ENRD FY 2002 SUMMARY OF LITIGATION ACCOMPLISHMENTS

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ENRD Home | Current Topics | ENRD FY 2002 

Summary of Litigation Accomplishments

UNITED STATES DEPARTMENT OF 

JUSTICE

 ENVIRONMENT 

AND NATURAL RESOURCES DIVISION

FISCAL YEAR 2002

SUMMARY OF LITIGATION 

ACCOMPLISHMENTS 

CONTENTS

FOREWORD

CRIMINAL ENFORCEMENT OF THE 

ENVIRONMENTAL AND WILDLIFE 

LAWS

PROTECTING OUR NATION'S AIR AND 

WATER

ENSURING CLEANUP OF 

HAZARDOUS WASTE

DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS

PROMOTING RESPONSIBLE 

STEWARDSHIP OF AMERICA'S 

WILDLIFE AND NATURAL 

RESOURCES

PROTECTING INDIAN RIGHTS AND 

RESOLVING INDIAN ISSUES

SUPPORTING THE DIVISION'S 

LITIGATORS

FOREWORD

It is my pleasure to present the 

Environment and Natural Resources 

Division's Accomplishments Report for 

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Fiscal Year 2002, which was a very 

successful year for the Division. As 

detailed in this report, we achieved 

significant victories in each of the many 

areas for which we have litigating 

responsibility. These areas include civil 

and criminal enforcement of this country's 

environmental laws, defense of important 

programs including the military's mission 

to ensure national security, stewardship 

of our natural resources and public lands, 

and carrying out trust responsibilities to 

Native Americans.

Since taking office in January 2002, one 

of my top priorities has been tough 

enforcement of the environmental laws. 

Firm and fair enforcement is an important 

component of environmental protection. It 

helps ensure that our citizens can breathe 

clean air, drink pure water, and enjoy our 

Nation's natural resources, and that lawabiding businesses have a level 

economic playing field on which to 

compete. We have had several major 

enforcement successes in the last year. 

These successes include criminal 

convictions for fraudulent testing of 

underground storage tanks and for 

smuggling of a variety of substances, 

ranging from ozone-destroying 

chlorofluorocarbons (CFCs) to caviar from 

imperiled sturgeon. In our civil 

enforcement cases, we have obtained 

injunctive relief that will reduce air 

pollution by thousands of tons annually 

and will help promote cleaner water from 

Connecticut to California. We have also 

ensured the cleanup of hazardous waste 

sites across the United States. These 

successes, and the Division's 

enforcement work more generally, have 

resulted in significant gains for public 

health and the environment and have 

protected the nation's infrastructure.

One of the cornerstones of our approach 

to ensuring broad-based environmental 

compliance is working together with the 

state and local law enforcers who are on 

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the front lines of environmental 

enforcement. We have brought joint 

enforcement actions with virtually every 

state in the United States, and I am 

pleased to report that the Division, 

together with the National Association of 

Attorneys General, crowned this history of 

partnership by hosting the first-ever joint 

federal-state environmental enforcement 

conference in April 2002. In keeping with 

this approach, we have also forged 

relationships with our counterparts in 

Canada, Mexico, and other nations to 

better respond to our shared 

environmental concerns. All of these 

partnerships have helped us to meet the 

twin challenges of increased referrals and 

more complex cases. 

Although the public is generally familiar 

with the Division's role as enforcer of the 

environmental laws, it comes as a 

surprise to many that the majority of our 

cases are defensive and nondiscretionary. In this capacity, we have 

defended almost every federal agency in 

cases arising from well over 70 different 

environmental and natural resource 

statutes, including the Comprehensive 

Environmental Response, Compensation 

and Liability Act, the Clean Water Act, the 

National Environmental Policy Act, and 

the National Forest Management Act. 

Through these efforts, the Division saved 

the American taxpayer hundreds of 

millions of dollars - many times the 

Division's annual budget. The Department 

of Defense is one of our biggest clients 

(behind only EPA and the Department of 

the Interior) in terms of attorney hours 

expended, and we have played a 

significant role in ensuring that the military 

has adequate opportunity to carry out 

training exercises and otherwise provide 

for the national defense. Our eminent 

domain actions are also nondiscretionary, and we focused substantial 

effort in the last fiscal year to obtaining 

office space for federal workers displaced 

by the tragedy of September 11, 2001.

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The Division has a docket of 

approximately 10,175 pending matters, 

with cases in every judicial district in the 

nation, with the districts in the western 

United States accounting for two-thirds of 

those cases. This disproportionate 

number can be traced in part to the fact 

that most public and Indian lands are 

located in the West. Cases concerning 

these lands and their management by our 

environmental and resource management 

agencies rank among some of the most 

challenging in our docket, and as a 

Westerner, I applaud the work of those 

who put in long hours to ensure that 

these cases are resolved in a manner that 

benefits the public as a whole. Without 

our hard-working attorneys and staff, we 

would not have had the successes 

described in this report. 

From its beginnings with only a handful of 

employees, the Division is now the 

nation's largest environmental law firm. 

Our successful track record in protecting 

the environment, Indian rights, and the 

nation's natural resources, wildlife, and 

public lands, along with acquiring land as 

required, is due to the hard work and 

efforts of the Division's attorneys and 

staff. In partnership with our client 

agencies, the United States Attorney's 

Offices, and state and local officials 

around the country, we produce top 

quality work in our continuing efforts to 

protect the environment and the people of 

the United States. I am proud to serve 

with this outstanding staff.

Thomas L. Sansonetti

Assistant Attorney General

Environment and Natural Resources 

Division

January 2003 

CRIMINAL ENFORCEMENT OF THE 

ENVIRONMENTAL AND WILDLIFE 

LAWS

Vessel Pollution Enforcement Effort. 

The Vessel Pollution Enforcement 

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Initiative is an ongoing, concentrated 

effort to prevent pollution from ships into 

the oceans, the coastal waters and the 

inland waterways. Since 1990, over 70 

environmental prosecutions have 

involved pollution from ships, and in the 

past year, the work of the Vessel Pollution 

Initiative has contributed to a number of 

important prosecutions. One such case 

was United States v. Boyang Maritime in 

which the company pled guilty to 

participating in a long-term conspiracy 

designed to hide routine illegal 

discharges of oil sludge and 

contaminated bilge water since at least 

1995. The company admitted maintaining 

false records, obstructing justice, and 

tampering with witnesses. Boyang 

Maritime will pay a $5 million fine, institute 

and pay for an environmental compliance 

plan, and serve five years probation. 

Another such prosecution was United 

States v. Norwegian Cruise Line Limited 

(NCL), in which the world's fourth-largest 

cruise line pled guilty to a felony violation 

of the Act to Prevent Pollution from Ships 

and was sentenced to pay a $1 million 

fine. 

Laboratory Fraud Initiative. 

Laboratories are used to analyze soil, 

water and other media to determine their 

chemical composition, to assess whether 

such chemicals pose human health risks, 

and to determine whether such media are 

contaminated and in need of remediation. 

In light of this role, maintenance of the 

integrity of laboratory sample tests, 

results, and reports is critical. As a result, 

the Lab Fraud Task Force was 

established to survey the problem of 

fraudulent laboratory testing and to 

determine how best to tackle it. During 

the last year, Division attorneys 

prosecuted several nationally significant 

cases associated with the task force. 

These include United States v. Kaminski,

in which three executives, two 

corporations, and six managers pled 

guilty to, and were sentenced to prison for 

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various charges in connection with 

fraudulent testing of petroleum products, 

including reformulated gasoline, and 

United States v. Intertek Testing Services, 

in which the company was sentenced to 

pay a $9 million fine and serve three and 

a half years probation, also in connection 

with a fraudulent testing scheme. 

Underground Storage Tank Initiative. 

EPA estimates that over one-third of the 

approximately one million underground 

storage tanks (USTs) in the U.S. violate 

federal regulations. Such tanks hold oil, 

gasoline, and hazardous substances and 

wastes, and leaks from them threaten 

nearby groundwater, the primary source 

of drinking water for most people. We 

have prosecuted several cases of UST 

testing fraud, including United States v. 

Tanknology in which Tanknology, the 

largest UST testing company in the 

United States, was sentenced to pay a $1 

million fine and restitution of $1.29 million 

to the United States for false UST testing. 

Another such prosecution was United 

States v. James "Eddie" Adams, in which 

Adams and his company Carolina 

Upgrading pled guilty in connection with a 

scheme to defraud more than 400 UST 

owners in the South by conducting false 

tests. Adams was sentenced to serve 27 

months in prison followed by three years 

supervised release, and Carolina 

Upgrading was placed on three years 

probation. 

Refinery-related Prosecutions. In

United States v. Ashland Inc., the 

company pled guilty to negligent 

endangerment under the Clean Air Act 

and other criminal acts in connection with 

draining hydrocarbons into a sewer which 

burst into a fireball that injured several 

firefightersAshland will pay a criminal fine 

of $3.5 million, sponsor a workshop at a 

Natural Petroleum conference dealing 

with the Clean Air Act's New Source 

Performance Standards for petroleum 

wastewater systems, publish ads in two 

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major Twin Cities newspapers concerning 

the criminal case, pay $50,000 to three 

local fire departments that responded to 

the fire, and add another $50,000 to its 

Emergency Response Team budget. 

Another such prosecution was United 

States v. Michael Peters and Jeffrey L. 

Jackson, in which two managers of an oil 

refinery were convicted of conspiracy to 

violate the Clean Air Act, three 

substantive Clean Air Act violations, and 

a false statement charge. Each defendant 

was sentenced to serve 36 months in 

prison and pay a $50,000 fine.

Prosecuting Pollution of Our Rivers 

and Air. We are committed to 

prosecuting those who despoil our rivers 

and air. In United States v. Guide 

Corporation, the company pled guilty to 

seven misdemeanor Clean Water Act 

violations involving pollution of the White 

River in Indiana, which was the primary 

source of drinking water for the region 

and which killed five million fish. Guide 

Corp. was ordered to pay a $1,956,000 

criminal fine, forfeit $1,956,000 in assets 

gained as a result of the illegal discharge, 

pay $275,000 in restitution serve five 

years probation, and commence a 

comprehensive environmental 

compliance training program for all 

employees. In a civil consent decree, the 

company agreed to pay an additional 

$10,025,000 penalty.

In United States v. Koppers Industries, 

Inc., the company pled guilty to two felony 

violations of the Clean Water Act, and 

one felony violation of the Clean Air Act. 

These charges resulted from hazardous 

air and water pollution at the company's 

coke production and coal by-products 

facility in Dolomite, Alabama. Koppers 

agreed to pay a $2.1 million fine and 

$900,000 in restitution to the Black 

Warrior-Cahaba Rivers Land Trust, to be 

placed on three years' probation, and to 

implement a company-wideenvironmental 

compliance program. A Koppers 

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employee, J. Daniel Bell, pled guilty to a 

Clean Air Act felony for falsifying 

discharge monitoring reports and was 

sentenced to serve three years probation, 

six months home confinement, and a 

$2000 fine.

In United States v. Truck, Trailer, and 

Equipment Inc.,the company and two 

employees pled guilty to RCRA and 

Clean Water Act violations for illegally 

dumping waste generated by the 

company into a nearby stream, wetlands, 

and woods. The company was sentenced 

to pay a $50,000 fine and $50,000 in 

restitution to the Mississippi Department 

of Environmental Protection, and the 

employees were sentenced to serve time, 

home detention, and probation. 

Criminal Prosecutions for CFC 

Smuggling. Eleven defendants pled 

guilty in United States v. Himes, a case 

involving a complex, multi-million dollar 

scheme to import and sell 

chlorofluorocarbon gases (CFCs) under 

false pretenses. The purpose of the 

scheme was to obstruct or defeat liability 

for the payment of excise and income 

taxes from 1995-1998. Several 

defendants have been sentenced to 

terms of up to 15 months imprisonment. 

The three principal defendants are 

awaiting sentencing. 

Protecting Workers and Others 

Exposed to Hazardous Substances. In 

United States v. Keystone Environmental 

Services, the company purchased false 

hazardous waste and emergency 

response certificates for approximately 50 

untrained employees in order to obtain a 

new contract to clean up an oil spill in the 

Patuxent River. It pled guilty to a felony 

false statement count and was sentenced 

to pay a $100,000 fine. In United States v. 

James T. Aneckstein, Aneckstein was 

sentenced to serve 15 months 

imprisonment and ordered to pay a 

$40,000 fine for failing to warn his tenants 

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about lead paint hazards and for lying 

and forging documents in an attempted 

cover-up, while his company was 

sentenced to serve three years probation. 

In United States v. Industrial Hygiene 

Technologies Inc.(IHT), the company, its 

president Mark Sovich, and vice-president 

Michael MacCabe pled guilty to two 

felony false statements for purchasing 

false certificates for themselves and for 

numerous employees. The untrained 

employees with false certificates worked 

on asbestos removal for the District of 

Columbia Public Schools Asbestos 

Abatement Response Action Program 

and at the Pentagon. Sovich and 

MacCabe each were ordered to serve a 

one-year term of probation and pay a 

$50,000 fine. IHT was ordered to pay a 

$100,000 fine.

Endangered Species Act Prosecutions. 

West Coast Homebuilders, Inc., owned by 

Albert Seeno, Jr., pled guilty to two ESA 

violations for intentionally draining two 

ponds on a home development that 

contained breeding populations of 

threatened red-legged frogs. Seeno 

directed an agent of West Coast to drain 

both of the ponds after he learned from 

an environmental consultant that they 

contained red-legged frogs. The company 

was sentenced and ordered to pay $1 

million in criminal fines and restitution: a 

$300,000 criminal fine, a $300,000 civil 

penalty, $300,000 in restitution, $75,000 

to the California Department of Fish and 

Game Preservation Fund and $25,000 to 

the Alameda County Hazardous Materials 

Program Training and resources trust 

account. Seeno also agreed to preserve a 

640-acre parcel of land known as Morgan 

Territory Ranch that provides habitat for 

the frog. 

In another ESA prosecution, Courtney 

Smith, Jr. was sentenced to 24 months 

incarceration, a fine of $10,000 and 

restitution in the amount of $17,500 for 

violations of the ESA as well as the Lacey 

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Act and the Native American Graves 

Protection and Repatriation Act 

(NAGPRA) for selling Native American 

remains, mounts of endangered animals 

and state protected wildlife. Restitution of 

$17,500 was ordered as a statutorily 

required cost for the re-interment of the 

Native American human skulls and foot 

bones Smith sold in interstate commerce. 

Smith's son, Courtney Smith, III was fined 

$7,500 and placed on probation for one 

year for a violation of the Lacey Act for 

the offer to sell parts of an endangered 

rhinoceros mount. Smith's corporation 

pled guilty to three felony violations of the 

Lacey Act, the Archeological Resources 

Act and NAGPRA, and was fined 

$10,000.

Bald and Golden Eagle Protection Act 

Prosecution. Terry Antoine, a member of 

the Cowichan Band of the Salish Tribe in 

British Columbia, Canada, was sentenced 

to 24 months in jail and ordered to pay 

$147,000 in restitution for trafficking in 

bald eagle parts. During 1997 and 1998, 

Antoine hired shooters to kill several 

hundred bald eagles in Canada, 

butchered them there to remove their 

wings, tails, feet, and feathers, then 

smuggled the parts into the United States 

and sold them to buyers here. 

Ongoing Reptile Smuggling Ring 

Prosecutions. In a prosecution jointly 

handled by Division prosecutors and the 

U.S. Attorney's Office in the Northern 

District of California, two individuals that 

had been indicted with Malaysian wildlife 

dealer Keng Liang "Anson" Wong were 

sentenced after being found guilty in 

connection with charges that they illegally 

imported six Federal Express shipments 

containing over 100 animals protected by 

the Convention on International Trade in 

Endangered Species of Wild Fauna and 

Flora (CITES) and the Endangered 

Species Act. Defendant Lewis, a reptile 

dealer in the Phoenix area, and 

Defendant Paluch, a Federal Express 

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employee, worked together to bring 

packages containing smuggled wildlife 

into the U.S. using false names and 

addresses. They were the ninth and tenth 

individuals successfully prosecuted in the 

Wong case thus far, bringing the total 

number of felony convictions obtained to 

over 75. Lewis was sentenced to 36 

months imprisonment, Paluch to 24 

months imprisonment.

Russian Caviar Smuggling. CITES 

protects sturgeon, a fish of prehistoric 

origin which is killed in the process of 

obtaining its roe for use in making caviar, 

but a major threat to its survival is the 

trade in black market caviar smuggled 

from Russia and other Caspian Sea 

nations. We have brought a series of 

prosecutions against several Russian 

citizens for smuggling or attempting to 

smuggle hundreds of pounds of Russian 

caviar into the United States, resulting in 

guilty pleas with jail time for all 

defendants. One such case involved 

Viktor Tsimbal, a Russian national and 

the former president of Beluga Caviar 

Inc., who pled guilty to charges of 

conspiracy, smuggling, and money 

laundering. Tsimbal headed a wildlife 

smuggling conspiracy in which he 

provided airline tickets, hotel 

accommodations and money to 

individuals who transported pre-packed 

luggage filled with black market caviar 

worth hundreds of thousands of dollars 

from Europe to Miami. 

Training in Prosecuting Poaching. We 

provided training across the United States 

in the investigation and prosecution of 

poaching offenses. This training included 

both outreach to a range of investigative 

agencies to encourage them to identify 

and prioritize these cases, as well as 

training for prosecutors to ensure that the 

cases which are investigated and referred 

receive appropriate attention. 

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PROTECTING OUR NATION'S AIR AND 

WATER

Reducing Air Pollution from Coal-Fired 

Power Plants. During the past year, the 

Division continued to vigorously litigate 

Clean Air Act enforcement actions against 

coal-fired electric power generating 

plants. The failure of these power plants 

to install emissions control technology 

during major plant upgrades has resulted 

in tens of millions of tons of air pollution, 

leading to adverse health effects on 

asthma sufferers, the elderly and children, 

including premature deaths, and to forest 

degradation, waterway damage, reservoir 

contamination, and deterioration of 

buildings. The Division's settlement of 

one of these cases (against PSEG Fossil 

LLC) will achieve major reductions in New 

Jersey's air pollution, reducing PSEG's 

annual nitrogen oxide emissions by over 

80% and sulfur dioxide emissions by 

90%. New Jersey was a party to the 

settlement which also requires the 

defendant to pay $1.4 million in civil 

penalties and $6 million in environmental 

projects to mitigate the harm its alleged 

violations had caused. 

Addressing Pollution at the Nation's 

Oil Refineries. The Division has moved 

aggressively to protect the nation's air 

quality by continuing its national 

enforcement initiative to address Clean 

Air Act violations at the nation's oil 

refineries. Building on previous 

successes, this year we secured 

comprehensive settlements with five 

additional petroleum companies: Conoco, 

Premcor, Navajo Refining, Montana 

Refinery and Murphy Oil. These 

settlements will reduce toxic emissions at 

nine refineries in seven states, require the 

payment of $13.65 million in civil 

penalties, and the performance of 

supplemental environmental projects 

worth $10.1 million. Seven states joined 

in these settlements. Three settlements 

require the defendants to install state-ofENRD FY 2002 Summary Of Litigation Accomplishments | ENRD | Department of Jus... Page 12 of 41

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the-art pollution control equipment; one 

defendant has agreed to surrender its 

operating permit. To date, this initiative 

has addressed more than 40% of the 

nation's refining capacity. 

Enforcement Initiative Against the 

Ethanol Industry. Joined by the State of 

Minnesota, the Division lodged 12 

consent decrees to resolve Clean Air Act 

claims against 12 Minnesota dry corn mill 

operators that produce ethanol in a strong 

start to this new enforcement initiative. To 

achieve compliance with the Clean Air 

Act, the settlements will require the 

defendants to install state-of the-art 

control technology on all units that are 

significant sources of pollution and pay a 

civil penalty. The settlements will set the 

standard for future practices in the 

ethanol industry, which has historically 

underestimated toxic emissions from feed 

dryers, cooling cyclones and fuel loading 

operations. 

Leveling the Playing Field in the Wood 

Products Industry. The Division reached 

a settlement with Boise Cascade 

Corporation, the fifth largest engineered 

wood products manufacturer in the 

country, successfully concluding EPA's 

wood products initiative, which was the 

first industry-wide effort to enforce EPA's 

New Source Review program under the 

Clean Air Act. Having previously reached 

settlements with Boise Cascade's 

principal competitors, this consent decree 

requires it to spend an estimated $14.84 

million to install air pollution control 

technology at its eight facilities located in 

four states. The required controls will 

result in reductions of 2,166 tons per year 

of pollution. In addition, Boise Cascade 

will pay a civil penalty of $4.35 million and 

spend $2.9 million on supplemental 

environmental projects to ensure that it 

does not reap an economic gain from its 

longstanding noncompliance. 

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Reducing Dangerous Air Emissions at 

a Chemical Plant. The Division lodged a 

consent decree resolving Clean Air Act 

claims against Ferro Corp. for illegal 

emissions of the human carcinogen 

ethylene dichloride at its chemical plant in 

Hammond, Indiana. For two decades the 

facility, operated by Ferro's Keil Chemical 

Division, illegally emitted excessive levels 

of this hazardous pollutant. During the 

course of negotiations, the offending 

process equipment was dismantled, 

abating the risk to human health and the 

environment. The consent decree 

obligates Ferro to pay civil penalties of $3 

million, conduct an environmental audit of 

the facility's remaining manufacturing 

processes, and perform a brownfields 

clean-up project in the City of Hammond. 

Protecting Human Life and the 

Nation's Water Supply and Natural 

Resources From Grossly Negligent 

Facility Operators. The Division filed 

complaints concerning two incidents in 

which the gross negligence of a facility 

operator caused the loss of human life, 

endangered the nation's water supply and 

resulted in catastrophic damage to 

natural resources and habitat. The first 

complaint was filed under the Oil Pollution 

Act against two pipeline operators 

(Olympic Pipe Line Co and Shell Pipeline 

Co.) for claims arising from a major spill 

of gasoline into a river in Bellingham, 

Washington. The gasoline ignited, killing 

three youngsters, and the casualty count 

and property damage would have been 

much worse had the spill ignited after it 

reached the part of the river that flows 

through the center of town. The second 

complaint was filed against Motiva 

Enterprises LLC for violations of three 

federal environmental statutes stemming 

from a spill of concentrated sulfuric acid 

and petroleum products at its Delaware 

City refinery. The spill occurred after a 

tank containing more than 1 million 

gallons of spent sulphuric acid exploded, 

dissolving one man and seriously injuring 

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six others. The complaint alleges that 

Motiva was guilty of gross negligence in 

operating the storage tank. 

Protecting the Nation's Water Supply 

and Natural Resources from 

Hazardous Pollutants. The Division 

settled claims against ExxonMobil Oil 

Corporation relating to a spill of crude oil 

from a pipeline in Los Angeles County 

that fouled a 15-mile stretch of the Santa 

Clara River. The spill killed aquatic life in 

the River, including an endangered 

species of fish, as well as causing 

extensive habitat damage. The settlement 

requires ExxonMobil to pay the United 

States and the State of California total of 

$4.7 million, most of which will be used to 

preserve and restore habitat in the River 

and other natural resources injured by the 

spill. The Division also lodged a consent 

decree settling claims for damages to 

natural resources caused by extensive 

PCB contamination in sediments of 

Wisconsin's Fox River and Green Bay. 

The settlement with one of several major 

parties responsible for the contamination 

will provide more than $10.8 million for 

extensive natural resource restoration 

work. Two States and two Indian tribes 

joined in the settlement. 

Ensuring the Integrity of Municipal 

Wastewater Treatment Systems. The 

Division lodged consent decrees with six 

municipalities - Toledo, Cincinnati, and 

Youngstown, Ohio, Baltimore, Maryland, 

Mobile, Alabama, and Greenwich, 

Connecticut - settling violations of the 

Clean Water Act in connection with the 

cities' operation of their wastewater 

collection and treatment systems. The 

consent decrees provide for the cities to 

spend an estimated $1.780 billion dollars 

in injunctive relief to bring their sewage 

treatment systems into compliance with 

the Clean Water Act, to pay civil penalties 

totaling $1.559 million and to perform 

supplemental environmental projects 

worth at least $6.2 million. Collectively, 

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the consent decrees address numerous 

unpermitted discharges of pollutants and 

raw sewage into waters of the United 

States. One, with the City of Cincinnati, is 

a partial consent decree intended to 

provide interim relief for unauthorized 

discharges from its sanitary sewer system 

while the city develops a comprehensive 

plan to address the discharges. 

Ensuring Safe Drinking Water in 

California. In United States v Alisal 

Water Co., the Division acted 

aggressively to protect the safety of 

drinking water supplied to residents in 

Monterey County, California, when it 

successfully sought the extraordinary 

relief of requesting a court to appoint a 

receiver to take over the privately-owned 

drinking water companies supplying water 

to them. Pending is the court's 

consideration of our claim that defendants 

fraudulently conveyed assets into 

irrevocable trusts in 1997 and our request 

for a civil penalty. 

Securing the Second-Highest Clean 

Water Act Judgment. Almost one year 

after a four week jury trial, a district court 

awarded the United States a civil penalty 

of $8,244,670 in a Clean Water Act case 

against Allegheny-Ludlum Co. This is the 

second highest Clean Water Act 

judgment ever awarded to the United 

States. The violations concerned 

unpermitted discharges of oil and 

pollutants to the Allegheny and the 

Kiskiminetas Rivers from five steel mills it 

operates outside Pittsburgh, 

Pennsylvania.

Upholding EPA's Improved Standards 

for Smog and Soot. The cornerstone of 

the Clean Air Act is its provision 

governing the setting of national ambient 

air quality standards for ubiquitous 

"conventional" pollutants such as ozone 

and particulate matter. In March 2002, 

after four and a half years of litigation, the 

D.C. Circuit upheld EPA's standards for 

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ozone (smog) and fine particulate matter 

(soot), finding that EPA had an adequate 

record basis to support its regulations 

reducing levels of these harmful 

pollutants. Once implemented, these 

standards will prevent thousands of 

premature deaths, reduce hospital 

admissions, and provide additional 

protection against asthma attacks and 

other respiratory illnesses caused or 

aggravated by smog and soot. 

Reducing Pollution from DieselPowered Trucks and Buses. In May 

2002, the Division obtained a significant 

victory in its defense of EPA's stringent 

new emission limits for heavy-duty diesel 

truck and bus engines, and a related 

requirement to significantly reduce sulfur 

content in diesel fuel. The decision ratifies 

EPA's conclusions that the emission 

reductions required for heavy-duty diesel 

engines are technologically feasible, and 

that the reduction in diesel fuel sulfur 

content will not disrupt the supply of 

diesel fuel. It also clears the way for a 

new generation of less-polluting trucks 

and buses on our nation's streets and 

highways. 

Affirming EPA's Authority to Ensure 

Required Pollution Controls. Under the 

Clean Air Act, states generally have 

primary authority, subject to EPA 

oversight, for issuing "prevention of 

significant deterioration" ("PSD") permits 

to major new sources of air pollution. In 

July 2002, the Ninth Circuit affirmed 

EPA's authority to issue administrative 

orders and take other appropriate 

enforcement action to ensure that states 

do not act arbitrarily in their 

implementation of the Act's permitting 

requirements.

Preserving Our Nations's Wetlands. 

The Division obtained court orders 

requiring violators of federal wetland laws 

to pay more than $1 million in civil 

penalties and to restore or create more 

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than 150 acres of wetlands. Our success 

in this area included a very favorable 

settlement in United States v. Simpson, 

which required the violator to restore 

portions of the Salmon River - a critical 

habitat for salmon - and adjacent 

wetlands and to pay a substantial civil 

penalty. The Division also successfully 

defended the imposition of a $4 million 

stipulated penalty as a result of a 

developer's violation of the terms of a 

consent decree related to the destruction 

of wetlands in Indiana. We also 

coordinated the first-ever joint 

state/federal conference on wetlands 

protection and enforcement, in 

cooperation with EPA, the Army Corps of 

Engineers and four State associations 

Pipeline Safety. One of the few pieces of 

environmental legislation to pass in 2002 

was the Pipeline Infrastructure Protection 

to Enhance Security and Safety Act (H.R. 

3609) This Act made important changes 

to the Pipeline Safety Act that will require 

pipeline operators to take additional 

measures to ensure the integrity of the 

thousands of miles of gas and hazardous 

materials pipelines that cross this country 

and that will strengthen our arsenal of 

enforcement tools to address violations of 

the statute. These amendments grew in 

part out of a terrible pipeline explosion in 

Bellingham, Washington. The U.S. 

Attorney's office in Seattle led the way in 

prosecuting this case. The Division and 

the Executive Office of the United States 

Attorneys worked together to obtain 

improvements to the enforcement 

provisions of this statute.

World Summit on Sustainable 

Development. We played a significant 

role in formulating the U.S. position on 

domestic environmental governance for 

the World Summit held in South Africa 

this summer and conducted several 

courses on enforcement at a Summitrelated institute.

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ENSURING CLEANUP OF 

HAZARDOUS WASTE

Securing Cleanup of Hazardous Waste 

Sites by Responsible Parties. In four 

notable settlements, the Division secured 

the agreement of responsible parties to 

conduct both initial and final clean-up of 

contaminated sites across the United 

States.

In Alabama, we lodged a consent decree 

with Pharmacia Corporation (formerly 

Monsanto) and Solutia, Inc. providing for 

the emergency cleanup of area 

residences in Anniston, a comprehensive 

study and evaluation of risks to human 

health caused by polychlorinated 

biphenyls (PCBs), establishment of a $3.2 

million foundation to assist in funding 

special education needs for Annistonarea children, and the recovery of all 

future response costs incurred by the 

United States in overseeing the cleanup.

In New Jersey, a district court entered a 

consent decree requiring Ciba Specialty 

Chemicals Corp. and the Novartis 

Corporation to implement a source control 

remedy at the Ciba-Geigy Superfund Site 

in Toms River. The Site is a 1300 acre 

parcel of land where approximately 320 

acres were devoted to the manufacture of 

various hazardous chemicals. The source 

control remedy is estimated to cost $90 

million and, in addition to other remedial 

work performed by defendants to address 

groundwater contamination, will bring the 

total amount spent by defendants on 

cleanup work to an estimated $150 

million.

In California, the Division lodged the final 

consent decree in connection with the 

Operating Industries Inc. Superfund site 

in Monterey Park. The United States has 

entered into seven prior consent decrees 

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and EPA has issued two unilateral orders 

for the site, a 190-acre landfill which 

operated from 1948 until 1984 and 

accepted both industrial and municipal 

wastes. To date, settlements between all 

parties have totaled more than $600 

million. The final decree provides for the 

payment of $340 million by 161 

defendants and will ensure 

implementation of the final phase of the 

cleanup. 

Finally, in Montana, the court entered a 

consent decree resolving the United 

States' claims against ARCO and five 

other settling defendants for the Berkeley 

Pit in Butte. The Berkeley Pit was the site 

of extensive open pit mining from 1955 

through 1982, leaving a hole in the middle 

of Butte roughly a mile wide and a half 

mile deep, now filled with over 25 billion 

gallons of highly acidic mine waste, with 

roughly 6 million additional gallons 

pouring in daily. The consent decree 

requires ARCO and the other defendants 

to construct a treatment plant to divert 

and treat the water before it is discharged 

away from the Pit, either into a local 

stream or into an adjacent mine leaching 

operation. The settlement will recover 

98% of total site remediation costs, which 

are estimated at over $110 million. The 

State of Montana joined the settlement. 

Securing Cleanup of Hazardous Waste 

on Federal Land. Three consent decrees 

were entered concluding the Division's 

CERCLA action on behalf of the National 

Park Service to secure cleanup of the 

Krejci Dump Site in Summit County, Ohio. 

The site is located within the Cuyahoga 

Valley National Park and was formerly 

used as an industrial dump and scrap 

yard. Under the first decree, Ford Motor 

Co. and General Motors Corp., who had 

sent waste to the site, agreed to perform 

the long-term remedy valued at 

approximately $29 million. In the second 

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decree, five additional companies who 

sent waste to the site agreed to pay $4.3 

million toward cleanup and $477,500 

toward natural resource restoration. The 

third decree resolved the liability of 3M 

Company, the only defendant who 

refused to settle prior to trial. After 3M 

was adjudged liable under CERCLA for 

cleanup costs, it agreed to pay the 

Department of Interior $15.5 million to 

reimburse the government's costs.

Pursuing Corporate Assets to Fund 

Cleanup Responsibilities. In June, we 

intervened in an ongoing bankruptcy 

adversary proceeding against W.R. Grace 

& Co. to set aside two corporate 

reorganizations that we believe constitute 

fraudulent conveyances. As part of the 

reorganizations, Grace transferred assets 

valued at between $3.8 and $4.5 billion in 

exchange for a $1.2 billion capital 

contribution, effectively rendering it 

insolvent and unable to satisfy its 

environmental liabilities, including those 

at issue in our CERCLA cost recovery 

case against Grace in connection with the 

Libby Asbestos Site in Libby, Montana. At 

the Libby Site, EPA has spent more than 

$57 million in removing large amounts of 

asbestos from Grace's former vermiculite 

mining and processing facilities and 

remedying asbestos-contaminated mining 

and process wastes that were given away 

to Libby homeowners for use in their 

gardens and to local schools for use on 

athletic tracks. Several hundred Libby 

residents have died from asbestos-related 

disease and cancer over the years, and 

recent screening studies have shown that 

a significant portion of the adult 

population in Libby has asbestos-related 

scarring in their lungs. In May, the court 

entered a consent decree in a related 

case that resolves our request for access 

to certain parcels of land at the Libby Site 

and for a civil penalty for Grace's failure 

to comply with EPA's access requests. 

The consent decree provides for an 

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allowed claim of $71,000 in Grace's 

pending bankruptcy as a civil penalty and 

Grace's performance of a supplemental 

environmental project to provide 

asbestos-related health care services to 

Libby residents at a cost of $2.75 million.

On August 9, 2002, the Division filed a 

complaint and motion for preliminary 

injunction against ASARCO, Inc. to enjoin 

the fraudulent transfer of ASARCO's most 

valuable asset - its majority ownership 

interest in a Peruvian copper company - 

to its parent corporation, Americas Mining 

Co. Our complaint alleged that the 

proposed insider sale was for significantly 

less than the actual market value of the 

stock. As a result of its extensive mining 

operations, ASARCO has hundreds of 

millions of dollars of environmental debts 

and liabilities to the United States at 

numerous contaminated sites across the 

country. Because the proposed sale 

would severely reduce ASARCO's ability 

to meet those obligations, the complaint 

alleged that the transfer would constitute 

a fraudulent conveyance under the 

Federal Debt Collection Procedures Act 

and Federal Priority Statute. 

Also in August, a court approved our 

bankruptcy settlement with debtors Fruit 

of the Loom, NWI Land Management, and 

Velsicol Chemical Corp. Under the 

agreement, the debtors will transfer the 

portions of seven Superfund sites that 

they own to an independent custodial 

trust and will also dedicate assets to fund 

cleanup actions and natural resource 

damage restoration for the seven sites. 

Among the assets committed to address 

these environmental liabilities are 

$4,292,808 in cash, proceeds from 

general liability insurance claims 

estimated to be worth $20 to 30 million, 

recoveries from preferred shares of stock 

in Velsicol's parent corporation, and 

proceeds from defendants' cost overrun 

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insurance policies. Illinois, Michigan, New 

Jersey, and Tennessee were also parties 

to the settlement. 

Paving the Way for Clean up of PCB 

Contamination in the Hudson River. 

The Division succeeded in defeating 

efforts to halt EPA's selection of a remedy 

for addressing extensive PCBcontamination in the Hudson River. 

Protecting EPA's Ability to Pursue 

Hazardous Waste Violations. The Tenth 

Circuit held that EPA can maintain its own 

enforcement action in a state with a 

federally-authorized hazardous waste 

program after the state enters into a 

settlement with the violator for related 

violations arising out of the same set of 

circumstances, rejecting an Eighth Circuit 

decision to the contrary.

Parent Corporation Liability Under 

Superfund. In one of the first appellate 

cases to address the issue of when a 

parent corporation is liable for waste 

disposal practices of its subsidiaries 

under the Superfund statute, the First 

Circuit held in United States v. KayserRoth Corporation that the district court did 

not abuse its discretion in denying 

Kayser-Roth relief from a 1990 

declaratory judgment of liability as an 

operator for releases of hazardous 

substances from its subsidiary's facility. 

DEFENDING VITAL FEDERAL 

PROGRAMS AND INTERESTS

Promoting Military Preparedness and 

National Security. Working closely with 

our counterparts in the military, we have 

committed significant time and resources 

to ensure that military training and 

operations are not disrupted or delayed. 

We continued our unbroken record of 

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wins at both the trial and appellate court 

levels in supporting live-fire military 

exercises at and around Vieques Island in 

Puerto Rico. We also developed a 

successful defense to claims brought 

against the Navy regarding its plans to 

expand a Trident nuclear submarine base 

in Maine, committed substantial 

resources to insuring that Air Force and 

Marine operations at Goldwater Air Force 

Base in Arizona could continue after a 

court-ordered remand, obtained a 

dismissal in a challenge to the Navy's 

Littoral Warfare Advanced Development 

project (a sonar testing effort designed to 

enhance submarine detection), and 

worked closely with the Navy to craft an 

equitable remedy regarding its 

unintentional take of migratory birds 

during live-fire training activities in the 

Northern Marianas. 

Successful Defense of the Army's 

Chemical Weapons Demilitarization 

Program. We continue to prevail in our 

defense of the Army's $15 billion 

Chemical Weapons Demilitarization 

Program. Pursuant to the United States' 

treaty obligations, Congress has charged 

the Army with responsibility for destroying 

chemical weapon stockpiles at their 

current locations. We are handling 

multiple pieces of litigation related to the 

destruction of chemical weapons across 

the country. In Alabama, we secured a 

voluntary dismissal of the Alabama 

Governor's action to enjoin the Army's 

incineration of chemical weapons, and in 

Arkansas, we represented the Army as an 

intervener in a challenge to state-issued 

permits for the Pine Bluff Chemical Agent 

Disposal Facility in Little Rock. In March 

2002, the court found the decision to 

issue the permits to be "a thorough, wellreasoned one and supported by 

substantial evidence." We are now 

defending an appeal of that decision to 

the Arkansas Court of Appeals. 

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Helping workers and Agencies 

affected by the Events of September 

11, 2001. We assisted the General 

Services Administration by filing two 

cases involving condemnation of 

leasehold estates in office buildings in 

downtown Manhattan to house federal 

agencies displaced by the 9/11 atrocity. 

Merely getting the cases filed, much less 

on the expedited basis required by the 

situation, presented daunting challenges. 

With telephonic and fax communication 

between New York and Washington 

sporadic at best, we drafted the takings 

documents that would normally have 

been the responsibility of GSA and 

arranged the actual physical filing of the 

cases. This effort resulted in the earliest 

possible housing of, and thus resumption 

of work by, displaced federal agencies. 

During this past fiscal year, the 

government has achieved a settlement in 

both cases in which the landowners have 

agreed to accept as just compensation 

the government's monthly rental 

payments made to date.

Our ongoing work with GSA involves 

close coordination regarding the possible 

use of eminent domain to institute 

security measures in buildings occupied 

by federal workers. Most of these 

buildings are under lease to the 

government and the government's 

associated security measures now 

typically involve restrictions on direct 

access, ID checks, use of metal detector 

devices, electronic scans of vehicles 

entering garages, but not all lessors have 

been amenable to the government 

imposing these security measures in 

common areas, such as building lobbies. 

Our work has been to draft estates, 

usually appurtenant to the government's 

existing lease in any given building, 

restricting use of the building to that which 

can be made in conformity with the 

government's security restrictions. 

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Although these efforts to date have 

resulted in negotiated settlements short of 

filing of condemnation actions, we have 

several potential cases that are awaiting 

final negotiation efforts between the 

parties. We expect this work to grow, as 

well as that associated with increasing 

security along the borders between the 

United States and Mexico and Canada.

Protecting Energy Policy and 

Infrastructure. When the Governor of 

South Carolina sought to halt plutonium 

shipments from the Energy Department's 

Rocky Flats site to its Savannah River 

site for long-term, secure storage, we 

defeated a motion for preliminary 

injunction and obtained summary 

judgment on behalf of the Energy 

Department, thereby ensuring timely 

shipments that were critical to maintaining 

compliance with an agreement with the 

State of Colorado. The Fourth Circuit 

affirmed the district court's decision. We 

also advanced the safety and supply of 

gasoline in the Southwest by successfully 

defending challenges to the construction 

and operation of the Longhorn pipeline, a 

730-mile pipeline extending from Houston 

to El Paso.

Assisting the Expansion of the 

Cleveland International Airport. We 

vindicated federal interests in proceeding 

with expansion of the Hopkins Cleveland 

International Airport in Ohio in City of 

Olmsted Falls v. United States, defeating 

two separate efforts by plaintiffs to enjoin 

the project, and ultimately obtaining an 

outright dismissal of the case.

Defending Authorizations for 

California Projects. We have had good 

results in several cases defending federal 

agency authorizations for development. 

For example, in a challenge to the 

National Park Service's plan for the future 

use of a former military base as part of 

the Golden Gate National Recreation 

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Area, including expansion of the Bay 

Area Discovery Museum and construction 

of a visitor center and hotel, the Court 

ruled for the Service, rejecting claims that 

the Service had not complied with various 

environmental requirements. We also 

prevailed against challenges to the 

expansion project at the Port of Oakland. 

The court rejected plaintiffs' claims that 

biological opinions issued by FWS and 

NMFS failed to adequately consider the 

possible impacts of invasive species 

which could potentially be introduced into 

the Bay ecosystem through the discharge 

of ballast water. The Court held that the 

federal agencies gave appropriate 

consideration to the potential impacts of 

non-native introductions, especially in 

light of the developing nature of this area 

of science.

Construction of World War II Memorial. 

We overcame challenges to the 

construction of the World War II Memorial 

on the National Mall, ensuring that 

construction of this important, high-profile 

project would continue expeditiously.

Protecting the Public Fisc. A significant 

portion of the Division's practice involves 

resolving the liability of federal agencies 

in connection with the cleanup of 

contaminated facilities under the federal 

Superfund statute. In FY2002, the 

Division successfully defended numerous 

claims of federal Superfund liability at a 

cost savings to the government of over 

$700 million, a figure seven times greater 

than the Division's annual budget. 

Significant victories include a decision by 

the Ninth Circuit overturning an award of 

almost $100 million with respect to 

cleanup of the McColl Superfund Site in 

California in United States v. Shell Oil Co, 

and an outright dismissal of contribution 

claims against the government in 

connection with the $150 million cleanup 

of the Summitville Mine Site in Colorado.

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Resolving Claims Based on 

Restrictions Resulting from the 

Presence of Protected Species. In the 

past year, we have successfully resolved 

several suits claiming that landowners 

have been precluded from making 

productive use of their property due to the 

presence of endangered species, 

including the American Bald Eagle. These 

plaintiffs argued that these restrictions 

constituted a Fifth Amendment taking of 

their property and sought compensation. 

In each of these cases we were able to 

develop a plan whereby permanent 

restrictions were either lifted or reduced, 

enabling the landowner to resume 

activities on the property and protecting 

the United States from considerable 

monetary exposure. These cases also 

resulted in favorable and precedent 

setting court decisions recognizing the 

right of the United States to establish 

reasonable regulatory processes, and to 

subsequently modify an agency decision, 

without giving rise to a claim for 

compensation.

Protecting the National "Rails-toTrails" Program. Through the National 

Trails System Act, more than 12,000 

miles of recreational trails have been 

created from former railroad corridors 

which had fallen into disuse. While this 

program provides numerous benefits to 

communities and to individuals, some 

who own property adjacent to the trails 

have filed class action lawsuits 

contending that the creation of these trails 

caused a taking of their property for which 

they are entitled to compensation. While 

these cases present numerous legal and 

logistic challenges, we have had several 

significant accomplishments in the past 

year which have resulted in savings of 

millions of dollars, while also establishing 

important legal precedent that will aid in 

achieving a successful result in many 

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other rails-to-trails cases. Our successes 

include favorable court decisions in a 

200-person class action in Idahoand in a 

multi-party claim involving Vermont 

property, as well as concluding 

settlements in several longstanding 

cases.

Appraisal Unit Accomplishments. In 

support of the Division's litigation 

involving real property value questions, 

the Appraisal Unit completed 156 

appraisal reviews concerning 226 tracts 

with a total estimated value of 

$835,607,953.00. In addition to the 

appraisal reviews which are its primary 

responsibility, the unit provided significant 

valuation assistance to a number of client 

agencies over the course of the year. 

Among the most notable efforts was the 

assistance provided to the United States 

Navy concerning several projects, 

including the Naval Air Station - Oceana 

and the Marine Corps facility at Blount 

Island in the Port of Jacksonville. 

Assistance was also proved to the 

General Services Administration 

concerning first impression valuation 

issues related to the Nassif Building, the 

headquarters facility for the Department 

of Transportation. Members of the unit 

participated in presentations at a number 

of national and regional meetings and 

seminars held by such federal agencies 

as the Bureau of Land Management, the 

Fish and Wildlife Service, the Forest 

Service, and the National Park Service. 

Appraisal Unit members also developed 

and prepared a two-day seminar 

regarding The Uniform Appraisal 

Standards for Federal Land Acquisitions 

which they presented five times during 

the past year at various locations around 

the country.

PROMOTING RESPONSIBLE 

STEWARDSHIP OF AMERICA'S 

WILDLIFE AND NATURAL 

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RESOURCES

Challenge to Corps' Permitting in 

Panther Habitat. In one of an increasing 

number of "programmatic challenges" to 

agency actions, we obtained dismissal of 

a challenge to 23 Army Corps of 

Engineers' Clean Water Act nationwide 

permits for projects located in potential 

habitat of the endangered Florida 

panther. The court agreed with us that 

"programmatic" claims, for example the 

claim that the permits were "examples" of 

a program and practice of unlawful 

permitting and ESA consultation on the 

part of the Corps and the U.S. Fish and 

Wildlife Service, were precluded.

Everglades Litigation. In a challenge to 

the Corps of Engineers' efforts to avoid 

jeopardizing the continued existence of 

the Cape Sable Seaside sparrow through 

the operation of the Central and South 

Florida Project, the court deferred to the 

Corps' expertise and denied the Natural 

Resources Defense Council's preliminary 

injunction motion. NRDC thereafter 

agreed to a joint motion to stay its case 

while the Army Corps completes an 

Environmental Impact Statement on a 

water management plan. In a related 

case, the court denied a series of 

emergency motions for preliminary 

injunction seeking departure from the 

water levels prescribed by the Corps to 

balance flood protection and sparrow 

protection. Litigation continues on the 

merits, but the operational plan for this 

year remains intact, allowing the federal 

agencies to focus on future management. 

Finally, we continued to contribute to 

protection of the unique Everglades 

ecosystem by ensuring that acquisitions 

by eminent domain were effected as to 

approximately 2800 tracts for inclusion 

within the Everglades National Park and 

the Big Cypress National Preserve 

expansions. We have also begun 

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preliminary work with the National Park 

Service on the acquisition of outstanding 

mineral interests in the Everglades 

National Park. 

Protecting the Forest Service's 

Planning and Management Authority.

We overcame a challenge to the Forest 

Service's new Planning Rule, which 

revised the guidelines for National Forest 

planning decisions, and successfully 

defended a suit challenging legislation 

which provided a grace period to timely 

revise the Land and Resource 

Management Plans which govern 191 

million acres of National Forest lands. We 

also defended against a variety of 

challenges the National Fire Plan, a 

cabinet-level nationwide response to the 

devastating wildfires that swept the 

National Forests of the West during the 

summer of 2000. For example, by 

securing favorable settlements in these 

challenges to the largest timber salvage 

sale and burned area recovery project to 

date, we obtained a result that permitted 

approximately half of the challenged sale 

to go forward, preserving the projects' 

environmental and economic benefits, 

including approximately 4,000 jobs and a 

$77,000,000 infusion into the local 

economy. Concerns about the immediate 

fire danger to the urban interface with 

wildlands in the Black Hills National 

Forest also led to successful negotiations 

with the State of South Dakota, local 

counties, a timber industry association, 

and environmental groups, resulting in a 

modification of the settlement in 

Biodiversity Associates v. Laverty, which 

was then converted into legislation signed 

on August 2, 2002. The legislation has 

become a model for subsequent attempts 

to streamline administrative processes to 

allow more immediate action to mitigate 

fire dangers to Western communities.

In other Forest Service matters, the 

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Division continued its record of creative, 

aggressive advocacy. The failure of the 

Northwest Forest Plan to deliver on the 

promise of sustainable timber outputs has 

presented serious concerns. Following 

complicated negotiations with a coalition 

of timber industry, local county and labor 

union representatives, we negotiated a 

settlement which permits the federal 

agencies to re-examine one of the timberlimiting protocols of the Plan to determine 

whether the environmental objectives of 

the provision could be attained through 

less costly and time-consuming methods. 

Also, in a challenge to the revised 

Tongass Land Management Plan, we 

were able to obtain a closely tailored 

injunction permitting the activities already 

planned by the Forest Service to proceed, 

thereby avoiding the possibility of serious 

economic dislocation in Southeast Alaska 

if timber harvesting were halted. 

In addition, the Division has successfully 

defended a number of particular timber 

resource programs.

Water Rights Victories. A critical issue 

in the drought-stricken Southwest 

concerns the apportionment of water 

among domestic users and endangered 

species. In Rio Grande Silvery Minnow v. 

McDonald, we successfully defended the 

Fish and Wildlife Service's biological 

opinion for the Middle Rio Grande relating 

to the endangered silvery minnow, 

building on a unique arrangement earlier 

negotiated with the State of New Mexico. 

We further assisted the Bureau of 

Reclamation in negotiating with the City of 

Albuquerque to acquire an additional 

quantity of water to meet the flow 

requirements for the minnow, even 

though it was one of the worst drought 

years on record. 

We also secured numerous highly 

favorable settlements that will protect the 

water supplies and flows necessary to 

maintain the vitality of natural resources 

and uses on the public lands, national 

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forests, wild and scenic rivers, military 

bases, and federal reclamation projects in 

areas such as the Yakima River Basin in 

Washington, the Klamath River Basin in 

Oregon, and the Snake River Basin in 

Idaho.

Protecting the National Marine 

Fisheries Service's (NMFS) 

Management Authority. The Division 

defended numerous challenges from both 

the fishing industry and from 

environmental organizations regarding 

NMFS' management of commercial 

ocean fisheries through which NMFS 

seeks to promote both conservation of the 

fishery and a sustained commercial yield. 

On the east coast, we successfully 

defended an emergency rule placing 

regulations on the Red Crab fishery after 

two large catcher/processor vessels from 

Alaska transferred to this fishery, and also 

NMFS' adoption of management areas 

that divided lobster fisheries among New 

Hampshire and other States' fishermen. 

We also prevailed in Massachusetts to 

allow NMFS the time necessary to carry 

out its self-imposed obligations to 

promulgate rulemakings to protect the 

right whale.

On the west coast, we successfully 

defended NMFS' decision to exempt 

certain activities from NMFS' "4(d)" rule 

for threatened salmon stocks and its 1996 

Framework Regulation and 1999 Pacific 

whiting allocation among four Pacific 

Coast Treaty Tribes.

On the international front, the court of 

appeals upheld the government's 

implementation of a provision in the 1990 

Commerce Appropriations Act that 

embargoes shrimp products harvested 

with fishing technologies that may 

adversely affect endangered sea turtles. 

The court held that the law embargoes 

shrimp caught by vessels that do not use 

Turtle Excluder Devices (TEDs) on their 

shrimp trawls. The court rejected the 

environmental group's argument that 

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Congress meant to embargo all shrimp 

from a nation that does not require the 

use of TEDs throughout its shrimp fishing 

fleet.

Defending Federal Protections for 

Endangered Species. In a victory for the 

protection of endangered species, the 

Ninth Circuit held that the Endangered 

Species Act and the National Wildlife 

Refuge System Improvement Act preempted a California state initiative 

(Proposition 4) to the extent that it 

banned the federal government's use of 

leg hold traps, which were used to protect 

ESA-listed species. 

Defending Federal Authority to 

Manage Public Lands. In quiet title 

litigation with the State of Idaho, the 

Division negotiated a settlement that 

resolved ownership disputes with the 

State and augmented federal acreage 

with respect to hundreds of islands in the 

Snake River in and around Deer Flat 

National Wildlife Refuge. The islands that 

we cleared of title questions enhanced 

the Refuge significantly because they 

offer important habitat for migratory birds. 

We also successfully defended the 

National Park Service's regulation 

banning the use of personal watercraft 

outside of specially designated areas in 

national parks throughout the United 

States. 

PROTECTING INDIAN RIGHTS AND 

RESOLVING INDIAN ISSUES 

Defending Tribal and Federal Interests 

in Water Adjudications. We had several 

notable successes in water rights 

adjudications. These adjudications are 

complex, primarily defensive cases, often 

involving the water rights of thousands of 

parties, and we devote significant 

resources to crafting settlements that 

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balance and recognize the interests of all 

parties, as opposed to litigating these 

cases in a winner-takes-all manner. 

These successes include the second 

largest Indian water right settlement in the 

history of New Mexico and more than 

thirty settlements in Montana water 

adjudications. In addition, we overcame 

the last objections to entry in the Montana 

Water Court of the Chippewa Cree Tribe's 

compact on the Rocky Boy's Reservation, 

a settlement negotiated by the United 

States, the State of Montana and the 

Tribe, and subsequently ratified by 

Congress. Finally, we worked with the 

State of Arizona, the Salt River Project, 

the Zuni Tribe, and private parties to craft 

a legislative settlement of the Zuni Tribe's 

water rights to the Little Colorado River.

Not all water adjudications, however, are 

amenable to settlement. In such litigation, 

we had two significant victories. In State 

of Washington v. James J. Acquavella, 

we prevailed, following trial, establishing 

water rights for off-reservation Indian 

lands and lands of the Bureau of Land 

Management. In United States v. Adair, in 

Oregon the court adopted our position 

regarding the quantification of tribal water 

rights, upholding an approach that the 

Department of the Interior has spent 12 

years and millions of dollars developing. 

Defending the United States' Ability to 

Take Title to Indian Land. We garnered 

significant successes in challenges to 

decisions by the Secretary of the Interior 

to accept title to Indian land. These 

challenges seek to declare important 

federal statutes and programs 

unconstitutional, as well as to vacate 

agency action. Notable successes 

include: State of Connecticut v. Norton, in 

which the court granted our motion to 

dismiss this longstanding case after the 

Second Circuit affirmed the Secretary's 

ability to acquire trust lands for the Tribe; 

Churchill County v. Interior, in which the 

court dismissed the County's challenge to 

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the constitutionality of a statute where 

Congress required the Secretary to 

accept certain lands in trust; State of 

Nevada v. Interior, in which the court 

granted our motion to dismiss, finding the 

State's constitutional challenges to be 

frivolous, and City of Roseville v. United 

States in which we successfully defended 

a challenge to a recent Interior 

Department decision to accept land into 

trust status on behalf of the United 

Auburn Indian Community. These 

decisions established a firm groundwork 

for courts to dismiss summarily these 

increasingly common challenges to the 

Secretary's decisions.

Defending Indian Legislation and 

Programs. We have also successfully 

defended a broad range of federal 

statutes and programs protecting Indian 

interests. In Association of Property 

Owners v. Individual Council Members of 

the Suquamish Tribal Council, we 

successfully defended a HUD program to 

provide low-income housing for Native 

Americans pursuant to the Native 

American Housing Assistance Act. In 

Hamilton v. Bush, Plaintiffs challenged 

the constitutionality of the 1992 Crow 

Boundary Settlement Act, which settled a 

long-standing dispute between Crow 

Tribe, the Northern Cheyenne Tribe, and 

the United States regarding the proper 

boundary of the two tribes' reservations, 

arising from a nineteenth century 

surveying error of the 107th Meridian. The 

court granted our motion to dismiss on 

the grounds that plaintiffs lacked 

standing. Plaintiffs did not appeal. In 

Connecticut v. Interior, we prevailed in 

defending the Interior Department's 

discretion to regulate the process by 

which it determines how to process 

petitions by groups to obtain federal 

recognition. Finally, in Arakaki v. 

Cayetano, we successfully defended a 

challenge to the constitutionality of 1920s 

legislation designed to serve Native 

Hawaiians. 

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Bringing Resolution to Indian Land 

Claims. We devoted significant effort to 

resolving an ongoing land dispute along 

the Arkansas River in Oklahoma between 

three tribes, the United States, and 

private landowners. In a 1980 opinion, the 

Supreme Court held that the title to a 96-

mile stretch of the Arkansas Riverbed 

belonged to the Cherokee, Choctaw, and 

Chickasaw tribes of Oklahoma. Due to 

changes in the course of the river, much 

of this riverbed had become dry land and, 

although still claimed by the Tribes, was 

occupied by private landowners. The 

Tribes brought a breach of trust action 

against the United States for failure to 

safeguard these lands and sought to file 

quiet title actions against the private 

landowners as well. This year, we played 

a central role in bringing about a 

settlement that resolved the Tribes' 

claims against the United States and 

compensated the Tribes, while at the 

same time affirming and ratifying title in 

the private landowners that occupy the 

dry riverbed lands. In addition to lifting 

any encumbrances on title, the bill settled 

the Tribes' claims for significantly less 

than they were claiming against the 

United States. Congress passed this 

settlement legislation in the final days of 

the 107th Congress.

We also worked toward a just and 

expeditious resolution of the New York 

Indian land claims, byadvancing the view 

in a suit involving the Cayuga Nation that 

New York State -- as the party that 

violated federal law giving rise to New 

York land claims -- could be held fully 

liable for all damages, as opposed to 

innocent third party landowners. The 

courts have adopted this view, and we 

have obtained dismissal of all parties from 

the United States' complaints in the New 

York land claims case with the exception 

of New York State. We are also actively 

promoting settlement negotiations with 

the hopes of reaching an agreement 

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acceptable to all parties in other New 

York land claim cases.

Discharging the Trust Responsibility 

to Native Americans. We obtained good 

outcomes in two cases involving Tribal 

allegations of resource mismanagement. 

In one, plaintiffs sought damages for the 

alleged misappropriation of their sand 

and gravel resources and 

mismanagement of their funds. After we 

investigated the government's conduct 

with regard to the resources and the 

funds, our attorneys persuaded the 

plaintiffs to dismiss their case with 

prejudice. In addition to avoiding the cost 

and risk of a trial, we were able to 

reassure the plaintiffs about the good 

faith of their relationship with the 

government. In the other, plaintiffs sought 

$131 million for the alleged 

mismanagement of Tribal natural 

resources and funds. On the eve of trial, 

we settled the matter for less than $3 

million.

We also enjoyed significant successes in 

other matters of importance to the trust 

relationship with Native Americans. For 

example, we established an important 

precedent in protecting the National 

Indian Gaming Commission's authority to 

enforce statutory requirements with 

regard to Indian gaming in Native Village 

of Barrow v. NIGC. In that suit, the 

Division convinced the Court to uphold 

the NIGC's legal interpretation of the 

Indian Gaming Regulatory Act's 

requirement that restricts Indian gaming 

to land over which a Tribe exercises 

governmental power. In Seminole Nation 

v. Norton, we vindicated the Interior 

Department's decision to withhold Tribal 

benefits from the Seminole Nation until 

such time as the Tribe reversed its 

decision to exclude members of AfricanAmerican descent from participating in 

Tribal government. The Section's victory 

protected the civil rights of Native 

Americans who had been illegally ousted 

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from their Tribe and created a significant 

precedent concerning the Interior 

Department's authority to oversee and 

regulate a Tribe's eligibility for benefits 

provided to federally recognized Tribes.

SUPPORTING THE DIVISION'S 

LITIGATORS

Improved Litigation Support 

Technology. ENRD's Office of Litigation 

Support has assumed the chairmanship 

of a Department technology working 

group to review new software. The latest 

project for the group has been to 

purchase "enterprise licenses" for 

CaseSoft and Concordance. This 

purchasing method, akin to buying in 

bulk, resulted in significant savings to the 

Department. In a related effort, we are 

working with the Executive Office of U.S. 

Attorneys to develop software 

compatibility standards to ensure that 

communications and work-sharing 

between ENRD and U.S. Attorneys is 

seamless.

Upgraded Technology Infrastructure.

In FY 2003, all litigators and staff will 

receive new desktop computers equipped 

with the newest available versions of 

ENRD's standard software applications, 

as well as new equipment to facilitate 

electronic litigation as well as desktop 

litigation support software. Extensive 

planning has gone into this project, 

network hardware and applications have 

been upgraded, and new printers have 

been installed throughout the Division to 

prepare for the roll-out of the new system 

next year.

Electronic Document Management.

ENRD laid the foundation for the 

Division's attorneys to manage electronic 

case information by implementing a pilot 

project to scan case-related mail as it 

arrives in the Division, then forwarding the 

scanned images via e-mail to attorneys. 

This technology can enhance mail 

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delivery, make case-related mail available 

to multiple attorneys and to those 

traveling, eliminate paper, and free 

support staff to focus on other duties. The 

pilot project was a success, and we are 

undertaking a cost-feasibility analysis for 

full implementation in the Division. We 

also opened a "scanning lab" in our 

Denver Field Office, similar to the lab in 

Washington D.C., to scan digital images 

of case related documents into 

databases. This will allow us to process 

case documents more efficiently, and 

meet the new requirements for electronic 

discovery and litigation in electronic 

courtrooms.

Real-Time Deposition Capability.

ENRD established a facility for capturing 

depositions in real time. Using software 

manufactured for this purpose, attorneys 

connect to a deposition through video 

conference technology while receiving a 

live feed of the transcript through an 

Internet connection. Attorneys can edit, 

make notes and review previous 

testimony in the transcript while it is being 

typed by the court reporter. This capability 

increase productivity and help save time 

and money.

ENRD's Transition to E-Filing. The 

Division has developed a workgroup on 

electronic filing of court pleadings 

("e-filing") and arranged for staff to 

receive software and training. Through 

our participation in the Department's 

E-Filing Workgroup, we have started 

developing a training video, helped other 

Department components move to e-filing, 

and provided feedback and 

recommendations to the judiciary via the 

Administrative Office of the Federal 

Courts. We have also written an article on 

e-filing for the American Bar Association 

which will assist in the move to electronic 

litigation, and drafted statutory provisions 

recently enacted into law that address 

these issues. 

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Last Updated: 12/16/2009 

Updated April 13, 2015

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