3/9/11 DRAFT 

 

UNITED STATES DEPARTMENT OF JUSTICE 

ENVIRONMENT AND NATURAL RESOURCES DIVISION 

SUMMARY OF LITIGATION ACCOMPLISHMENTS FISCAL 

YEAR 2010 
SUMMARY OF 

LITIGATION 

ACCOMPLISHMENTS 

FISCAL YEAR 2010 
Columbia River Gorge, Oregon Photo Courtesy of Jeffrey Bank 
 

CONTENTS 

4 FOREWORD 

10 AN INTRODUCTION TO THE ENVIRONMENT AND 

NATURAL RESOURCES DIVISION 

14 ENVIRONMENT AND NATURAL RESOURCES DIVISION 

PRIORITIES 

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

32 ENSURING CLEANUP OF OIL AND SUPERFUND WASTE 

38 PROMOTING RESPONSIBLE STEWARDSHIP OF 

AMERICA’S WILDLIFE AND NATURAL RESOURCES 

52 CRIMINALLY ENFORCING OUR NATION’S POLLUTION 

AND WILDLIFE LAWS 

60 DEFENDING VITAL FEDERAL PROGRAMS AND 

INTERESTS 

76 PROMOTING NATIONAL SECURITY AND MILITARY 

PREPAREDNESS 

80 PROTECTING INDIAN RESOURCES AND RESOLVING 

INDIAN ISSUES 

84 SUPPORTING THE DIVISION’S LITIGATORS 
 

 

 

FOREWORD 

I am pleased to present the Fiscal Year 2010 Accomplishments Report of the Environment and 

Natural Resources Division (the Division). As this report demonstrates, we have achieved 

meaningful results in protecting human health and the environment for the benefit and enjoyment of the American people. 

Ignacia S. Moreno 

ENRD Assistant 

Attorney General 

A core mission of the Division, and a priority of the Obama Administration and the Department of Justice, is strong enforcement of civil and 

criminal environmental laws to protect our nation’s air, land, water and 

natural resources. The Division’s mission also includes vigorous 

defense of environmental, wildlife and natural resources laws and 

agency actions; effective stewardship of our public lands and natural 

resources; and careful and respectful management of the United States’ 

obligations to American Indian tribes and their members, including 

litigation to protect tribal sovereignty, rights and resources. In all of 

the work that we do, we are mindful of the goals of environmental 

justice: to ensure that all communities enjoy the benefit of a fair and 

even-handed application of environmental laws and that affected 

communities have a meaningful opportunity for input in the consideration of appropriate 

remedies for violations of the law. 

In collaboration with other federal agencies, U.S. Attorneys’ Offices 

and state, local, and tribal governments, the Division’s civil and criminal enforcement efforts have immeasurably protected human health 

and the environment through significant reductions in emissions and 

discharges of harmful pollutants. In addition, in fiscal year 2010, our 

collaborative efforts secured nearly $1.3 billion in civil and stipulated 

penalties, cost recoveries, natural resources damages, and other civil 

monetary relief, including over $922 million recovered for the Superfund. We secured over $7.5 billion in corrective measures through 

court orders and settlements. Of particular note, the Division announced several Clean Air Act settlements that resolved violations on 

a company-wide basis, including settlements with the nation’s second 

-largest manufacturer of Portland cement and second-largest container glass manufacturer. We also secured notable Clean Water Act 

Fiscal Year 2010 

Civil Results

$1.3 Billion 

Civil and stipulated penalties, 

cost recoveries, natural 

resources damages, and other 

civil monetary relief 

Includes $922 million 

recovered for the Superfund 

$7.5 Billion 

Corrective measures through 

court orders and settlements 

4 | foreword 
 

settlements with a number of municipalities to address discharges of untreated sewage from 

wastewater treatment and collection systems, a pressing issue in many of our nation’s cities. 

For example, we reached an agreement that requires the City of Kansas City, Missouri, to spend 

over $2.5 billion to reduce sewer overflows and address stormwater pollution throughout one 

of the nation’s largest sewer districts. We also negotiated a consent decree amendment that 

requires Hamilton County and the City of Cincinnati, Ohio, to spend an additional estimated 

$1.3 billion (and over $3 billion total) to improve sewer systems and come into compliance 

with the Clean Water Act. These efforts resulted in meaningful progress in improving the 

health and environment of vulnerable communities. 

The Division also concluded 50 criminal cases against 79 defendants, 

obtaining over 23 years in jail time and over $104 million in criminal 

fines, restitution, community service funds, and special assessments. 

Notable cases ranged from the prosecution of “Profish,” one of the 

District of Columbia’s largest seafood wholesalers, for purchasing 

illegally harvested striped bass, to the prosecution of Irika Shipping, 

S.A., a ship management company, for concealing the deliberate discharge of oil and plastics from a Greek-flagged cargo ship. In addition, the Division continued its work in several criminal enforcement 

priority areas, including: (1) prosecutions under the Clean Water Act 

and other federal pollution statutes; (2) the Division’s worker safety 

initiative, combining environmental and worker health and safety 

investigations; and (3) Lacey Act enforcement, including domestic 

and international efforts to combat illegal logging and wildlife trafficking. Importantly, the Division’s civil and criminal enforcement 

efforts resulted in significant reductions in the emission and discharge of pollutants, thereby protecting and enhancing public health 

and the environment. Our efforts will serve to deter others from violating federal environmental laws and regulations in the future. 

The Division’s accomplishments in other areas were equally outstanding. In the Division’s enforcement of the nation’s environmental laws, we have not forgotten vulnerable, low-income 

and minority communities. We have taken concrete steps in making environmental justice a 

reality. With our partners at the Environmental Protection Agency (EPA), we have incorporated new approaches into our work to further the important principles of meaningful participation by affected communities and meaningful relief for these communities. This report summarizes noteworthy settlements that further these goals, such as the agreement with the City of 

Kansas City noted above. We also have established a Division-wide environmental justice 

workgroup to ensure that we achieve the goals of environmental justice in all of our work and 

that our efforts are enduring. 

Fiscal Year 2010

Criminal Results

50 criminal cases 

against

79 defendants, 

obtaining over 

23 years in jail time 

and over 

$104 million 

in criminal fines, 

restitution, community 

service funds, and 

special assessments 

foreword | 5 
 

In addition, the Division continued its important work in defending, advising, and otherwise 

supporting a broad range of federal agencies, including EPA, the Department of the Interior, 

the Department of Defense, the Department of Homeland Security, the U.S. Army Corps of Engineers, and the National Oceanic and Atmospheric Administration. The work of our client 

agencies, and by extension our work, is diverse and ranges from implementing the Clean Water 

Act, Clean Air Act, and other federal pollution statutes, to managing the nation’s vast natural 

and cultural resources, including national forests, national parks, other public lands, and wildlife, to making what are often critical decisions involving threatened and endangered species 

and their habitat, to protecting our national security, and to ensuring that we honor our obligations to Indian tribes. 

In fiscal year 2010, the Division defended a number of challenging matters, including: defending the U.S. Fish and Wildlife’s decision to list the polar bear as a threatened species under the 

Endangered Species Act; protecting the public fisc while acquiring land to allow the Department of Homeland Security and other agencies to carry out their national security missions; 

defending litigation seeking to compel additional actions to prevent migration of Asian carp 

into the Great Lakes; assisting the military in its plans to move operations and personnel from 

Okinawa, Japan to Guam; and assisting the Solicitor General in formulating positions of the 

United States in cases before the Supreme Court in which our client agencies were parties or 

otherwise had important interests. In addition, the Division has played, and will continue to 

play, a significant role in defending EPA actions to address climate change. Over the past year, 

EPA has begun to develop a program under the Clean Air Act to regulate greenhouse gas emissions, which contribute to global climate change. Among other things, the agency: (1) found 

under the Clean Air Act that greenhouse gas emissions endanger public health and welfare; 

(2) established greenhouse gas emission standards for light-duty motor vehicles starting with 

the 2012 model year; (3) promulgated regulations specifying a phased approach for regulation 

of stationary sources of greenhouse gases; and (4) took various actions to ensure that all states 

have adequate authority to issue required permits to those stationary sources of greenhouse 

gas emissions. Several industry groups, states, members of Congress, and the U.S. Chamber of 

Commerce challenged EPA’s actions by filing petitions for review in federal courts of appeals 

that will be heard next year. 

The Division also had notable achievements in connection with a broad range of issues involving Indian tribes and supporting tribal sovereignty. In early 2010, for example, the efforts of 

Division attorneys and lawyers from other federal agencies to resolve longstanding disputes 

over water use in the Klamath Basin culminated in the signing of two historic agreements. At 

the reception the night before the agreements were signed, I observed corporate officers, farmers, fisherman, environmentalists, and tribal leaders standing side-by-side, when before, they 

stood toe-to-toe. As another example, in a 2010 case involving the Saginaw Chippewa Indian 

tribe and the State of Michigan, the United States, Michigan, and local governments negotiated 

a historic settlement recognizing the Isabella Reservation in south central Michigan as Indian 

Country, as well as intergovernmental memoranda of agreement regarding the manner in 

6 | foreword 
which the tribe, state, and local governments will operate and interact on a day-to-day basis. 

These agreements are examples of what can be accomplished when individuals and groups 

with varied interests commit to resolving conflicts. We will continue to explore bold and creative ways to settle conflicts that have defied resolution, despite decades of costly litigation. 

Finally, during this past year, the Division played an instrumental role in supporting the federal response to, and investigation of, the catastrophic oil spill in the Gulf of Mexico. On April 

20, 2010, an explosion and fire destroyed the Deepwater Horizon offshore drilling rig that was 

located in the Gulf of Mexico, approximately 40 miles from the Mississippi River delta. The 

incident claimed the lives of 11 rig workers. It also marked the beginning of a massive oil 

spill—the largest in U.S. history—that would take months to contain and that is expected to 

have long-lasting and devastating impacts on natural resources in the Gulf of Mexico. From 

the outset, Attorney General Holder, Assistant Attorney General Tony West, who heads the 

Civil Division, and I traveled numerous times to the Gulf. We have seen the devastation caused 

by the oil spill, and have heard the despair of local citizens whose way of life has been threatened and possibly changed forever. 

In December of last year, the Department of Justice filed a lawsuit against nine defendants, including BP, Transocean, and others, in the Gulf oil spill multi-district litigation proceeding. 

The United States’ complaint asks the court to impose civil penalties under the Clean Water 

Act. It also asks the court to declare eight of the defendants liable without limitation under the 

Oil Pollution Act of 1990 for government removal costs, economic damages, and damages to 

natural resources. With our colleagues in the Civil Division, we have taken a critical step to ensure that those responsible for the oil spill will be held accountable to the fullest extent of the 

law. The Department’s civil and criminal investigations are ongoing. 

The Division’s work in response to the oil spill is not limited to the Department’s civil enforcement action and ongoing investigations. Lawyers in almost every section of the Division work 

While today’s civil action marks a critical step forward, it is 

not a final step. Both our criminal and civil investigations 

are continuing. And our work to ensure that the American 

taxpayers are not forced to bear the costs of restoring the 

gulf area – and its economy – goes on. As I have said from the beginning, 

as our investigations continue, we will not hesitate to take whatever steps 

are necessary to hold accountable those responsible for this spill. 

—Attorney General Eric Holder 

December 15, 2010 
on matters relating to the oil spill. The Division supported the interagency response to the spill 

and continues to defend a number of lawsuits filed against federal agencies. These and other 

actions by the government are critical to our efforts to avoid another similar disaster, and we 

will defend challenges to these actions. 

Deepwater Horizon has become the Division’s top priority and will remain so for the foreseeable future. Despite this new challenge, we remain focused on our core mission: protecting 

human health and the environment. And, while doing so, we will continue to enjoy serving the 

American people. For the second year in a row, the Division was ranked the “Best Place to 

Work” in the government. This is likely due in no small part to the varied, challenging, and important work that we all do in the Division, but also to the collegiality, expertise, dedication, 

and professionalism of the Division’s employees. They are a vital part of the work that we do in 

service of the American people, and I am honored to serve with them. 

Ignacia S. Moreno 

Assistant Attorney General 

Environment and Natural Resources Division 

April 28, 2011 

8 | foreword 
We have an obligation to investigate what went wrong and to 

determine what reforms are needed so that we never have to 

experience a crisis like this again. If the laws on our books are 

insufficient to prevent such a spill, the laws must change. If oversight 

was inadequate to enforce these laws, oversight has to be reformed. If our laws were 

broken, leading to this death and destruction, my solemn pledge is that we will bring 

those responsible to justice on behalf of the victims of this catastrophe and the 

people of the Gulf region. 

—President Barack Obama, June 1, 2010 
 

AN INTRODUCTION TO THE 

ENVIRONMENT AND 

NATURAL RESOURCES DIVISION 

ENRD LITIGATING SECTIONS 

 Appellate 

 Environmental Crimes 

 Environmental Defense 

 Environmental Enforcement 

 Indian Resources 

 Land Acquisition 

 Law and Policy 

 Natural Resources 

 Wildlife and Marine Resources 

The Division has a main office in Washington, D.C., 

and field offices in Anchorage, Boston, Denver, Sacramento, San Francisco, and Seattle. ENRD has a 

staff of almost 700, more than 400 of whom are attorneys. The Division is organized into nine litigating sections plus the Office of the Assistant Attorney 

General and the Executive Office. 

The Division has responsibility for cases involving 

more than 150 statutes and represents virtually 

every federal agency in courts all over the United 

States and its territories and possessions. Our litigation docket contains more than 7,000 active cases 

and matters. 

About one-half of ENRD’s lawyers bring cases against those who violate the nation’s civil and 

criminal pollution-control laws. Others defend environmental challenges to government programs and activities, and represent the United States in matters concerning the stewardship of 

the nation’s natural resources and public lands. The Division is responsible for the acquisition 

of real property by eminent domain for the federal government and for cases arising under the 

wildlife protection laws. In addition, ENRD litigates cases concerning Indian rights and 

claims. 

One of the Division’s primary responsibilities is to enforce federal civil and criminal environmental laws such as the Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Safe Drinking Water Act, and the Lead 

Hazard Reduction Act. The main federal agencies that the Division represents in these areas 

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

(the Corps). The ENRD sections that carry out this work are the Environmental Crimes Section, the Environmental Enforcement Section, and the Environmental Defense Section. 

A substantial portion of the Division’s work includes litigation under a plethora of statutes related to the management of public lands and associated natural and cultural resources. All varieties of public lands are affected by ENRD’s litigation docket, ranging from entire ecosystems, 

10 | introduction 
 

 

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

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

refuges. Examples of ENRD’s land and natural resources litigation include original actions before the U.S. Supreme Court to address interstate boundary and 

water allocation issues; suits over management decisions affecting economic, recreational, and religious uses of the national parks and national forests; and actions to recover royalties and revenues from exploitation of natural resources. 

The Division represents all the land management agencies of the United States 

including, for instance, the Forest Service, the National Park Service, the Bureau 

of Land Management (BLM), the Corps, the Fish and Wildlife Service (FWS), the 

Department of Transportation, and the Department of Defense. The Natural Resources Section is primarily responsible for these cases. 

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

under the fish and wildlife conservation laws, including suits defending agency 

actions under the Endangered Species Act (ESA), which protects endangered and 

threatened animals and plants, and the Marine Mammal Protection Act (MMPA), 

which protects animals such as whales, seals, and dolphins. The Environmental 

Crimes Section also brings criminal prosecutions under these laws against, for 

example, people who are found smuggling wildlife and plants into the United 

States. The main federal agencies that ENRD represents in this area are FWS 

and the National Marine Fisheries Service (NMFS). 

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

regulatory takings cases, in which the plaintiff claims he or she has been deprived 

of property without just compensation by a federal program or activity, or suits 

alleging that a federal agency has failed to comply with the National Environmental Policy Act (NEPA) by, for instance, failing to issue an Environmental Impact Statement. Both takings and NEPA cases can affect vital federal programs 

such as the nation’s defense capabilities (including military preparedness exercises, weapons programs, and military research), National Aeronautics and Space 

Administration programs, recombinant DNA research, and beneficial recreational opportunities such as the rails-to-trails program. These cases also involve 

challenges to regulations promulgated to implement the nation’s anti-pollution 

ENRD MISSION 

The mission of the Environment and Natural Resources Division is, through litigation in 

the federal and state courts, to safeguard and enhance the American environment; 

acquire and manage public lands and natural resources; and protect and manage 

Indian rights and property. 

introduction | 11 
 

 

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

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

the Department of Defense and EPA. The Natural Resources Section and the Environmental Defense Section share responsibility for handling these cases. 

Another portion of the Division’s caseload consists of non-discretionary eminent 

domain litigation. This important work, undertaken with congressional direction 

or authority, involves the acquisition of land for projects such as national parks or 

the construction of federal buildings including courthouses, and for national security-related purposes. The Land Acquisition Section is responsible for this litigation. 

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

protect the rights and resources of federally recognized Indian tribes and their 

members. This includes defending against challenges to statutes and agency action designed to protect tribal interests, and bringing suits on behalf of federal 

agencies to protect tribal rights and natural resources. The rights and resources 

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

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

claims asserted by Indian tribes against the United States on grounds that the 

United States has failed to live up to its obligations to the tribes. The main federal agency that the Division represents in connection with this work is the Bureau of Indian Affairs in the Department of the Interior. 

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

attorneys in the trial courts, and works closely with the Department of Justice’s 

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

In addition, the Division supports the work of the Assistant Attorney General in 

the development of policy concerning the enforcement of the nation’s environmental laws, reviewing and commenting on legislation that would affect the work 

of the Division, reviewing litigation filed under the various citizen-suit provisions 

in the environmental laws, and evaluating and responding to requests that the 

United States participate as an amicus in various matters. Most of this work is 

handled by the Law and Policy Section. 

12 | introduction 
 

 

ENRD CLIENT AGENCIES 

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

United States Agency for International Development (USAID)
 

United States Department of Agriculture (USDA)
 

United States Forest Service (USFS)
 

United States Department of Commerce:
 

National Marine Fisheries Service (NMFS)
 

National Oceanic and Atmospheric Administration (NOAA) 

United States Department of Defense (DOD) 

United States Army Corps of Engineers (USACE) 

United States Marine Corps 

United States Navy 

United States Department of Energy (DOE) 

Environmental Protection Agency (EPA) 

General Services Administration (GSA) 

United States Geological Survey (USGS)
 

United States Department of Homeland Security (DHS)
 

United States Customs and Border Protection (CBP) 

Federal Emergency Management Agency (FEMA) 

United States Coast Guard (USCG) 

United States Department of Housing and Urban Development 

United States Department of the Interior (DOI) 

Bureau of Indian Affairs (BIA) 

Bureau of Land Management (BLM) 

Bureau of Reclamation (BOR) 

National Park Service (NPS) 

United States Fish and Wildlife Service (FWS) 

National Aeronautics and Space Administration (NASA) 

Nuclear Regulatory Commission (NRC) 

United States Department of State 

United States Department of Transportation (DOT) 

United States Maritime Administration 

United States Department of Treasury 

United States Department of Veterans Affairs (VA) 

www.usaid.gov 

www.usda.gov 

www.fs.fed.us 

www.nmfs.noaa.gov 

www.noaa.gov 

www.defense.gov 

www.usace.army.mil 

www.marines.com 

www.navy.mil 

www.energy.gov 

www.epa.gov 

www.gsa.gov 

www.usgs.gov 

www.dhs.gov 

www.cbp.gov 

www.fema.gov 

www.uscg.mil 

www.hud.gov 

www.doi.gov 

www.bia.gov 

www.blm.gov 

www.usbr.gov 

www.nps.gov 

www.fws.gov 

www.nasa.gov 

www.nrc.gov 

www.state.gov 

www.dot.gov 

www.marad.dot.gov 

www.treasury.gov 

www.va.gov 

introduction | 13 
ENVIRONMENT AND 

NATURAL RESOURCES DIVISION 

PRIORITIES 

In fiscal year 2010, the Division achieved 

significant victories for the American people 

in all our practice areas. The remaining 

chapters of this report summarize key accomplishments thematically: protecting our 

nation’s air, land, and water; ensuring 

cleanup of oil and Superfund waste; promoting responsible stewardship of America’s 

wildlife and natural resources; criminally 

enforcing the nation’s pollution and wildlife 

laws; defending vital federal programs and 

interests; promoting national security and 

military preparedness; protecting Indian resources and resolving Indian issues; and 

supporting the Division’s litigators. 

This chapter briefly describes the six overarching work priorities of the Division reflected across the report. The priorities are: 

(1) supporting the federal government’s efforts to protect the environment and natural 

resources; (2) environmental justice; (3) Indian Country; (4) working with U.S. Attorneys, states, tribes, and local government; 

(5) national security; and (6) addressing domestic impacts of global pollution and environmental violations. Environmental justice, which is a top priority of this Administration, is described in greater detail at the 

conclusion of this chapter. 

14 | priorities 
OVERVIEW OF ENRD PRIORITIES 

Supporting the Federal Government’s Efforts to Protect the Environment 

and Natural Resources 

This priority reflects ENRD’s firm commitment to fulfilling the core missions of enforcement 

(civil and criminal), defense, and stewardship. Strong enforcement of civil and criminal environmental laws, vigorous defense of federal programs and interests, and effective stewardship 

of public lands and natural resources are critical to ensure a healthy and prosperous United 

States. The next five chapters of this report illustrate ENRD’s work in this priority area during 

fiscal year 2010. 

Indian Country 

The United States holds approximately 60 million acres of land in trust for tribes and their 

members. The Departments of the Interior and Justice, working with tribes, seek to protect 

those lands and associated resources from trespass, impairment, or encumbrance. The Division is increasing outreach to tribal leaders and communities to better understand their concerns and work more closely with them in carrying out these important responsibilities. 

Division lawyers will continue to work with other federal agencies in order to manage the 

United States' obligations to tribes with the utmost care and respect. We seek to identify ways 

to settle conflicts that have 

defied resolution despite 

decades of costly litigation. In particular, the Department, with the Departments of the Interior 

and Treasury, is exploring 

opportunities for resolution of tribal trust cases in 

a fair and expeditious 

manner. The Environment and Natural Resources Division is also 

working to increase affirmative litigation to protect tribal rights and reBureau of Indian Affairs Photo 

sources and to identify opportunities for the Department of Justice to participate as amicus in 

support of tribal governmental authority and tribal court jurisdiction, with a goal of strengthening tribal governments and tribal courts as institutions. 

priorities | 15 
 

Environmental conditions in tribal communities often lag behind the rest of the nation. The 

Division is working to improve environmental compliance in and around Indian Country. We 

are collaborating with EPA to address this common concern more efficiently and effectively. 

The cases described in the chapters entitled “Protecting Indian Resources and Resolving Indian 

Issues” and “Promoting Responsible Stewardship of America’s Wildlife and Natural Resources,” in particular, recount ENRD’s work last year to further this priority. 

Working with U.S. Attorneys, States, Tribes, and Local Government 

The Division seeks to enhance existing partnerships and develop strong new relationships with 

U.S. Attorneys across the country and with our counterparts in state, tribal, and local government. These partnerships are critical to our success and allow us to build a base of collective 

knowledge, work together to solve difficult problems, and allocate resources as efficiently as 

possible. Since January 2009, about 30 percent of the Division’s civil environmental enforcement actions were brought with states and/or local government. We are building on the success of past outreach efforts to establish work groups, task forces, and other processes to further enhance joint enforcement opportunities. All chapters of this report reflect this Division 

priority. 

Fort Belknap Indian Community President Tracy King speaks to ENRD leadership and U.S. 

Attorneys at a 2010 listening conference in Missoula, Montana. 

16 | priorities 
 

 

 

National Security 

The Environment and Natural Resources Division can make a unique and important contribution to national security while ensuring robust compliance with the country’s environmental 

and natural resources laws. Increasingly, the Division is responsible for defending agency actions that support the security of the United States. We promote safe disposal of high-level nuclear waste and obsolete chemical weapons. We defend against challenges to critical training 

programs that ensure military preparedness. We acquire the lands needed to fulfill critical 

military and homeland security functions. See the chapter of this report entitled “Promoting 

National Security and Military Preparedness” for examples of ENRD actions in fiscal year 2010 

advancing this priority. 

Addressing Domestic Impacts of Global Pollution and Environmental 

Violations 

The Division supports the Administration’s commitments to combat international crime, to 

encourage the rule of law abroad, to build the environmental enforcement capacity of major 

trade partners, and to better address environmental issues that have global impacts, such as 

international organized crime and climate change. In accordance with the Department of Justice’s strategic plan, we recognize that we must build relationships and encourage cooperation 

with our counterparts abroad to combat environmental and natural resource crimes that extend beyond our borders. To that end, for a number of years, the Division has conducted 

prosecutor and judicial trainings to build relationships and enforcement capacity in other 

countries to lay the foundation for effective enforcement partnerships. We are actively seeking 

out opportunities to successfully prosecute U.S. environmental or natural resource crimes that 

involve foreign evidence or assistance or that rely on underlying foreign statutes. The Division 

is working to ensure that environmental enforcement and other Division priorities are considered in U.S. policy development on international issues and in international trade agreement 

and treaty negotiations. Examples of ENRD work under this priority are contained in the 

chapters of this report entitled “Criminally Enforcing Our Nation’s Pollution and Wildlife 

Laws” and “Defending Vital Federal Programs and Interests.” And, to further leverage our resources, we are engaging and coordinating with other governmental partners with international portfolios and expertise, such as EPA, the Department of State, the Office of United 

States Trade Representative, and the United States Agency for International Development. 

priorities | 17 
U.S. environmental laws and protections 

extend to all Americans, regardless of race, 

ethnicity, or socioeconomic status. The 

burden of pollution in the United States, 

however, has fallen disproportionately on 

low-income and minority communities. 

Sources of pollution are frequently located 

in or near these populations, and such communities have often expressed a concern 

that they have relatively little say in the decisions that affect their health and livelihood. The critical challenge for us is to find 

ways to reduce these disproportionate pollution burdens where they exist, to conduct 

our work so as to avoid creating or contributing to such burdens in the future, and to 

take steps to meaningfully include these 

communities in decisions regarding the federal programs, policies, and activities that 

affect them. 

Environmental justice was first identified as 

an important public policy priority for the 

federal government in the Clinton Administration, when Executive Order 12898 was 

issued. Building on this history, environmental justice is a top priority for this Administration. The federal commitment to 

this issue was highlighted at a September 

2010 cabinet-level meeting of the Interagency Working Group on Environmental 

Justice, attended by Attorney General Eric 

Holder, EPA Administrator Lisa Jackson, 

Council on Environmental Quality Chair 

Nancy Sutley, Interior Secretary Ken 

Salazar, Housing and Urban Development 

Secretary Shaun Donovan, and Transportation Secretary Ray LaHood, among others. 

It was the first time this group had met at 

this level in a decade. 

Additionally, last December, the White 

House convened a forum on environmental 

justice attended by numerous cabinet officials, environmental justice activists, and 

community representatives, among others. 

The Interagency Working Group on Environmental Justice has already held several 

regional listening sessions as a followup to 

the September Principals’ meeting and the 

December White House forum, and plans to 

hold several additional regional listening 

sessions over the course of 2011. ENRD has 

actively participated in these interagency 

efforts, and will continue to do so. 

On December 15, 2010, the Obama 

Administration hosted the White 

House Forum on Environmental 

Justice. 

18 | priorities 
The Department of Justice is committed to 

bringing environmental justice principles to 

bear wherever it can, and is guided by its 1995 

Department of Justice Guidance Concerning 

Environmental Justice. The Environment 

and Natural Resources Division, in particular, 

has been aggressively exploring ways to integrate environmental justice considerations 

into the full range of work that we do. These 

efforts have included both elements of increased engagement and outreach, and efforts to achieve outcomes that more directly 

address the impacts that affect and concern 

communities. 

To help enhance our understanding of community concerns, ENRD has met with community and environmental justice leaders, 

participated in public events, and visited 

communities affected by pollution. For example, in February 2010, the Assistant Attorney General for ENRD invited environmental justice advocates and community 

leaders to meet with her and with senior representatives from each ENRD section to discuss environmental justice issues. 

In April 2010, the Assistant Attorneys General for ENRD and Civil Rights met with environmental justice advocates to hear their 

concerns and engage in further dialogue, including about administration and enforcement of Title VI of the Civil Rights Act in the 

context of environmental justice. The Assistant Attorneys General also visited communities in Atlanta to hear about their environmental concerns, and held an environmental 

justice listening session at Clark Atlanta University. Other ENRD representatives have 

also participated in numerous events, as 

panelists, speakers, and faculty, addressing 

issues related to environmental justice. 

The Division’s outreach has also included 

engagement with representatives of business 

and industry. For example, the Assistant Attorney General for ENRD met with the American Bar Association and the Corporate Environmental Enforcement Council to discuss the 

Division’s enforcement agenda, which includes environmental justice, and plans to 

convene a corporate roundtable specifically on 

environmental justice in the coming months. 

In addition to outreach and public engagements, the Division has been hard at work 

examining how we conduct our day-to-day 

business, to ensure that environmental justice considerations are being fully integrated 

into the work that we do. To this end, we 

have established a cross-Divisional workgroup that is looking at creative ways to 

identify and address the needs of communities that have been disproportionately 

affected by pollution. To ensure that these 

environmental justice principles are appropriately implemented, in both the enforcement and non-enforcement contexts, each of 

the Division’s sections has developed, and 

continues to refine, its own environmental 

justice plan. Additionally, ENRD and the 

Civil Rights Division are coordinating in 

unprecedented ways to make sure that our 

environmental justice-related activities are 

mutually supportive. 

Management of the Division’s civil enforcement docket presents a unique opportunity 

to address the needs of communities that 

have been disproportionately affected by 

pollution. ENRD is collaborating with EPA 

on the best approaches to do this. Two 

priorities | 19 
approaches we have been exploring are: 

(1) expanding outreach to affected communities; and (2) seeking creative solutions 

that will have a positive and discernable 

outcome in affected communities. 

Earlier outreach to affected communities, if 

conducted with a sensitivity to issues of confidentiality and with careful management of 

expectations, can be a powerful and positive 

tool in connection with civil environmental 

litigation. Talking to a community allows us 

to hear real concerns and to determine if 

those concerns can be addressed through an 

environmental enforcement action. Outreach can help develop facts, determine the 

scope and the degree of a violation, identify 

witnesses, and pinpoint harms. It can also 

provide information needed to craft remedies that provide the most meaningful, immediate, and appropriate relief. Outreach 

can serve to educate the affected community

about the case, fostering an atmosphere of 

trust and creating a platform for open and 

effective communication between the community and the parties. 

Through outcome assessment, the Division 

evaluates all aspects of potential relief with 

an eye toward determining how to address 

the impacts to a community from a violation. Three types of relief may further the 

goal of environmental justice: 

--First, in some cases, traditional injunctive 

relief may be tailored to the needs of the 

community. Traditional injunctive relief 

requires a polluter to come into compliance 

with the law. When a polluter is required to

perform many different actions over an extended period of time to achieve compliance, it is sometimes possible to design injunctive relief to allow the most severely 

impacted communities to realize benefits 

from the settlement sooner. We can do this, 

for example, by requiring that operational 

modifications be implemented in phases or 

by requiring certain projects to be completed before others. 

--Second, while our enforcement actions 

cannot address all disproportionate burdens, enhanced injunctive relief may be 

available if supported by facts. This relief 

goes beyond mere forward-looking compliance with the law to mitigate the impacts on 

the public health or environment caused by 

a defendant’s past violations. 

--Third, a defendant can agree to perform 

a supplemental environmental project, 

which we refer to as a SEP. A SEP is an environmentally beneficial project that a defendant agrees to undertake in settlement 

of a civil penalty action that has a sufficient 

nexus to the alleged violation, but that the 

defendant is not otherwise legally required 

to perform. 

Several recent cases illustrate how we have 

successfully incorporated environmental justice into the diverse ENRD docket and employed the principles of outreach and outcome 

in practical and meaningful ways. While two 

of the cases were resolved in 2011, they reflect 

the Division’s continuing commitment to furthering the cause of environmental justice. 

Settlement of an enforcement action against 

Kansas City last year requires the city to 

20 | priorities 
spend $2.5 billion over the next 25 years to 

make major, long-needed improvements to 

its sewage collection and treatment systems. 

The agreement will improve public health 

and the environment across the city, but it 

also includes three aspects of relief that are 

tailored to address the impacts of the violations on disproportionately burdened communities. 

--First, Kansas City’s sewer system is in 

greatest need of repair in the city’s urban 

core. Decaying sewer lines and other problems cause sewage to back up into the basements of homes in this vulnerable part of the 

city. The settlement addresses this problem 

by prioritizing sewer rehabilitation projects 

in the urban core. The projects will be expedited to provide more immediate relief to 

residents in this area. 

--Second, the settlement requires the city to 

take early action to reduce overflows of untreated sewage into the Blue River, which 

runs through the urban core. 

--Third, the city will spend $1.6 million to 

implement a voluntary sewer connection and

septic tank closure program. This program 

will provide funding to encourage and assist 

low-income residents to close their septic 

tanks and connect to the public sewer. 

All three aspects of the settlement were the 

product of community outreach. Representatives from the city and EPA met with community groups, organizers, and individuals to learn

about local problems and needs. These meetings helped us shape the settlement to advance 

the principles of environmental justice. 

Barrio De Colores v. U.S. Customs and Border Protection is an action brought under 

NEPA by Barrio De Colores, an association 

of Hispanic residents in the City of Laredo, 

Texas. The association challenged the U.S. 

Customs and Border Protection’s (CBP’s) 

environmental assessment for removal and 

control of Carrizo cane within a 16.1 mile 

corridor along the Rio Grande River using 

herbicides, including aerial spraying by helicopter. Among other claims, Barrio De Colores alleged that CBP failed to adequately 

notify the public in both English and Spanish 

of their right to participate in the environmental review process. As part of the settlement agreement disposing of the case, CBP 

agreed to discontinue aerial spraying and to 

limit a burn and herbicide method of removal to designated sites only, with public 

notice in local newspapers in English and 

Spanish. In addition, CBP agreed to make 

particular commitments for any additional 

Arundo donax, commonly known as Carrizo cane or 

giant reed, is a non-native robust perennial grass that 

grows from about 9 feet to more than 27 feet tall. It 

represents a hazard for U.S. Customs and Border Protection’s Border Patrol by limiting the effectiveness of 

its personnel, operations, and technology. 

(From CBP Website (http://www.cbp.gov/xp/cgov/ 

border_security/border_patrol/ 

border_patrol_sectors/laredo_sector_tx/ 

carrizo_removal/about/affect_cane.xml)) 
cane control and removal outside of the 

16.1-mile corridor for the next five years. 

These commitments include holding a 

scoping meeting, providing a 45-day comment period on draft environmental analyses, and providing a Spanish version of the 

executive summary of any draft analysis. 

The agency also agreed to hold a meeting 

with Barrio De Colores to provide information about the project in English and Spanish. This meeting was held on July 7, 2010 

in the Barrio De Colores neighborhood and 

was considered to be a success by both Barrio De Colores and CBP. 

The United States also concluded a company-wide settlement in early 2010 with 

Saint-Gobain Containers, Inc., which will 

benefit environmental justice communities 

downwind of the addressed facilities. Under the consent decree, the company, the 

nation’s second largest container glass 

manufacturer, agreed to install pollution 

control equipment at an estimated cost of 

$112 million to reduce emissions of nitrogen oxide (NOx), sulfur dioxide (SO2), and 

particulate matter (PM) by approximately 

6,000 tons each year. NOx, SO2, and PM 

can trigger respiratory difficulties and 

asthma, and cause environmental harms 

such as acid rain, visibility impairments, 

and water quality impacts. The settlement 

covers 15 plants. As part of the settlement, 

Saint-Gobain agreed to pay a $2.25 million 

civil penalty to resolve its alleged violations 

of the CAA’s new source review regulations. 

Of the $2.25 million civil penalty, the company paid $1.15 million to the United States 

and $1.1 million to the 10 states and 2 local 

regulatory agencies that joined the case. 

Saint-Gobain agreed to implement further 

pollution controls, including the installation of the first-ever selective catalytic reduction system at a container glass plant in 

the United States. Saint-Gobain will also 

install continuous emission monitoring 

systems at all of their glass plants. 

Another settlement, recently reached with 

Murphy Oil to resolve CAA and other violations at one of Murphy Oil’s refineries, similarly included important communityfocused components. First, Murphy Oil will 

have to meet stringent pollution control requirements if it expands certain operations. 

Second, the settlement requires Murphy Oil 

to construct and maintain an air monitor 

between its refinery and the local neighborhood and to continuously monitor levels of 

SO2, PM, and volatile organic compounds. 

Volatile organic compounds can form 

ground-level ozone. Ozone is also considered one of the most harmful air pollutants 

to human health and the environment. 

Third, Murphy Oil must post the air monitoring data on a public Internet website. 

This is the first refinery settlement to require this kind of monitoring and the disclosure of data on a publicly-available website. 

At the end of January 2011, the United 

States reached agreement with a food processing company, Orval Kent Food Company, Inc., to settle allegations that its Baxter Springs, Kansas processing facility overloaded the city’s wastewater treatment system with millions of gallons of industrial 

wastewater, at times causing pollution in 

the Spring River in Kansas and Oklahoma. 

22 | priorities 
This river flows through the lands of the 

Shawnee Tribe of Eastern Oklahoma. As 

part of the settlement, the company will 

spend at least $32,500 on a project to restock fish in the Spring River watershed. 

Residents of Baxter Springs, tribal members, and other communities downstream 

use the Spring River for fishing and recreation. This project was designed in consultation with the Shawnee Tribe. 

In the future, ENRD will continue outreach 

to communities and listen to their concerns. The Division will work with business 

and industry and support their leadership 

on environmental justice. Environmental 

justice will continue to be an important 

part of our everyday work, and we will look 

for opportunities to address community 

concerns in all that we do. 

Environment and Natural Resources and Civil Rights Divisions 

Environmental Justice Town Hall Meeting: 

December 13, 2010 

priorities | 23 
 

 

 

 

PROTECTING OUR NATION’S 

AIR, LAND, AND WATER 

Investigating the Deepwater Horizon Oil Spill in the Gulf of Mexico and 

Initiating Civil Affirmative Litigation 

Immediately following the explosion and fire that destroyed the Deepwater Horizon offshore 

drilling rig in the Gulf of Mexico on April 20, 2010 and triggered a massive oil spill that took 

approximately three months to contain, ENRD and the Department’s Civil Division--along with 

local U.S. Attorneys’ Offices, the Gulf States, and client agencies--launched a civil investigation 

into this matter. In December, as part of the multi-district litigation in the Eastern District of 

Louisiana, we brought suit against BP, Anadarko, Moex, and Transocean for civil penalties under the CWA and a declaration of liability under the Oil Pollution Act. The pretrial phase of 

this litigation is currently expected to continue through at least early 2012. 

The United States intends to prove that violations of federal safety and operational regulations 

caused or contributed to the oil spill and that eight defendants (the non-insurers) are jointly and 

severally liable, without limitation, under the Oil Pollution Act for government removal costs, 

economic losses, and damage to natural resources due to the oil spill. The United States seeks 

civil penalties under the CWA, which prohibits the unauthorized discharge of oil into the nation’s 

waters. We allege that the defendants named in this lawsuit were in violation of the act throughout the months that oil gushed into the Gulf of Mexico. The federal civil investigation continues. 

Additional claims may be brought in the future against named and/or new defendants. 

Obtaining Company-Wide Relief for Violations of Multiple Environmental 

Statutes 

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

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

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

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

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

and, where appropriate, environmentally beneficial projects. 

During fiscal year 2010, the Division obtained a significant company-wide settlement in United 

States v. McWane, Inc. McWane operates iron and brass foundries, and various valve and tank 

manufacturing facilities across the nation. The settlement resolves more than 400 civil violations of the CAA, CWA, Emergency Planning and Community Right-to-Know Act, CERCLA, 

24 | air, land, and water 
 

 

RCRA, the Safe Drinking Water Act, and the Toxic Substances Control Act, as well as state environmental laws. During the pendency of the case, McWane developed and implemented new 

company-wide environmental management systems, and identified, documented, and corrected all environmental violations at all facilities at a cost of more than $7 million. The company also agreed to pay a civil penalty of $4 million, which the States of Alabama and Iowa will 

also share, and to spend more than $9 million on SEPs. 

T

his is a comprehensive settlement that brings McWane into full environmental 

compliance at 28 facilities nationwide, and imposes a penalty on the company 

for its civil environmental violations at those facilities over the past decade. As 

a result of this agreement, McWane has completely re-engineered its environmental management systems to ensure that it remains in compliance, and has committed over $9 million to environmental projects that will remove significant amounts of 

pollutants from the environment and benefit the surrounding communities. 

—Ignacia S. Moreno 

United States v. McWane Press Release 

Reducing Air Pollution from Power Plants 

The Environment and Natural Resources Division has continued to litigate civil claims under 

the CAA against operators of coal-fired electric power generating plants. Violations in these 

cases arise 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. Through fiscal year 2010, 18 of these 

matters settled on terms that will result in reductions of over 2 million tons of SO2 and NOx 

each year, once the more than $12 billion in required pollution controls are fully functioning. 

Last year, the Division obtained two more settlements under this initiative in United States v. 

Cinergy Corp. and United States v. Westar Energy. Under the Cinergy consent decree, Duke 

Energy Corporation, the successor to Cinergy Corporation, will install and operate $85 million 

worth of air pollution controls at its Gallagher Generating Station in New Albany, Indiana. Under the Westar consent decree, that company will install $500 million worth of air pollution 

controls at its Jeffrey Energy Center plant near Topeka, Kansas. When fully implemented, 

these air pollution controls and other measures will collectively reduce air pollution by more 

than 115,000 tons every year compared with pre-settlement emissions. Duke and Westar, respectively, also paid civil penalties of $1.75 million and $3 million, and will spend $6.25 million 

and $6 million on projects to mitigate the adverse effects of past excess emissions. 

air, land, and water | 25 
 

 

 

Ensuring the Integrity of Municipal Wastewater Treatment Systems 

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

and stormwater treatment and collection. Since January 2006, courts have entered more than 

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

approximately $18 billion. 

These cases often involve one of the most pressing infrastructure issues in the nation’s cities--

discharges of untreated sewage from aging collection systems. This infrastructure issue particularly affects older urban areas, where low-income and minority communities often live. 

Raw sewage contains pathogens that threaten public health. Discharges of raw sewage may 

also lead to beach closures as well as public advisories against consumption of fish. Clean Water Act enforcement also protects national treasures like the Chesapeake Bay. 

Twelve consent decrees, or amendments to previously entered decrees, with municipalities or 

regional sewer districts were entered in fiscal year 2010. Collectively, they provide for the expenditure of more than $4.8 billion in improvements, the payment of $2.3 million in civil penalties, and the performance of SEPs valued at more than $1.8 million. A few examples are the 

following cases: 

Kansas City, Missouri 

--United States v. City of Kansas City (Missouri) resolved CWA violations at one of the nation’s largest 

sewer systems. Under the terms of the consent decree, Kansas City agreed to make extensive improvements to its sewer systems, at a cost estimated to exceed $2.5 billion over 25 years, to eliminate unauthorized overflows of untreated raw sewage and to reduce 

pollution levels in urban stormwater. The city will 

also pay a $600,000 civil penalty and spend $1.6 million on SEPs to implement a voluntary sewer connection and septic tank closure program. As discussed 

previously, the relief in this case was tailored to ad-

--A district court entered an amendment in United States v. Hamilton 

County to two 2004 consent decrees. Under the amendment, Hamilton County and the City of Cincinnati will complete the first 

phase of an approved Wet Weather Improvement Plan by 2019, 

at an estimated cost of $1.3 billion. The plan also establishes a 

process for determining the schedule for the remainder of the 

projects required to bring the defendants into compliance with 

the CWA. 

26 | air, land, and water 

dress the impacts of the violations on disproportionately burdened communities. 
 

 

--In United States v. Hampton Roads Sanitation Dist., the district agreed to pay a $900,000 

civil penalty and to take corrective actions to reduce sanitary sewer overflows from its collection system and nine sewage treatment plants that have polluted the Chesapeake Bay and its 

tributaries in violation of the CWA. Under the consent decree, the district, working with 13 of 

the counties and cities in Virginia it serves, is required to develop and implement a regional 

plan to ensure that its sewer system has adequate capacity to handle flows from severe storms 

and to prevent overflows of sewage. As interim measures, it will make major upgrades and improvements to the system’s infrastructure. The total cost of the interim measures and regional 

plan is expected to be about $400 million. 

--Consent decrees entered in United States v. City of Duluth and United States v. City of Jeffersonville require those municipalities to spend $130 million and $125 million, respectively, to 

make improvements to their wastewater collection systems to eliminate unauthorized discharges of sewage into local waterways. 

--To resolve longstanding violations of the CWA and the Safe Drinking Water Act, the Puerto 

Rico Aqueduct and Sewer Authority (PRASA) entered into a consent decree requiring it to implement major capital improvements and upgrades needed to manage pollution from 126 

drinking water treatment plants. The work is estimated to cost more than $195 million. Most 

of the drinking water treatment plants serve populations in low-income communities. 

Protecting the Nation’s Waters and Wetlands 

In Arc Ecology v. U.S. Maritime Admin., ENRD negotiated a settlement that will lead to the 

maintenance and ultimate disposal of 57 deteriorating reserve vessels anchored in Suisun Bay 

near San Francisco. The consent decree requires the U.S. Maritime Administration to clean all 

the vessels within two years and remove all vessels for disposal by September 30, 2017. 

The district court dismissed, on jurisdictional grounds, a challenge to a determination by EPA 

and the Corps that two reaches of the Santa Cruz River in Arizona are traditional navigable waters in National Ass’n of Home Builders v. EPA. The agencies’ determination was important to 

preserving CWA protection for waters in the arid west. 

Reducing Air and Water Pollution at Other Diverse Facilities 

Last year, the Division improved the nation's air quality by concluding a number of civil enforcement actions against industrial facilities. We negotiated two important settlements under 

the New Source Review provisions of the CAA to reduce air emissions from container glass and 

Portland cement plants throughout the country. The Division obtained the third settlement, 

and first company-wide one, in the cement kiln enforcement initiative with the entry of a consent decree in United States v. LaFarge North America, Inc. The settlement with LaFarge, the 

nation’s second-largest manufacturer of Portland cement, covers all Portland cement plants 

owned by LaFarge North America and two of its subsidiaries. A consent decree in United 

air, land, and water | 27 
 

 

States v. Saint-Gobain Containers, Inc., covers 15 domestic plants owned by Saint-Gobain, the 

nation’s second-largest glass manufacturer. These two settlements are expected to result in 

the reduction of a combined 41,000 tons of SO2, NOx, and PM each year, once the required 

controls are installed and operating. 

LaFarge will install and implement control technologies with an expected cost of up to $170 

million at its cement plants and thereby reduce emissions of NOx by more than 9,000 tons and 

SO2 by more than 26,000 tons per year. In addition, LaFarge agreed to pay a $5 million civil 

penalty, $3.4 million to the United States and $1.7 million to the 13 participating states and 

agencies. 

Glass Bottles Manufactured by Saint-Gobain 

Photo Courtesy of Pierre-Alain Dorange 

Saint-Gobain will install pollution control 

equipment at an estimated cost of $112 

million to reduce emissions of NOx, SO2, 

and PM by approximately 6,000 tons each 

year. In addition, the company agreed to 

pay a $2.25 million civil penalty, $1.15 

million to the United States and $1.1 million to the 10 states and 2 local regulatory 

agencies joining the case. 

A consent decree in United States v. Mosaic Fertilizer, L.L.C., is the sixth nationwide compliance agreement in a CAA initiative to improve compliance among acid 

production manufacturers. It resolves 

claims that Mosaic violated the CAA when 

it modified a facility without obtaining pre-construction permits and installing required pollution control equipment. Mosaic, which produces sulfuric acid in connection with the manufacture of fertilizer, will install state-of-the-art pollution control equipment with an estimated cost 

of $30 million, at its production facility in Uncle Sam, Louisiana. The decree also requires the 

company to upgrade existing controls and make multiple modifications to its operating procedures to meet new, lower SO2 emission limits at the facility. Mosaic also agreed that it will permanently cease sulfuric acid production at its plant in Bartow, Florida. These measures are 

expected to eliminate more than 7,600 tons of SO2 annually from the two plants. Mosaic will 

also pay a civil penalty of $2.4 million to resolve the alleged violations. 

As part of an ongoing effort to ensure that all imported vehicles and engines comply with CAA 

requirements, the Division reached an agreement in United States v. The Pep Boys - Manny, 

Moe & Jack, under which the defendants resolved allegations that they illegally imported and 

sold vehicles and engines from 2004 through 2009. The consent decree requires the defendants to pay $5 million in civil penalties, to export or destroy over 1,300 non-compliant vehicles and engines, and to mitigate the adverse environmental effects of equipment already sold 

28 | air, land, and water 
 

to consumers, which is estimated at more than 7,000 tons of excess emissions. This is the 

largest vehicle and engine importation case brought to date under the CAA, both in terms of 

the number of vehicles and engines imported and the penalty paid. 

The Division also improved the nation's water quality by concluding a number of civil enforcement actions against industrial facilities. Among the industries agreeing to settle their noncompliance with the CWA are two pipelines, a railroad, and a slaughterhouse: 

--Injunctive relief was obtained from two pipeline owners and/or operators for civil violations of the CWA resulting from unauthorized 

spills into waters of the United States. District courts in Texas and 

California entered consent decrees in United States v. Plains All American Pipeline, L.P. and United States v. Pacific Pipeline Systems, L.L.C.,

respectively. Plains resolved claims in connection with 10 unauthorized discharges of crude oil occurring in the States of Texas, Louisiana, 

Kansas, and Oklahoma. Pacific also resolved claims regarding a discharge of oil into Pyramid Lake, north of Los Angeles, California, when 

the defendant’s oil pipeline ruptured. The defendants are undertaking 

corrective measures estimated to cost $41 million and $11.5 million, 

respectively, to prevent future spills. Collectively, the companies will 

pay civil penalties totaling $4.55 million. 

--A consent decree entered in United States v. Norfolk S. Railway Co. resolved claims relating 

to a catastrophic train derailment and chlorine spill in Graniteville, South Carolina, causing 

human fatalities and the death of hundreds of fish in nearby Horse Creek. Under the decree, 

Oil Pipeline Crossing River 

January 6, 2005 Derailment of Norfolk Southern Train 

Near Graniteville, South Carolina 

EPA Photo 

air, land, and water | 29 
Norfolk Southern will pay civil penalties of $4 million, restock fish, and take additional actions 

to improve water quality in the impacted waters. 

--In United States v. Washington Beef, L.L.C., the company will pay a $750,000 civil penalty 

and install new wastewater treatment equipment with an estimated cost of $3 million to resolve allegations of multiple discharges of slaughterhouse wastes from its facility in Toppenish, 

Washington, to a tributary of the Yakima River. 

Ensuring the Safe Treatment, Storage, and Disposal of Waste 

According to EPA’s Toxic Release Inventory, mining and mineral processing generate more 

hazardous and toxic waste than any other industrial sector. In fiscal year 2010, the Division 

concluded the first settlement under EPA’s National Enforcement Priority for Mining and Mineral Processing in United States v. CF Indus., Inc. The consent decree resolves claims of 

RCRA violations at the company’s Plant City, Florida phosphoric acid and fertilizer manufacturing plant and addresses the practice of commingling hazardous wastes with wastes that are 

Mismanagement of hazardous waste from mining and mineral 

processing is a serious matter. The companies targeted in the 

National Enforcement Initiative for Mining and Mineral Processing 

cannot proceed with business as usual. 

—Ignacia S. Moreno 

United States v. CF Industries Press Release 

exempt from regulation in the phosphoric acid production industry. The goals of the priority 

are to avoid environmental contamination and disasters, and to establish financial assurance to 

effectively fund all closure and remedial obligations at mining and mineral processing facilities. 

The settlement requires the company to cease commingling its wastes and operate prospectively according to a stringent set of requirements, to pay $701,050 in civil penalties, and to 

provide financial assurance to cover the $163.5 million needed to fund all closure and longterm care obligations after the facility’s useful life ends. 

The United States sued U.S. Magnesium Corp., seeking civil penalties and injunctive relief for 

violations of RCRA at its magnesium production plant in Rawley, Utah. The company asserted 

that the relevant wastes generated at its plant were exempt from RCRA under an EPA regulation providing that certain hazardous wastes could be treated as non-hazardous if generated 

through certain mining process operations. EPA argued that the wastes at issue were outside 

the scope of the regulatory exemption because they were not generated by “mineral processing,” but instead were the products of the defendant’s efforts to recover useful products from 

its waste stream. The district court granted summary judgment to the company. The Tenth 

30 | air, land, and water 
 

 

Circuit reversed and remanded for further proceedings in United States v. U.S. Magnesium 

Corp. The Court of Appeals held that even if EPA earlier had a different interpretation of the 

regulation which would have exempted the 

company’s operations, EPA could change its 

interpretation at any time. Furthermore, although such a change might provide a defense 

to a claim for civil penalties, it would not provide a defense to a claim for injunctive relief. 

There are approximately 600,000 underground storage tanks (USTs) nationwide that 

store petroleum or hazardous substances. 

One of the greatest potential threats from a 

leaking UST is contamination of groundwater, 

the source of drinking water for nearly half of 

all Americans. Shortly after trial began, the 

Division secured the agreement of the defendants in United States v. Duncan Petroleum Corp., to pay a $2 million civil penalty to resolve 

RCRA underground storage violations at 17 gas stations in Maryland. 

The district court entered a consent decree in United States v. Rineco Chemical Indus., Inc., 

settling ENRD’s claims that Rineco failed to obtain a RCRA permit for its ownership and operation of a hazardous waste management facility. Under the decree, Rineco agreed to pay a civil 

penalty of $1.35 million, to apply for the required permit, to take action to control emissions and 

other corrective measures, and to establish financial assurances for facility operations. 

Abandoned Gas Station and Tanks 

EPA Photos 

n fiscal year 2010, the Division secured 

agreements with industrial defendants 

under the Clean Air Act to spend an 

estimated $1.2 billion 

on corrective measures to reduce harmful air 

emissions, to pay $40.8 million in civil 

penalties, and to perform $12.4 million 

in mitigation projects to offset the harm caused 

by their unlawful emissions. 

I

n fiscal year 2010, the Division 

settled cases with industrial 

defendants under the 

Clean Water Act valued at 

more than $313 million 

in injunctive relief, $21 million 

in civil penalties, and $3.5 million 

in supplemental environmental 

projects. 
 

ENSURING CLEANUP OF 

OIL AND SUPERFUND WASTE

Conserving the Superfund by 

Securing Cleanups and

Recovering Superfund Monies I

n fiscal year 2010, the Division 

secured the commitment of 

responsible parties to clean up 

hazardous waste sites at costs 

estimated in excess of 

$753 million; 

and recovered approximately 

$643 million for the Superfund 

to finance future cleanups and 

more than $182 million 

in Natural Resource 

Damages. 

The Division brings actions under 

CERCLA to require direct cleanup by 

responsible parties or to recover EPA’s 

cleanup costs. We also recover Natural Resource Damages (NRD) on behalf of federal trustee agencies. 

 

In fiscal year 2010, we concluded a 

number of settlements requiring responsible parties to reimburse the 

United States for cleanup costs, to undertake the cleanup work themselves, 

or both. Examples include the following cases: 

--Pursuant to a consent decree in 

United States v. Wall Herald Corp., 

the Division recovered almost $20 

million to reimburse EPA for completed cleanup work and to fund future cleanup work at the Monitor Devices/Intercircuits 

Superfund Site in Monmouth County, New Jersey. 

--In United States v. Allen Greig, Inc., more than 80 settling parties agreed to fund and/or perform a groundwater remedy at the Hows Corner Superfund Site, a former waste oil storage and 

transfer facility in Plymouth, Maine. The remedy, which is expected to take 100 years to complete, is estimated to cost almost $15 million. 

--Through a series of partial consent decrees entered during fiscal year 2010 in United States v. 

El Dorado County, the Division recovered more than $5.5 million toward cleanup costs, and 

secured the agreement of one party to perform the first phase of cleanup, estimated to cost $7.2 

million, at the Meyers Landfill Superfund Site, located on Forest Service land in Meyers, Cali32 | oil and superfund waste 
 

 

Remedial Action at Meyers Landfill, 

South Lake Tahoe, 

California 

U.S. Forest Service Photo 

Hows Corner 

Superfund Site 

Plymouth, 

Maine 

EPA Diagram 

fornia, just outside the City of South Lake Tahoe. 

In United States v. Horsehead Indus., Inc., the defendants agreed to resolve NRD claims in 

connection with the Palmerton Zinc Superfund Site in Carbon County, Pennsylvania, by payment of $12 million and transfer of approximately 1,200 acres of property, valued at $8.72 million, to the Commonwealth of Pennsylvania Game Commission. The property contains habitat 

that is comparable to what would have existed on the lands comprising the Superfund site if 

not contaminated by the defendants. This is the largest NRD recovery ever in Pennsylvania. 

oil and superfund waste | 33 
 

 

Litigating the Constitutionality of the Superfund Law 

The Division achieved an important victory in General Elec. Co. v. Jackson. The D.C. Circuit 

affirmed the district court’s grant of summary judgment to the United States, holding that 

EPA’s administration of its unilateral administrative order (UAO) authority under CERCLA 

comports with the Due Process Clause of the U.S. Constitution. The Court of Appeals rejected 

the company’s facial challenge to the law because it had not shown that UAOs deprive recipients of property before giving them a chance to be heard. The appellate court also held that 

neither CERCLA’s jurisdiction-channeling provisions nor Article III standing principles barred 

GE’s “pattern and practice” claim; however, the claim also failed on the merits because GE 

failed to show that UAOs deprive recipients of property without a hearing. 

Unilateral administrative order authority is a potent tool in achieving prompt cleanup of hazardous waste sites around the country. These orders have resulted in over $6.5 billion in work 

or funds for EPA. Historically, use of this authority has provided incentive for responsible parties to settle with the government and perform or fund about 70 percent of all Superfund site 

cleanups. The Division’s success in this case has preserved EPA’s ability to continue to use 

UAOs to efficiently secure work and funding for the cleanup of contaminated properties. The 

decision may also strengthen the United States’ legal position in defending against similar constitutional challenges to unilateral orders issued under other environmental statutes. 

Protecting the Public Fisc Against Excessive Claims 

The Division also defends lawsuits aimed at interfering with cleanup actions by EPA and other 

federal agencies. Federal agencies are frequently sued for their activities at contaminated sites 

that are being remediated. In Raytheon Aircraft Co. v. United States, the Tenth Circuit affirmed the district court’s judgment, which awarded approximately $3.2 million in response 

costs to the United States. Raytheon brought suit under CERCLA, alleging cost recovery and 

contribution claims related to the removal of trichloroethylene (TCE) at the Herrington Air 

Field in Kansas, which was operated by the Army Air Corps during World War II. The United 

States counterclaimed to recover EPA’s costs of removing TCE discharged by Raytheon’s 

predecessor, Beech Aircraft, when that company operated the facility during the Korean War. 

After a 10-day trial, the district court ruled for the United States on all claims, finding it undisputed that Raytheon had used TCE in vapor degreasers in two hangars at the Air Field, and 

finding it more likely than not that Raytheon had released TCE in its use and maintenance of 

the degreasers and disposal of TCE. The court also found that Raytheon had not met its burden to show that the Army had used TCE at Herrington or that it needed TCE for the limited 

aircraft maintenance conducted there. Affirming the favorable judgment in its entirety, the 

Tenth Circuit found that the district court had not clearly erred in finding that Raytheon failed 

to meet the evidentiary burden to prove its case. 

34 | oil and superfund waste 
 

Following a four-week trial, ENRD obtained a largely favorable decision in Litgo New Jersey, 

Inc. v. Mauriello, a case brought by the owner of the former Somerville Iron Works Site in 

Somerville, New Jersey. The court found that the plaintiff failed to prove its allegations that 

the United States’ involvement at the site during World War II gave rise to liability, but concluded that the United States was liable based on transhipments of waste to the site in the 

1980s. Nevertheless, the court found that, as an equitable matter, the United States should 

bear no more than three percent of the cleanup costs at the site, and based on our counterclaim, that the current owner should bear at least 65 percent of those costs. 

The Division settles claims seeking to impose liability for cleanup on federal agencies where a 

fair apportionment of costs can be reached. In fiscal year 2010, these included such multimillion dollar settlements as R.E. Goodson Construction Co. v. United States (response costs 

for the removal of ordnance at two parcels located at the former Conway Bombing and Gunnery Range in Conway, South Carolina); Alaska R.R. Corp. v. U.S. Dep’t of Transp. (liability for 

past and future costs of responding to environmental contamination at the Anchorage Terminal Reserve Site); In re Fort Worth (claim for costs arising from the disposal of polychlorinated 

biphenyls (PCBs) and heavy metals at the former Riverside Wastewater Treatment Plant Site in 

Fort Worth, Texas); U.S. Home Corp. v. General Services Admin. (response costs incurred on a 

site in Edison Township, New Jersey, that was part of the Army’s former Raritan Arsenal); City 

of Fresno v. United States (costs of remediation of a chlorinated volatile organic compound 

plume at the Fresno-Yosemite International Airport Site in Fresno, California); and Westinghouse Elec. Co. v. United States (cleanup costs at a nuclear fuel processing facility in Hematite, 

Missouri). 

In addition, in New York v. United States, the Division negotiated a consent decree that determines a division of responsibility between the United States and the State of New York for costs 

of environmental remediation that will be incurred at the West Valley Nuclear Services Center 

in New York under the West Valley Demonstration Project Act and CERCLA. In Washington v. 

U.S. Dep’t of Energy, we also concluded two landmark consent decrees and a revision to a federal facility agreement. Together, those documents will govern the Department of Energy’s retrieval and treatment of mixed hazardous waste stored in single-shell tanks at the Hanford Nuclear Reservation in eastern Washington State (see p. 36). 

Enforcing Cleanup Obligations in Bankruptcy Cases 

We are increasingly filing claims to protect environmental obligations owed to the United 

States when a responsible party goes into bankruptcy. In fiscal year 2010, the Division secured the greatest commitments ever of responsible parties to clean up hazardous waste sites, 

of recoveries for the Superfund, and of damages for injuries to natural resources, in the context 

of several bankruptcy proceedings. 

oil and superfund waste | 35 
 

West Valley Demonstration Project 

West Valley, New York 

Hanford Nuclear Reservation 

Southeastern Washington 

Principal Components of Hanford 

Cleanup Framework: River Corridor, 

Central Plateau, and Tank Water 

Department of Energy Maps and Photos 

36 | oil and superfund waste 
 

 

 

 

 

 

 

 

 

 

 

In the largest recovery of money for hazardous waste 

cleanup ever, debtor American Smelting and Refining Company, L.L.C. (Asarco) paid $1.79 billion pursuant to its confirmed bankruptcy reorganization in 

In re ASARCO, L.L.C. The Division, in coordination 

and collaboration with 19 states, completed a fouryear trek through the courts when the final plan of 

reorganization was confirmed by the bankruptcy 

court in the Southern District of Texas in November 

2009 and consummated in December 2009. The 

plan incorporated the environmental settlements 

previously approved by the bankruptcy court. The 

United States received $776 million, which will be 

used to fund cleanups at more than 35 different 

sites; the Coeur d’Alene Work Trust was paid $436 

million to fund cleanup and restoration work in 

Idaho’s Coeur d’Alene Basin; 3 custodial trusts were 

paid a total of approximately $261 million to fund 

cleanup and restoration work at 24 sites in 13 states; 

and payments totaling in excess of $321 million were 

paid to 14 states to fund environmental settlement 

obligations at over 36 individual sites. 

On April 23, 2010, the bankruptcy court approved a 

settlement between the debtors and the United 

States in In re Lyondell Chemical Co. Under the 

settlement, the United States received allowed general unsecured claims exceeding $1 billion in connection with 11 contaminated waste sites, and the 

debtors also paid about $160 million to resolve their 

obligations at 15 sites. 

In the settlement of the In re Chemtura Corp. bankruptcy proceeding, the United States will receive $17 

million in connection with 19 sites and $9 million to 

resolve the debtors’ work obligations under administrative and judicial orders at 8 of the 19 sites. The 

agreement further provides that an earlier agreement by the debtors to perform work at the Laurel 

Park, Inc. Superfund Site in Connecticut will not be 

impaired by the bankruptcy. 

Nineteen Chemtura Sites: 

 Beacon Heights Landfill Superfund 

Site, Beacon Falls, Conn. 

 Bio-Lab, Inc. Facility, Conyers, Ga. 

 Central Chemical Superfund Site, 

Hagerstown, Md. 

 Cleve Reber Superfund Site, 

Sorrento, La. 

 Cooper Drum Co. Superfund Site, 

South Gate, Calif. 

 Delaware Sand & Gravel Landfill 

Superfund Site, New Castle, Del. 

 Diamond Alkali Superfund Site, 

Lower Passaic River Area, N.J. 

 Gowanus Canal Superfund Site, 

Brooklyn, N.Y. 

 Great Lakes Chemical Corp. Site, 

El Dorado, Ark. 

 Halby Chemical Superfund Site, 

Wilmington, Del. 

 Interstate Lead Co. Superfund Site, 

Leeds, Ala. 

 Jadco-Hughes Facility Superfund Site, 

Belmont, N.C. 

 Landia Superfund Site, Lakeland, Fla. 

 Laurel Park Inc. Superfund Site, 

Naugatuck, Conn. 

 LWD Site, Calvert City, Ky. 

 Malone Service Co. Superfund Site, 

Texas City, Tex. 

 Red Panther Pesticide Superfund Site, 

Clarksdale, Miss. 

 Stauffer-LeMoyne Superfund Site, 

LeMoyne, Ala. 

 Stoney Creek Technologies 

Superfund Site, Delaware County, Pa. 

— EPA Fact Sheet 

oil and superfund waste | 37 
PROMOTING RESPONSIBLE STEWARDSHIP OF 

AMERICA’S 

WILDLIFE AND NATURAL RESOURCES 

Managing the Variety of Resources in the Klamath River Basin 

The Klamath River Basin runs from southern Oregon, through northern California, to the Pacific Ocean. The basin is home to four Indian tribes, important federal irrigation projects, and 

National Wildlife Refuges crucial to migratory waterfowl, and is a historically large producer of 

salmon. Over the past three decades, it 

has been the subject of intense litigation over natural resources. The litigation has encompassed water rights adjudications for both tribal and federal 

lands, important issues under the ESA, 

and the operation of the Bureau of 

Reclamation’s (BOR) Klamath Project. 

Civil unrest occurred in summer 2001 

over federal ESA actions and, as a result, federal marshals were assigned to 

protect the BOR project facilities for 

many weeks. 

The Division worked closely with the 

Department of the Interior and other 

federal agencies to draft and negotiate a global settlement regarding the fish, water, and hydropower resources of the Klamath River Basin in Oregon and California. These efforts led to two 

far-reaching agreements--the Klamath Basin Restoration Agreement (KBRA) and the Klamath 

Hydropower Settlement Agreement (KHSA)--that were signed on February 18, 2010. Secretary of the Interior Salazar, the Governors of California and Oregon, the Chairs of the Klamath, 

Yurok, and Karuk Tribes, leaders of environmental groups, the President of PacifiCorp (the 

owner of a hydroelectric project on the Klamath River), and representatives of the Klamath Basin Water Users Association all participated in the signing ceremony. 

The KBRA seeks to reduce the potential for future conflicts in various ways, including by addressing the relative proportions of water available to various stakeholders; improving fish 

habitat; and purchasing and retiring farmland in the basin, thereby reducing irrigation demands. The KHSA provides a framework for the stakeholders to collaborate on environmental 

Klamath Basin National Wildlife Refuge 

U.S. Fish and Wildlife Service Photo 

38 | wildlife and natural resources 
 

 

and economic studies assessing the potential for removal of four PacifiCorp dams. Based on 

these studies, the United States will decide by 2012 whether to remove the dams. If removal is 

selected, the dams would be targeted for removal by 2020. The agreements contemplate that 

removal would be funded by PacifiCorp ratepayers and the State of California. Legislative ratification will be necessary for this to become effective. The overall effect of these agreements 

will be to reduce water use in the basin and to increase populations of threatened and endangered fish species. 

Defending the Federal Columbia River Power System’s Protection of 

Endangered Salmon 

The Federal Columbia River Power System (FCRPS) is managed by the Corps and the BOR. It 

operates 31 dams in the Columbia River Basin that, through the Bonneville Power Administration, provide the Pacific Northwest with over 50 percent of its electrical power. Two cases, National Wildlife Fed’n v. National Marine Fisheries Service and American Rivers v. NOAA, 

challenge the 2008 biological opinion issued by NMFS under the ESA, specifying operating parameters for the FCRPS to protect the Columbia River Basin’s species of anadromous fish, including endangered wild salmon. 

The 2008 biological opinion was issued following a court-ordered remand of NMFS’s 2004 

biological opinion 

in this matter. The 

2008 biological 

opinion is the subject of the current 

litigation in which 

summary judgment 

briefing and argument extended 

from 2008 to 2010. 

In 2009, after a 

comprehensive sixmonth review of the 

biological opinion 

by the then-new 

Administration, 

NOAA issued an 

Adaptive ManageThirteen runs of Columbia River salmon and steelhead plus resident bull trout and ment Implementa- Kootenai River white sturgeon are listed under the Endangered Species Act. The tion Plan (AMIP) to salmon and steelhead listings include nine runs in the mainstem Columbia and 

Willamette Rivers and four in the Snake River. Bull trout populations are listed in further implement 

several parts of Idaho and Montana. and strengthen the Bonneville Power Administration Map and Fact Sheet 

wildlife and natural resources | 39 
 

 

biological opinion. In 2010, ENRD attorneys guided the agencies through a re-initiation of ESA 

consultation to formally incorporate the AMIP into the biological opinion and advised the district 

court of the completion of that process in May 2010. The 2008 biological opinion as implemented 

through the AMIP is the most comprehensive plan for salmon recovery ever adopted in the region. 

Litigating the Polar Bear Listing Decision 

U.S. Fish and Wildlife Service Photo 

In May 2008, the FWS listed the Polar Bear as a threatened species 

under the ESA, based on the loss of sea ice habitat due to Arctic 

warming caused by man-made climate change. By fall 2008, 10 

suits challenging the listing had been filed by environmental 

groups, oil and gas industry representatives, and the State of 

Alaska. The Environment and Natural Resources Division successfully supported a multi-district panel’s consolidation of the cases in 

the district court in Washington, D.C., as In re Polar Bear Endangered Species Litigation. 

In 2010, a team of ENRD lawyers handled the defense of this decision on multiple fronts: challenges to FWS’s decision to list the Polar Bear as a threatened species under the ESA, to an accompanying 

ESA section 4(d) rule outlining certain conditions regarding application of the rule, and to FWS's denial of permits to import Polar 

Bear trophies. Over a four-month period, ENRD filed more than 

300 pages of summary judgment briefing in defense of the rules. 

The crux of the claims is the legitimacy of the findings of the Intergovernmental Panel on Climate Change and related work by the U.S. Geological Survey, on which the listing determination is based. 

Balancing Species Protection and Other Water Uses 

As in past years, the Division was called upon to handle litigation addressing the balance between the competing needs of species and other water users such as agricultural, municipal, 

industrial, and tribal interests. The Division successfully handled a number of these cases. 

The Central Valley Project (CVP) in California is the largest federal water management project 

in the United States, providing power and drinking water for about 30 million people and supporting over $10 billion in agricultural interests in more than 200 water districts. At the same 

time, the operation of the CVP affects several species of fish that inhabit the California Bay 

Delta and are listed as either endangered or threatened under the ESA, including the Delta 

Smelt and several species of salmon. In 2008 and 2009, respectively, FWS and NMFS issued 

biological opinions setting forth operating parameters for the system intended to ensure adequate water supply while still providing needed protections for these fish species. Multiple water users and agricultural interests challenged these biological opinions in San Luis & Delta40 | wildlife and natural resources 
 

 

 

Mendota Water Auth. v. Salazar and San 

Luis & Delta-Mendota Water Auth. v. 

Locke. In 2010, Division attorneys defended these decisions in multiple emergency motions proceedings, including in 

several evidentiary proceedings involving 

extensive and highly complex competing 

expert testimony. They also produced 

hundreds of pages of summary judgment 

briefing in defense of the decisions. In the 

end, the biological opinions were implemented in large part as set forth by the 

agencies. 

In re Tri-State Water Rights Litigation is 

multi-district litigation involving a longstanding water dispute among the States of 

Florida, Georgia, and Alabama with regard 

to the Corps’ operations in the Apalachicola-Chattahoochee Flint Basin and the 

effects of those operations on ESA-listed 

mussel species. During 2010, ENRD attorneys briefed and argued the defense of FWS’s biological opinion addressing the effects of these 

operations on the mussel species and obtained judgment in the agencies’ favor on all ESA claims 

in this litigation. 

Bureau of Reclamation Map 

The Bureau of Reclamation operates the Glen Canyon Dam on the 

Colorado River for multiple purposes, including recreational and 

water supply needs. In recent 

years, BOR adopted an updated 

operating plan to continue to provide for those needs while also 

protecting the Humpback Chub, 

an endangered fish. In Grand 

Canyon Trust v. BOR, ENRD attorneys successfully defended this 

plan of operations, obtaining a 

judgment upholding the plan in 

large measure. 

Glen Canyon Dam Bureau of Reclamation Photo 

wildlife and natural resources | 41 
 

 

 

 

 

 

Defending the Constitutionality of the ESA 

As noted above, FWS issued biological opinions setting forth operating parameters for the CVP 

in California intended to ensure adequate water supply while providing needed protections for 

the threatened fish species, including a wholly intrastate species, the Delta Smelt. In In re 

Consolidated Delta Smelt Cases, a group of agricultural interests challenged FWS authority to 

do so, arguing that application of the ESA to a purely intrastate species exceeds the federal government’s power under the Commerce Clause in violation of the U.S. Constitution. The Environment and Natural Resources Division successfully defeated this challenge and defended the 

act’s constitutionality. The district court concluded in line with several other courts that the 

ESA was a valid exercise of congressional power under the Commerce Clause. 

Litigating FWS Critical Habitat Designations for Listed Species 

When a species is listed as endangered or threatened under the ESA, the act also requires FWS 

to designate critical habitat comprised of those geographic areas containing physical and biological features essential to the conservation of the species. During this process, FWS must 

also consider economic and other impacts of the critical habitat designation and may exclude 

areas from the designation if it determines the benefits of exclusion outweigh the benefits of 

inclusion. As these designations often encompass private property, they are considered controversial and subject to judicial challenge. The Environment and Natural Resources Division 

successfully defended several such challenges this year: 

--In Arizona Cattle Growers Ass’n v. Salazar, the Ninth Circuit affirmed the district 

court’s grant of summary judgment to FWS in a challenge to the agency’s designation of 8.6 million acres of land as critical habitat for the threatened Mexican Spotted Owl. The instant rule, promulgated in 2004, was the agency’s third attempt to 

designate critical habitat for the owl. The Court of Appeals rejected the association’s assertion that the Service treated too much land as “occupied,” adopting the 

Service’s reasoning that land could be deemed occupied if the land is susceptible for 

use by the owl. The court also approved the Service’s method for assessing ecoUSFWS Photo nomic impacts from the critical habitat designation. Here, the Service only assessed 

economic impacts directly resulting from the designation of critical habitat. It excluded consideration of economic impacts attributable to the listing of the owl under the ESA. 

--Summary judgment was also affirmed in Home Builders Ass'n of California v. U.S. Fish & 

Wildlife Service in favor of the FWS on challenges to its designation of 850,000 acres of land 

as critical habitat for 15 endangered and threatened species that inhabit vernal pools, a unique 

wetland ecosystem that exists only temporarily. The Ninth Circuit concluded that the Service 

had no obligation to predict when the species would be conserved and would no longer need 

the protection of the ESA prior to designating critical habitat. It also ruled that in determining 

the economic impacts of the designation, the Service did not have to consider the costs of complying with other federal and state environmental statutes and that the Service could designate 

42 | wildlife and natural resources 
 

 

as critical habitat areas that did not simultaneously contain all of the physical or biological features essential to the conservation 

of the species. 

--In Otay Mesa Property v. DOI, the court 

upheld the inclusion of a 143-acre tract in 

San Diego owned by 3 corporations in the 

designated critical habitat for the San Diego 

Fairy Shrimp, an endangered species. 

--In a pair of consolidated cases, Maddalena v. FWS and Center for Biological Diversity v. 

FWS, off-road vehicle users and environmental advocacy groups challenged FWS’s revised designation of critical habitat for a threatened desert plant known as the Peirson’s Milk Vetch, 

which lives in a popular off-road vehicle recreation area in the United States. The off-road vehicle users claimed that the designation was over inclusive while the environmental advocacy 

groups argued it was under inclusive. The court granted ENRD’s motion for summary judgment in its entirety and denied both sets of plaintiffs’ motions for summary judgment. 

--The court upheld a critical habitat designation for the wintering population of Piping Plovers 

Vernal Pool EPA Photo 

Courtesy of Nebraska Game and 

Parks Commission 

in Cape Hatteras, North Carolina, against claims that the designation 

was over inclusive in The Cape Hatteras Access Preservation Alliance v. U.S. Dep’t of the Interior. 

Designating Experimental Populations Under the ESA 

In Forest Guardians v. U.S. Fish and Wildlife Service, the Tenth Circuit affirmed the district court’s judgment for the FWS in a challenge 

to the Service’s designation of a non-essential, experimental population of the endangered Northern Aplomado Falcon in Arizona and New Mexico under section 

10(j) of the ESA. The appellate court found that substantial evidence supported the Service’s 

conclusion that a naturally occurring falcon population does not exist in the experimental area. 

The court also concluded that the Service had not violated NEPA by predetermining the outcome of its environmental analysis. 

Defending the ESA Ban on Importing Listed Species 

The Endangered Species Act prohibits the importation into the United States of species listed 

as endangered in the United States or under the Convention on International Trade in Endangered Species (CITES) absent a valid permit. In 2010, ENRD handled several challenges to forfeiture actions arising from importation without permits and to denial of import permits. In 

Conservation Force v. Salazar, the plaintiffs attempted to import sport-hunted leopard trophies from Namibia and Zambia with defective or missing export permits in violation of CITES 

wildlife and natural resources | 43 
and the ESA. The Fish and Wildlife Service seized and administratively forfeited the plaintiffs’ 

trophies. The plaintiffs then challenged the forfeiture on a variety of grounds. After briefing 

and argument by ENRD attorneys, the court upheld the forfeiture action and dismissed all 

claims with prejudice. In another case also styled Conservation Force v. Salazar, the court dismissed for lack of jurisdiction challenges to FWS’s alleged failure to process the plaintiffs’ applications for permits to import sport-hunted wood bison trophies. 

Balancing Species Protection and Other Resources Demands on Forest 

Lands 

Under several statutes, the Forest Service is directed to manage national forests for multiple 

resource development and other uses. At the same time, it is also required to provide for species protection and conservation. These competing mandates often lead to litigation. The Division successfully defended decisions of the Forest Service balancing these demands in several 

cases in 2010: 

--In League of Wilderness Defenders v. Allen, the Ninth Circuit reversed the district court’s 

grant of summary judgment to the plaintiffs. The district court had enjoined the Forest Service 

from carrying out the Five Buttes Project, which is designed to reduce fuel loadings and fire 

risk and to improve habitat in the Deschutes National Forest in Oregon. The Court of Appeals 

Deschutes National Forest U.S. Forest Service Photo 

44 | wildlife and natural resources 
 

 

majority found that the Forest Service had permissibly determined that the Northwest Forest 

Plan permitted limited commercial timber harvest in a late-successional reserve where such 

thinning would clearly result in greater long-term maintenance of habitat and was clearly 

needed to reduce risks of fire and disease. The majority concluded that the Forest Service had 

properly balanced the benefits of such risk reduction against the possible harm to Northern 

Spotted Owls, and found that this balancing “goes to the very heart of the Forest Service’s expertise” to which a reviewing court must defer. The appellate panel also upheld the Service’s 

environmental review under NEPA, finding that the Service had adequately considered and 

responded to alternative views about the project’s potential environmental consequences. 

--The Division secured dissolution 

of an injunction in Swan View 

Coalition v. Barbouletos, after FWS 

issued a valid biological opinion 

addressing the effects of snowmobiling activities on listed Grizzly Bears 

in the Flathead National Forest. 

--In Ark Initiative v. U.S. Forest 

Service, the court found that the Forest Service had properly discharged its duties in addressing an amendment to a master plan for 

the Snowmass Ski Area in Colorado. 

Defending NMFS Ocean Harvest Management 

The Magnuson-Stevens Fishery Conservation and Management Act charges NMFS with the 

difficult task of managing ocean commercial fishing to provide for conservation and sustainable fishing while, at the same time, optimizing yield. In 2010, ENRD successfully defended 

NMFS’s balancing of these often-competing objectives. In General Category Scallop Fishermen v. Locke, the court upheld NOAA’s methodology for determining eligibility for permits 

and limiting access to the Scallop Fishery in the Atlantic Ocean. In Oceana v. Locke, the court 

rejected challenges to the NMFS standard by-catch reporting methodology that set the rules for 

the reporting of fishing by-catch in 13 federal fisheries in the northeast. In Van Valin v. Locke, 

the court upheld certain catch limits on fishing charter vessels imposed under the Northern 

Pacific Halibut Act of 1982 intended to protect the Pacific Halibut Fishery. In Gulf Restoration 

Network v. NMFS, ENRD obtained dismissal of a challenge to the Gulf Council’s Fishery Management Plan for regulating offshore marine aquaculture in the Gulf of Mexico. 

Equally important to successful fishery management is ensuring that violators of fishing regulations are held accountable for violations so that a fair playing field is maintained for all involved in the fishery. For example, in Gonzalez v. Dep’t of Commerce, ENRD attorneys sucFlathead National Forest U.S. Forest Service Photos 

wildlife and natural resources | 45 
 

 

 

T

com

he Magnuson-Stevens Act 

created eight regional 

Fishery Management Councils, 

with membership from 

mercial and recreational fisheries, 

academics, 

the conservation community, 

states, tribes, and other stakeholders. 

The councils work with the 

National Marine Fisheries Service 

to compile scientific findings about 

fisheries in their region, along with historic
 

and statistical data and current 

concerns, and incorporate them into 

Fishery Management Plans. 

cessfully defended NMFS permit sanctions for fishery violations in the Shrimp 

Trawl Fishery in the Gulf of Mexico. In 

Duckworth v. Gutierrez, the court upheld NMFS’s penalty assessment of 

$100,000 and permit suspension for 

violations occurring in the American 

Lobster Fishery. 

Securing Critical Water Rights 

and Water Supplies 

The United States brought suit against 

the Truckee-Carson Irrigation District 

and other water users alleging that they 

diverted water in excess of specified operating criteria from the Truckee River 

into the Newlands Reclamation Project 

in Nevada between 1973 and 1987. The 

unlawful diversions reduced flows to the 

lower Truckee River and Pyramid Lake, 

home of the Pyramid Lake Paiute Tribe 

and two species of endangered and 

threatened fish. The district court held 

that the irrigation district had diverted 

more water than allowed, but awarded 

far less water than the United States 

sought. All sides appealed. In United 

States v. Truckee-Carson Irrigation 

Dist., the Ninth Circuit rejected the irrigation district’s challenges to the district 

court’s rulings allowing the United 

States to recover water. The appellate 

court also reversed on the three issues 

appealed by the United States with regard to the amount of water awarded, 

holding that the district court: (1) 

clearly erred in making across-the-board 

reductions based on the margin of error 

in the canal gauge readings; (2) clearly 

erred in denying recovery for water that 

46 | wildlife and natural resources 
 

 

 

 

Truckee River Map Courtesy of K. Musser 

was spilled from the reservoir and not put to 

beneficial use during 1981-1984; and (3) 

abused its discretion in denying pre-judgment 

interest based on the United States’ purported 

delay in filing suit and inadvertent destruction 

of certain documents. The Ninth Circuit remanded the case to the district court for further proceedings in accordance with its opinion. This decision will effectuate relief mandated by Congress through the Fallon Paiute 

Shoshone Indian Tribes Water Rights Settlement Act of 1990 to encourage settlement of 

litigation and pending claims, to fulfill trust 

obligations to the tribe, and to promote the recovery of the unique fish populations of Pyramid Lake in Nevada. 

Restoring Critical Natural Resources and Ecosystems 

In United States v. South Florida Water 

Mgmt. District, a special master issued a 

report recommending that the district court 

grant a July 2010 motion filed by the United 

States to enforce the 1992 consent decree 

entered in this case with the Florida Department of Environmental Protection and the 

South Florida Water Management District 

concerning phosphorus pollution from agricultural runoff in the Everglades. The special master agreed with the federal government that the State of Florida must enforce 

stricter limits on phosphorus pollution in 

water discharged to the Loxahatchee National Wildlife Refuge, and must achieve 

compliance with “Class III” water quality 

standards throughout the refuge. This decision will promote the United States’ efforts 

to restore water quality needed to protect 

natural populations of flora and fauna in Everglades National Park and elsewhere in the 

remaining Florida Everglades. This cleanup 

Everglades USACOE Diagram 
 

 

is a critical component of the largest ecosystem restoration effort in human history--the Comprehensive Everglades Restoration Plan, approved by Congress in 2000, with a cost of $7.8 billion over 20 years, to be funded jointly by the United States and the State of Florida. 

The United States also brought several condemnation actions in district court in Florida to acquire lands on behalf of the National Park Service for expansion of Everglades National Park. 

The Division exercises the federal government's power of eminent domain to acquire land for 

public purposes and secure the Fifth Amendment guarantee of just compensation in amounts 

that are fair to property owners and to taxpayers. In United States v. 567 Acres of Land in 

Dade County, the district court approved the parties’ stipulation setting just compensation at 

$1.2 million for 2 adjacent 567-acre tracts on the eastern edge of Everglades National Park 

(approximately $1,058 per acre). The landowners originally asserted a value exceeding $3.7 

million (approximately $3,300 per acre). In four separate actions for condemnation of a total 

of approximately 950 acres of land, the district court ordered compensation of $1,573,000--the 

value advocated by the United States’ appraiser--following a multi-day trial in January 2010. 

The landowners had claimed just compensation of $6,831,795. 

Everglades CERP Photo 

We also filed seven new cases to 

acquire lands in Miami-Dade 

County, Florida, for Everglades 

National Park on behalf of the National Park Service. Total estimated just compensation was only 

$2,800; all were for the purpose of 

clearing title to very small tracts of 

land. 

Three new cases were filed to acquire lands located in Collier County, Florida, for Big Cypress 

National Preserve on behalf of the National Park Service. Total estimated just compensation 

was $88,550. 

Litigating Federal Land Management Programs and Policies 

The federal government manages vast swaths of land for a variety of purposes, including timber management in national forests, recreation in national parks, and resource development on 

public lands. Land management programs and policies often are the focus of competing interests for the use of public lands and become the subject of litigation. In fiscal year 2010, the Division continued to successfully defend the wide-ranging forest management activities of the 

Forest Service and BLM:

 --In Center for Biological Diversity v. U.S. Forest Service, ENRD prevailed in its defense of 

the Warm Fire Recovery Project on the Kaibab National Forest near the Grand Canyon, which 

allowed the Forest Service’s recovery effort to proceed after more than 39,000 acres of the for48 | wildlife and natural resources 
 

est burned in 2006. 

The court also determined that the Forest Service had adequately considered 

potential effects on 

the threatened Mexican Spotted Owl and 

its critical habitat. 

Kaibab National Forest U.S. Forest Service Photo 

--The Division successfully opposed challenges in Klamath-Siskiyou Wildlands Center v. 

Grantham to a timber salvage sale designed to address conditions following a devastating forest fire in the Klamath National Forest. The project also provided needed jobs in an economically distressed area. 

--In Save the Peaks Coalition v. United States Forest Service, the court rejected a challenge to 

the Forest Service’s decision to allow the installation and use of snowmaking facilities using 

reclaimed wastewater in the Coconino National Forest in Arizona, an area of the country where 

water conservation is at a premium. 

Coconino Forest is one of the most diverse National Forests 

in the country, with landscapes ranging from the famous 

Red Rocks of Sedona to Ponderosa Pine forests to alpine 

tundra. U.S. Forest Service Photos 

wildlife and natural resources | 49 
 

 

 

 

 

 

--The Division also successfully defended the Forest Service’s imposition of user fees for high 

impact areas of forests under the Federal Lands Recreation Enhancement Act (REA). The 

plaintiffs in Adams v. U.S. Forest Service and Sherer v. U.S. Forest Service challenged user 

fees collected by the Forest Service under its REA authority, and in both cases the district court 

affirmed the agency’s interpretation of the statute and its authority to collect a fee in High Impact Recreation Areas. 

The Division continues to defend challenges brought against travel management plan revisions 

pertaining to motorized recreational use in the national forests. In one such case, American 

Independence Mines & Minerals Co. v. U.S. Dep’t of Agriculture, we successfully argued that 

an organization of mining companies with only economic interests at stake was not a proper 

plaintiff in a challenge to the management of the Payette National Forest in Idaho. In Citizens 

for Balanced Use v. Heath, ENRD successfully defended the Forest Service’s decision to restrict motorized use in a wilderness study area in the Gallatin National Forest in Montana. 

Defending BLM Stewardship of Wild Horse Herds 

The Wild Free Roaming Horses and Burros Act requires BLM to manage wild horses on public 

lands, primarily in the west, as part of the natural ecosystem, but also requires BLM to remove 

excess horses from the range (called a “gather”) when the numbers of horses exceeds carrying 

capacity. The gathers of excess horses are important for maintaining the health of the range. 

Under this mandate, BLM recently carried out a number of gathers to remove excess horses 

from the wild and hold them available for adoption. These gathers are often subject to judicial 

challenge in the context of a complaint filed with a motion for a temporary restraining order 

and/or preliminary injunction. ENRD prevailed in a series of emergency and dispositive legal 

challenges filed last year to BLM decisions to gather wild horses from public lands. The plaintiffs in the cases alleged inadequate environmental analysis under the NEPA and violation of the 

Wild Free-Roaming Horses and Burros Act. ENRD successfully defended BLM’s gather decisions in Nevada and California on requests for emergency relief in In Defense of Animals v. Salazar; Jubic v. United States; In Defense of Animals v. Dep’t of Interior; and Leigh v. Salazar. 

Bureau of Indian Affairs Photo 

50 | wildlife and natural resources 
 

 

 

Defending FWS Implementation of the MMPA 

Under the MMPA, entities are prohibited from harassing marine mammals incident to otherwise lawful activities except as permitted by regulation. In Center for Biological Diversity v. 

Salazar, the Ninth Circuit upheld a regulation promulgated by FWS under section 101(a)(5) 

of the MMPA that authorized for a five-year period the non-lethal incidental “take” of Polar 

Bears and Pacific Walrus during oil and gas activities on the North Slope of Alaska and in the 

Pacific Walrus Photo Courtesy of Joel Garlich Miller/USFWS 

Beaufort Sea. The panel rejected the plaintiffs’ argument that the regulation’s authorization of 

incidental take from “oil and gas exploration, development, and production activities” was 

overly broad. It also upheld the Service’s finding that issuance of the incidental take regulation 

would not cause more than a negligible impact on the Polar Bears, holding that the Service 

could reasonably conclude that such a threat could not be “reasonably expected” to manifest 

itself in the context of the oil and gas activities covered by the incidental take regulation. 

Finally, the Court of Appeals rejected claims that the threat of significant adverse effects on 

Polar Bears required an Environmental Impact Statement, rather than an Environmental 

Assessment, under NEPA. 

wildlife and natural resources | 51 
 

 

 

 

 

CRIMINALLY ENFORCING 

OUR NATION’S 

POLLUTION AND WILDLIFE LAWS 

Investigating the Deepwater Horizon Oil Spill in the Gulf of Mexico 

In cooperation with criminal investigators from the local U.S. Attorneys’ Offices, the Department of the Interior, EPA, the FBI, and other investigatory agencies, the Division launched a 

wide-ranging investigation into the explosion of the 

Deepwater Horizon offshore rig and the subsequent discharge of oil into the Gulf of Mexico to determine the 

applicability of criminal charges under the CWA as well 

as other traditional criminal statutes. 

From fiscal year 1997 through 

fiscal year 2010, 

the Division concluded 

criminal cases against more 

than 900 individuals and 

350 corporate defendants, 

obtaining over 

500 years 

 of incarceration and 

 $785 million

in criminal fines 

 and restitution. 

Reducing Pollution from 

Ocean-Going Vessels 

Under the auspices of the Vessel Pollution Initiative 

which began in the late 1990s, the penalties imposed in 

vessel pollution cases prosecuted by ENRD have totaled 

more than $230 million, and responsible maritime officials have been sentenced to more than 20 years of incarceration. In fiscal year 2010, the Division’s successful prosecution of deliberate violations included the representative cases below. 

 

Fleet Management, Ltd. (Fleet), a Hong Kong ship management company, was sentenced to pay an $8 million fine and a $2 million community service 

payment to fund marine environmental projects in San Francisco Bay, after pleading guilty to 

CWA violations, obstruction, and making false statements in connection with the oil spill from 

the M/V Cosco Busan, which ran into the Bay Bridge in November 2007. Fleet must successfully complete a three-year term of probation and implement an enhanced compliance program. 

In a separate matter, Fleet was also sentenced to pay a $3 million fine and successfully complete a four-year term of probation upon its convictions for failing to maintain an accurate oil 

record book in violation of the Act to Prevent Pollution from Ships (APPS), making false statements to the U.S. Coast Guard, and obstruction of an agency proceeding. The counts arose 

from violations on the M/V Lowlands Sumida. Through the use of a false sounding tube that 

52 | criminal enforcement 
 

 

 

 

Shipping Vessel USCG Photo 

showed a fuel oil tank to be empty, oily waste water could be concealed therein until it was discharged overboard. When the Coast Guard removed the false sounding tube and measured the 

contents of the tank, it determined the tank was almost half full with oily wastewater. 

Irika Shipping, S.A., a ship management corporation registered in 

Panama and doing business in 

Greece, was sentenced to pay a $3 

million criminal fine and $1 million 

in community service payments to 

fund various marine environmental 

projects, and to serve the maximum 

of five years’ probation, subject to 

following a compliance program that 

includes audits by an independent 

firm and oversight by a courtappointed monitor. This sentence 

was pursuant to a multi-district plea 

agreement arising from charges brought in the District of Maryland, Western District of Washington, and Eastern District of Louisiana, including felony violations of APPS and obstructionof-justice charges based upon false statements to the Coast Guard, destruction of evidence, and 

other acts of concealment. During an 

inspection, the Coast Guard obtained 

photographs taken by a crew member 

showing the use of a 103-foot-long 

“magic hose” to bypass the ship’s oily 

water separator. The illicit bypass 

system used to discharge oily waste, 

including sludge, was routed through 

the ship’s boiler blow-down system 

where any trace of oil could be expected to be steam cleaned away. 

The illegal discharges were concealed 

in a fraudulent oil record book, a 

required log in which all overboard 

discharges are to be recorded. At 

the time of this offense, Irika was 

still on probation in Washington for 

a prior conviction in 2007. 

Bypass Hose 
Guilty pleas were entered in eight additional cases involving deliberate violations by vessel operators and crew members: United States v. Transmar Shipping Co.; United States v. ChemOcean Shipping, Ltd.; United States v. Polembros Shipping, Ltd.; United States v. Stanships, 

Inc.; United States v. Offshore Vessels, L.L.C.; United States v. Cooperative Success Maritime, 

S.A.; United States v. Fleet Mgmt., Ltd. (a third conviction); United States v. Styga Compania 

Naviera. These companies and individuals were sentenced to pay a total of $4,679,500 in 

fines, $600,000 in community service, $175,000 in restitution, and over 10 months of incarceration, with each serving a term of probation for crimes including conspiracy, false statements, obstruction of justice, and oil record book violations under APPS. 

Safeguarding America’s Waters 

Last August, DHS, Inc., doing business as Roto Rooter, its president, Donald Gregory Smith, 

and manager William Wilmoth, Sr., were convicted by a jury, variously, of conspiracy, knowing 

and negligent CWA violations, and mail fraud, for 

dumping thousands of gallons of waste grease and 

oil into the sewer system in Mobile, Alabama. After 

a decade during which the City of Mobile's sewage 

system experienced hundreds of overflows, most of 

which were caused by the blockage of sewer lines 

and treatment works with solidified grease, the 

Mobile Area Water and Sewer System entered into a

consent decree with EPA under which it implemented a grease control program requiring restaurants and other food service establishments to instal

grease traps to prevent cooking oils from entering 

the sewer system. Roto Rooter and its employees 

were hired to appropriately dispose of this waste 

grease, but they instead discharged it into the public

sewer system, causing the violations and creating th

harm that their customers had paid them to prevent.

In January 2011, DHS, Inc., was sentenced to pay a 

$238,000 fine plus $5,975 in restitution, and it will 

complete a three-year term of probation. Donald 

Gregory Smith will pay a $150,000 fine, and was 

held jointly and severally liable for the restitution. 

Smith also will complete a one-year term of probation. William Wilmoth, Sr., will serve 30 days of 

incarceration, followed by 60 days of home confinement. Wilmoth also will perform 200 hours of 

community service. 

he Mobile Area Water 

and Sewer System

provides drinking water 

and sanitary sewer 

service for more than 

200,000 people in the 

Mobile metropolitan area. 

The source of drinking water is 

the J.B. Converse Reservoir, 

better known as 

Big Creek Lake,

which is located in the western 

part of Mobile County. The 

3,600-acre reservoir, 

completed in 1952, holds 

17 billion gallons

and is continually fed by 

groundwater, 

 streams, and 

 rainfall. 

—MAWSS Website 

T

l 

e 

54 | criminal enforcement 
 

Protecting the Environment, Public Health, and Worker Safety 

Paul and Steven Mancuso were convicted by a jury of conspiracy to defraud the United States, 

to violate the CAA, to violate CERCLA, and to commit mail fraud, for the illegal removal of asbestos from numerous locations throughout central and upstate New York. Ronald and Lester 

Mancuso pleaded guilty to the charges. Paul Mancuso had twice previously been convicted of 

illegal asbestos removal activity and prohibited from participation in the field. Nevertheless, 

the Mancusos thereafter engaged in numerous illegal asbestos abatement projects that contaminated various businesses and homes. On multiple occasions, they also dumped asbestos 

from removal jobs on roadsides and in the woods. The Mancusos were sentenced to terms of 

incarceration totaling 158 months. 

Pile of Dumped Asbestos (Foreground) Warning Label Near Dumped Asbestos 

In January 2010, 10 certified vehicle emissions testers were charged in separate indictments 

for CAA violations for engaging in a practice known as “clean scanning” vehicles. The scheme 

involves using vehicles the testers know will pass emissions tests for the actual test, but entering into the computerized system the vehicle identification number for a vehicle that will not 

pass. The falsifications were performed in exchange for varying amounts of money in excess of 

the usual emissions testing fee. Each of the individuals performed hundreds of false emissions 

tests. To date, seven of the defendants have entered guilty pleas. 

EPA has strict rules under the CAA regarding the manner in which asbestos may be removed 

from buildings during demolition or remodeling projects in order to protect the health of workers. Starnes and George were sub-contractors on a project in the Virgin Islands to demolish a 

low-income housing project as part of a redevelopment effort. They were charged and convicted of intentionally failing to follow asbestos removal procedures and filing false reports regarding their compliance efforts. In United States v. Starnes and United States v. George, the 

Third Circuit upheld the defendants’ convictions and sentences (33 months of imprisonment, 

three years of supervised release, and a special assessment of $1,600). 

criminal enforcement | 55 
 

Keeping Nuclear Power Safe 

The Sixth Circuit affirmed the convictions of David Geisen and Andrew Siemaszko for making 

false statements and material false omissions in a matter within the jurisdiction of the Nuclear 

Regulatory Commission (NRC). Geisen was a manager for 

the First Energy Nuclear Operating Company, which operates the Davis-Besse Nuclear Power Station near Toledo, 

Ohio. Siemaszko was the reactor coolant systems engineer. 

Geisen and Siemaszko prepared reports that significantly 

and falsely overstated the comprehensiveness and quality of 

past inspections, all in an effort to convince the NRC that 

Davis-Besse was safe to operate until a regularly scheduled 

shut-down of the plant would occur for a normal maintenance inspection. When that inspection finally occurred, 

investigators found five cracked nozzle heads and a football-sized cavity caused by boric acid 

erosion in the head of the reactor, conditions which would have been discovered much sooner 

had proper inspections been conducted. 

Prosecuting Illegal Commercial Fishing 

The Environment and Natural Resources Division convicted 19 individuals and 3 corporations 

in a series of cases filed in Maryland, the District of Columbia, and Virginia, that resulted from 

a multi-year, joint federal and state investigation of trafficking rings in the Chesapeake Bay 

watershed that were illegally harvesting and selling millions of dollars worth of striped bass, 

known locally as rockfish. Striped bass are prized commercial fish recovering from stocks so 

severely depleted that fewer than 20 years ago commercial 

harvest was banned entirely. The watershed is the major 

east coast breeding ground for this species. The market 

value of the striped bass illegally harvested in this investigation was between $4 and $6 million. The total poundage of 

illegal harvest exceeded the annual commercial catch allocated to two of the seven east coast states that allow commercial fishing. Combined, the individuals were sentenced 

to more than 140 months in prison, and total fines and restitution exceeded $1,360,000. The case also resulted in the State of Maryland changing its regulations to attempt to close weaknesses in the regulatory scheme exploited by the defendants 

and exposed by the prosecutions. 

After pleading guilty to importing falsely labeled goods into the United States and selling 

falsely labeled fish in the United States with the intent to defraud, Thomas George was sentenced to serve 22 months of incarceration. George and a Vietnamese distribution company 

engaged in a scheme to falsely identify the purchase and importation of Vietnamese catfish in 

order to evade the applicable anti-dumping duties. George instructed the Vietnamese company 

Davis–Besse Nuclear Power Stn. NRC Photo 

USFWS 

56 | criminal enforcement 
 

 

to fraudulently identify the Vietnamese catfish as "grouper" on commercial contracts, purchase 

orders, and other documents because grouper was not subject to any anti-dumping duties. In 

addition to the prison term, George must pay $64,173,839 in restitution for the unpaid federal 

tariffs, plus make a $50,000 community service payment to the National Fish and Wildlife 

Foundation for research into the identification of fish and other marine organisms. 

Stopping Illegal Wildlife Trafficking 

Taiwanese nationals Ivan and Gloria Chu were sentenced to 30 months of incarceration and 20 

months of incarceration, respectively, for their involvement in illegal shipments of internationally protected black coral into the United States. Each must also pay a $12,500 fine and is prohibited from shipping any coral or other wildlife products to the United States for a three-year 

period following release from prison. These sentences are the longest prison sentences to date 

for illegal trade in coral. Black coral is one of several types of precious corals that can be polished to a high sheen, worked into artistic sculptures, and used in inlaid jewelry. Because it is 

listed in Appendix II of CITES, black coral is subject to strict trade regulations. The defendants 

pleaded guilty to conspiracy, false statements, and violations of both the ESA and the Lacey Act 

for falsely labeling shipments of black coral from China to the Virgin Islands over a two-year 

period. The Lacey Act makes it a felony to falsely label wildlife that is intended for international commerce. The ESA is the U.S. domestic law that implements CITES. 

Live Black Coral 

Black Coral in Box 

On August 19, 2009, Peng Chia 

sent a shipment comprised of 10 

boxes of black coral that were 

labeled "plastic of craft work." 

A U.S. Customs’ Contraband 

Enforcement Team flagged the 

shipment as suspicious and contacted U.S. Fish and Wildlife 

(USFWS) from San Juan, Puerto 

Rico. As a result, USFWS, 

National Oceanic and Atmospheric Administration and Immigration and Customs Enforcement opened a joint investigation, "Operation Black Gold," 

that led to the arrest of the Chus 

in January 2010. Analysis by the 

USFWS’s National Forensics 

Laboratory in Ashland, Oregon 

revealed that shipment from the 

Chus contained internationallyprotected black coral. The Chus 

admitted that from 2007 to 2009, 

they sent more than $194,000 

worth of black coral to Company 

X. 

— U.S. Fish and Wildlife Service Photos 

Shipment of Black Coral 

X-Ray of Black Coral Shipment 

criminal enforcement | 57 
 

Wayne Breitag was convicted by a jury of smuggling a leopard hide into the United States in 

violation of CITES and the Lacey Act. He traveled to South Africa in August 2002 to hunt leopards while guided by a South African outfitter. After Breitag killed a leopard, the outfitter 

smuggled the hide from South Africa into Zimbabwe, where he purchased fraudulent CITES 

export permits for the hide. Breitag then 

submitted applications to the FWS falsely 

claiming that he had hunted and killed the 

leopard in Zimbabwe. The outfitter, who 

was involved in several other illegal hunts, 

served an 18-month prison sentence, and 

was deported upon his release. Breitag was 

sentenced to serve six months of home 

confinement and to pay a $20,000 fine, 

and is barred from hunting during his 

three years of supervised release. 

Prosecuting the Killing of Migratory Birds 

The County of Kauai and the Kaua’i Island Utility Cooperative (KIUC) pleaded guilty to charges 

arising out of the killing of Newell’s Shearwaters. The county manages football stadiums and 

other outdoor facilities that operate at night with lights. The lights attract seabirds, particularly fledgling Newell’s Shearwaters that circle the lights and eventually hit something or fall to 

the ground in exhaustion. Newell’s Shearwaters are threatened and migratory birds. Past efforts to cooperatively and voluntarily bring the county and KIUC into compliance with the ESA 

and the Migratory Bird Treaty Act failed. The county was sentenced to pay a $15,000 fine and 

to complete a 30-month term of unsupervised probation, submitting periodic status reports 

Defendant Holding Rifle 

58 | criminal enforcement 

every 6 months. The cooperative was sentenced to 

the maximum statutory 

fine of $40,000, to complete an 18-month term of 

probation, and to make a 

community service payment of $225,000 to a federally established program 

geared toward the protection of seabirds on Kaua‘i. 

Both entities also entered 

into comprehensive agreements to mitigate bird 

mortality. 
 

Expanding Criminal Environmental Enforcement 

The Division took several steps in fiscal year 2010 to ensure that U.S. Attorney districts across 

the nation make pollution and wildlife prosecutions part of their everyday practice. The Environmental Crimes Policy Committee, which is co-chaired by the Chief of ENRD’s Environmental Crimes Section, issued “The Environmental Crimes Tool Kit,” a prosecution primer 

which is distributed to each incoming United States Attorney, under cover of a letter from Attorney General Holder. In the letter, Mr. Holder emphasizes that environmental prosecutions 

are a priority for this Administration and directs each district to develop an environmental 

crimes program. Following release of the primer, the Division, in conjunction with the Attorney General’s Advisory Committee, hosted the first-ever United States Attorneys’ Environmental Crimes and Enforcement Conference in Washington, D.C. Attendees included nearly 

all United States Attorneys along with his or her criminal chief or environmental prosecutor. 

Presenters at the conference included the Attorney General, and senior Administration officials 

from EPA, the Department of the Interior, the White House Council on Environmental Quality, 

and many others. 

criminal enforcement | 59 
DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS 

Equipment at the Deepwater Horizon Site on May 18, 2010 U.S. Coast Guard Ph0to 

60 | defending vital federal programs 
 

 

Defending Federal Agencies in Connection with the Deepwater Horizon 

Oil Spill 

The Division is defending federal agencies and officials in numerous lawsuits filed following 

the April 20, 2010 explosion of the Deepwater Horizon oil rig and subsequent oil spill in the 

Gulf of Mexico. These cases challenge various federal 

regulatory requirements and approval of exploration 

and production plans, aspects of the federal government’s response to contain the oil spill in the first 

months following the explosion, and the Administration’s initial regulatory actions to prevent future recurrence of spills. 

Examples of actions resolved in fiscal year 2010 

include the following cases: 

--In Animal Welfare Inst. v. BP America Inc., animal 

protection and conservation organizations filed suit 

under the Outer Continental Shelf Lands Act, ESA, and 

CWA to prevent controlled oil burn efforts in the Gulf from harming endangered and threatened sea turtles. The case was resolved last summer on agreement of the U.S. Coast Guard to 

share protocols for sea turtle observation and rescue and to consider additional mitigation to 

avoid harming them; and then voluntarily dismissed due to the indefinite suspension of controlled burns following the success of efforts to stop the release of petroleum into the Gulf. 

--In Doyle v. BP Exploration, citizen environmentalists in Florida filed an early action against 

the Secretary of the Interior for failure to enforce the CWA, Oil Pollution Act, ESA, and other 

laws in connection with the oil spill. Last August, following the filing of a motion to dismiss by 

the United States based on various deficiencies in the complaint, the plaintiffs voluntarily dismissed the case. 

--In Hornbeck Offshore Services, L.L.C. v. Salazar and Ensco Offshore Co. v. Salazar, the 

Division defended against petroleum company challenges in district court and the Fifth Circuit 

under the Administrative Procedure Act and the Outer Continental Shelf Lands Act to two suspensions of deepwater drilling on leases in the Gulf of Mexico last May and July while the 

Department of the Interior examined the cause of the spill and the lessees’ ability to respond, 

and developed new safety regulations. After Interior lifted the second suspension last October, 

we successfully argued that challenges to the suspensions were moot. (Those actions continue 

based on claims that the Department of the Interior is unreasonably delaying the approval of 

applications for drilling in the Gulf of Mexico and for reconsideration.) A related action, Texas 

v. Salazar, was also voluntarily dismissed following the lifting of the second suspension order 

in October. 

Louisiana and U.S. Fish and Wildlife 

Service staff rescue a Gulf pelican for 

successful rehabilitation. 

U.S. Coast Guard Photo 

defending vital federal programs | 61 
 

Upholding Administrative Actions Related to Climate Change 

Over the past year, EPA has begun to develop a program under the CAA to regulate greenhouse 

gases that contribute to global climate change. Among other things, the Agency set limits for 

motor vehicle emissions of greenhouse gases and promulgated regulations specifying a phased 

approach for addressing greenhouse gases through stationary source permitting programs. 

These efforts generated a significant amount of litigation in fiscal year 2010, which ENRD will 

continue to vigorously defend in fiscal year 2011. 

The Division also handled several cases last year challenging agency actions under the CWA for 

failure to account for the impacts of climate change. During the pendency of Conservation 

Law Found. v. EPA, EPA decided to reconsider its earlier decision under the CWA approving a 

Total Maximum Daily Load (TMDL) established by the State of Vermont for phosphorus in 

Lake Champlain. We successfully sought a voluntary remand of the case, over the state’s objection, to allow EPA to proceed with its reconsideration. On reconsideration, as reflected in a 

decision issued on January 24, 2011, EPA reaffirmed that its analysis of climate change was 

reasonable in 2002, but disapproved the TMDL on other grounds. 

Center for Biological Diversity v. EPA involved a challenge to EPA’s approval of a list of impaired waters submitted by the State of Washington pursuant to the CWA. The plaintiff alleged 

that EPA’s approval violated the act because Washington's list did not include ocean waters 

that the plaintiff contended are impaired due to acidification. Ocean acidification may result 

from global climate change, as oceans absorb more carbon dioxide from the atmosphere. The 

Division negotiated a settlement that provided for EPA to seek public comment on the important issue of how to address ocean acidification under the CWA’s impaired waters program. 

In Natural Resources Defense Council 

v. U.S. Army Corps of Eng’rs, environmental groups challenged the Corps’ issuance of a CWA permit authorizing the 

filling of some streams and less than a 

quarter acre of wetlands needed to construct a $5.5 billion coal gasification and 

power generation plant in Ohio. The 

district court issued a favorable opinion 

granting the Division’s motion for summary judgment on behalf of the Corps, 

The oceans have absorbed about 50% of the carbon dioxide 

released from the burning of fossil fuels, resulting in 

chemical reactions that lower ocean pH. This has caused 

an increase in acidity of about 30% since the start of the 

industrial age through a process known as “ocean acidification.” A growing number of studies have demonstrated adverse impacts on marine organisms. NOAA Fact Sheet 

finding that the Corps did not improperly limit the scope of its review, did not 

improperly ignore alleged climate 

change impacts arising from operation 

of the plant, and did not skew its analysis of the project’s benefits and impacts. 

62 | defending vital federal programs 
KEY FEDERAL FISCAL YEAR 2010 CLEAN AIR ACT 

CLIMATE CHANGE REGULATORY INITIATIVES 

Greenhouse Gas Endangerment and Cause or Contribute Finding 

December 7, 2009 

	 EPA issued a final Clean Air Act regulation finding that six 

greenhouse gases constitute a threat to public health and 

welfare, and that the combined emissions from motor vehicles 

cause or contribute to the climate change problem. 

Standards to Reduce Greenhouse Gas Emissions and Fuel Use for 

New Passenger Cars and Light-Duty Trucks 

April 1, 2010 

	 EPA and the National Highway Traffic Safety Administration 

announced a joint final regulation under the Clean Air Act and 

the Energy Policy and Conservation Act establishing a historic 

national program that will reduce greenhouse gas emissions and 

improve fuel economy for new passenger cars, light-duty trucks, 

and medium-duty passenger vehicles, covering model years 

2012 through 2016. 

Tailoring Rule for Regulation of Greenhouse Gas Emissions from 

Large Stationary Sources 

May 13, 2010 

	 EPA issued a final regulation that establishes thresholds for 

greenhouse gas emissions that define when permits under the 

Clean Air Act New Source Review Prevention of Significant 

Deterioration and Title V Operating Permit Programs are 

required for new and existing industrial facilities. This final rule 

"tailors" the requirements of these permitting programs to limit 

which facilities will be required to obtain such permits. Facilities 

responsible for nearly 70 percent of the U.S. greenhouse gas 

emissions from stationary sources will be subject to permitting 

requirements under this rule. This includes the nation's largest 

greenhouse gas emitters — power plants, refineries, and cement 

production facilities. 

defending vital federal programs | 63 
 

 

Ensuring the Proper Scope of Relief on Reversal of Agency Actions 

The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture supports and protects the nation’s agriculture, including regulating the use and introduction of genetically engineered crops vital to the nation’s food supply. Organic seed farmers 

sued APHIS, challenging its 2004 decision to remove Roundup-Ready Alfalfa (RRA), a crop 

genetically modified to tolerate the herbicide “Roundup,” from regulation under the Plant Protection Act (PPA), thereby allowing commercial production of RRA. The farmers, concerned 

about potential cross-pollinization of RRA with their organic crops, asserted that APHIS 

should have evaluated the impacts of deregulation through an Environmental Impact Statement (EIS). The district court agreed. It vacated APHIS’s deregulation decision, ordered 

APHIS to prepare an EIS, and prohibited any further planting of RRA until an EIS was completed. The Court of Appeals affirmed. In Monsanto v. Geertson, the U.S. Supreme Court, 

which was asked only to address the scope of injunctive relief, reversed. The United States 

filed a brief on behalf of the petitioners. The Supreme Court held that Monsanto, the developer 

of the genetically modified product, had standing to seek review of the lower court’s injunctive 

orders. The Court also held that the district court had erred in issuing a nationwide injunction 

against any planting of RRA as APHIS could take actions under the PPA short of complete deregulation, such as partial or temporary deregulation of RRA, pending its completion of an EIS. 

Defending Another Challenge to APHIS’s Biotechnology Program 

In the past year, the Division also represented APHIS in a challenge to deregulation of sugar 

beets which have been genetically modified to tolerate “Roundup.” Sugar beets comprise about 

one-half of the current refined sugar supply, and genetically modified sugar beets make up 

ninety-five percent of all sugar beets planted. In Center for Food Safety v. Vilsack, the Division successfully defended against a preliminary injunction, which allowed the harvest of root 

crop and seed crop in fall 2010. 

S

ugar beets genetically engineered to be tolerant to the 

Monsanto herbicide glyphosate, also known as Roundup®, are 

known as Roundup Ready® (RR) sugar beets. Since RR sugar 

beets were deregulated in 2005 and approved to be grown for 

food and feed, they have been widely commercialized in the United 

States. In the 2009/10 crop year, RR varieties accounted for about 95 

percent of planted area, up from about 60 percent in 2008/09. Sugar 

beets are grown in 11 states in 5 regions of the United States. 

APHIS Fact Sheet, June 2010 

64 | defending vital federal programs 
 

 

 

 

 

 

 

USGS Map 

Litigating Water Quality in the Everglades 

Miccosukee Tribe v. EPA was initially a challenge to: (1) EPA’s 

determination that a Florida statute pertaining to pollutant discharges to the Everglades was not a change to a water quality standard and (2) EPA’s approval of Florida’s Phosphorous Rule. After 

a mixed decision on the merits in 2008, the case is back in active 

litigation as the plaintiffs moved for contempt and to enforce the 

district court’s 2008 order. In response to the contempt motion, 

the court granted extensive relief, including requiring EPA to issue 

an amended determination that compelled Florida to alter its existing water quality standards and requiring EPA to withdraw Florida’s authority under the CWA to issue National Pollutant Discharge 

Elimination System permits for discharges into the Everglades until 

Florida’s permitting program complies with the CWA, as set forth in 

the court’s 2008 order. The Division’s substantial efforts helped 

EPA to issue a new determination by the court-ordered deadline last 

year, and we are currently defending the determination in court. 

EPA’s issuance of the amended determination is a significant step 

toward improving the water quality of the Everglades. 

With this action, EPA is complying with the law and acknowledging that we must do 

more together to restore clean water to the Everglades. The State of Florida and the 

South Florida Water Management District have done much good work already and 

we hope to build on that by meeting both the substance and the spirit of Judge 

Gold’s decision with this plan, and to achieve clean water standards as soon as 

possible. 

Statement of A. Stanley Meiburg, Acting Regional Administrator, EPA Region IV, 

on the September 3, 2010 Release of the Amended Determination for the Everglades Protection Area 

Protecting Everglades Restoration 

Efforts from Constitutional Challenges 

In Mildenberger v. United States, landowners 

along the St. Lucie River in Florida alleged a $50 

million taking of their property in violation of the 

Fifth Amendment resulting from the Corps' operational plan for Lake Okeechobee, pursuant to 

which the Corps allegedly discharges pollutants 

and excess fresh water into the St. Lucie River 

and Estuary. The plaintiffs contend that releases 

Lake Okeechobee, covering 730 square miles, is 

the largest Florida lake and the second largest 

freshwater lake within U.S. borders. 

 USACE Photo

defending vital federal programs | 65 
of pollutants and fresh water over time have destroyed the estuarine environment and their 

riparian rights. The Court of Federal Claims rejected the suit, finding that the plaintiffs’ claims 

were barred by the statute of limitations. The court also held that the various riparian rights 

claimed (fishing, swimming, and boating) are shared by the public at large under the state’s 

public trust doctrine and are therefore non-compensable; and even if the plaintiffs could assert 

a compensable property interest under state law, the claims would be barred by the federal 

navigational servitude. 

Asian Carp 

Courtesy of Asian Carp 

Regional Coordinating 

Committee 

Representing Federal Interests in Asian Carp 

Litigation 

Invasive species are one of the largest threats to the Great Lakes 

ecosystem. Last year, the Division successfully represented the 

interests of the United States in litigation involving the migration 

of Asian carp into the Great Lakes through the Chicago Area 

Waterway System. Asian carp, which can grow to 5 feet and 

weigh more than 100 pounds, have come to dominate sections of 

the Mississippi River and its tributaries. If the carp become established in the Great Lakes, it is feared they could create an ecological disaster by consuming the bottom of the food chain and 

negatively impacting the Great Lakes’ $7 billion fishery industry. 

Chicago Area Waterway System USACOE 

66 | defending vital federal programs 
 

In a case filed in the U.S. Supreme Court, 

Wisconsin v. Illinois, the State of Michigan sought to force the State of Illinois, 

the Metropolitan Water Reclamation District of Greater Chicago, and the Corps to 

take additional actions to prevent the 

spread of invasive Asian carp into Lake 

Michigan. The Division successfully defended against two preliminary injunction motions and, ultimately, working 

with the Office of the Solicitor General, 

successfully argued that the Supreme 

Court should reject Michigan’s efforts. 

And in Michigan v. Army Corps of Engineers, we prevailed against a third motion for a preliminary injunction filed in district court, 

following an evidentiary hearing. 

U.S. Fish and Wildlife Service Team Pulling Asian 

Carp Below the Electric Barriers on the Canals 

USFWS Owen Johnson 

Upholding Efforts to Deepen the Delaware 

River for Navigation 

The long-planned deepening of the Delaware River’s main 

channel from 40 to 45 feet is moving forward. In Delaware Dep’t of Natural Resources v. U.S. Army Corps of 

Eng’rs, ENRD successfully defended the deepening of one 

stretch of the river against a motion for preliminary injunction from the State of Delaware, which argued that 

the Corps could not proceed with the project until it received certain state permits and made supplemental findings under the Coastal Zone Management Act. In November 2010, the district court granted summary judgment in 

favor of the Corps, allowing the full project to proceed. 

Defending EPA’s Standards for Regulation of 

Cooling Water Intake Structures 

In ConocoPhillips Co. v. EPA, the Fifth Circuit upheld 

EPA’s regulation governing the construction, design, capacity, and siting of cooling water intake structures to protect aquatic organisms. The court 

viewed the stringent standards applicable to new facilities to be reasonable, deferring to EPA’s 

findings that compliance with the regulations was both economically achievable and necessary 

to protect against the risk of adverse consequences to aquatic organisms. 

USACOE Map 

defending vital federal programs | 67 
 

 

Protecting the Public Against Lead Hazards 

In response to two recent petitions for review, the Division obtained decisions that will help 

protect the public from hazards posed by lead. In Coalition of Battery Recyclers v. EPA, the 

D.C. Circuit upheld, against challenge by industry, EPA’s tightened primary and secondary national ambient air quality standards for air emissions of lead, thus assuring greater protection 

to infants and children against such exposures nationwide. In Vidiksis v. EPA, the Eleventh 

Circuit rejected a challenge to EPA’s assessment of a substantial penalty against a landlord for 

failing to properly notify tenants of lead-based paint hazards in rental properties. 

Protecting the Public Against Exposures to Harmful Pesticides 

In National Corn Growers Ass’n v. EPA, the D.C. Circuit upheld EPA’s decision to revoke domestic tolerances previously established under the Federal Food, Drug, and Cosmetic Act for 

the pesticide carbofuran, which EPA determined posed unacceptable risks to human health. 

T

Litigating the Scope of 

EPA’s Renewable Fuel 

Standards Program 

he Energy Policy Act of 2005 established 

the first renewable fuel volume mandate in 

the United States, requiring 

7.5 billion gallons of renewable fuel 

to be blended into gasoline by 2012. 

 The Division earned a favorable decision in National Petrochemical & Refiners Association v. EPA, a case seeking 

review of EPA’s regulation gov- The Energy Independence and Security erning the CAA Renewable 

Fuel Standards Program. The 

rule set requirements for minimum volumes of bio-mass diesel fuel to be produced and 

used in 2010, as required by 

the Energy Independence and 

Security Act. ENRD’s work 

during FY 2010 led to a favorable decision from the D.C. 

Circuit, rejecting industry petitioners’ challenges and holding 

that the rule was not impermissibly retroactive because it 

combined the 2009 and 2010 

minimum volumes of bio-mass 

fuel as set out in the statute. 

Act of 2007 expanded the program to: 

 include diesel in addition to gasoline; 

	 increase the volume of renewable fuel required 

to be blended into transportation fuel from 

9 billion gallons in 2008 to 

36 billion gallons by 2022; 

	 establish new categories of renewable fuel and 

set separate volume requirements for each one; 

	 require EPA to apply lifecycle greenhouse gas 

performance threshold standards to ensure that 

each category of renewable fuel emits fewer 

greenhouse gases than the petroleum fuel it 

replaces. 

68 | defending vital federal programs 
Defending a Presidential Permit Authorizing International Border Crossing 

for the Alberta Clipper Pipeline 

The Division successfully handled a challenge in Minnesota to the State Department’s issuance 

of a presidential permit for the border crossing of the Alberta Clipper Pipeline, which will 

transport crude oil from Canada 

to refineries in the United States. 

In Sierra Club v. Clinton, the 

plaintiffs claimed that the Environmental Impact Statement developed under NEPA for the project failed to adequately examine 

impacts from operation of the 

pipeline. The plaintiffs also challenged permitting decisions by 

the Corps and Forest Service for 

construction of the pipeline. The 

district court held that the agencies had properly considered the 

need for additional pipeline capacity from Canada to the United

States, had considered a reasonable range of alternatives, and had appropriately analyzed the 

potential environmental impacts of the project. 

Defending the Department of Energy’s “Clean Energy” Programs 

In Appalachian Voices v. Chu, the Division successfully defended claims against the Internal 

Revenue Service and Department of Energy alleging that a program allocating $1 billion in congressionally authorized tax credits to "clean coal projects" was subject to regulation under 

NEPA and the ESA. 

Ensuring the Continued Vitality of the Rails-to-Trails Program 

The Division continues to address more than 10,000 claims brought by landowners whose 

property is adjacent to railroad corridors that have been converted to recreational trails pursuant to the National Trails System Act. These trails provide vital transportation benefits to communities throughout the United States, while preserving the corridors for possible railroad reactivation. Although these cases present numerous challenges, we continue to be successful in 

narrowing the number of claims and issues only to those that are supported by the law. Our 

“rails-to-trails” successes last year included Rogers v. United States, a case in which the Court 

of Federal Claims dismissed 193 properties on a trail in Florida as being outside the scope of 

the government action; and granted our summary judgment motion related to another 42 

Map of Alberta Clipper Pipeline 

Prepared by Enbridge Energy Company 

defending vital federal programs | 69 
 

 

properties, finding that the landowners did not have a compensable property interest. In 

Troha v. United States, a class action involving a trail in Pennsylvania, the district court granted 

summary judgment in favor of the 

United States, holding that 

“railbanking” and interim trail use 

constitute “railroad purposes” under Pennsylvania law, and that 

such uses did not exceed the scope 

of the specific easements at issue 

in the case. And in Bywaters v. 

United States, a class action involving a trail in Texas, the district 

court issued a significant opinion 

limiting the amount of attorneys’ 

fees that may be obtained by class 

action counsel in such cases. 

Defending Against Constitutional Challenges Relating to Post-Katrina 

Reconstruction 

In the aftermath of Hurricane Katrina, the Corps worked closely with local government 

authorities in Louisiana to repair and reconstruct levees to protect the region from future 

hurricane damage. These efforts were accomplished through the “commandeering” by the local authorities of private properties to be used as staging grounds and borrow sites. The Corps 

has committed to fully compensate the landowners and has negotiated compensation for most 

of them; however, a small number of landowners have insisted on being compensated far in 

excess of the fair market value for their property. In three such suits, Gaskell v. United States, 

Olivier Plantation, L.L.C. v. Parish of St. Bernard, and West Jefferson Properties, L.L.C. v. 

West Jefferson Levee District, ENRD successfully gained dismissal of all such claims against 

the United States, resulting in a likely savings to the United States of tens of millions of dollars. 

Planning for the Construction of New Hospitals in New Orleans Following 

Hurricane Katrina 

The Department of Veterans Affairs and Federal Emergency Management Agency teamed up to 

consider the collective impacts of constructing two new veterans’ hospitals in New Orleans’s 

Mid-City neighborhood and historic district. In National Trust for Historic Pres. v. U.S. Dep’t 

Great Allegheny Passage 

This bridge was originally constructed in 1911 and renovated for 

trail use in 1999. It is part of the Great Allegheny Passage, a 135-

mile trail that connects Pittsburgh, Pennsylvania and Cumberland, Maryland and is the longest trail in the east. 

Photo Courtesy of the Rails-to-Trails Conservancy and Ronald Mervine 

70 | defending vital federal programs 
 

of Veterans Affairs, ENRD successfully defended the agencies’ environmental review under 

NEPA from challenge by the National Trust for Historic Preservation, allowing final planning 

and construction to go forward in summer 2010. 

Defending Federal Property Transfers 

For more than eight years, the Division has defended the National Park Service in litigation 

over the display of a cross on a rock outcropping in the Mojave National Preserve in southern 

California. The cross was originally installed in 1934 by the Veterans of Foreign Wars as a memorial to soldiers who had died in World War I. In the case of Salazar v. Buono, the U.S. Supreme Court reversed a Ninth Circuit ruling upholding an injunction that had prohibited the 

Park Service from transferring the tract of land on which the cross is located to the local VFW 

Chapter in accordance with a statute enacted by Congress. The district court had prohibited 

the transfer as a means to enforce its earlier ruling that the display of the cross violated the Establishment Clause of the U.S. Constitution. The Supreme Court held that the district court 

should have examined a variety of additional factors in deciding whether to enjoin transfer of 

the property, including the circumstances involving Congress’s passage of the land transfer 

statute, the historical significance the cross attained over the almost seventy years it stood, and 

the dilemma the original injunction presented Congress in that the cross could not be removed 

without conveying disrespect for those the cross was seen as honoring. The Court remanded 

the case to the district court for reconsideration in accordance with its opinion. 

Mohave Cross Photo Courtesy of Kathryn Kovacs 

defending vital federal programs | 71 
 

 

 

 

 

 

 

 

 

Acquiring Property for Public Purposes 

The Division exercises the federal government's power of eminent domain to enable agencies to 

acquire land for public purposes ranging from establishing national parks to building federal 

courthouses to protecting the nation’s borders. These actions secure the Fifth Amendment 

guarantee of just compensation in amounts that are fair to property owners and to taxpayers. 

Examples of this type of action last year include the following cases: 

--In July 2010, the Division filed two condemnation actions to acquire adjacent properties on 

behalf of the General Services Administration for construction of an annex to an existing federal courthouse in Norfolk, Virginia. United States v. 1.6039 Acres of Land Situate in the City 

of Norfolk; United States v. 15,478 Square Feet of Land Situate in the City of Norfolk. Discovery is currently underway; however, title transferred to the United States upon filing of the 

cases. Estimated just compensation was deposited in the amount of $6,175,000 and 

$1,083,000, respectively, for the sites. 

--Without filing a condemnation action, the Division reached agreement last year on behalf of 

the General Services Administration to acquire a 10-month leasehold in offices occupied by a 

component of the Internal Revenue Service in Washington, D.C. Renewal negotiations between the agency and the building owner failed because the owner refused to consider a less 

than three-year term. The total amount paid for the leasehold term will be $2.8 million, an 

amount slightly less than the final amount offered by the General Services Administration and 

originally rejected by the building owner. 

In fiscal year 2010, ENRD also conducted title reviews for client agencies able to negotiate property purchases without the need for the Division to file condemnation actions. One example is 

the review of title to 46 acres adjacent to Kansas State University in Manhattan, Kansas, to be 

acquired by donation as the site for a new National Bio and Agro Defense Facility. Title reviews 

also began in 2010 and are ongoing for the Department of Veterans Affairs (VA) replacement of 

the hospital in New Orleans severely damaged during Hurricane Katrina, which, as discussed 

previously, the Division also defended from NEPA challenge. The new VA Medical Center, 

which will occupy 12 city blocks, is expected to cost approximately $1 billion to construct. It will 

include 200 inpatient beds and 60 nursing home care beds, as well as an outpatient center to 

provide primary, mental health, and specialty care, surgical capabilities, and research facilities. 

The VA estimates that the new center will have a significant beneficial economic impact on the 

city, creating 2,000 construction jobs and 2,200 permanent VA jobs with a direct and indirect 

economic benefit of $8.9 billion over a 10-year period. 

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 

72 | defending vital federal programs 
 

 

 

 

 

 

congressional committees, and drafts legislative proposals, including proposals implementing 

settlements of Division litigation. One example of this work from last year is S. 3481, Pub. L. No. 

111-378, which amends the CWA to require federal agencies to pay reasonable municipal stormwater assessments. Municipal stormwater assessments seek to recover the costs that utilities 

incur in collecting, treating, and controlling discharges of stormwater under the CWA and its implementing regulations. Mindful of the President’s directive that federal facilities should lead by 

example in protecting water resources through stormwater management, the Division provided 

technical assistance to Senator Cardin, along with EPA, to ensure that the bill accomplished its 

intended purpose and reflected relevant case law. Another example is the Division’s ongoing 

support for the development of legislation to clarify the Oil Pollution Act, the Outer Continental 

Shelf Lands Act, and other federal statutes to prevent future oil spills from deepwater petroleum 

exploration and production, ensure that responsible parties are held accountable for spills, assure that adequate plans are in place to mitigate the adverse environmental impacts from such 

events, and improve the administration of federal mineral and energy resources. 

Rendering of the Planned New Orleans 

VA Medical Center's Outpatient Facilities and Main Entrance Court 

U.S. Department of Veterans Affairs 

Enforcing Environmental Law Through International Capacity Building 

The Division implements a robust and varied program of international activities to support important Administration and Department objectives. We engage in international activities in 

order to successfully prosecute violations of U.S. environmental and natural resource laws that 

defending vital federal programs | 73 
involve foreign evidence or rely on underlying foreign statutes. We build enforcement capacity 

in other countries in support of better enforcement in those countries and to establish relationships that enhance our ability to combat transnational environmental crimes. We also represent Division interests by ensuring that environmental enforcement and other Division priorities are considered in international treaty and trade agreement negotiations and in the development and implementation of U.S. international policies. To carry out these objectives, in FY 

2010 ENRD spoke at conferences and workshops, provided training, and met with law enforcement counterparts 

in Brazil, Cambodia, China, Costa 

Rica, Germany, 

Indonesia, Israel, 

Laos, Micronesia, 

Peru, Russia, Thailand, and Vietnam. 

The Division continued to speak at 

conferences and 

workshops internationally and domestically in order 

to disseminate information about 

the 2008 amendments to the Lacey 

Act, which added 

enforcement tools to combat international trafficking in illegally harvested timber and wood 

products made from such timber. For example, ENRD spoke about the Lacey Act at workshops 

funded by the U.S. Agency for International Development in China, Indonesia, and Vietnam for 

government officials and representatives of the wood products industry. The Division engaged 

in a year-long effort to provide training to investigators and prosecutors in the Amazonian 

States of Peru on investigating and prosecuting illegal logging crimes. We were also provided 

funding by the State Department to implement a multi-year program in Brazil and Russia to 

provide training on combating illegal logging. 

The Division continued to provide training, through the Association of Southeast Asian Nations 

Wildlife Enforcement Network, to government officials in Southeast Asia on combating wildlife 

trafficking. We spoke at conferences and provided training in China and Israel on implementation of effective environmental enforcement programs. And, finally, ENRD participated in 

the U.S. delegation to meetings of the United Nations Framework Convention on Climate 

Change. 

74 | defending vital federal programs 

Civil Enforcement Conference, Jerusalem, April 2010 
 

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 United States is not a 

party in order to protect the interests of the United States and its component agencies. We 

filed briefs in a number of such proceedings last year. An example is Sierra Club v. Korleski. 

We filed an amicus brief in the Sixth Circuit on behalf of EPA, arguing that the CAA’s citizensuit provision authorized Sierra Club’s action against the Ohio Environmental Protection 

Agency (Ohio EPA) because Ohio EPA violated a requirement of the Ohio State Implementation Plan when it issued permits to minor sources of pollution without requiring the sources to 

use best available technology (BAT) to reduce air pollution. The amicus brief further argued 

that the district court’s injunction, which prohibits Ohio EPA from issuing permits to sources 

of pollution without requiring the sources to use BAT, does not violate the Tenth Amendment 

of the U.S. Constitution. 

defending vital federal programs | 75 
PROMOTING NATIONAL SECURITY

AND MILITARY PREPAREDNESS 

Facilitating Military Modernization Plans 

On September 21, 2010, the Department of Defense signed a record of decision concerning 

three projects that will affect Guam and the Commonwealth of Northern Mariana Islands: relocation of U.S. Marines Corps’ troops and facilities presently stationed on Okinawa, Japan; 

construction of a deep-draft wharf with shoreside facilities for berthing a U.S. Navy transient 

nuclear-powered aircraft carrier; and establishment of a U.S. Army Air and Missile Defense 

Task Force. This action marked the conclusion of successful Division efforts to facilitate interagency discussions, under the direction of an Interagency Policy Committee chaired by the 

White House Council on Environmental Quality and the National Security Council, to address 

legal, policy, and environmental concerns associated with the projects. The decision will allow 

the Defense Department to move forward with the projects in a way that will promote the 

United States’ long-term strategic interests and benefit the community at large. 

Defending the Department of Energy’s National Security Research 

Programs 

 

In the past year, the Division successfully defended several important Department of Energy 

research programs. In Tri-Valley CARES v. Department of Energy, the agency’s authorization 

of construction and operation of a Bio-Safety Level 3 facility at the Lawrence Livermore National Laboratory was upheld. Our victory allows the Department to continue critical research 

designed to enhance the nation’s ability to detect and respond to terrorist attacks using biological agents. In Natural Resources Defense Council v. Chu, ENRD successfully defended the relocation of a Kansas City plant that manufactures non-nuclear parts used to produce nuclear 

weapons. The new facility has a smaller environmental footprint than the older facility, in 

keeping with the evolving nature of its role within the overall nuclear weapons complex. 

Supporting the Strategic Border Initiative and Securing the Nation’s 

Borders 

In 2007, Congress mandated construction of fencing and related infrastructure at multiple 

points along the United States-Mexico border in order to enhance domestic security by curtailing smuggling, drug trafficking, and illegal immigration. The Division is working closely with 

the Department of Homeland Security and the Corps to facilitate land acquisitions necessary 

76 | promoting national security 
U.S. Department of the Navy 

promoting national security | 77 
 

 

 

 

for the construction of 225 miles of congressionally mandated fencing along the United StatesMexico border (the Strategic Border Initiative). This has required acquisition by eminent domain of over 315 land parcels in Texas, New Mexico, Arizona, and California and extensive 

work to obtain timely possession for construction purposes and to address widespread title and 

survey issues. The Division has been working with the local U.S. Attorneys’ Offices to prepare 

for trials scheduled this year on five of the largest, most precedent-setting cases with valuation 

disputes totaling more than $100 million. 

View from A Border Fence Camera in the Rio Grande Valley Looking Toward Mexico 

CBP Photo 

The Division also obtained successful results in two cases related to securing the northern and 

western borders of the United States: 

--United States v. 25.202 Acres of Land in the Town of Champlain concerned the condemnation of property on the United States-Canada border for construction of a crossing facility on 

behalf of U.S. Customs and Border Protection and the General Services Administration. Trial 

was held the week of August 16, 2010, in Syracuse, New York. The United States presented expert valuation evidence supporting a fair market value of $184,000. Prior to trial, defendant’s 

expert estimated the taking at $10.3 million. At trial, a landowner representative testified the 

property was worth between $2,077,777 and $10 million. After deliberating for barely an hour 

-and-a-half, the jury returned a verdict at the U.S. appraiser’s exact land valuation. 

78 | promoting national security 
 

--United States v. 10.56 Acres in Whatcom County related to the acquisition of land on behalf 

of the General Services Administration and Department of Homeland Security for expansion of 

the Peace Arch Port of Entry in Blaine, Washington. This border crossing is located on Interstate 5 between Seattle 

and Vancouver; construction of the expanded facility required 

fee acquisitions of portions of both the 

southbound and 

northbound lanes. The 

district court granted a 

partial summary judgment in favor of the 

United States, reducing 

the State of Washington’s claim to $372,775, 

less than three percent 

of its original $16 million demand. The state 

later agreed to settle this Peace Arch Port of Entry GSA Photo 

litigation for $262,554. 

The Division also conducted title reviews for client agency acquisition of seven parcels of land 

in Ajo, Arizona, for construction of a housing project for U.S. Customs employees who work at 

land ports of entry on the border with Mexico and at other inspection facilities; and two parcels 

of land needed as additions to the Federal Law Enforcement Training Centers in Glenn County, 

Georgia and in Eddy County, New Mexico. 

Acquiring Additional Property to Improve Military Preparedness and 

National Security 

The Division exercised the federal government's power of eminent domain this year to acquire 

land on behalf of the Department of Defense. In United States v. 32.42 Acres in San Diego 

County, ENRD filed a condemnation action on behalf of the U.S. Navy to acquire all remaining 

interests in filled tidelands used at the Navy’s Anti-Submarine Warfare Training Center (leased 

by the United States until August 2049), including the public trust interest of the State of California. A jury trial in April 2010 resulted in a just compensation verdict of $2,910,000. Two 

cases were also initiated in Mississippi to acquire about 150 acres for use in Navy Seal Team 

training. Settlement agreements were reached reflecting just compensation of $275,037 for the 

smaller parcel and $999,674 for the larger tract. 

promoting national security | 79 
PROTECTING INDIAN RESOURCES 

AND RESOLVING INDIAN ISSUES 

Supporting Tribal Recognition and Sovereignty 

The Department of the Interior decides whether a group should be federally recognized as a 

tribe. Such a determination means the group becomes sovereign over its members and internal disputes. A federally recognized tribe receives certain federal benefits and may no longer 

be subject to state civil regulatory laws on its lands. Federal recognition allows a tribe to establish Indian gaming activities consistent with federal law. In fiscal year 2010, in Parks v. Native 

Village of Minto, ENRD successfully defended the federally recognized status of tribes in 

Alaska, as well as the authority of their courts to exercise child protection jurisdiction pursuant 

to the Indian Child Welfare Act. The Division also worked with the Solicitor General’s Office 

to file a brief in the U.S. Supreme Court in Hogan v. Kaltag Tribal Council, supporting the inherent sovereignty of Alaska Native village tribal courts to adjudicate child custody matters and 

asking the Court to deny further review. The Court denied certiorari, and the favorable Ninth 

Circuit decision stands. The Division also filed an amicus brief in the Ninth Circuit in Water 

Wheel Camp Recreation Area, Inc. v. Gary LaRance, supporting tribal court jurisdiction to 

adjudicate a commercial law suit and eviction action brought by the tribe against non-member 

holdover tenants on trust land. That case is pending. 

Defending Tribal and Federal Interests in Water Adjudications 

The Division continued to represent the interests of the United States as trustee for Indian 

tribes and their members in complex water rights adjudications in nearly every western state in 

the United States. Increasing population pressures in the arid western United States make water rights issues particularly contentious. In the past year, ENRD contributed to five landmark 

Indian water rights settlements which, when fully implemented, will resolve complex and contentious Indian water rights issues in three western states. These settlements include the Taos 

Pueblo Indian Water Rights Settlement, the Aamodt Litigation Settlement Act, and the NavajoSan Juan River Basin Settlement in New Mexico; the Crow Tribe Water Right Settlement in 

Montana; and the White Mountain Apache Tribe in Arizona. Each settlement is uniquely 

adapted to the needs of the tribes and non-Indians involved in the particular river basins, but 

they all share the common features of providing welcome resolutions of complex water rights 

controversies that have existed for decades and ensuring that the tribes have access to water on 

their reservations. These settlements also provide certainty as to the nature and extent of tribal 

water rights, and thereby promote economic development both on-reservation and in the adja80 | protecting indian resources 
 

cent, often rural, communities. The agreements were approved by Congress, but will require 

additional work over the next few years to obtain final court decrees and other implementing 

actions. 

Upholding Authority to Acquire Land in Trust for Tribes 

We successfully defended the Department of the Interior’s authority to acquire land in trust for 

tribes. For example, in Upstate Citizens for Equality v. Salazar and Central New York Fair 

Business Ass’n v. Salazar, a district court rejected numerous constitutional and statutory challenges to a proposed trust land acquisition for the Oneida Indian Nation of New York. The 

court dismissed constitutional challenges to the Indian Reorganization Act, as well as to claims 

seeking to determine the lawfulness of gaming under the Indian Gaming Regulatory Act. 

Defending Tribal Land Holdings 

The Division had a very favorable outcome last year in a longstanding dispute over the boundaries and existence of a reservation. In Saginaw Chippewa Indian Tribe v. Granholm, the 

tribe, the United 

States, the State of 

Michigan, and local 

governments negotiated, and the district 

court entered, a historic settlement recognizing that the Isabella Reservation in 

south central Michigan is Indian Country. The settlement 

also encompasses 

various intergovernmental memoranda 

of agreement regarding the Indian Child 

Welfare Act, taxation, 

regulation, land use, 

revenue sharing, and 

law enforcement jurisdiction that seek to 

resolve the manner in which the tribe, state, and local governments operate on a day-to-day 

basis. This settlement provides a model for how states, tribes, and local governments can work 

together to solve common problems. 

U.S. Department of the Interior Map 

protecting indian resources | 81 
 

 

Defending Against Tribal and Individual Indian Breach-of-Trust Claims 

The Division is defending the United States (and its two primarily affected agencies, the Departments of the Interior and Treasury) in 97 cases pending in federal district courts in Washington, D.C. and Oklahoma; the Court of Federal Claims; the Court of Appeals for the Federal 

Circuit; and the U.S. Supreme Court, in which 114 tribes have alleged that the federal government has breached its trust duties and responsibilities to the tribes by failing to provide the 

tribes with historical trust accountings and by mismanaging the tribes’ trust funds and nonmonetary trust assets. The tribes are seeking court orders requiring Interior and Treasury to 

furnish trust accountings and pay damages exceeding $1.4 billion for the government’s alleged 

mismanagement of tribal trust funds, lands, and other natural resources. The Division is pursuing a strategy of constructive engagement in these cases. We are litigating certain cases to 

final judgment, wherever necessary or appropriate, while also working cooperatively with 

tribes and the Interior and Treasury Departments to resolve other cases through formal alternative dispute resolution (ADR) or informal settlement processes, to the extent possible. 

In Wolfchild v. United States, the Division secured from the Court of Appeals for the Federal 

Circuit a reversal of a Court of Federal Claims’ holding that the Bureau of Indian Affairs had 

breached a trust with 20,000 alleged descendants of Indians by transferring land to three 

tribes in Minnesota. The claims for money damages were in the hundreds of millions of dollars, premised in part on damages from the Indian gaming revenue that the plaintiffs claim 

they should have received. We were also successful in Rosales v. United States, a suit brought 

in the Court of Federal Claims by individual Indians who claimed a breach of trust and a taking 

without compensation for allegedly favoring another tribe located in California in a land dispute. And in Begay v. United States, we secured dismissal in the Court of Federal Claims of an 

attempted class action of all Navajo allottees with pipeline right-of-ways within the Navajo 

Reservation. The court dismissed the action on grounds that the allottees failed to exhaust administrative remedies and were barred by the statute of limitations. 

Thwarting Efforts to Disturb Geronimo’s Grave 

In Geronimo v. Obama, the Division secured dismissal of an action filed in district court by 

certain lineal descendants of the Apache warrior known as Geronimo. These descendants 

sought to repatriate Geronimo’s human remains from Fort Sill, Oklahoma. The Fort Sill 

Apache Tribe and other lineal descendants opposed the exhumation and repatriation, believing 

it to be a desecration of Geronimo’s grave. The court granted our motion to dismiss the complaint, holding that the plaintiffs had failed to identify any final agency action under the Administrative Procedure Act and also failed to allege an actionable claim under the Native 

American Graves Protection and Repatriation Act. 

82 | protecting indian resources 
#5: Beef Creek Apache Cemetery 

Site of Geronimo’s Grave 

(National Historic Site) 

Geronimo’s Grave, 

Beef Creek Apache Cemetery 

Fort Sill, Oklahoma 

Cemeteries of Fort Sill, Oklahoma 

Map Prepared by Directorate of Public Works, 

Fort Sill 

U.S. Army Photos 

The inscription above reads in part: 

Apache Indian Cemeteries 

The roll call of chiefs, warriors, army scouts and families buried here includes the most famous names in 

Apache history: Geronimo, whose daring band performed deeds unmatched since the days of Captain 

Kidd; Chief Loco of the Warm Springs, who stood for peace; Chief Nana, the original desert Fox; Chief 

Chihuahua of the Chiricahuas; and sons and grandsons of Mangus Colorados, Victorio, Cochise, Naiche, 

and Juh, and of such noted scouts as Kaahteney, Chatto, Kayitah, and Martine. Here also lie 12 of the 50 

Apaches who were U.S. soldiers and scouts at Fort Sill. Linked with these men in the Indian Wars was a 

legion of Army greats — General Cook, Miles, Howard, Crawford, Gatewood, Lawton, Grierson, and 

Leonard Wood. 

This cemetery on Beef Creek was established in 1894 by General Scott. 

protecting indian resources | 83 
SUPPORTING THE 

DIVISION’S LITIGATORS 

Case Strategy Meeting 

from partner agencies to assist with the creation of the operations center and to provide general litigation support once it was established. 

Supporting the Department’s Efforts to Investigate and Litigate Issues 

Related to the Deepwater Horizon Gulf Oil Spill 

The Division has provided comprehensive facility support to the government-wide litigation efforts related 

to the Deepwater Horizon oil spill. In just a month, 

commercial office space was identified and secured in 

downtown New Orleans to be used by government 

investigators and attorneys working on cases and 

matters related to the oil spill. Establishing the Deepwater Horizon Operations Center involved managing 

construction, furnishing, and leasing all necessary 

equipment for the space, as well as design and installation of the information technology infrastructure. 

We worked with the Civil Division to share telecommunications links so as to achieve greater cost efficiencies. The ENRD Office of the Comptroller secured 

emergency funding from within the Department and 

84 | supporting the litigators 
 

 

 

Launching New 

Public Internet 

Site 

In fiscal year 2010, 

the Division’s new 

public Internet site 

(www.justice.gov/ 

enrd) was launched. 

In addition to a new 

look, which was 

modeled after the 

Department’s public

site, the new site 

includes information regarding the 

Division’s rich history and varied areas of practice. The most popular pages on the new site continue to be our proposed consent 

decrees, press releases, and employment opportunities. 

Providing Innovative Technology for ENRD’s Workforce 

The amount of Electronically Stored Information (ESI) processed in ENRD continues to grow 

each year. To manage the enormous volumes of data, ENRD provides innovative technology and 

workforce training. Over the past year, we enhanced the Division’s data/document review capabilities to include new software and increased capacity, ensuring that larger cases with more ESI 

can be reviewed efficiently in a local or remote setting. The Division also introduced software 

and automated processes which enhance ability to manage litigation-hold requirements. We also 

built and installed new remote access infrastructure, upgrading software applications, enhancing 

security, and allowing additional concurrent users to connect to the Division’s network in a Continuity of Operations scenario. The Division’s Office of Litigation Support provided extensive 

training on e-discovery standard operating procedures and “tools of the trade” for handling ESI. 

Conserving Financial Resources 

The Division’s Executive Office works diligently to achieve efficiencies of operation and carefully manage the taxpayer dollars entrusted to the Division. This year, the ENRD operating 

budget topped $200 million for the first time. As part of managing these funds, the Division’s 

Office of the Comptroller processed nearly $40 million in expert witness contracts and secured 

several million dollars in supplemental funding to support, among other things, the Department’s important Deepwater Horizon oil spill work. The Division achieved real cost efficiencies in several areas, including reducing paper consumption and increasing the use of videoteleconferencing (as an alternative to travel). 

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Greening the Division 

In fiscal year 2010, ENRD’s Greening the Government (GtG) Committee continued to work actively on environmental and sustainability issues. The Division achieved about a four-percent 

reduction in energy use from 2007 levels in the Patrick Henry Building (PHB), due in part to 

GtG Committee initiatives to remove the center bulbs from interior hallway light fixtures and 

to turn off soda machine lights. The committee also successfully negotiated with building management to install over 1,200 motion-activated light sensors in all offices and common areas of 

PHB. Installation of these sensors began in January 2011. 

From March to April 2010, the GtG Committee held a Battery and Cell Phone Recycling Drive, 

setting up collection points in the PHB lobby and throughout the ENRD offices of Main Justice 

for recycling used cell phones and lithium batteries. Last May, the GtG Committee developed 

best practices for computer power management and publicized this information on the ENRD 

intranet, which also features best practices for energy use, paper use, and recycling. 

The GtG Committee continues to promote “Supply Reuse Centers” to encourage employees to 

reuse supplies for projects. These centers have been set up in many of the common areas 

throughout ENRD, including copy and mailrooms. Last year, the GtG Committee spearheaded 

Division-wide efforts to save paper, such as switching printers to default to double-sided printing and copying, purchasing paper with high recycled fiber content, and reducing the number 

of books ordered. These paper reduction efforts have saved the Division over $200,000 per 

year in paper costs. 

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