels of 

professionalism and care deeply about 

their work. Day after day, working 

together, we have shown that our national 

government can make a positive 

difference in the lives of Americans. 

Lois J. Schiffer 

Assistant Attorney General 

Environment and Natural Resources 

Division 

January 2001 

PROTECTING THE NATION'S AIR AND 

WATER

Reducing Pollution From Coal-Fired 

Power Plants. In November 1999, the 

Division brought enforcement actions for 

Clean Air Act violations by 29 power 

plants. The utilities' failure to install the 

best available emissions control 

technology resulted in tens of millions of 

tons of sulfur dioxide, nitrogen oxides, 

and particulate matter being illegally 

emitted into the air, leading to detrimental 

health effects on asthma sufferers, the 

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elderly and children, and to forest 

degradation, waterway damage, reservoir 

contamination, and deterioration of stone 

and copper in buildings. Four months 

after initiating this national enforcement 

effort, we reached a settlement with 

Tampa Electric Company, which agreed 

to install and optimize pollution-control 

equipment to achieve significant emission 

reductions in nitrogen oxide, sulfur 

dioxide and particulate matter. It will also 

pay a $3.5 million civil penalty. 

Achieving Record Clean Air Act 

Settlements. We achieved record civil 

penalties in two other Clean Air Act 

cases. The first occurred in July when the 

Attorney General and EPA Administrator 

Carol Browner jointly announced our 

record settlement with Willamette 

Industries, Inc., involving Clean Air Act 

violations at fourteen facilities in three 

EPA Regions. Prior to this settlement, 

Willamette facilities had been emitting 

significant amounts of pollutants, 

including volatile organic compounds 

(VOCs), carbon monoxide, nitrogen oxide 

and particulate matter. Willamette agreed 

to a $19.2 million settlement package 

consisting of $11.2 million in civil 

penalties, $8 million in supplemental 

environmental projects, and injunctive 

relief valued at $74 million, making this 

the largest stationary source settlement to 

date. Willamette will be required to install 

pollution control technology on twenty-five 

wood dryers and six presses at eleven 

facilities, perform multi-media audits of all 

active facilities, maintain a corporate-wide 

environmental management system, 

implement continuous parametric 

monitoring, and obtain emissions offsets 

to compensate for years of illegal 

emissions. The projects to be performed 

include pollution reduction projects, 

alternative fuels projects, community 

sewer and water system improvements, 

and state parkland donations in the 

immediate areas where Willamette 

facilities are located, many of which have 

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economically disadvantaged populations. 

The second record settlement resolved 

claims against Chevron, USA, Inc. for 

violations resulting from VOC emissions 

during marine loading of petroleum 

products. VOCs react to form ozone, an 

extremely pervasive pollutant affecting 

the health of 80 percent of the population 

of the United States. Chevron loaded 

crude and refined petroleum products 

without proper controls for four years. 

Under the consent decree, Chevron will: 

pay a civil penalty of $6 million; retrofit 

valves, flanges, and pumps at a California 

refinery to reduce VOC emissions; and 

spend $500,000 to help establish and 

fund a health clinic to diagnose and treat 

respiratory diseases among area 

residents. This is the biggest Clean Air 

Act settlement to date for violations 

occurring at a single facility. 

Reducing Interstate Contributions to 

Unhealthy Ozone Levels. In March 

2000, we obtained a favorable decision in 

challenges by industry groups and 

several States to EPA's decision to 

require twenty-two States and the District 

of Columbia to revise their state 

implementation plans to reduce nitrogen 

oxide emissions to address chronic 

interstate ozone problems in the 

northeastern states. The court upheld 

EPA's central approach to establishing 

state emission "budgets" based on the 

emission reductions that would occur if 

the same level of highly cost-effective 

controls were placed on all major 

stationary sources of nitrogen oxide in the 

covered states. The ruling allows EPA to 

move forward with its plan to ensure 

ultimate attainment of the ozone standard 

in the northeastern states. 

Successfully Defending More Stringent 

Emission Standards. We successfully 

defended EPA's stricter revised standards 

for nitrogen oxide emissions from fossilENRD FY 2000 Summary Of Litigation Accomplishments | ENRD | Department of Justice Page 9 of 43

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fuel-fired steam generating units. The 

United States Court of Appeals for the 

District of Columbia rejected industry's 

challenge to the standards as excessively 

costly, and affirmed EPA's decision as 

best effectuating the Clean Air Act's 

purposes of reducing air pollution. In 

another action, the D.C. Circuit also 

upheld EPA's regulations limiting 

emissions of volatile organic compounds 

from paints and architectural coatings. 

Protecting Public Health In Nebraska. 

We obtained a partial settlement from 

IBP, Inc., the world's largest meatpacker, 

that requires the company to take 

immediate steps to reduce hydrogen 

sulfide emissions at its Dakota City, 

Nebraska, plant. Hydrogen sulfide is 

deadly in high concentrations, and 

research over the past few years shows 

that exposure to even comparatively low 

doses, which previously was thought to 

be only unpleasant, can in fact cause 

neurological damage. IBP emits nearly a 

ton of hydrogen sulfide per day. Under 

the agreement, IBP will build covered 

wastewater treatment lagoons on a 

mandatory and enforceable schedule, 

decommission existing uncovered 

lagoons, and undertake additional 

projects to limit the release of hydrogen 

sulfide into the air. Together, these 

actions are expected to reduce hydrogen 

sulfide emissions from the plant by as 

much as 95%. The agreement further 

requires IBP to treat over three million 

gallons of well water used at its plant 

each day to reduce the high 

concentration of sulfate in the well water, 

which can be converted to hydrogen 

sulfide in wastewater, and requires IBP to 

install seven on-site and two off-site 

hydrogen sulfide monitors. 

Ensuring Safe Drinking Water in 

California and Arizona. In August 2000, 

we achieved two significant victories in 

the enforcement of the Safe Drinking 

Water Act. In the first, we reached a 

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settlement with the City of Phoenix, 

Arizona, which addressed the City's 

widespread failure to monitor for specified 

contaminants in its drinking water system. 

Under the settlement, Phoenix will comply 

with the monitoring regulations, pay a civil 

penalty of $350,000, and perform two 

supplemental environmental projects 

costing $1.5 million. One of the projects is 

aimed at finding solutions for taste and 

odor problems that exist with the City's 

drinking water. 

The second victory occurred when the 

District Court for the Northern District of 

California granted the United States' three 

motions for summary judgment in a Safe 

Drinking Water Act case against several 

small and medium sized public water 

systems in Monterey County, California 

and their principals. The Court rejected 

defendants' arguments of selective 

prosecution, estoppel, inadmissibility of 

certain evidence, and lack of standing. 

The Court also held the two principals of 

the defendant companies personally 

liable for all the violations of the Act found 

against the corporate defendants. 

Landmark Settlement Resolving MultiState Pipeline Spills. Along with the 

State of Texas, we entered into a 

comprehensive consent decree resolving 

two Clean Water Act cases against Koch 

Industries, Inc. Both cases involved 

numerous illegal spills of oil and related 

petroleum products, estimated to be in 

the millions of gallons, from Koch oil and 

refined petroleum product pipelines and 

related pipeline facilities. Under the 

settlement, Koch will pay $30 million in 

civil penalties (split evenly between the 

United States and the State of Texas), 

enhance its pipeline leak prevention 

programs, and expend at least $5 million 

on environmental projects in Oklahoma, 

Texas and Kansas, the states most 

affected by the discharges. These 

environmental projects include a pipeline 

safety study, acquisition and preservation 

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of wildlife habitat, other wetlands and 

water quality enhancement projects, and 

an emergency planning and response 

project. 

Preventing Spills From Locomotive 

Fuel Tanks. On August 21, 2000, the 

federal district court in Colorado signed 

and entered a consent decree involving 

Union Pacific Railroad Co. settling a 

Clean Water Act action arising from eight 

separate discharges of diesel fuel from 

ruptured or leaking locomotive fuel tanks. 

Seven of the discharges were associated 

with freight train wrecks in Colorado and 

Utah, and two of the derailments also 

resulted in spills of other pollutants. Under 

the oversight of EPA or other federal 

agencies, Union Pacific completed 

emergency response actions and 

undertook wetlands mitigation and 

environmental restoration actions, as 

directed by the Forest Service. As part of 

the settlement, Union Pacific will pay a 

civil penalty of $800,000, and undertake 

extensive injunctive relief to reduce the 

likelihood or severity of possible future 

spills, including: (1) equipping all freight 

locomotives purchased during the next 

five years with fuel tanks meeting a new 

industry standard for crash-worthiness; 

(2) implementation of a comprehensive 

rock fall hazard mitigation project (in 

response to the frequency of rock falls in 

Colorado which cause train derailments 

or rupture locomotive fuel tanks); (3) 

installation of locomotive fuel tank patch 

kits on "hi-rail" vehicles and training the 

operators of such vehicles; and (4) 

preparation of emergency response 

contingency plans for three rivers along 

which Union Pacific's track is aligned. 

Restoring Ocean Resources In Rhode 

Island. The barge North Cape and the 

tug Scandia ran aground and spilled oil in 

the waters of Block Island Sound. In order 

to resolve our claims under the Oil 

Pollution Act of 1990, the parties 

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responsible for the spill agreed to 

undertake a lobster restoration program 

that will involve the v-notching and 

restocking of 1.248 million female legalsize lobsters into the waters of Block 

Island Sound by the end of 2004. The 

defendants will also pay $8 million to the 

National Oceanic and Atmospheric 

Administration, the Department of the 

Interior, and the Rhode Island 

Department of Environmental 

Management to implement the following 

restoration projects: shellfish restoration 

(quahog transplanting), salt pond land 

acquisition, loon restoration (acquisition of 

land or easements to protect loon nests), 

sea bird restoration (acquisition of land or 

easements to protect eider nests), piping 

plover restoration, and a fish run project. 

They have also paid these agencies their 

costs of assessment of natural resource 

damages. 

Protecting Wetlands. After a four-week 

trial in Sacramento concerning the deep 

ripping and destruction of wetlands in 

California's Central Valley, the court 

found that the defendant, a major real 

estate developer, committed over 300 

violations of the Clean Water Act while 

converting ranchlands to more lucrative 

vineyards. The court gave defendants the 

option of paying $1.5 million in civil 

penalties or paying $500,000 in penalties 

and agreeing to create new wetlands 

pursuant to a plan to be filed by EPA. 

We also won a trio of major victories in 

support of our wetland enforcement work. 

First, the Seventh Circuit rejected a 

statutory and Commerce Clause-based 

challenge to the Corps' authority to 

exercise jurisdiction over isolated 

wetlands that serve as migratory bird 

habitat. The Court rejected the argument 

that Congress does not have the power to 

regulate isolated waters that have no 

connection to interstate commerce other 

than their use as migratory bird habitat. 

Citing census data showing millions of 

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people spending billions of dollars each 

year on interstate recreation activities 

involving migratory birds, as well as 

longstanding case law recognizing the 

"national interest" in protecting such birds, 

the Court held that the destruction of 

migratory bird habitat and the attendant 

decrease in the populations of these birds 

"substantially affects" interstate 

commerce. Second, the Fourth Circuit 

reversed the district court's dismissal of a 

wetland enforcement action, holding that 

sidecasting of dirt from a ditch draining a 

wetland requires a permit under the 

Clean Water Act. The Court recognized 

that "[w]etlands perform a vital role in 

maintaining water quality" and noted that 

the adverse effects of ditching, dredging 

and sidecasting activities "are no less 

harmful when the dredged spoil is 

redeposited in the same wetland from 

which it was excavated. The effects on 

hydrology and the environment are the 

same." Third, the Second Circuit reversed 

a dismissal of 30 counts of a 31-count 

Clean Water Act indictment for filling of 

wetlands related to the construction of a 

370-mile natural gas pipeline, ruling that 

the Corps has authority under the Clean 

Water Act to impose permit conditions 

that are "reasonably related" to the 

discharge, even if the conditions do not 

directly regulate the discharge itself. 

Thus, the Corps may take into account, 

and impose conditions on, dischargerelated activities that take place on dry 

lands, or that have indirect effects on 

aesthetic, recreation, or economic values, 

as long as the conditions are reasonably 

related to the discharge activity. 

Controlling Non-Point Source Water 

Pollution. We achieved a favorable result 

in a Northern California case in which the 

court agreed that EPA has authority to 

establish "total maximum daily 

loads" (TMDLs) for pollutants from nonpoint sources. TMDLs identify the 

maximum loading of a pollutant to a water 

that is necessary to implement the 

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applicable water quality standards, and 

allocates this loading to contributing 

sources of the pollutant. The court 

concluded that the Clean Water Act 

provides for a comprehensive set of water 

quality standards for waterways affected 

by both point and non-point sources of 

pollution, and therefore ruled in favor of 

EPA. 

With this result paving the way, we have 

continued our effort to defend EPA's 

implementation of the Clean Water Act's 

TMDL program. This past year, we 

achieved settlements that provide for the 

establishment of TMDLs in the States of 

Arkansas and Missouri under reasonable 

schedules, with EPA agreeing to establish 

TMDLs on behalf of the States if they fail 

to meet those schedules. 

ENSURING CLEAN UP OF 

HAZARDOUS WASTE

Appellate Victory Regarding Idaho's 

Bunker Hill Superfund Site. The Ninth 

Circuit Court of Appeals vacated and 

remanded the district court's adverse 

ruling that most of our natural resource 

damage claims at this Superfund Site 

were barred by the statute of limitations. 

The court of appeals agreed with our 

position that EPA had defined the facility 

to include the entire contaminated area of 

the Coeur D'Alene River Basin, and 

deferred to EPA's longstanding site 

boundaries policy under which 

boundaries are determined and revised 

as EPA learns more about the extent of 

the contamination. This ruling will enable 

the United States to continue to pursue its 

claims for injuries to natural resources 

caused by mining activities. 

One significant portion of the litigation 

over this Superfund site was resolved 

earlier this year when the United States, 

the State of Idaho and the Coeur D'Alene 

Tribe (collectively "Plaintiffs") entered into 

an agreement with the Union Pacific 

Corporation which, among other things, 

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will require Union Pacific to cap the 

former track area of its rail line and create 

a recreational trail along the 71.5 mile line 

across most of the panhandle of Idaho. 

Union Pacific will also pay Plaintiffs' 

response costs and another $2,000,000 

to the natural resource trustees in 

settlement of claims for natural resource 

damages, $2,730,000 to the State and 

Tribe as future owners of the right-of-way, 

and $35,000 for use by Plaintiffs in 

funding educational activities related to 

the response action. 

A National Multi-Media Settlement.

Working with the State of Texas, we 

concluded a national multi-media 

settlement with ASARCO, Inc. and its 

subsidiary, Encycle/Texas, Inc., resolving 

Resource Conservation and Recovery Act 

(RCRA) claims for violations at Encycle's 

recycling facility in Corpus Christi, Texas 

and ASARCO's copper smelter in El 

Paso, lead smelter in East Helena, 

Montana, and copper refinery in Amarillo. 

The consent decree also resolves Clean 

Water Act claims at ASARCO's zinc 

mines in Tennessee. The consent decree 

provides for a detailed redesign of 

Encycle's hazardous waste management 

procedures and appropriate RCRA 

corrective action at Encycle and the El 

Paso smelter, the development and use 

of innovative metals recycling technology 

at Encycle, an auto and truck tire 

recycling project at El Paso, and 

implementation by ASARCO of an 

enhanced corporate-wide environmental 

management and compliance auditing 

system at its 33 operating domestic 

facilities. It also requires payment of $5.5 

million in civil penalties, maintenance by 

ASARCO of a permanent 30-acre 

environmental conservation area for 

public use that will serve as a buffer 

between a disadvantaged neighborhood 

and industry along the Corpus Christi ship 

channel, an air quality project to reduce 

particulate pollution in the El Paso/Juarez 

air shed, and a wetlands restoration 

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project at ASARCO's Coy Mine in 

Tennessee. 

Cleaning Up The Tucson Airport 

Superfund Site. We obtained an 

agreement resolving the remaining claims 

regarding cleanup of the Tucson 

International Airport Area Superfund Site, 

in Pima County, Arizona. Under the 

settlement, all private parties except the 

City will be jointly and severally liable for: 

(1) implementing a soils and shallow 

groundwater remedy in the first "Airport 

Property" remedial area; (2) paying the 

Superfund $1.7 million, which represents 

99 percent of the United States' past 

response costs at the Airport Property; 

and (3) reimbursing the United States for 

all of its future costs at the Airport 

Property, including oversight costs. Total 

past and future response costs at the two 

remedial areas may reach $100 million. 

The City will guarantee the Tucson Airport 

Authority's obligation to fund and perform 

the ongoing regional aquifer remedy. 

Innovative Solution for a Connecticut 

Brownfield. We resolved years of 

litigation with a major asbestos 

manufacturer, its successor and its 

bankruptcy trustee over Superfund liability 

at its former manufacturing facility in 

Stratford, Connecticut. The resolution 

included a complex global settlement 

involving other major creditors of the 

manufacturer and the sale of the Stratford 

property, which had become heavily 

contaminated through sixty years of 

manufacturing asbestos products. 

Instrumental to the sale was a Generic 

Prospective Purchaser Agreement that 

we issued which provided a covenant not 

to sue to any bidder that acquired the 

property, while ensuring the integrity of 

the protective cap that EPA had installed 

over the property. A consortium of 

Walmart, Home Depot and Shaw's Food 

Stores won the bidding for the property. 

Through this mechanism, the United 

States will receive approximately $20 

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million through payments for the PPA and 

our secured claim on the property. 

Addressing Natural Resource 

Damages in Indiana. In order to resolve 

claims that they damaged natural 

resources along the south bank of the 

Maumee River near Fort Wayne, Indiana, 

approximately 87 parties responsible for 

releases of hazardous substances at or 

from the Fort Wayne Reduction 

Superfund Site have agreed to implement 

a restoration plan under which, among 

other things, they will acquire 

approximately 75 acres of land adjacent 

to the Maumee. Once they have acquired 

that land, they will reforest and restore 

almost two-thirds of it, place a 

conservation easement on it, and convey 

it to the Indiana Department of Natural 

Resources. 

Ensuring Prompt Cleanup of 

Hazardous Waste Sites. We have 

successfully defended efforts to halt the 

cleanup of wastes at various sites across 

the United States, including the Lemon 

Lane Landfill at the Bloomington, Indiana 

PCB Superfund Sites, the Murray Smelter 

Superfund Site in Murray, Utah, and the 

Ross hazardous waste incinerator facility 

in Ohio. 

Improving Standards for Safe Disposal 

of PCBs. In August 2000, the Fifth Circuit 

upheld EPA's revision of the rules 

governing the safe disposal of PCBs from 

attack by industry and environmental 

groups. 

CARRYING OUT CRIMINAL 

ENFORCEMENT INITIATIVES

Lab Fraud Initiative. Laboratories are 

used to analyze soil, water and other 

media to determine their chemical 

composition, to assess whether such 

chemicals pose human health risks, and 

to determine whether such media is 

contaminated and in need of remediation. 

In light of the role that labs play in the 

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environmental arena, maintenance of the 

integrity of laboratory sample tests, 

results, and reports is critical. 

Several years ago, the federal law 

enforcement community became aware of 

widespread fraud by a growing number of 

laboratories across the country. As a 

result, the Lab Fraud Task Force was 

established in 1998 to survey the problem 

of fraudulent laboratory testing and to 

determine how best to tackle it. During FY 

2000, Division attorneys were involved in 

several nationally significant 

investigations associated with the task 

force. For example, in September 2000 in 

United States v. Caleb Brett U.S.A., Inc. 

(D.N.J.), Caleb Brett U.S.A. and three of 

its managers pled guilty to charges 

stemming from an investigation of 

fraudulent testing of petroleum products, 

including reformulated gasoline, and false 

statements concerning their results. The 

company pled guilty to conspiracy to 

make false statements to EPA. In an 

apology published in The New York 

Times as part of the plea agreement, the 

company admitted that its employees 

falsified laboratory reports and filed false 

reports on behalf of its clients to EPA in 

connection with the agency's 

reformulated gasoline program. It also 

admitted that its employees concealed 

information about the scheme from 

federal investigators. The company 

agreed to pay a $1 million fine, and the 

managers will be sentenced in the next 

few months. 

Underground Storage Tank Initiative. 

There are approximately one million 

underground storage tanks (USTs) in this 

country and EPA has estimated that 

approximately 35 percent of them do not 

comply with federal regulations. These 

tanks hold oil, gasoline, hazardous 

substances, and hazardous waste, and 

leaks from them pose a serious threat to 

nearby groundwater, the primary source 

of drinking water for most of the country. 

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In the late 1990's, federal law 

enforcement officials also learned of the 

existence of fraud in the testing and 

remediation of leaking underground 

tanks. As a result, a number of 

prosecutions were initiated during the 

past year. One example is United States 

v. Fletcher, a South Carolina prosecution 

involving two technicians employed by a 

South Carolina contractor that performed 

testing services for owners and operators 

of USTs. From 1995 through 1997, the 

two were involved in a mail fraud scheme 

that included performing over 1,500 false 

tests for at least 400 UST owners and 

operators in South Carolina, North 

Carolina, Virginia, and Georgia. The 

defendants generated false documents to 

further the scheme. These documents 

were sent out with an invoice to each 

customer, who then mailed in payment for 

the service. Victims of the defendants' 

scheme paid $400,000 for fraudulent 

testing. The two testers, Chris Fletcher 

and Mark Scruggs, pled guilty to 

conspiracy to commit mail fraud resulting 

from their fraudulent UST testing 

scheme. 

Vessel Pollution Enforcement Effort. 

Over the past several years, along with 

the Coast Guard, EPA, and U.S. 

Attorney's Offices, we have undertaken a 

concentrated enforcement effort to 

prevent pollution of oceans and inland 

waterways by ships. The initial focus was 

training of Coast Guard and other federal 

agents in the development of successful 

criminal prosecutions. These early 

training efforts have yielded results. Since 

1993, there have been 40 environmental 

prosecutions involving pollution from 

ships. Building upon the efforts of 

previous years, the Vessel Pollution 

Initiative achieved a number of critical 

successes last year in the areas of interagency coordination and planning, active 

case prosecutions, and the use of 

important new resources to assist in the 

detection of environmental offenses. 

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There were a number of successful 

prosecutions in the past year that grew 

out of the Vessel Pollution Initiative. For 

example, additional sentences were 

handed down and charges filed in 

connection with our major investigation 

and prosecution of Royal Caribbean 

Cruises, Ltd. (RCCL). In a case arising 

from a July 1999 plea agreement, RCCL 

agreed to pay fines and perform 

community service totaling $18 million in 

six judicial districts. Sentences and final 

judgments were handed down in 

September (Los Angeles), October 

(Alaska, New York), and November 1999 

(Miami, Puerto Rico). The final sentence, 

in the Virgin Islands, was handed down in 

January, 2000. In each district, the 

company was sentenced to serve a fiveyear term of probation and required to 

operate under a court-supervised 

environmental compliance program. Fine 

amounts and community service 

payments varied among the districts. In 

its plea agreement, the company admitted 

that it routinely dumped waste from its 

fleet of cruise ships, and deliberately 

dumped many other types of pollutants, 

including hazardous chemicals from 

photo processing equipment, dry cleaning 

operations and printing presses into U.S. 

harbors and coastal areas. The company 

also admitted to presenting materially 

false statements about its oil discharges 

in its oil record books to the U. S. Coast 

Guard. 

In a follow-up to the prosecutions 

described above, additional charges were 

filed this year against two Chief Engineers 

who served aboard cruise ships owned by 

RCCL. These cases reflect the continuing 

effort to identify and prosecute the 

individuals responsible for the fleet-wide 

environmental violations that were the 

subject of the earlier RCCL plea 

agreements. 

In December 1999, criminal prosecutions 

arising from the routine discharge of oily 

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bilge waste from the SS Rotterdam into 

Alaskan and Canadian waters were 

successfully concluded with the entry of 

guilty pleas to Clean Water Act violations 

by Nanne Hogendoorn, the vessel's 

shore-side technical manager; Dirk 

Smeenk, the ship's Captain; and Hantje 

DeJong, the Chief Engineer. Hal Beheer, 

the corporation which operated the 

Holland America cruise ship, had earlier 

pled guilty to two violations and was 

sentenced to pay fines and restitution 

totaling $2 million. In April 2000, each of 

the individual defendants was sentenced 

to pay a $10,000 criminal fine. The case 

marked the first conviction of a landbased corporate officer and of the senior 

officers aboard a cruise vessel for vessel 

pollution violations at sea. 

Another significant vessel pollution 

prosecution was successfully concluded 

in December 1999 with the sentencing of 

ANAX International Agencies, Inc., 

Dimitrios Georgantas, the owner of the 

vessel T/V Command, and Lampros 

Karganis, the ship's captain. This case 

arose from the discharge of over 3,000 

gallons of bunker fuel oil off the California 

coast that resulted in substantial 

environmental damage to wildlife and to 

beaches south of San Francisco. Based 

upon guilty pleas to a Clean Water Act 

violation and a felony failure to report the 

discharges, ANAX was sentenced to pay 

a total of $9.4 million in federal, state and 

local civil penalties, criminal fines, and 

restitution, including natural resource 

damages of $2.7 million. 

PROSECUTING THOSE WHO EXPOSE 

US TO HAZARDOUS SUBSTANCES

Worker Safety: The Longest Sentence 

Ever for an Environmental Crime. A 

Wharton-educated businessman and 

attorney was convicted of knowingly 

endangering the health and safety of his 

employees during illegal hazardous waste 

storage and disposal activities that left a 

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20-year-old employee with severe 

permanent brain damage from cyanide 

poisoning. In addition to the knowing 

endangerment charges, Elias was 

convicted on two counts of illegal disposal 

of hazardous waste, and making false 

statements to OSHA inspectors in an 

effort to conceal the knowing 

endangerment of his employees. On April 

28, 2000, a federal district court in Idaho 

handed down the longest sentence ever 

for an environmental crime -- 17 years in 

prison. Elias was also ordered to pay 

approximately $6 million in restitution to 

the family of the injured employee, and 

$400,000 in cleanup costs. 

Airline Safety: The Transportation of 

Hazardous Materials in Air Commerce.

In December, 1999, AMR, a subsidiary of 

American Airlines, the nation's secondlargest air carrier, pled guilty to and was 

sentenced for illegally storing hazardous 

waste at the Miami International Airport. 

AMR admitted that during a four-year 

period, the company failed to follow safety 

regulations that strictly control the 

shipment of hazardous materials on 

passenger airplanes and that there were 

a number of incidents in which hazardous 

materials were improperly transported. 

AMR illegally stored ignitible hazardous 

waste containing Dioxital, an oxidizer that 

can explode when exposed to heat and 

which accelerates the burning of other 

materials. A drum containing this 

chemical was rolled on its side, the top 

blew off and the contents ignited. After 

employees extinguished the fire, the 

material was left at the airport and illegally 

stored for three years until it was 

discovered during the investigation. 

Under the plea agreement, American paid 

$8 million in fines and is undertaking a 

court-supervised compliance program at 

every airport in the United States and 

abroad where American Airlines accepts 

cargo for shipment. Of the fine, $2 million 

was paid as corporate community service 

to the Miami-Dade Fire Department to 

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enhance the department's hazardous 

materials division. 

Prosecuting Mismanagement of 

Sewage Treatment Plants. In United 

States v. Johnson Properties, Inc., the 

defendants, owners and operators of a 

number of sewage treatment plants, 

admitted their involvement in a scheme in 

which they purchased small, 

undercapitalized sewage treatment plants 

serving residents in southern Louisiana, 

and then failed to properly operate and 

maintain them while collecting fees from 

the residents for sewage treatment 

services. Johnson Property Inc. (JPI) and 

six subsidiaries entered guilty pleas in 

January 2000 to a felony Clean Water Act 

(CWA) conspiracy charge and agreed to 

pay a $4.36 million fine and restitution of 

$165,000 for their mismanagement of 

over 100 sewage treatment and drinking 

water plants in Louisiana. In June 2000, 

pursuant to a plea agreement, Glen Kelly 

Johnson was sentenced to pay $250,000 

restitution to homeowners and $500,000 

in fines, and to serve 36 months 

incarceration followed by three years 

supervised release. Johnson, general 

manager of both JPI and a subsidiary, 

pled guilty to a CWA conspiracy violation 

and an obstruction of justice charge. 

Carol Rowell, director of the JPI in-house 

monitoring lab and a JPI subsidiary, was 

also sentenced to serve four months 

home detention, three months probation, 

pay a $2,000 fine, and perform a one 

hundred hours of community service. 

Stopping Injection of Hazardous 

Wastes into Wells. The Division 

prevailed in two prosecutions involving 

injecting hazardous waste into wells. In 

September 1999, BP Exploration 

(ALASKA) Inc. (BPXA) pled guilty to 

failing to report the release of hazardous 

substances as required by the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) in connection with the 

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injection of hazardous wastes such as 

paint thinner, paint, oil, and solvents into 

the outer rim of oil wells on Endicott 

Island near the North Slope of Alaska. 

BPXA admitted in a plea agreement in 

September 1999 that it failed to 

immediately notify authorities of a release 

of hazardous substances to the 

environment. The company, BP Amoco's 

Alaska subsidiary, also admitted it failed 

to provide adequate oversight and 

funding to ensure proper environmental 

management on Endicott Island. On 

February 4, 2000, BPXA was sentenced 

to pay the maximum criminal fine of 

$500,000 and ordered to establish a 

nationwide environmental management 

system designed to prevent future 

violations as part of a five-year probation 

sentence. This court-monitored system 

will be the first of its kind in the oil industry 

to result from a federal prosecution and 

will cost $15 million to implement. The 

resolution of the criminal case and a 

related civil case arising from the illegal 

waste disposal is expected to cost BPXA 

a total of $22 million. 

In the second prosecution, the 

defendants Allied Environmental 

Services, Inc., Koteswara Attaluri, 

president of Allied, and trucker Mac 

DeWayne Overholt, were convicted in 

October 1999 on conspiracy to violate the 

Safe Drinking Water Act and RCRA, and 

to commit mail fraud and wire fraud, as 

well as a substantive mail fraud count, 

stemming from their participation in a 

scheme to transport approximately 

500,000 gallons of petroleum-impacted 

wastewater from military facilities to class 

II injection wells in Oklahoma during 1994 

and 1995. Overholt was also convicted of 

illegally discharging 6,000 gallons of the 

wastewater into a stream leading to 

Keystone Lake and transporting 

hazardous wastes to an unpermitted 

facility, and making false statements to 

state and federal investigators. Attaluri 

was ordered to serve 55 months 

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imprisonment and pay $1.27 million in 

restitution for the cost of cleanup, 

Overholt was sentenced to serve 87 

months imprisonment, and Allied was 

placed on five years probation. The judge 

held all three defendants jointly and 

severally liable for the cleanup cost and, if 

the company begins operating again, a 

trustee will be appointed to ensure that 

these violations do not recur. Overholt's 

sentence is the longest to date in a Safe 

Drinking Water Act case. 

ENFORCING WILDLIFE LAWS AND 

DEFENDING WILDLIFE MANAGEMENT 

PROGRAMS

Exotic Bird Smuggling Ring Broken. A 

husband and wife team, Hector and Lucia 

Carrizales, as well as Lucia Carrizales' 

sister, Martha Rodriguez, and 

Rodriguez's friend, Estela Weeks, were 

charged in a 23-count indictment with 

conspiracy, smuggling, and Lacey Act 

offenses stemming from a U.S. Fish and 

Wildlife Service undercover investigation 

into the defendants' exotic bird smuggling 

operation in west Texas. The defendants 

smuggled rare Mexican birds, including 

Military Macaws, Amazon Parrots and 

Toucans, into the United States, and sold 

them to buyers in Presidio, El Paso, and 

the Dallas area. Hector Carrizales 

pleaded guilty to one of the wildlife 

offenses, and was sentenced to 21 

months imprisonment and three years of 

supervised release on September 13, 

2000, for his role in the five-year 

smuggling conspiracy. Lucia Carrizales 

pleaded guilty to the conspiracy charges 

and Estela Weeks pleaded guilty to three 

Lacey Act offenses for her role in 

acquiring some of the smuggled birds, 

and in assisting in the sale of birds to pet 

dealers and individuals in the Dallas area. 

Sentencing hearings for Lucia Carrizales 

and Estela Weeks are scheduled for 

December. Martha Rodriguez failed to 

appear in court for her arraignment on the 

charges against her, and a bench warrant 

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was issued for her arrest. In August of 

this year, in a gesture of goodwill, 28 of 

the smuggled birds were returned to 

Mexican authorities by the U.S. Fish and 

Wildlife Service at a repatriation 

ceremony held in Mexico. 

Surrender of Keng Liang "Anson" 

Wong to U.S. Authorities in Mexico. On 

August 30, 2000, a two-year effort to 

extradite reputed international wildlife 

smuggling kingpin Keng Liang "Anson" 

Wong from Mexico ended successfully 

when he surrendered to U.S. authorities 

in Mexico City and was flown to San 

Francisco to await trial. Between 1995 

and 1998, Division attorneys supervised 

an undercover investigation of Wong and 

his Malaysian import-export business, 

Sungai Rusa Wildlife, by the U.S. Fish 

and Wildlife Service. This investigation 

resulted in felony charges against Wong 

for smuggling 14 shipments of live reptiles 

into the United States from Malaysia, 

Indonesia, and the Philippines, containing 

nearly 300 protected reptiles worth nearly 

a half million dollars, including extremely 

rare endangered plowshare tortoises. 

Wong and his co-conspirators in the 

United States smuggled the animals 

using a variety of methods, including 

Federal Express packages, larger 

commercial shipments and human 

couriers. Wong had previously been 

indicted on wildlife smuggling violations in 

Florida, but had never appeared in the 

United States to answer those charges, 

and could not be extradited from his 

home country of Malaysia. 

California Gnatcatcher. We brought suit 

on behalf of the U.S. Fish and Wildlife 

Service to enjoin a developer in Riverside 

County, California from clearing occupied 

habitat of the threatened California 

gnatcatcher in violation of the 

Endangered Species Act. After the court 

preliminarily enjoined construction, the 

developer agreed to seek a permit prior to 

further development, to set aside a 

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portion of the property and other habitat 

off-site in mitigation for the development, 

and to pay a civil penalty for past taking of 

the gnatcatcher. 

Protecting Salmonid Species. Shortly 

after we brought suit on behalf of the 

Commerce Department to halt the illegal 

take of salmonid species at a series of 

irrigation diversions belonging to the 

Methow Valley Irrigation District in 

eastern Washington, we reached a 

settlement that provides that the irrigation 

district will operate its diversion facilities 

for the next two years in a manner that 

minimizes the harm to the protected fish 

species. After two years, the district will 

be enjoined from further surface water 

diversions. It also plans to switch to 

groundwater pumping which will not harm 

the fish. 

Spiny Dogfish Fishery. In response to 

overfishing of the spiny dogfish (a species 

of shark), the National Marine Fisheries 

Service issued rules implementing a 

fishery management plan for the spiny 

dogfish fishery and quotas and limits on 

spiny dogfish fishing. Members of the 

fishing industry challenged the rules, but 

were rebuffed on all grounds, including 

their claims under the Regulatory 

Flexibility Act ("RFA"). The district court 

specifically ruled that the economic 

concerns of the RFA should not be 

construed to undermine the conservation 

goals of the Magnuson-Stevens Act. 

Edwards Aquifer in Texas. We secured 

an important constitutional victory when a 

district court in Texas upheld the 

constitutionality of the Endangered 

Species Act against an "as-applied" 

challenge under the Commerce Clause, 

among other issues, with regard to 

protection of endangered and listed 

species in the Edwards Aquifer region of 

south-central Texas. 

Southwestern Willow Flycatcher. In this 

challenge to the Fish and Wildlife 

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Service's designation of critical habitat for 

the endangered southwestern willow 

flycatcher, plaintiffs contended that the 

Service inadequately considered the 

economic impacts of the designation. The 

court rejected their claims, holding that 

the Service complied with the 

Endangered Species Act's requirement to 

consider the economic effects of 

designating critical habitat for the 

flycatcher by looking at the incremental 

effects of the designation above and 

beyond the effects of listing the flycatcher 

as endangered under the ESA. 

Reintroduction of Wolves into 

Yellowstone. The Tenth Circuit Court of 

Appeals reversed a 1997 district court 

decision which ordered the removal of the 

gray wolves that had been relocated to 

areas in central Idaho and in and around 

Yellowstone National Park pursuant to the 

Endangered Species Act. The court ruled 

that the wolf reintroduction regulations 

accurately reflect the goals of the 

Endangered Species Act to protect 

natural populations while at the same 

time promoting the recovery of the 

species. 

PROTECTING INDIAN RIGHTS AND 

RESOLVING INDIAN ISSUES

Protecting Treaty Rights and 

Endangered Species. The summer of 

2000 brought drought conditions in many 

parts of the West, adding increasing 

stresses to endangered fish species 

which in some cases are also of interest 

to Indian tribes, and putting pressure on 

tribal water resources. In this context, we 

successfully defended government efforts 

to protect both endangered species and 

tribal resources in the Klamath Basin in 

Oregon. In Klamath, the Bureau of 

Reclamation's operation plan to provide 

minimum flows for Klamath River fish and 

minimum lake levels for fish was upheld 

by the courts in the face of several 

separate and concerted efforts to enjoin it 

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filed by non-Indian irrigation districts and 

environmental groups. The plan 

benefitted the fish and the Klamath Basin 

Tribes, who seek restoration of the fishery 

to levels that would allow the harvest of 

fish. 

Protecting Indian Treaty Rights and 

Lake Trout Rehabilitation. We played 

an integral role in the negotiation of a 

consent decree in United States v. 

Michigan. As a result, rather than 

engaging in lengthy litigation marked by 

bitter social conflict, the parties were able 

to fashion an agreement that provided 

treaty fishing opportunities of five 

Michigan tribes, enhanced restoration of 

lake trout and sport fishing opportunities. 

Underpinning the final agreement were 

significant financial contributions from the 

Department of the Interior ($8.25 million) 

and the Michigan Department of Natural 

Resources (almost $17 million) which will 

enable the tribes to implement their treaty 

rights in a manner consistent with all of 

the parties' goal of restoring native trout 

populations in the Great Lakes. 

Protecting Indian Fishing Rights. In 

1996, the United States recognized the 

rights of four Pacific Northwest Tribes to a 

portion of the whiting harvest pursuant to 

their tribal treaties. The Commerce 

Department then issued regulations to 

effectuate that treaty right. Several fishing 

industry groups joined the States of 

Oregon and Washington in attacking the 

Tribes' right to harvest whiting, the annual 

allocation mechanism, and the annual 

allocations themselves. In 2000, the 

district court granted summary judgment 

to the United States and intervening tribes 

on all counts, upholding the treaty right 

and the annual allocations. The case is 

currently on appeal. 

Settlement of Indian Water Rights 

Claims. We worked with the Fort Mojave 

and Colorado River Indian Tribes to 

secure a settlement of their water rights 

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claims in Arizona v. California, No. 8, 

Original. In June of this year, that 

settlement was confirmed by the 

Supreme Court. Under the settlement, the 

parties' challenges to the Tribes' 

reservation boundaries are resolved in a 

manner favorable to the United States 

and Tribes and the associated water 

rights for the irrigable acreage within 

those boundaries are confirmed. 

We also worked with the Chippewa Cree 

Tribe of the Rocky Boy's Reservation and 

the State of Montana to secure 

Congressional approval of the Chippewa 

Cree Tribe of the Rocky Boy's 

Reservation Indian Reserved Water 

Rights Settlement Act of 1999. This 

settlement, which followed 15 years of 

negotiations, settles claims of the Tribe to 

water within Montana and potential waterrelated claims of the Tribe against the 

United States. Under it, Congress will 

allocate $50 million for a variety of uses 

including improving reservoirs on the 

reservation, importing water from other 

sources nearby, and assisting with tribal 

administrative costs and economic 

development. The settlement is presently 

awaiting enactment through the State 

Water Court. 

In addition, we worked with the Shivwits 

Band of the Paiute Indian Tribe of Utah, 

the State of Utah, and area irrigation 

districts and municipalities to secure 

enactment of the Shivwits Band of the 

Paiute Indian Tribe of Utah Water Rights 

Settlement Act. The Act approves and 

authorizes involvement by the 

Department of the Interior in three related 

water rights agreements as part of a 

settlement of the Band's claims to water 

in the Virgin River adjudication pending in 

State Court. This settlement also resolves 

a variety of potential water rights claims 

among the parties. The water to be 

provided to the Band will be supplied 

primarily through the development of two 

projects shared with local non-Indian 

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water users. Congress will allocate $24 

million towards this settlement. Of these 

monies, $15 million will fund a portion of 

costs related to the construction and 

operation of a water reuse facility for the 

City of St. George, $3 million will be 

available for Endangered Species Act 

concerns, and the remainder will be 

provided to the Band for economic 

development and other costs related to 

the water projects. This settlement is 

pending the parties' signatures to the final 

agreements and approval in the state 

courts, and ends many years of 

negotiations. 

Protecting Pueblo Indian Land Rights 

in New Mexico. Working with the 

Department of the Interior, we negotiated 

a settlement agreement with the Pueblo 

of Santo Domingo (Pueblo) resolving 

long-standing title and trespass disputes 

involving more than 80,000 acres of 

private, public, and Indian lands. In return 

for the extinguishment of their claims, the 

Pueblo will receive a total of $23 million 

and the conveyance of approximately 

4500 acres of Bureau of Land 

Management land, with an option to 

purchase another 7000 acres of Forest 

Service land. This agreement is the 

product of over three years of intensive 

negotiations. In addition to the efforts of 

the United States and the Pueblo, the two 

principal parties in the negotiations, the 

State of New Mexico, other pueblos, local 

governments and private landowners 

have been consulted and stand to benefit 

as well. Congress has ratified this 

agreement. 

Protecting Treaty Lands. The Ninth 

Circuit affirmed the district court's ruling 

that the United States owns the bed and 

banks of the southern third of Coeur 

D'Alene Lake, in northern Idaho, in trust 

for the Coeur D'Alene Indian Tribe. Idaho 

argued on appeal that the bed and banks 

of all navigable waters within the state 

passed to it upon its becoming a state, 

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but the court concluded that it was the 

intention of both the executive and 

Congress to reserve the lakebed in the 

southern third of the lake for the Tribe. 

Defending Tribal Acknowledgment 

Program. This year, the United States 

prevailed in the first comprehensive legal 

challenge to the Department of the 

Interior's federal tribal acknowledgment 

program, the program by which a tribal 

group may seek to become a federally 

recognized Indian Tribe. In what is likely 

to become a landmark opinion on 

Interior's regulatory program for federal 

acknowledgment, the court exhaustively 

analyzed and evaluated the agency's 

lengthy acknowledgment decision, 

upholding the agency's decisionmaking 

approach and outcome in all respects. 

Resolving Indian Land Claims in New 

York State. Attorneys in the Division 

litigated two trials over a three-month 

period this year to help create a 

reservation in New York State for the 

presently landless Cayuga Indians. Prior 

to the trials, the Court had held that New 

York State improperly acquired the former 

64,000-acre Cayuga Reservation from the 

Cayuga in 1795 and 1807. The Division 

also argued successfully that New York 

State -- and not any private landowners -- 

should be liable for paying any damages 

awarded. The jury returned a verdict of 

approximately $40 million. The Cayuga 

will use the award to purchase land in 

their former territory with the goal of 

creating a new reservation. 

Removing Trespassers From Indian 

Reservations. Last spring, we were able 

to complete a lengthy effort to remove 10 

trespassers from the Chemehuevi 

Reservation in California. The United 

States District Court for the Central 

District of California issued a Writ of 

Assistance that provided for the United 

States Marshal to remove the 

trespassers. Nine of the trespassers 

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voluntarily left rather than be removed by 

the Marshal; one entered into a lease and 

remained. These ten non-Indian 

individuals had been living on the 

Reservation for approximately 25 years, 

but ten years ago decided that they would 

not pay increases in rent nor would they 

enter into leases to remain on the 

Reservation, and many had stopped 

paying rent altogether. 

Recovering Unlawfully Collected Taxes 

for Individual Indians. This summer we 

finalized a consent decree through which 

the State of South Dakota will reimburse 

individual tribal members for payments of 

the State's motor vehicle tax which had 

been collected from tribal members who 

resided in Indian country at the time they 

paid the tax. This effort was comprised of 

cases which the United States filed on 

behalf of the individuals and cases 

brought by tribes themselves in which the 

United States intervened. Pursuant to the 

consent decree, individuals have the 

opportunity to file for a reimbursement 

from the State with two levels of appeal 

for any denials. The most recent report is 

that the State has refunded $1.75 million 

to individuals. 

Preserving Tribal Authority to 

Implement the Clean Air Act. We 

obtained a favorable decision upholding 

EPA's rule prescribing how Indian Tribes 

are to be treated as states for purposes of 

air quality management and planning. 

The Court of Appeals found that the 

Clean Air Act delegates authority to 

eligible Indian Tribes to manage air 

resources on all lands (including privatelyowned lands) within the exterior 

boundaries of a reservation; the term 

"reservation" as used in the Act includes 

both formal reservations and informal 

reservations, including Pueblos and tribal 

trust lands. The decision is a significant 

victory for the ability of tribes to regulate 

air quality within their reservations. 

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PRESERVING OUR NATURAL 

RESOURCES AND PUBLIC LANDS

Defending the Forest Service's 

Management of the National Forests.

We had several victories on this front in 

the last year. One such victory was a 

successful defense of the Forest 

Service's decision not to offer new oil and 

gas leases on a portion of the Lewis & 

Clark National Forest known as the Rocky 

Mountain Front, which is noted for its 

diverse wildlife, dramatic scenery, and 

wild and undeveloped state. Another 

came when the court dismissed a 

challenge to the Forest Service's interim 

roadless area rule, which prohibits road 

construction and reconstruction for an 18-

month period in tens of millions of acres 

of Forest Service inventoried roadless 

areas while it develops a long-term rule 

governing them. In a third, we defeated 

an attempt to intervene in an action 

where local schools, counties, and timber 

interests seeking acceleration of the 

timber program filed a complaint alleging 

that the Forest Service failed to 

aggressively remove dead and dying 

trees in the Malheur National Forest. 

Protecting the Black Hills of South 

Dakota. We led a team which negotiated 

the first settlement to effect a 

comprehensive resolution of stakeholder 

concerns affecting a National Forest. The 

negotiations, first with the environmental 

plaintiffs and later expanded to include 

the intervening timber industry 

associations, the neighboring counties, 

and the State of South Dakota, 

addressed amendment of the Forest's 

Land and Resource Management Plan to 

provide for increased protection of 

biological diversity and species viability, 

interim protective measures pending the 

amendment, as well as fire and pest 

management concerns raised by the state 

and counties. Provision was made for 

transitional treatment of timber sales 

which allowed the flow of sales to the 

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dependent industry and community to be 

maintained under negotiated 

modifications which protected sensitive 

species and preserved future options. 

Restoring the Everglades. We continue 

to defend challenges on a variety of fronts 

to federal efforts to manage, restore, and 

protect natural resources in the Florida 

Everglades and the Big Cypress National 

Preserve. We are also contributing to 

protection of the unique Everglades 

ecosystem by representing the National 

Park Service in its acquisitions by 

eminent domain of approximately 2,500 

tracts of land to be used for expansion of 

Everglades National Park and Big 

Cypress National Preserve. 

Protecting the "Rails to Trails" 

Program. The Court of Appeals affirmed 

the Court of Federal Claims for the 

Federal Circuit judgment that the 

conversion of a former railroad property to 

"interim trail use" as the "Capitol 

Crescent" recreational trail did not result 

in a taking of property without 

compensation. 

Significant Water Rights Successes 

Across the Western United States. Last 

year was a year of major successes in 

our water rights litigation. The Arizona 

Supreme Court held that federal reserved 

water rights extend to groundwater and 

that holders of federal reserved water 

rights enjoy greater protection from 

groundwater pumping than do holders of 

state law rights to the extent that greater 

protection may be necessary to maintain 

sufficient water to accomplish the purpose 

of a reservation. The Idaho Supreme 

Court affirmed a decision that the United 

States holds reserved water rights for 

designated wild and scenic rivers that 

flow through the state, as well as water 

rights for the Hells Canyon National 

Recreation Area. We also obtained 

agreements to protect endangered 

species and other wildlife though water 

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releases and flow restoration in rivers in 

New Mexico and California, secured 

critical federal reserved water rights for 

public lands in Nevada, Utah, Colorado 

and Oregon, and defended federal 

management of water projects in 

Washington, California, Oregon and 

Nevada. 

For example, we successfully negotiated 

a settlement of two agreements in which 

the United States obtained nearly 95,000 

acre-feet of water to maintain a 

continuous flow to protect the silvery 

minnows' habitat. Without this water, the 

river would have gone dry in key 

stretches of the minnow's critical habitat, 

an event that the U.S. Fish and Wildlife 

Service believes would have led to the 

extinction of the species. As part of the 

agreement, we also obtained 

commitments to improve the habitat 

conditions on the Rio Grande and to 

complete bypasses around diversion 

dams that are preventing the silvery 

minnow from recolonizing upstream areas 

where the species must become reestablished as part of any recovery. 

Supreme Court Upholds Revised 

Grazing Regulations. A number of 

livestock ranching groups challenged 

several of the Secretary of the Interior's 

1995 amendments to regulations 

governing grazing on public lands 

managed by the Bureau of Land 

Management as inconsistent with the 

Taylor Grazing Act and other federal 

statutes. The grazing groups argued in 

part that the use of the term "grazing 

preference" to denote the priority to be 

accorded applicants for grazing permits, 

and the term "permitted use" to specify 

the grazing use allowed under a grazing 

permit, compromised guaranteed grazing 

opportunities that they believed had been 

provided ranchers in the Taylor Grazing 

Act. The Supreme Court upheld the 

validity of the challenged regulations, 

holding as to those terms that the statutes 

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conferred no fixed grazing rights on 

ranchers and that the Secretary has 

broad authority under the statutes to 

determine grazing privileges on the public 

rangelands. 

Obtaining Royalties for Mineral 

Leasing. We successfully defended an 

order by the Minerals Management 

Service to Shell Oil to pay royalties. The 

court rejected Shell's claim that the order 

to pay was time-barred by the statute of 

limitations and argument that the MMS 

could have issued an order to pay years 

earlier. 

Gettysburg National Tower. In a 

nationally publicized action taken at the 

request of the National Park Service, we 

successfully obtained possession of the 

tourist observation tower at the 

Gettysburg National Military Park. The 

tower was demolished on July 3, the 

anniversary of the famous Pickett's 

Charge in the Battle of Gettysburg. The 

valuation of the interests condemned is in 

litigation. 

DEFENDING VITAL FEDERAL 

PROGRAMS

Replacement of the Woodrow Wilson 

Bridge in the Washington, D.C. Area. A 

unanimous panel of the D.C. Circuit held 

that the Federal Highways Administration 

had complied with the National 

Environmental Policy Act (NEPA), Section 

106 of the Historic Preservation Act, and 

Section 4(f) of the Transportation Act 

when it approved plans to replace the 

Woodrow Wilson Bridge with a twelvelane span. 

Navy Keeps San Diego Port Lease. The 

Justice Department and the U.S. Navy 

recently won a major battle in two 

consolidated cases. The Court's judgment 

allows the Navy to renew leases with the 

Port of San Diego. This litigation concerns 

property leased by the Navy in 1949 for a 

term of 50 years, with a 50-year renewal 

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option. The Port of San Diego and the 

State of California asserted tidelands trust 

rights to prevent the United States from 

invoking its renewal rights, but the court 

ruled that the city had the authority to 

enter into the disputed leases, that 

federal law overruled state laws which 

limited lease terms, and that the doctrine 

of laches precluded challenges to the 

leases' validity. The cases are on appeal 

to the Ninth Circuit. 

Ensuring Safe Destruction of the 

Army's Stockpile of Chemical 

Weapons. In April 2000, after a two week 

trial involving citizen groups' attempt to 

shut down the Tooele Chemical Agent 

Demilitarization Facility at the Deseret 

Chemical Depot in Utah, the court ruled 

that the Army's destruction of chemical 

weapons at the facility presented no 

imminent or substantial endangerment to 

human health or the environment. The 

court also held, among other things, that 

the citizen groups failed to prove that 

alleged violations under the Resource 

Conversation and Recovery Act were 

ongoing or likely to recur. 

Ensuring that Important Federal Law 

Enforcement Programs Comply With 

Environmental Laws. We successfully 

negotiated a settlement agreement that 

enables the United States Border Patrol, 

an agency of the Justice Department's 

Immigration and Naturalization Service, to 

maintain essential border control 

operations in southern Texas while 

complying with environmental laws. 

Launched in 1997, the Border Patrol's 

Operation Rio Grande is designed to 

upgrade the interdiction of undocumented 

aliens and illegal drugs in heavily 

trafficked areas near Brownsville and 

McAllen, Texas. The agency commenced 

its actions, including the installation of 

high-density lighting, without prior 

environmental review under the 

Endangered Species Act and the National 

Environmental Policy Act. Plaintiffs sued 

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initially to enjoin all aspects of the 

Operation and to compel the Border 

Patrol to remove the lights. After intensive 

negotiations with the plaintiffs, the Border 

Patrol agreed both to consult with the 

U.S. Fish and Wildlife Service regarding 

impacts on endangered and threatened 

species (especially nocturnal ocelots and 

jaguarundi) and to prepare an 

environmental impact statement to 

implement the Operation in the McAllen 

Sector. The settlement agreement limits 

the activities that the Border Patrol may 

take during the interim period pending 

completion of the NEPA and ESA 

processes, but avoids the need to remove 

upgraded facilities including the lighting, 

which the agency views as an effective 

deterrent to illegal border crossings. 

Appraisal Unit Accomplishments 

FY2000. In support of the Division's 

litigation, the Appraisal Unit completed 

908 appraisal reviews concerning 1,189 

tracts with a total estimated value of 

$465,730,648. The Unit also provided 

significant valuation assistance to a 

number of client agencies over the course 

of the year. Among the most notable 

efforts was the assistance provided to the 

United States Forest Service and the 

Council on Environmental Quality 

concerning valuation issues related to the 

Columbia River Gorge Project. Consulting 

assistance was also provided in Alabama 

Coushatta Tribe of Texas v. United 

States, United States v. The University of 

Rhode Island, and The Cayuga Indian 

Nation of New York v. George Pataki. 

Unit members also participated in 

presentations at the Valuation 2000 

Appraisal Conference and at a number of 

national and regional meetings and 

seminars held by federal agencies such 

as the National Park Service, The Army 

Corps of Engineers, the Fish and Wildlife 

Service and the Forest Service. 

The most significant single 

accomplishment of the past year was the 

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revision of The Uniform Appraisal 

Standards for Federal Land Acquisitions

(also known as "the Yellow Book.") The 

draft revision includes updating the case 

law, major additions to the text and 

improved organization of the material. 

SUPPORTING THE DIVISION'S 

LITIGATORS

The Executive Office supports the 

Division's environmental mission by 

providing the legal staff with the 

resources, information, and tools 

necessary to do their jobs, and by 

working on projects that further our 

mission throughout the Department and 

community. We worked to strengthen 

employees' professional skills, to make 

new technologies available, to enhance 

internal services and service delivery, and 

to improve the work environment for all 

Division personnel. 

Providing modern technologies while 

preserving systems integrity and security 

was a priority for the Division. This year 

we provided technological enhancements 

with a successful conversion to the 

Justice Consolidated Network. This 

national data network is secure, costeffective, and provides faster data 

communications than were previously 

available, resulting in more efficient 

litigation operations. 

ENRD was the first DOJ litigating Division 

to complete the required Year 2000 

Certification and Validation process for 

our computer systems. Other Divisions 

used our plans as a template in 

completing their own certification and 

validation processes. This process 

assured that the start of the new 

millennium would not interrupt any of our 

record keeping, document production or 

active litigation operations. 

Using automation to manage documents 

and evidence is a cornerstone of our 

support for the Division's major case 

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work. This year the Office of Litigation 

Support introduced a pilot lab for in-house 

document scanning and database 

development services. We expect the lab 

to provide attorneys with new digital 

imaging technologies for case information 

and to reduce the need for expensive 

contract labor and document center 

space. 

ENRD continued to emphasize the 

professional development of our 

employees. This year we completed 

training for our support staff on 

technological and legal skills as part of 

the Support 2001 initiative. We also 

arranged brown bag "roundtable" training 

sessions and discussions for managers. 

A number of other training courses were 

written and delivered specifically for 

Division paralegals, relying heavily on inhouse expertise. 

We took an active role in the 

Department's efforts to comply with the 

"Greening the Government" Executive 

Order, which includes facilities 

management initiatives and 

implementation of the new transit 

subsidies. As part of our outreach to the 

local community, we arranged and 

coordinated a course on environmental 

law at a local high school.

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