SUMMARY OF DIVISION 

ACCOMPLISHMENTS

FISCAL YEAR 2013
Yosemite National Park Photo by Jeff Bank
CONTENTS

FOREWORD 7

OVERVIEW OF THIS REPORT 15

PRESENTING THE ENVIRONMENT AND 

NATURAL RESOURCES DIVISION 17

REPORTING OUR PROGRESS TOWARD ACHIEVING 

THE GOAL OF ENVIRONMENTAL JUSTICE 23

PROTECTING OUR NATION’S AIR, LAND, AND WATER 39

ENSURING CLEANUP OF OIL AND SUPERFUND WASTE 53

PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA’S 

WILDLIFE AND NATURAL RESOURCES 63

ENFORCING THE NATION’S CRIMINAL POLLUTION 

AND WILDLIFE LAWS 79

DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS 89

PROMOTING NATIONAL SECURITY AND 

MILITARY PREPAREDNESS 107

PROTECTING TRIBAL RIGHTS AND RESOURCES 

AND ADDRESSING TRIBAL CLAIMS 115

SUPPORTING THE DIVISION’S STAFF 127
Yosemite National Park Photo by Jeff Bank

Fox, Baltimore, Maryland Photo by Jeff Bank

6 | foreword
FOREWORD

Acting Assistant Attorney 

General Robert G. Dreher

foreword | 7

I am pleased to present the ENRD Accomplishments Report Fiscal 

Year 2013. Last year, the Environment and Natural Resources Division 

(ENRD or the Division) continued a tradition of excellence in service 

to the United States, as the many cases and projects described in this 

report show. Every day, the Division works with client agencies, U.S. 

Attorneys’ Offices, and state, local and tribal governments to enforce 

federal environmental, natural resources, and wildlife laws. It also 

defends federal agency actions and rules when they are challenged in 

the courts, working to keep the nation’s air, water, and land free of 

pollution, promoting military preparedness and national security, and 

supporting other important client agency objectives. The Division also 

handles a broad array of important matters affecting Indian tribes and 

their members. 

Across this work, ENRD strives to ensure that all Americans enjoy clean air, water, and land. 

Over the past five years, the Department has renewed its commitment to environmental justice, 

which is the fair treatment and meaningful involvement of all people regardless of race, color, 

national origin, or income with respect to the development, implementation, and enforcement 

of environmental and natural resources laws, regulations, and policies. The Division has 

continued to take a leadership role in advancing the goals of environmental justice, as illustrated 

in a separate chapter of this report.

I am happy to report that in fiscal year 2013, the Division achieved outstanding litigation results. 

We secured over $1.788 billion in civil and stipulated penalties, cost recoveries, natural resource 

damages, and other civil monetary relief, including almost $637 million recovered for the 

Superfund. We obtained almost $6.5 billion in corrective measures through court orders and 

settlements, which will go a long way toward protecting the nation’s air, water, and other natural 

resources. We concluded 53 criminal cases against 87 defendants, obtaining nearly 65 years in 

confinement and over $79 million in criminal fines, restitution, community service funds, and 

special assessments. Finally, by comparing claims made with the amounts ultimately imposed, 

we estimate that the handling of defensive and condemnation cases closed in fiscal year 2013 

saved the United States more than $6.8 billion. 
8 | foreword

The Division’s top civil enforcement priority remains the Deepwater Horizon oil spill. On 

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

the Gulf of Mexico and trigged a massive oil spill amounting to millions of barrels. The discharge 

continued for nearly 90 days. Eleven people aboard the rig lost their lives, and many others 

suffered injury. In December 2010, the United States brought a civil suit against BP, Anadarko, 

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

under the Oil Pollution Act, as part of multidistrict litigation in the U.S. District Court for the 

Eastern District of Louisiana. ENRD is now three years into this hard-fought, high-tempo 

litigation against BP and the remaining defendants. We have continued to work closely with the 

Civil Division, the Department’s senior leadership, other Departmental components, a host of 

federal client agencies, and the Gulf States. Billions of dollars are at stake in this litigation, the 

lion’s share of which would go to restoring natural resource damages (under the Oil Pollution Act) 

or to environmental improvement and economic redevelopment in the Gulf States region (under 

the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of 

the Gulf Coast States Act of 2013 (the RESTORE Act)). 

The Department tried the first phase of the U.S. case (addressing the cause of the disaster and 

liability) for nine weeks from February through April 2013, as part of a mass trial in which 

thousands of private plaintiffs also tried parts of their cases relating to liability and fault. We 

tried the second phase of the U.S. case (principally addressing how much oil was discharged into 

the Gulf of Mexico) over three weeks in September and October 2013. Both phases have been 

submitted to the district court for decision. The district court has scheduled the third phase of 

trial in this matter (addressing assessment of civil penalties) to begin in January 2015.

The discovery and case development requirements in this litigation have been unprecedented for ENRD and likely will remain so. More than 100 depositions have been taken and 

document production by the United States stands at some one hundred million pages. Thus 

far, the Department has secured over $1 billion in civil penalties through Deepwater Horizon 

Deepwater Horizon Response USCG Photo
foreword | 9

settlements (with MOEX and Transocean), as well as far-reaching injunctive relief that 

should make Transocean’s deepwater drilling safer in the Gulf of Mexico. As the Deepwater 

Horizon litigation progresses, the United States will take whatever steps are necessary to hold 

accountable those responsible for the spill. 

Over the past year, the Division made important contributions to combating the effects of 

climate change. For example, we continued critical work to defend and enforce agency administrative actions addressing greenhouse gases that contribute to climate change. In January 

2011, the Environmental Protection Agency’s (EPA’s) regulations governing motor vehicle 

emissions of greenhouse gases took effect, triggering not only mobile source regulation, but also 

regulation of the largest stationary sources in accordance with EPA’s greenhouse gas tailoring 

rule. As of September 2012, following extensive Division briefing, the D.C. Circuit in Coalition 

for Responsible Regulation v. EPA upheld the agency’s greenhouse gas-related regulatory 

actions in their entirety. Challengers filed nine separate petitions for writs of certiorari with the 

U.S. Supreme Court raising a number of issues. In July 2013, the Department’s Office of the 

Solicitor General, working closely with Division and client agency attorneys, filed an opposition 

to the petitions for certiorari. On October 15, 2013, the Supreme Court granted certiorari 

on six of the petitions, which were consolidated and limited to a single issue: “Whether EPA 

permissibly determined that its regulation of greenhouse gas emissions from new motor 

vehicles triggered permitting requirements under the Clean Air Act for stationary sources that 

emit greenhouse gases.” The Court denied the remaining three petitions, and rejected consideration of numerous additional issues raised by the petitions that were partially granted. In 

February 2014, the Supreme Court heard oral argument in the case.

In March 2013, the D.C. Circuit affirmed the district court’s decision in In re Polar Bear 

Endangered Species Act Listing, thereby upholding the U.S. Fish and Wildlife Service’s 2008 

listing of the polar bear under the Endangered Species Act as a threatened species throughout 

its range. The listing decision was based primarily on the polar bears’ dependence on Arctic 

sea ice for their survival, existing and projected reductions in the extent and quality of sea ice 

habitat due to global climate change, and the inadequacy of existing regulatory measures to 

preserve the species. The State of Alaska and various hunting groups challenged the listing, 

arguing that the Service acted arbitrarily and capriciously by using a 45-year period as the 

“foreseeable future” and by finding that the species is “likely” to be in danger of extinction 

throughout its range by mid-century. In a separate brief, the State of Alaska argued that the 

Service violated the Endangered Species Act by failing to provide an adequate written justification for its decision. The appeals court rejected all of plaintiffs’ challenges to the listing 

decision. 

In a settlement reached with the United States in September 2013, Safeway, the nation’s second 

largest grocery store chain, agreed to pay a $600,000 civil penalty and to implement a corporate-wide plan to significantly reduce its emissions of ozone-depleting substances from refrigeration equipment at over 650 of its stores nationwide, at an estimated cost of $4.1 million. The 

settlement resolves allegations that Safeway violated the Clean Air Act by failing to promptly 

repair leaks of HCFC-22, a hydrochlorofluorocarbon that is a greenhouse gas and ozone-depleting substance used as a coolant in refrigerators, and failed to keep adequate records of the 

servicing of its refrigeration equipment. The measures that Safeway has committed to take in 

this settlement are expected to prevent over 100,000 pounds of future releases of ozone-depleting refrigerants that destroy the ozone layer. Additionally, HCFC-22 has a global warming 

potential that is 1,800 times more potent than carbon dioxide. Fixing these leaks, improving 
10 | foreword

Acting Assistant Attorney General Dreher at 

Wildlife Trafficking Event

Black Rhinoceros 

FWS/John and Karen Hollingsworth Photo

compliance, and reducing HCFC-22 emissions will protect all Americans from the dangers of 

ozone depletion and reduce climate change. This first-of-its-kind settlement should also serve 

as a model for comprehensive solutions across a company.

The Department, principally through ENRD, has long been a leader in the fight against wildlife 

trafficking. Over the last year, the Department engaged fully in the Administration’s effort to 

combat wildlife trafficking through its role as one of the three agency co-chairs of the Presidential Task Force on Wildlife Trafficking, established by President Obama’s July 2013 Executive 

Order—Combating Wildlife Trafficking. In the past decade, wildlife trafficking has escalated 

into an international crisis, making it both a critical conservation concern and a threat to global 

security. Beyond decimating the world’s iconic species, this illegal trade threatens international security. Transnational criminal organizations, including some terrorist networks, armed 

insurgent groups, and narcotics trafficking organizations, are increasingly drawn to wildlife 

trafficking due to the exorbitant proceeds from this illicit trade. These criminal groups breed 

corruption, undermine the peace and security of fragile regions, and destabilize communities 

and their economies, thus undermining not just wildlife 

laws and international agreements, but the rule of law 

itself. I had the honor of serving as a Task Force co-chair 

(as the Attorney General’s delegate) and working with the 

other co-chairs from the Departments of State and the 

Interior, and the other 14 Task Force agencies, to craft the 

National Strategy for Combating Wildlife Trafficking. 

The National Strategy was signed by the President and 

issued on February 11, 2014. It emphasizes the need 

for a “whole of government” approach to combating 

this problem and identifies three key priority areas: (1) 

strengthening domestic and global enforcement; (2) 

reducing demand for illegally traded wildlife at home and 

abroad; and (3) strengthening partnerships with foreign governments, international organizations, nongovernmental organizations, local communities, private industry, and others to 

combat illegal wildlife poaching and trade. The National Strategy provides a set of overarching 

principles to guide the U.S. response to the increasing global wildlife trafficking crisis.

The Division works with U.S. Attorneys’ Offices around 

the country and federal agency partners (such as the U.S. 

Fish and Wildlife Service and the National Oceanic and 

Atmospheric Administration) to combat wildlife trafficking 

under the Endangered Species Act and the Lacey Act, as 

well as statutes prohibiting smuggling, criminal conspiracy, 

and related crimes. We have had significant successes 

prosecuting smugglers and traffickers in elephant ivory, 

endangered rhino horns, South African leopard, Asian and 

African tortoises and reptiles, and many other forms of 

protected wildlife. In fiscal year 2013, a prominent example 

of the Division’s robust prosecution of illegal wildlife 

trafficking was “Operation Crash,” an ongoing multi-agency 

effort to detect, deter, and prosecute those engaged in the illegal killing of rhinoceroses and 

the illegal trafficking of endangered rhinoceros horns. This initiative has resulted in multiple 

convictions, significant jail time, penalties, and asset forfeiture. 
foreword | 11

While ensuring compliance with the nation’s environmental and natural resources laws, ENRD 

makes important contributions to national security. One example of this work in fiscal year 

2013 is the Division’s successful handling of two separate district court challenges to the Navy’s 

decision to build and operate a second explosives-handling wharf at Naval Base Kitsap, located 

in the Hood Canal of the Puget Sound Basin. The proposed wharf will ensure the continuing 

viability of the Navy’s “Trident” class ballistic missile submarines developed during the Cold 

War to serve as a survivable retaliatory strike force in the event of a nuclear attack against the 

United States. In Suquamish Tribe v. U.S. Army Corps of Eng’rs, plaintiffs alleged that the 

proposed wharf unlawfully abrogates fishing rights secured to them by treaty and violates the 

Endangered Species Act. In Ground Zero Center for Nonviolent Action v. Navy, plaintiffs 

argued that the Navy violated the National Environmental Policy Act in approving construction 

of the wharf and sought to enjoin the construction. In January 2013, the district court denied 

plaintiffs’ motions for preliminary injunction in both cases, and the Suquamish Tribe voluntarily 

dismissed its lawsuit shortly thereafter. Subsequently, the Division prevailed on the merits in 

the Ground Zero case. 

This Administration seeks to promote American leadership in clean and responsible renewable 

energy development. The Division has defended challenges to permits and rights-of-way in 

more than 25 cases involving solar and wind projects located in California, Oregon, Tennessee, 

Delaware, Maine, Massachusetts, Ohio, and Vermont. Our successes in fiscal year 2013 included 

favorable rulings on summary judgment in cases involving the Ivanpah Solar Project, the 

Genesis Solar Project, the North Sky River Wind Project, the Ocotillo Wind Energy Project, the 

West Tennessee Solar Farm Project, and the Steens Mountain Wind Project. These victories 

have enabled substantial development of renewable energy resources across the country. 

The Division also has resolved the first criminal case against a wind power company whose 

operations killed numerous protected eagles when the company failed to make all reasonable 

efforts to build the projects in a way that would avoid the risk of avian deaths by collision with 

turbine blades, despite prior warnings about this issue from the U.S. Fish and Wildlife Service.

Protection of tribal sovereignty, tribal lands and resources, and tribal treaty rights is an 

important part of ENRD’s mission. The Division has been actively engaged with the Department 

of the Interior and Indian tribes to ensure protection of tribal interests such as tribal water 

rights; tribal hunting, fishing, and gathering rights; reservation boundaries; and tribal jurisdiction and sovereignty. Two cases from fiscal year 2013 are of particular note. In Village 

of Pender v. Parker, the Omaha Tribe of Nebraska adopted a beverage control ordinance 

applicable to retailers on its reservation. The Village of Pender, Nebraska, and Pender business 

owners sued tribal officials in federal district court in Nebraska to enjoin enforcement of the 

ordinance in Pender because a Congressional Act in 1882 allegedly diminished the boundaries 

of the reservation. In 2007, the district court ruled that plaintiffs had to exhaust their remedies 

in Omaha Tribal Court. There, we filed an amicus brief in a tribal court for the first time, and 

argued, based on a Solicitor’s Opinion from the Department of the Interior, that the 1882 Act 

did not alter or diminish the reservation boundary. In February 2013, the tribal court held that 

the boundaries of the reservation were preserved following the 1882 Act. On return of the case 

to the federal district court in Nebraska, the United States was permitted to intervene in the 

case and the Division filed a motion for summary judgment, again arguing that the reservation 

boundary had not been changed by Congress. In February 2014, the district court agreed, 

entering judgment in favor of the Omaha Tribe and the United States. Plaintiffs have appealed 

the decision to the Eighth Circuit.
12 | foreword

The other case is United States v. Washington, the latest chapter in longstanding litigation 

initiated in the 1970s to protect the treaty fishing rights of tribes in the Pacific Northwest. In the 

second phase of the case, the United States sought to address decline in the quality and quantity 

of fish habitat caused by development pressures in western Washington. In response to a Ninth 

Circuit decision holding that the state’s treaty obligations “will depend for their definition and 

articulation upon concrete facts which underlie a dispute in a particular case,” the United States 

and the tribes litigated the habitat question in the context of the narrow issue of culverts beneath 

state roads. Poorly constructed and maintained culverts impede passage of anadromous fish to 

spawning grounds and block the access of juvenile fish to the ocean. At the time of trial in 2009, 

fisheries scientists identified nearly 4.8 million square meters of stream habitat upstream of 

blocked culverts in Washington. In March 2013, following lengthy but unsuccessful settlement 

negotiations, the district court issued a permanent injunction requiring the state to inventory 

remaining fish-blocking culverts within six months and provide for fish passage at culverts with 

specified upstream habitat within 17 years. The United States is now vigorously defending this 

decision on appeal to the Ninth Circuit.

One of the critical tasks ENRD performs on a regular basis—and that often goes unrecognized—

is giving counsel to client agencies facing difficult challenges. Our work with the Department of 

Energy at the Hanford Nuclear Site in the State of Washington is illustrative. Over the past year, 

a team of Division attorneys worked very closely with officials at the Department of Energy to 

develop a framework for moving forward with a long-term plan to treat the 56 million gallons 

of radioactive and chemical wastes generated as a result of U.S. government efforts to produce 

plutonium during the Cold War. These efforts have included sensitive discussions with officials 

from the States of Washington and Oregon, in anticipation of formal negotiations to modify a 

2010 consent decree governing a significant part of the cleanup of the Hanford site. Although 

difficult negotiations and potential litigation may face us, ENRD’s work on this high profile and 

profoundly important matter has aided the client immeasurably in moving toward a safe and 

sustainable completion of the clean-up mission at Hanford.

The Division’s civil and criminal environmental enforcement efforts have immeasurably 

protected human health and the environment through significant reductions in emissions 

and discharges of harmful pollutants. From the many such cases described in this report, 

I would like to highlight two—the Mazza and Tronox cases. In October 2012, following a 

three-week jury trial, Dominick Mazza, his company, Mazza & Sons, Inc., and Cross Nicastro, 

were convicted of conspiracy, Clean Water Act, Superfund, and false statement violations. 

Defendants conspired to fill Nicastro’s 28-acre property on the Mohawk River in upstate New 

York, over the course of five years, with pulverized construction and demolition debris that 

was processed at New Jersey solid waste management facilities and then transported to the 

property. Law enforcement officials uncovered the plot just months after defendants began the 

operation, when they had already dumped at least 400 truckloads of debris at the site. Much of 

the material that was dumped was placed in and around waters of the United States and some 

of the material was found to be contaminated with asbestos. The conspirators then concealed 

the illegal dumping by fabricating a New York State Department of Environmental Conservation (DEC) permit and forged the name of a DEC official on the fraudulent permit. In June 

2013, Dominick Mazza was sentenced to 51 months in prison to be followed by three years of 

supervised release, and to pay a $75,000 criminal fine and $492,000 in restitution. Mazza 

& Sons, Inc., was sentenced to pay a $100,000 criminal fine and $494,000 in restitution and 

clean-up costs to EPA, and received five years of corporate probation. The court also ordered 

Mazza & Sons to fund and implement an environmental compliance plan administered by a 
foreword | 13

third-party auditor to prevent future environmental violations at their Tinton Falls, New Jersey, 

recycling operation. Cross Nicastro was sentenced to 33 months in prison and three years of 

supervised release and to pay $492,494 in restitution and a $25,000 criminal fine. This case 

shows how zealously the United States will prosecute those who violate environmental laws 

protecting the public and the environment from toxic substances like asbestos. 

The Division files claims to protect environmental obligations owed to the United States when a 

responsible party goes into bankruptcy. From the beginning of fiscal year 2009 through the end 

of fiscal year 2013, we obtained agreements in 35 bankruptcy proceedings, under which debtors 

committed to spend an estimated $1.678 billion to clean up hazardous waste sites, reimburse 

the Superfund over $710 million plus an additional $88 million in interest, and pay more than 

$83 million in natural resource damages. Developments in an adversary proceeding arising out 

of a bankruptcy case, Tronox, Inc. v. Anadarko Petroleum Corp., were particularly noteworthy 

in 2013. There, the United States and co-plaintiff Anadarko Litigation Trust won an award of 

between $5.1 billion and $14.1 billion against defendant “New” Kerr-McGee Corporation and 

certain related defendant companies, all of which are subsidiaries of the Anadarko Petroleum 

Corporation. In December 2013, the bankruptcy court in New York concluded that the historic 

Kerr-McGee Corporation (“Old” Kerr-McGee) fraudulently conveyed assets to New Kerr-McGee 

in 2005 to evade its debts, including its liability for environmental cleanup at toxic sites around 

the country. Pursuant to a plan of reorganization and other agreements, approximately 88% of 

the recovery in this lawsuit, net of trust expenses, will be distributed to various environmental 

trusts and to federal, state, and local environmental creditors for environmental cleanup of 

contaminated sites around the nation. Subsequently, on April 3, 2014, the parties entered into 

a proposed $5.15 billion settlement of the amount of the award ($4.4 billion of which is for 

environmental cleanup and claims), which is the largest recovery for the cleanup of environmental contamination in history. The U.S. Attorney’s Office for the Southern District of New 

York, working closely with Division attorneys and assisted by EPA, the U.S. Fish and Wildlife 

Service, the Bureau of Land Management, the National Oceanic and Atmospheric Administration, the U.S. Nuclear Regulatory Commission, the Forest Service, the Department of Defense, 

numerous state governments, and the Navajo Nation, handled the case.

I am extremely proud of the critically important work that the Division accomplished last year, 

and I encourage you to read this report. In closing, I also would like to say what a privilege 

it has been for me to serve as the Acting Assistant Attorney General over the past year. I am 

grateful for the opportunity to represent the interests of the United States and to work with the 

extraordinary employees of the Division in this capacity. The many successes reflected in this 

report are due to the expertise, dedication, and professionalism of the ENRD staff. Challenges 

and opportunities lie ahead, but the Division is well equipped to handle them.

Robert G. Dreher

Acting Assistant Attorney General

Environment and Natural Resources Division

April 22, 2014
14 | overview

Big Sur, California Photo by Jeff Bank

Sagamore Farm, Maryland Photo by Jeff Bank
overview | 15

OVERVIEW 

OF THIS REPORT

In fiscal year 2013, the Environment and Natural Resources Division (the Division or ENRD) 

achieved important victories for the American public across its many practice areas. The 

chapters of this report briefly explain the Division’s organizational structure, highlight its 

continued work toward the goal of achieving environmental justice for all communities, 

and describe the Division’s other key accomplishments. The chapters describing those key 

accomplishments are: protecting our nation’s air, land, and water; ensuring cleanup of oil 

and Superfund waste; promoting responsible stewardship of America’s wildlife and natural 

resources; enforcing the nation’s criminal pollution and wildlife laws; defending vital federal 

programs and interests; promoting national security and military preparedness; protecting 

tribal rights and resources and addressing tribal claims; and supporting the Division’s staff. 
Earth Day 2013

2013 Awards Ceremony

16 | enrd
PRESENTING THE 

ENVIRONMENT AND 

NATURAL RESOURCES DIVISION

The Division has a main office in Washington, D.C., and field offices in: Denver, Colorado; San 

Francisco, California; and Sacramento, California. ENRD has a staff of over 600, more than 400 

of whom are attorneys. In addition to the immediate Office of the Assistant Attorney General, 

the Division is organized into nine litigating sections and an Executive Office.

The Division has responsibility for cases involving more than 150 statutes and represents 

virtually every federal agency in courts across the United States and its territories and 

possessions. Our litigation docket contains more than 6,500 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 and marine resources protection laws. In addition, ENRD litigates cases 

concerning Indian rights and claims. 

ENRD LITIGATING 

SECTIONS

— Appellate

— Environmental Crimes

— Environmental Defense

— Environmental Enforcement

— Indian Resources

— Land Acquisition

— Law and Policy

— Natural Resources

— Wildlife and Marine Resources

ENRD Environmental Enforcement Section

enrd | 17
One of the Division’s primary responsibilities is to enforce federal civil and criminal environmental laws such as the Clean Air Act (CAA), the Clean Water Act (CWA), the Oil Pollution Act 

(OPA), the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Safe 

Drinking Water Act. The main federal agencies that the Division represents in these areas 

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

(the Corps or USACE). The ENRD sections that carry out this work are the Environmental 

Enforcement Section, the Environmental Defense Section, and the Environmental Crimes 

Section.

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

and treaties 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, 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, 

to our nation’s historic battlefields and monuments. 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 decisions affecting economic, recreational, and 

religious uses of the national parks, national forests, and other public lands; challenges brought 

by individual Native Americans and Indian tribes relating to the United States’ trust responsibility; and actions to recover royalties and revenues from development of natural resources, 

including subsurface minerals. The Division represents all the land management agencies of the 

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

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

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

(FWS); the Corps; the Department of Transportation; and the Department of Defense and its 

components. 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 

WHAT WE DO

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

policy work on behalf of United States regarding:

— Prevention and Cleanup of Pollution

— Environmental Challenges to Federal Programs and Activities

— Stewardship of Public Lands and Natural Resources

— Property Acquisition for Federal Needs

— Wildlife Protection

— Indian Rights and Claims

The Division has the largest environmental law practice in the country.

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

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

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

wildlife and plants into or out of the United States or illegally across state boundaries. The 

main federal agencies that ENRD represents in this area are FWS and the National Oceanic and 

Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service (NMFS).

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

claims, in which landowners seek compensation based on the allegation that a government 

action has precluded development of their property, or suits alleging that a federal agency has 

failed to comply with the National Environmental Policy Act (NEPA). Both takings and NEPA 

cases can affect vital federal programs such as those governing the nation’s defense capabilities (including military preparedness, weapons programs, nuclear materials management, and 

military research), renewable energy development, and food supply. These cases also involve 

challenges to regulations promulgated to implement the nation’s anti-pollution statutes, such as 

the CAA and CWA, or activities at federal facilities that are claimed to violate such statutes. The 

Division’s main clients in this area include the Department of Defense and EPA. The Natural 

Resources Section and the Environmental Defense Section handle these cases. 

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

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

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

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

litigation. 

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

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

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

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

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

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

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

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

(BIA) in DOI. 

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

courts, and works closely with the Department of Justice’s (the Department’s) Office of the 

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

ENRD Wildlife Section

enrd | 19
ENRD Appellate Section in the DOJ Courtyard

20 | enrd

The Law and Policy Section advises and assists the Assistant Attorney General on environmental 

and natural resources legal and policy questions, particularly those that affect multiple sections 

in the Division. It reviews and analyzes legislative proposals on environmental and natural 

resources issues of importance to the Division, handles the Division’s response to Congressional 

requests, provides comments for ENRD on federal agency rulemakings, and handles, with the 

Appellate Section, amicus participation in cases of importance to the United States, as well as 

other special projects on behalf of Division leadership. Other Law and Policy Section duties 

include serving as the Division’s ethics and professional responsibility officer and counselor, 

alternative dispute resolution counselor, and liaison with state and local governments. 

Attorneys in the Law and Policy Section also routinely assist in litigation with other Division 

sections and also coordinate the Division’s involvement in international legal matters, as well as 

the Division’s Freedom of Information Act and Privacy Act work.

The Executive Office is the operational management and administrative support section 

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

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

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

provide sophisticated automation facilities to ENRD employees. By utilizing new technologies 

and innovative business processes—and by in-sourcing traditional contractor-provided services 

and equipping employees to better serve themselves—the Executive Office is able to achieve 

significant annual cost savings for the American public.
ENRD CLIENT AGENCIES

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

United States Department of Agriculture www.usda.gov

United States Forest Service www.fs.fed.us

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

United States Department of Commerce

National Marine Fisheries Service www.nmfs.noaa.gov

National Oceanic and Atmospheric Administration www.noaa.gov

United States Department of Defense

United States Air Force www.af.mil

United States Army www.army.mil

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

United States Marine Corps www.marines.mil

United States Navy www.navy.mil

United States Department of Energy www.energy.gov

Environmental Protection Agency www.epa.gov

General Services Administration www.gsa.gov

United States Department of Homeland Security www.dhs.gov

United States Customs and Border Protection www.cbp.gov

Federal Emergency Management Agency www.fema.gov

United States Coast Guard www.uscg.mil

United States Department of the Interior www.doi.gov

Bureau of Indian Affairs www.bia.gov

Bureau of Land Management www.blm.gov

Bureau of Ocean Energy Management www.boem.gov

Bureau of Reclamation www.usbr.gov

Bureau of Safety and Environmental Enforcement www.bsee.gov

National Park Service www.nps.gov

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

United States Fish and Wildlife Service www.fws.gov

United States Geological Survey www.usgs.gov

United States Department of Transportation www.dot.gov

Federal Aviation Administration www.faa.gov

Federal Highway Administration www.fhwa.dot.gov

Federal Transit Administration www.fta.dot.gov

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

United States Maritime Administration www.marad.dot.gov

United States Department of Veterans Affairs www.va.gov

enrd | 21
EPA Photo

EPA Photo

22 | environmental justice
REPORTING OUR 

PROGRESS TOWARD 

ACHIEVING THE GOAL OF 

ENVIRONMENTAL JUSTICE

Executive Order 12898, Federal Actions to Address 

Environmental Justice in Minority Populations and 

Low-Income Populations (1994), was the federal 

government’s first policy statement on environmental justice (also EJ). Attorney General Janet 

Reno represented the Department at the signing 

of this historic document 20 years ago. The ideals 

of Executive Order 12898 are as true today as 

they were in 1994—every American deserves clean 

air, water, and land—regardless of income status, 

race, or ethnicity. Today, the Department remains 

committed to achieving environmental justice, and 

ENRD plays an important role in making environmental justice a reality. The Division’s core mission 

includes the strong enforcement of civil and criminal environmental laws to ensure clean air, 

water, land, and other resources for the protection of human health and the environment for 

all Americans. ENRD seeks to integrate the principles of environmental justice into its work to 

ensure that all communities 

enjoy a fair and impartial 

application of the nation’s 

environmental and natural 

resources laws and that 

communities affected by 

violations of the law have a 

meaningful opportunity for 

input in the consideration of 

appropriate remedies. 

In fiscal year 2013, the 

Division continued to 

achieve meaningful environmental justice results. 

“Because we all deserve the chance to live, learn, and 

work in healthy communities, my Administration 

is fighting to restore environments in our country’s 

hardest-hit places. . . . . While the past two decades have seen 

great progress, much work remains. In the years to come, we 

will continue to work with States, tribes, and local leaders to 

identify, aid, and empower areas most strained by pollution. By 

effectively implementing environmental laws, we can improve 

quality of life and expand economic opportunity in overburdened 

communities.” 

—President Barack Obama, February 10, 2014 Presidential 

Proclamation: 20th Anniversary of Executive Order 12898 on 

Environmental Justice

Signing of Executive Order 12898 

Photo Courtesy of William J. Clinton Presidential Library

environmental justice | 23
This chapter is divided into two sections. First, we describe ENRD’s continued collaboration 

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

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

Collaborative Work with Other Federal Agencies andDepartmental Components in Fiscal Year 2013

Actively Participating in the Interagency Working Group on 

Environmental Justice (EJ IWG)

The EJ IWG, which will celebrate its 20th anniversary this year, was established by Executive 

Order 12898. The EJ IWG’s creation highlights the importance of federal agencies working 

collaboratively to address environmental justice concerns. Chaired by EPA and the White 

House Council on Environmental Quality (CEQ), the EJ IWG is working to facilitate the active 

involvement of all federal agencies in implementing Executive Order 12898. As an active 

member of the EJ IWG, the Division has played a leadership role in ensuring that there is a 

coordinated federal response to environmental justice issues.

In August 2011, the EJ IWG was reinvigorated when the Department of Justice and 16 federal 

agencies and White House offices signed the Memorandum of Understanding on Environmental Justice and Executive Order 12898 (MOU). The Division played an important 

leadership role in the conception and development of the MOU. Building on Executive Order 

12898, the MOU represents the federal government’s renewed commitment to environmental 

justice. The MOU promotes interagency collaboration and public access to information about 

agency work on environmental 

justice, and specifically required 

each agency to publish an environmental justice strategy, to provide 

an opportunity for public input on 

those strategies, and to produce 

annual implementation progress 

reports. In addition to requiring 

annual reports, the MOU identifies 

four focus areas for the EJ IWG as 

agencies implement their environmental justice strategies: (1) implementation of NEPA; (2) 

implementation of Title VI of the Civil Rights Act of 1964, as amended (Title VI); (3) addressing 

impacts from climate change; and (4) addressing impacts from commercial transportation and 

supporting infrastructure (often referred to as “goods movement”). The EJ IWG has formed 

committees for the NEPA, Title VI, and goods movement focus areas identified in the MOU. 

Implementing an Interagency Memorandum on Environmental Justice

The Department continues to fulfill its own obligations under the MOU and further the efforts of 

the EJ IWG. 

DOJ Website

24 | environmental justice
—Through its Natural Resources Section (NRS), the Division actively participates in the EJ 

IWG’s NEPA Committee, which is dedicated to cross-agency education and coordination on the 

incorporation of environmental justice principles into NEPA decisionmaking. The committee 

seeks to enhance consideration of environmental justice in the NEPA process through the 

sharing of best practices, lessons learned, training, and other tools. The NEPA Committee 

has formed two subcommittees, the Education Subcommittee and the Community of Practice 

Subcommittee: 

—The Natural Resources Section has taken a leadership role on the Education 

Subcommittee, with an NRS representative serving as co-chair of the subcommittee. The subcommittee has conducted a review of existing federal agency 

training materials on environmental justice and NEPA, and is using this 

assessment to develop a national training module focusing on effective EJ analysis 

in the NEPA process. This national training product will be used to train NEPA 

practitioners throughout the federal government.

—The Natural Resources Section also has participated regularly in the work of the 

Community of Practice Subcommittee. The subcommittee is presently compiling 

a set of best practices that offer effective approaches to considering environmental 

justice in NEPA reviews. During fiscal year 2013, NRS provided significant input 

into that document. 

—Moving forward, the NEPA Committee will continue to advance the goals of 

environmental justice through increased understanding of challenges and opportunities, articulation of effective best practices, training on general and specific NEPA 

and environmental justice topics, and other measures. All together, these efforts 

will continue to provide federal officials, at all levels, with a foundational understanding of NEPA’s role in addressing EJ through assessment, consideration of 

alternatives, avoidance, and mitigation during the NEPA review process.

—ENRD’s Environmental Enforcement Section participates in the EJ IWG’S Title VI Committee, 

chaired by the Department’s Civil Rights Division. The committee acts as a resource to help 

agencies connect their civil rights enforcement responsibilities with their efforts to achieve 

environmental justice. In 2013, the committee surveyed agencies to determine the extent 

to which Title VI complaints have included environmental justice issues, and evaluated the 

relationship between Title VI and EJ. Moving forward, the committee plans to set up a webpage 

on the EJ IWG website that articulates the interrelationship between Title VI and EJ and 

identifies opportunities for interagency collaboration.

—As required by the MOU, in February 2013, the Department released the 2012 Implementation Progress Report on Environmental Justice, its second annual report on the work and 

achievements of the Department in this area. The Division contributed significantly to the 

accomplishments included in the report. 

environmental justice | 25
Increasing Communication and Awareness 

Across Federal Agencies 

The Division also continued to collaborate directly with other 

federal agencies to increase the dialogue on and awareness 

of environmental justice issues. The cross-agency group 

of career attorneys that ENRD, along with EPA’s Office of 

General Counsel, organized in fiscal year 2011 to discuss 

legal issues that arise with respect to environmental justice, 

continued to be an important vehicle to increase communication and awareness. In fiscal year 2013, the group continued to serve as an important forum 

for open dialogue, continuing education, and informal counseling among the federal agencies on 

issues such as the intersection of environmental justice and Title VI. 

We continued to assist other federal agencies in providing environmental justice training to their staff. For example, in April 2013, 

representatives from ENRD’s NRS, Environmental Defense Section, 

Environmental Enforcement Section, and Office of the Assistant 

Attorney General, along with ENRD’s Senior Level Environmental 

Justice Coordinator and the Department’s Civil Rights Division, 

participated in a Department of Energy EJ training session. 

Participating in Community and Other Outreach

The Division participates in the Regional IWG Committee (RIWG) established by the EJ IWG. 

The purpose of the RIWG is to facilitate coordinated regional federal activities that respond 

to communities at the local and regional level. In 2013, the RIWG finalized its concept, 

which includes its vision, goals, membership, organization, and key principles. The concept 

is designed to help guide the RIWG in the process of forming regional workgroups (designed 

around the EPA regional structure) and working with existing workgroups with the goal of better 

addressing issues, concerns, and recommendations that may result from public engagement at 

the local and regional levels, and to increase cooperation among federal agencies in support of 

Executive Order 12898. The committee’s goals, in part, are to help respond to environmental 

justice issues or concerns in a more timely and unified manner, help build community capacity, 

and leverage resources of federal agencies with those at state, tribal, and local agencies, as well 

as individual communities, the private sector, and non-governmental organizations (NGOs) to 

address environmental justice issues. The committee is moving forward with identifying and 

selecting cross-government collaboration efforts to aid communities. 

In addition to supporting the RIWG, in September 2013, the Division and several other federal 

agencies from the EJ IWG met with members of the Frontline Fellowship Program hosted by the 

Energy Action Coalition Environmental Justice Collective. The meeting was an opportunity for 

the fellows to discuss the environmental justice concerns they are working to address in their 

communities, and to discuss any resources federal agencies might have to assist them. 

The Department will continue to work with the EJ IWG to conduct listening sessions with 

communities to evaluate, among other things, the effectiveness of agency environmental justice 

strategies and seek recommendations on how agency efforts can be improved. During these 

EPA Image

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26 | environmental justice
sessions we gain valuable community feedback that often helps us improve how we integrate 

environmental justice principles into the work we do. We look forward to continuing our participation in them.

Division-Specific Fiscal Year 2013 Environmental Justice Achievements

In fiscal year 2013, the Division maintained its commitment to ensuring that the principles of 

environmental justice are routinely considered in all that we do, as well as the work of its client 

agencies.

Conducting Outreach on Environmental Justice Issues

We continue to engage in community 

outreach to ensure that the Division 

understands and is responding to 

community concerns. This has taken 

many forms, including community 

meetings and visits by senior ENRD 

officials, participation in EJ IWG 

listening sessions and community calls, 

participation in environmental justice 

conferences, and outreach in conjunction 

with cases in litigation. The Division 

and U.S. Attorneys’ Offices have worked with other components in the Department, federal 

agency partners, and community representatives to organize direct outreach. For instance, the 

following are examples of outreach conducted to Indian tribes: 

—Officials from the Office of Tribal Justice, ENRD, and U.S. Attorneys’ Offices met with representatives of tribes and tribal communities regarding environmental concerns, such as water 

rights and the effects of industrial activities on tribal 

lands and values. In fall 2013, Department officials 

met with tribes in the Columbia River region regarding 

environmental issues, including the effects of coal 

transportation on the Columbia River. 

Acting Assistant Attorney General Robert Dreher, 

former Assistant Attorney General Ignacia Moreno, 

and other ENRD senior staff also took the opportunity 

to speak about environmental justice on a number of 

occasions. Examples include: 

—Presenting November 28, 2012 videoconference 

remarks to the Attorney General Advisory Committee 

Environmental Issues Working Group;

EPA Photo

“We protect all communities—regardless of 

their race, ethnicity, or income—through strong 

enforcement, ensuring that the law is applied 

even-handedly and engaging communities in 

shaping remedies for violations of environmental 

laws.”

—Acting Assistant Attorney General Robert G. 

Dreher

environmental justice | 27
—Participating in the January 15, 2013 Transportation Research Board Annual Meeting panel 

on Trends in Title VI and Environmental Justice in Environmental Reviews; 

—Participating in the February 8, 2013 ALI-ABA panel on NEPA and Environmental Justice;

—Holding a February 15, 2013 meeting with Environmental Justice Advocates;

—Presenting May 14, 2013 remarks to the Hispanic National Bar Association on Legislative Day; 

and

—Presenting December 2013 videotaped remarks for the Asian Development Bank Conference 

on U.S. Law, Wildlife Trafficking, and Environmental Justice.

The Division, partnering with EPA, also continued to foster a dialogue with corporate leaders 

regarding environmental justice. In February 

2013, former Assistant Attorney General 

Ignacia Moreno along with Cynthia Giles, EPA’s 

Assistant Administrator for Enforcement and 

Compliance Assurance, convened a second 

session with representatives from the corporate 

community to discuss environmental justice in 

enforcement matters. The first session was held 

in July 2012. Both sessions provided a forum 

for a fruitful discussion to raise awareness within the corporate community of the importance 

of environmental justice and encourage consideration of environmental justice as a basic 

component of enforcement and compliance matters and corporate-community relations. It 

is important that the corporate community participate in the conversation on environmental 

justice. ENRD continues to seek appropriate opportunities to engage business stakeholders in 

constructive discussions that advance the goals of environmental justice. 

Increasing Awareness Within ENRD

The Division has continued to increase awareness and understanding of environmental justice 

issues among its attorneys and staff. For example, in 2013, ENRD’s Environmental Crimes 

Section (ECS) incorporated environmental justice training into the annual Environmental 

Crimes Seminar at the National Advocacy Center in Columbia, South Carolina. The training, 

attended by ENRD attorneys, EPA attorneys, FWS personnel, NOAA personnel, and 40 

Assistant U.S. Attorneys from 28 U.S. Attorneys’ Offices, focused on identifying environmental 

justice issues in criminal cases. 

The Environmental Crimes Section also provided training specifically for its staff. An October 

2012 training session held for attorneys within the section focused on the history of environmental justice, key components of the section’s Environmental Justice Plan, and the responsibilities of prosecutors within the section when working on cases with environmental justice 

implications. A second training session in February 2013 was tailored to paralegals and legal 

assistants, and addressed administrative requirements for cases that raise environmental justice 

issues.

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28 | environmental justice
The section has taken further steps to integrate environmental justice principles into its 

work. During case management reviews, every open case within the section is reviewed to 

assess whether it has environmental justice implications. In addition, the template for ECS’s 

prosecution memorandum was modified to include an “Affected Persons and Communities” 

section, which requires the prosecutor to assess whether there are individuals and/or 

communities that have been adversely affected by environmental violations and the impact that 

has on decisionmaking. 

It also is important to consider environmental justice issues throughout the life of a case. The 

section’s EJ Coordinator meets with representatives of EPA’s criminal program on a monthly 

basis to discuss implementation of both the ECS Environmental Justice Plan and the EPA Office 

of Criminal Enforcement, Forensics, and Training EJ Plan. In addition, they consult each other 

as issues related to environmental justice arise in cases. 

ENRD’s defensive sections also have continued to integrate environmental justice principles 

into the defense of agency actions. For example, to ensure that all employees are familiar with 

environmental justice principles, NRS made a commitment to provide annual training for its 

staff on environmental justice. This has included section-wide training on NEPA and environmental justice at annual section meetings and smaller training opportunities. The section-wide 

training consisted of an overview of the section’s Environmental Justice Plan, discussion of how 

to access relevant environmental justice resources, analysis of environmental justice case studies 

to help identify agency best practices with regard to environmental justice, and discussion of 

how courts approach environmental justice issues in litigation. Informal brown-bag sessions 

provided comparable training to legal interns and recent hires. Similar training activities have 

been undertaken by the Division’s other sections. 

In addition to training, the Division continued to look for other ways this year to institutionalize 

its commitment to the principles of environmental justice: 

—Each of ENRD’s nine sections has implemented a section-specific plan for integrating environmental justice considerations into its day-to-day work. The plans are currently undergoing 

review and will be updated, as necessary, from experience gained in putting those plans into 

action. 

—The Department established the Indian Civil Litigation and Policy Working Group, co-chaired 

by Office of Tribal Justice Director Tracy Toulou, ENRD Deputy Assistant Attorney General 

Ethan Shenkman, and U.S. Attorney for the District of South Dakota Brendon Johnson. During 

monthly meetings, the group discusses environmental justice concerns with relevant Departmental components as warranted.

Integrating Environmental Justice Principles into ENRD Litigation and 

Outcomes

The Division’s commitment to environmental justice is evidenced by its litigation results. 

The Environmental Enforcement and Environmental Crimes Sections seek to ensure that all 

communities enjoy the benefit of a fair and even-handed application of the nation’s environmental and natural resources laws, and have a meaningful opportunity for input in the consideration of appropriate remedies for violations of those laws. The following cases concluded by 

environmental justice | 29
ENRD in fiscal year 2013, in coordination 

with the U.S. Attorneys’ Offices and our 

agency partners, have furthered these 

goals of environmental justice: 

—Helping to restore the important 

relationship between the environment 

and the Mohawk culture, society, and 

economy was a significant facet of the 

settlement in United States v. Alcoa, Inc. 

This was a case brought under CERCLA 

to recover damages for injuries to 

natural resources. The Natural Resource 

Trustees—the Saint Regis Mohawk 

Tribe, FWS, NOAA, and the State of 

New York—determined that hazardous 

substances were released for decades by 

three entities: two aluminum producers, 

Alcoa, Inc. (Alcoa West), and Reynolds Metals, Inc. (now Alcoa East); and the former General 

Motors Central Foundry Plant located adjacent to the Saint Regis Mohawk Tribe Reservation 

in Massena, New York. These hazardous substances adversely impacted natural resources 

within the surrounding environment and contaminated the Mohawk community of Akwesasne, 

degrading natural resources used for traditional cultural practices. 

The $18.5 million from this settlement was combined with $1.8 million in restoration funds 

from the 2011 GM bankruptcy settlement to provide about $20.3 million to restore natural and 

cultural resources and human uses of natural resources, such as recreational fishing. From 

this amount, the tribe will receive about $8.4 million to support traditional cultural practices, 

including an apprenticeship program to promote Mohawk language and traditional teachings. 

A portion of the funds also will support cultural institutions including youth outdoor education 

programs and horticultural programs for medicine, healing, and nutrition. More than $10 

million will be spent on ecological restoration projects, including restoration or enhancement 

of wetlands, stream banks, native grasslands, bird nesting and roosting habitat, fish habitat and 

fish passage, and acquisition of unique habitat under threat of development. These projects also 

may benefit cultural practices that depend on these restored natural resources. Finally, Alcoa 

will spend approximately $2 million to develop and upgrade two boat launches on the Raquette 

River and to construct three new launches on the Grasse River to improve fishing and boating 

access in the Massena area. 

—In the Matter of: Former Lawrence Metals Site was a CERCLA settlement in which ENRD 

facilitated EPA’s entering into an agreement with a private developer and a municipal Economic 

Development Board that will result in the cleanup and redevelopment of a contaminated site in 

a former commercial and industrial area of Chelsea, Massachusetts. The property is located in 

a community with environmental justice concerns and is part of a larger revitalization project in 

that community. Pursuant to the agreement, the developer will contribute $1.65 million toward 

cleaning up the site. The Division and EPA worked closely with the City of Chelsea to resolve 

this matter in a way that benefited the community and enabled contaminated and blighted 

property to be put back to productive use. 

 

Bank of the Raquette River NOAA Photo

30 | environmental justice
Sewer Overflow EPA Image

“Chattanooga residents will enjoy 

public health and environmental 

benefits for years to come as 

a result of the improvements required 

by this settlement agreement. The 

agreement prioritizes neighborhood 

sewer rehabilitation projects and utilizes 

innovative stormwater controls in the urban 

core, reducing sewer overflows and overall 

reducing threats to public health posed by 

untreated sewage.”

—Former Assistant Attorney General Ignacia 

S. Moreno, United States v. Chattanooga Press 

Release

environmental justice | 31

—The City of Chattanooga agreed in United States 

v. City of Chattanooga to pay a civil penalty and 

make improvements to its sewer systems to resolve 

CWA violations, including eliminating unauthorized 

overflows of untreated raw sewage, estimated by the 

city to cost approximately $250 million. Approximately 60% of these sewer overflows occur in areas 

with large lower-income or minority populations. 

Chattanooga was able to prioritize the vast majority 

of its proposed early action injunctive relief to these 

areas. 

In addition, Chattanooga agreed to perform a stream 

restoration supplemental environmental project 

(SEP) at a cost of $800,000 in an area identified by 

EPA as having EJ concerns. (A SEP is an environmentally beneficial project that a defendant agrees 

to undertake in settlement of a civil penalty action that has a sufficient nexus to the alleged 

violation(s), but that the defendant is not otherwise legally required to perform.) The SEP will 

restore the stream and stabilize the banks of a tributary of the South Chickamauga Creek and 

eliminate a significant source of sediment and solids to the creek. Pursuant to the settlement, 

Chattanooga also will perform green infrastructure demonstration projects in the historic 

downtown Highland Park neighborhood (another area where EPA identified EJ concerns) 

to, among other things, improve water quality in the Dobbs Branch Stream, which flows into 

Chattanooga Creek. 

Prior to finalizing the terms of the settlement approved by the court on April 24, 2013, 

Chattanooga, along with EPA and the Tennessee Department of Environment and Conservation (TDEC), conducted a public outreach campaign. Chattanooga held two public meetings in 

different parts of the city. Chattanooga advertised the public meetings in its monthly newsletter, 

Common Ground, which is published by Chattanooga’s Department of Neighborhood Services 

and Community Development. Chattanooga notified community and environmental justice 

leaders in the area of these meetings from a list jointly 

prepared by Chattanooga, the Tennessee Clean Water Network, 

TDEC, and EPA. Both meetings were well attended, and the 

Mayor of Chattanooga attended and participated in the first 

meeting. 

—The settlement approved by the court in United States v. 

City of Jackson, Mississippi, resolved violations of the CWA 

in connection with sewer overflows from the city’s waste 

treatment system. During the negotiations, the United States 

and the State of Mississippi worked together to compile a list 

of contacts in the local community who had been involved 

in environmental justice matters and conducted outreach to those individuals regarding the 

potential remedies to address the violations. Based in part on feedback from the community, 

the city, as part of the settlement, will prioritize injunctive relief at its Savanna Street 

Wastewater Treatment Plant as well as certain areas with environmental justice concerns that 

had historically experienced a large number of sewer overflows. In addition, the city will spend 
32 | environmental justice

approximately $875,000 as a SEP to fix defective or leaking private laterals (the connection 

from a home to the city’s sewer system) in low-income communities served by the city’s sewer 

system. 

—The settlement approved by the court in United States v. Town of Timmonsville, South 

Carolina, will help provide needed relief to the residents of Timmonsville, South Carolina. 

Timmonsville is a small town in Florence County, South Carolina, with a predominately 

minority and low-income population. Although Timmonsville was supposed to provide water 

and sewer service to approximately 2,500 residential, commercial, and industrial entities in 

the surrounding area, the town was chronically out of compliance with the Safe Drinking Water 

Act and CWA. The town’s utilities were in a deplorable state of repair and the town was unable 

to take steps necessary to bring its utilities into compliance. The condition of Timmonsville’s 

utilities posed a significant risk to public health. As part of the settlement, the nearby City of 

Florence agreed to assume control of Timmonsville’s sewer and drinking water utilities and to 

perform work necessary to bring the utilities into compliance with the Safe Drinking Water Act 

and CWA. Due to Timmonsville’s poor financial condition, a civil penalty was not imposed. 

—The Fort Belknap Indian Community (FBIC) and the Prairie Mountains Utility (utility) 

own and operate six public water systems within the boundaries of the Fort Belknap Indian 

Reservation. The utility, a tribally owned entity, is responsible for providing solid waste 

disposal, drinking water, and wastewater treatment services to communities located within 

the reservation boundaries. The 

reservation, which is located 

40 miles south of the Canadian 

border in eastern Montana, has 

high unemployment rates and 

is a low-income community. 

The settlement approved by the 

court in United States v. Fort 

Belknap Indian Cmty. resolves 

numerous Safe Drinking Water 

Act violations by the FBIC and the 

utility that posed serious risks to 

human health. The settlement 

requires FBIC and the utility 

to make structural changes to 

their respective organizations to 

minimize systemic management 

failures that were the root cause of 

many of the Safe Drinking Water 

Act violations. In addition, there 

are system-specific requirements 

in the settlement for repair and 

optimization of the various drinking 

water systems. 

—The settlement in United States 

v. Northern States Power Co. will 

result in a partial cleanup and a Area Around the Ashland/Northern States Power Lakefront Superfund Site, 

Wisconsin EPA Map
environmental justice | 33

natural resource damages (NRD) recovery at the Ashland/Northern States Power Lakefront 

Superfund Site in northwestern Wisconsin. The site sits on the shores of Chequamegon Bay 

in Lake Superior and was home to a number of manufacturing businesses during the 20th 

century, including a manufactured gas plant. Contaminants from the on-land portion of the site 

migrated into the bay and damaged high-quality feeding, spawning, and nursery habitat for fish, 

including walleye, smelt, sturgeon, and multiple species of trout and salmon. The Bad River 

and Red Cliff Indian Reservations are located on either side of the City of Ashland and abut 

Chequamegon Bay or other portions of Lake Superior. Both tribes have traditionally fished in 

Lake Superior and inland streams and rivers.

Under the settlement, Northern States Power, a successor to the owner of the manufactured gas 

plant, agreed to perform the on-land portion of the site cleanup and transfer land to the Natural 

Resource Trustees to redress natural resource injuries at the site. In reaching the settlement, 

the Department led negotiations for the trustees, who included the State of Wisconsin and the 

Bad River and Red Cliff Indian Tribes. The Department worked with the tribes to determine 

what elements of an NRD recovery would be most beneficial to them. The tribes identified 

lands within reservation boundaries along water bodies feeding the bay that were owned by 

outside entities. Transferring those lands to the tribes is expected to improve management of 

the rivers and improve habitat for the trust resources, while also fulfilling the independent tribal 

goal of gaining ownership of land within reservation boundaries. Once the preferred relief was 

identified by the tribes, the Department negotiated a final settlement that requires Northern 

States Power to transfer 400 acres within the Bad River Reservation to the Bad River Tribe. 

This includes an area known as the “Falls,” a series of ledges in the Bad River that provide 

important spawning areas. The settlement also calls for the Wisconsin Department of Natural 

Resources to transfer 114 acres within the Red Cliff Reservation to the Red Cliff Tribe. 

—In United States v. Geneva Energy, L.L.C., the district court in Illinois approved a consent 

decree in April 2013 resolving, on an ability-to-pay basis, claims against Geneva Energy for 

numerous CAA violations resulting from its ownership and operation of a tire-burning electric 

generating facility near Chicago, Illinois. Geneva Energy will pay no civil penalty but, among 

other things, was required to permanently shut down the facility, which has been largely idle 

since August 2011. The settlement also resolved allegations of CAA violations described in a 

notice of violation/finding of violation issued by EPA to NAES, Inc., which operated the facility 

for a limited time. Under the settlement, NAES will pay $185,000 to resolve its alleged liability.

The City of Ford Heights, where the facility was located, has one of the lowest per capita 

incomes in the United States, an over 95% minority population, extensive urban blight, and 

several industries which employ few local residents. As revealed at the environmental justice 

community outreach session that the Division and EPA held for this matter in 2010, the facility 

was well known for its CAA violations. In 2006 and 2010, citizen groups filed with EPA two 

separate complaints under Title VI of the Civil Rights Act of 1964 against Illinois EPA related 

to that agency’s issuance of the facility’s air permits. Complainants argued that the facility’s 

operations had a disproportionately adverse effect on the Ford Heights community and the 

permit terms were too lenient. The terms of the settlement (particularly requiring the facility’s 

permanent shut down) will assist in addressing those Title VI complaints. Prior to the court’s 

approval of the settlement, ENRD sent letters to all the participants in the 2010 community 

outreach session.
“This settlement is good news for 

communities in Illinois and Ohio, who will 

benefit from these substantial reductions 

in harmful air pollution and enjoy cleaner, healthier 

air to breathe for many years to come. It also 

reflects our continuing commitment to protecting 

the people and environment of the United States 

through the vigorous enforcement of the Clean Air 

Act.”

—Acting Assistant Attorney General Robert G. 

Dreher, United States v. Gateway Energy & Coke Co. 

Press Release

34 | environmental justice

—ENRD reached a settlement in United States 

v. Gateway Energy & Coke Co. that resolves 

claims relating to two Midwestern coking 

facilities, one of which (the Gateway Facility) 

is located in Granite City, Illinois, close to 

St. Louis. According to an analysis of census 

data performed by EPA, Granite City is an 

environmental justice area of concern. The 

consent decree requires defendants, among 

other things, to perform a lead abatement 

hazard reduction SEP in residences in the area 

surrounding the Gateway Facility. The SEP 

will entail abating lead hazards in owner-occupied residences whose occupants are unable to 

afford such lead abatement work, with priority given to families with young children or pregnant 

women. The SEP must be completed within two years of entry of the settlement. The settlement 

also requires Gateway Energy to install $100 million in equipment that will route hot coking 

gases to a pollution control device, install a continuous emissions monitor for sulfur dioxide and 

bypass vents, and pay a $1.995 million civil penalty. 

—In In re the Matter of Carter Carburetor Site, St. Louis, Missouri, ENRD approved an EPA 

administrative settlement agreement under CERCLA requiring ACF Industries, L.L.C., to 

perform the majority of a $26.5 million removal action for the Carter Carburetor Site in North 

St. Louis, Missouri. The site is a former gasoline and diesel carburetor manufacturing plant 

that operated from 1915 to 1984. The 10-acre complex of buildings and structures is located 

within a predominately minority and low-income 

community where investigators have found 

unacceptable levels of polychlorinated biphenyls 

(PCBs), trichloroethylene, and asbestos. The 

contaminated site, which also is within close 

proximity to several schools and a ball park, and 

directly across the street from a Boys and Girls 

Club, has increased the risk of human exposure 

to the toxins. Due to the site’s proximity to these 

facilities and its location in a predominately 

lower-income and minority community, environmental justice concerns were identified and EPA 

conducted community outreach. The Division 

worked quickly to approve the settlement so that 

this important cleanup work could proceed. 

—The court approved a CWA settlement in United 

States v. King County, Washington, requiring 

King County to: (1) construct and implement a 

series of storage tanks or pipes and treatment 

facilities, as set forth in its approved Long Term 

Control Plan (LTCP); (2) develop and implement 

a system-wide operation program to maximize the 

Map of Seattle Waterways treatment and storage of wet weather flow; and (3) 
environmental justice | 35

develop and implement a joint plan with the City of Seattle that optimizes the capacity of both 

entities’ sewer systems and coordinates the operations of future combined sewer overflow (CSO) 

projects. This injunctive relief is aimed at controlling the county’s ongoing sewer overflows from 

its wastewater treatment and collection system and improving water quality in Puget Sound, 

Elliott Bay, Lake Washington, the Duwamish River, and other waterbodies in the Seattle area 

used by local communities with environmental justice concerns. Specifically, the Puyallup, 

Tulalip, Suquamish, Muckleshoot, and Duwamish Tribes have fishing rights and interests in 

Puget Sound, Lake Washington, the Duwamish River, and local waterbodies that are impacted 

by the county’s discharges of raw sewage. The Duwamish River, an impaired waterbody that 

receives large volumes of raw sewage from the county’s CSOs, is a source of subsistence fishing 

for low-income residents of the area, as well as recent immigrant populations. The county has 

been coordinating and will continue to coordinate with and seek feedback from these entities 

as it implements its LTCP pursuant to its Public Participation Plan. In addition, the county has 

agreed to arrange its construction schedule so that the CSO control projects along the Duwamish 

River will be prioritized for completion so as to benefit the tribes and communities with environmental justice concerns by reducing the CSO discharges into the river where they fish and live. 

Following implementation of its LTCP, the county will have captured 94% of its CSO discharges 

during storm events and reduced overflows from each of the county’s permitted CSO outfalls to 

no more than one overflow per year. The estimated cost of the injunctive relief is $860 million 

(in 2010 dollars). 

—The United States alleged in United States v. Knight that, in the wake of the 2010 Deepwater 

Horizon oil spill in the Gulf of Mexico, Connie Knight victimized vulnerable communities 

by impersonating a high-ranking Occupational Safety and Health Administration (OSHA) 

instructor and inspector to defraud unsuspecting victims. Using false federal credentials, 

she persuaded community members, most of whom were from the Southeast Asian fishing 

community, that she could provide them training to handle hazardous materials. Instead, 

Knight produced false training certificates and phony cardiopulmonary resuscitation/first 

aid certification cards. During the late summer of 2010, most of the shrimp fishing along the 

Louisiana coast was closed due to the oil spill. Members of the Southeast Asian community who 

were dependent on shrimping for their income were desperate for alternate sources of income. 

Many were not fluent in written or spoken English. Knight saw this opportunity and came up 

with her scheme. She charged each of her victims, but failed to provide them the training they 

would need to obtain employment. The false certifications also potentially put her victims and 

the public at risk. After being indicted, Knight pleaded guilty to three felony counts and one 

misdemeanor count of creating false identification documents and impersonating a federal 

official. She was sentenced on May 16, 2013, to 57 months of incarceration and to pay her 

victims restitution in the amount of $25,300. The case was jointly prosecuted by the Division 

and the U.S. Attorney’s Office for the Eastern District of Louisiana. 

—In United States v. Citgo Petroleum Corp., CITGO Petroleum Corporation (CITGO Petroleum) 

and CITGO Refining and Chemicals Company (CITGO Refining) operated two open top tanks 

at the company’s refinery in Corpus Christi, Texas, each the size of a football field and filled 

with oily wastewater, without installing the proper emission controls. The tanks were used 

as oil-water separators, but were not equipped to prevent the emissions of chemicals into 

the air. The companies knew years before the two tanks went into operation that the tanks 

were required to have emission control equipment. During an unannounced inspection in 

March 2002, environmental inspectors found approximately 4.5 million gallons of oil in the 

two open top tanks exposed to the atmosphere. The refinery is surrounded by two residential 
36 | environmental justice

communities with significant minority populations. These communities were exposed to 

benzene and other emissions from the plant over a number of years. Adult and child residents 

complained about odor and acute adverse health effects such as difficulty breathing, coughing, 

sore throats, and eye irritation. 

On June 27, 2007, a jury convicted CITGO Petroleum and CITGO Refining of two CAA 

violations. CITGO Refining also was convicted of violating the Migratory Bird Treaty 

Act (MBTA). Since that time, ENRD has engaged in outreach to members of the affected 

community, which included three community meetings/listening sessions to learn about 

how members of the community had been affected by CITGO’s illegal benzene emissions and 

prepare to address the court at sentencing. After the district court refused to recognize any of 

the members of the community as victims of CITGO’s conduct, the victims through pro bono 

counsel petitioned for and obtained a writ of mandamus from the Fifth Circuit. Since then, 

ENRD has presented 90 victims to testify to the district court about the acute health effects, 

injuries, and financial impacts they suffered as a consequence of CITGO’s criminal conduct. On 

February 5, 2014, CITGO Petroleum and CITGO Refining were each sentenced to pay $1 million 

for their violations of the CAA. CITGO Refining was ordered to pay an additional $45,000 for 

the MBTA conviction. The court has not yet ruled on victim restitution. 

In fiscal year 2013, ENRD’s Indian Resources Section also handled other environmental matters 

that benefited Indian tribes. For example: 

—ENRD intervened in litigation brought by the Penobscot Nation (the Nation) in Maine, 

Penobscot Nation v. Mills. The controversy concerns whether the Nation’s reservation includes 

the Main Stem of the Penobscot River. The reservation consists in large part of a number of 

islands located in the Main Stem, a portion of the Penobscot River beginning north of Bangor 

at Indian Island. The State of Maine indicated in 2012 that it believed the Nation has no jurisdictional authority over the waters of the Penobscot River and suggested that if the Nation 

disagreed, the matter be resolved in the appropriate forum. The Nation filed a lawsuit to protect 

the right of tribal members to exercise sustenance fishing rights in the river and to protect its 

authority to regulate the taking of wildlife and game on those portions of the river falling within 

its reservation. A holding that the Main Stem falls within the reservation means that Penobscot 

Nation members may engage in sustenance fishing in the Main Stem free of state regulation and 

that the Nation may regulate hunting, trapping, and the taking of wildlife (water fowl) in the 

Main Stem. 

—ENRD filed a motion for summary judgment in Smith v. Parker, a case that concerns the 

reservation boundaries of the Omaha Tribe of Nebraska. The issue in the litigation is whether 

Citgo Tank in Corpus Christi, Texas
environmental justice | 37

an 1882 Act of Congress diminished the tribe’s reservation boundaries, or simply offered 

non-Indians the opportunity to purchase land within the reservation. ENRD filed an amicus

brief when the case was pending in tribal court, and in its summary judgment motion in federal 

district court again took the position that the act did not result in diminishment. EPA has 

long taken the position that the area in dispute remains within the reservation boundaries, 

but permits it has issued have been challenged. EPA has indicated its intention to issue other 

permits, but those permits can be issued only if the facility is determined to be located within a 

reservation or otherwise within Indian country. A favorable determination will affirm the ability 

of EPA to issue needed permits and ensure protection of the environment on reservation lands. 

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

actions of federal agencies. The Division has worked to incorporate EJ principles into the 

handling of these cases as well. ENRD works closely with agencies to identify defensive cases 

that present environmental justice concerns, even where the complaint may not clearly assert 

a specific claim that the agency failed to address environmental justice issues adequately. 

More broadly, in the context of litigation, the Division actively evaluates the depth of the 

agency’s analysis and handling of environmental justice issues as well as the completeness of 

the decision-making effort in addressing environmental justice concerns. Indeed, rather than 

merely defending agency analysis of environmental justice issues and decisionmaking, ENRD 

implements Executive Order 12898 proactively by looking for ways to address concerns of 

environmental justice communities outside of the traditional litigation context. Two recent 

examples of this aspect of ENRD’s environmental justice efforts are described below:

—As we reported last year, in Honolulu Traffic.com v. Federal Transit Admin., ENRD worked 

successfully with City and County of Honolulu transportation agencies to defend a major rail 

transit project linking western O`ahu with downtown Honolulu. In addition to easing severe 

traffic congestion and alleviating air pollution, the project will provide significant transit benefits 

to minority and disadvantaged communities in western O`ahu. The Division is currently 

defending the agencies’ compliance with the district court’s limited remand order. 

—In the cases of Crenshaw Subway Coal. v. Los Angeles County Metro. Transp. Auth.; 515/555 

Flower Assoc., L.L.C. v. Federal Transit Admin.; Today’s IV, Inc. v. FTA; Japanese Village 

L.L.C. v. FTA; Beverly Hills Unified School Dist. v. FTA; and The City of Beverly Hills v. FTA, 

ENRD is collaborating closely with the Los Angeles County Metropolitan Transportation 

Authority to defend challenges to three public rail transit projects to expand the public transit 

rail network in Los Angeles County. The projects will greatly expand light rail transit into the 

minority and low-income Crenshaw community in south Los Angeles, while providing easier 

access to Los Angeles International Airport and decreasing traffic congestion in and around 

communities throughout the Los Angeles basin.
Oregon Coastline Photo by Jeff Bank

Near Mount Tamalpais, California Photo by Jeff Bank

38 | air, land, and water
PROTECTING 

OUR NATION’S

AIR, LAND, AND WATER

Obtaining Company-Wide Relief for Environmental Violations

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

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

gains the certainty of knowing that it is bringing its operations into compliance with the nation’s 

laws, 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 the facilities 

covered by these settlements benefit from pollutant reduction and, where appropriate, environmentally beneficial projects.

In fiscal year 2013, the Division reached an important company-wide settlement with Safeway, 

the nation’s second-largest grocery store chain. (The district court approved the settlement 

in November 2013.) In United States v. Safeway, Inc., the company agreed to significantly 

reduce emissions of ozone-depleting substances from refrigeration equipment at its 659 stores 

nationwide, at an estimated cost of approximately $4.1 million. Safeway also agreed to pay a 

$600,000 civil penalty. The measures to which Safeway has committed are expected to prevent 

the release of over 100,000 pounds of refrigerants that destroy the ozone layer. 

The settlement resolved allegations that Safeway violated the CAA by failing to promptly repair 

leaks of HCFC-22, a hydrochlorofluorocarbon used as a coolant in refrigerators. HCFC-22 

is both a greenhouse gas and an 

ozone-depleting substance. (As a 

greenhouse gas, HCFC-22 is up to 

1,800 times more potent than carbon 

dioxide.) The settlement also resolves 

allegations that Safeway failed to keep 

adequate records of the servicing of 

its refrigeration equipment. Safeway 

will implement a corporate-wide 

refrigerant compliance management 

system to comply with stratospheric 

ozone regulations. The company will 

“This first-of-its-kind settlement will benefit all 

Americans by cutting emissions of ozonedepleting substances across Safeway’s 

national supermarket chain. It can serve as a model for 

comprehensive solutions that improve industry compliance 

with the nation’s Clean Air Act.”

—Acting Assistant Attorney General Robert G. Dreher, 

United States v. Safeway, Inc., Press Release

air, land, and water | 39 
reduce its corporate-wide average leak rate from 25% in 2012 to 18% or below in 2015. It also 

will reduce the aggregate refrigerant emissions at its highest-emission stores by 10% each year 

for three years. 

Reducing Air Pollution from Power Plants

The 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 

our citizens, especially the elderly, 

the young, and asthma sufferers. 

These plants emit sulfur dioxide 

(SO2), nitrogen oxide (NOx), and 

particulate matter (PM). Sulfur 

dioxide and NOx contribute to 

ground-level ozone, or smog, and 

acid rain. Both also can irritate 

the lungs and aggravate pre-existing heart or lung conditions. 

Nitrogen oxides and PM can cause 

serious respiratory illnesses and 

aggravate asthma. Particulate 

matter contains microscopic particles that can travel deep into the lungs and cause difficulty 

breathing and decreased lung function. Through fiscal year 2013, 26 of these matters have 

settled on terms that will result in reductions of over 2.3 million tons of SO2 and NOx each year, 

once the more than $15 billion in required pollution controls are fully functioning. 

In fiscal year 2013, the Division obtained four settlements under this initiative. 

—In United States v. Wisconsin Power & Light Co., the operator company and its co-defendant 

current and former owners must invest more than $1 billion in pollution control technology, pay 

a civil penalty of $2.45 million, and spend a total of $8.5 million on environmental mitigation 

projects to resolve alleged violations of the CAA. This settlement, approved by the district court 

in Wisconsin in June 2013, covers all seven coal-fired boilers at the Columbia, Edgewater, and 

Nelson Dewey Power Plants. Under the settlement, defendants must install new pollution 

control technology on the three largest units, continuously operate the new and existing 

pollution controls, and comply with stringent pollutant emission rates and annual tonnage 

limitations. The settlement also requires Wisconsin Power & Light and co-defendant Wisconsin 

Nelson Dewey Power Plant, Wisconsin USGS Photo

Twenty-six settlements with operators of coal-fired electric 

power generating plants as of September 30, 2013, will 

result in reductions of over 2.3 million tons of sulfur dioxide 

and nitrogen oxide, once the more than $15 billion in 

required pollution controls are fully functioning.

40 | air, land, and water
Public Service Corporation to permanently 

retire, refuel, or repower four additional 

coal-fired units at the Edgewater and Nelson 

Dewey Plants. The actions taken to comply with 

this settlement will result in annual reductions 

of SO2, NOx, and PM of approximately 54,000 

tons from 2011 emission levels. 

The settlement also requires defendants 

to spend $8.5 million on projects that will 

benefit the environment and human health 

in communities located near the facilities, 

including $260,500 to the U.S. Forest Service 

and $260,500 to the National Park Service, for 

projects to address damage resulting from the 

company’s excess emissions. The remaining $7.479 million will be spent on a combination of 

projects, including up to $2.1 million on land acquisition and restoration; up to $5 million on 

a long-term major solar photovoltaic power purchase agreement or a solar panel installation 

project; and up to $2 million on renewable energy resource enhancements for existing wind 

farms and hydroelectric facilities.

—In United States v. Dominion Energy, Inc., Dominion Energy agreed to invest $325 million 

in pollution control equipment, pay a $3.4 million civil penalty, and spend approximately $9.8 

million on environmental mitigation projects to resolve CAA violations. The settlement, which 

was approved by the district court in Illinois in July 2013, will result in reductions of SO2, NOx, 

and PM by more than 70,000 tons per year, across three of the utility’s coal-fired power plants 

located in Kincaid, Illinois; State Line, Indiana; and Somerset, Massachusetts. Under the 

settlement, the company must install or upgrade pollution control technology on two plants, and 

permanently retire a third; operate the new and existing pollution controls continuously; and 

comply with stringent emission rates and annual tonnage limitations. 

The settlement also requires Dominion to spend $9.75 million on projects that will benefit the 

environment and human health in communities located near the Dominion facilities. A total of 

$9 million will be spent on such projects as: 1) wood-stove changeouts, including $2 million for 

changeouts in southeastern Massachusetts, Rhode Island, and eastern Connecticut; 2) switcher 

locomotive idle reduction for Chicago rail yards; 3) land acquisition and restoration near the 

Indiana Dunes National Lakeshore; 4) energy-efficiency and geothermal or solar projects for 

local schools and food banks; and 5) clean-diesel engine retrofits for municipalities and school 

districts. (During a wood-stove changeout campaign, consumers typically receive financial 

incentives (rebates) to replace older appliances with non wood-burning equipment, pellet 

stoves, or EPA-certified wood stoves.) The company also must pay a total of $750,000 to the 

U.S. Forest Service and the National Park Service, for projects to address the damage resulting 

from Dominion’s excess emissions. 

—Under the settlement in United States v. Wisconsin Pub. Serv. Corp., the utility will invest 

approximately $300 million in pollution control technology, pay a civil penalty of $1.2 million, 

and spend $6 million on environmental mitigation projects to resolve violations of the CAA. The 

settlement, which covers all eight coal-fired boilers at the utility’s two power plants—the Pulliam 

Plant in Green Bay, Wisconsin, and the Weston Plant in Rothschild, Wisconsin—requires 

Weston Generating Station, Wisconsin Photo Courtesy of Royalbroil

air, land, and water | 41 
Wisconsin Public Service to install new pollution control technology on one of its largest 

units, continuously operate the new and existing pollution controls, and comply with stringent 

emission rates and annual tonnage limitations. The settlement also requires Wisconsin 

Public Service to permanently retire, refuel, or repower four additional coal-fired units at the 

Pulliam and Weston Plants. The actions taken by Wisconsin Public Service to comply with this 

settlement will result in annual reductions of SO2, NOx, and PM by approximately 15,000 tons 

from 2010 emission levels. 

Wisconsin Public Service also will spend $6 million on projects that will benefit the environment 

and human health in 

communities located near 

the utility’s facilities. The 

utility must pay $250,000 

to both the U.S. Forest 

Service and the National 

Park Service, for projects to 

address damage resulting 

from its excess emissions. 

Up to $4 million will be 

spent on a renewable energy 

resource enhancement 

project, up to $1.2 million 

on a wood-stove changeout 

project, and up to $300,000 

on a community digester 

project to convert food and/

or animal waste to biogas 

or electricity. Wisconsin Public Service also may fund a compressed natural gas or hybrid fleet 

conversion project, or a solar panel installation project. The settlement was approved on March 

7, 2013, by the district court in Wisconsin.

—In United States v. Louisiana Generating, Louisiana Generating, a company owned by NRG 

Energy, Inc., agreed to a settlement regarding its Big Cajun II coal-fired power plant in New 

Roads, Louisiana, that will eliminate over 27,300 tons of harmful emissions of SO2 and NOx per 

year by 2025. The settlement, which was approved by the district court in Louisiana in March 

2013, requires the company to spend approximately $250 million to reduce air pollution and to 

pay a civil fine of $3.5 million and spend $10.5 million on environmental mitigation projects. 

Louisiana Generating will achieve the emission reductions through a combination of new 

pollution controls, natural gas conversion, and annual emission caps at all three units at the Big 

Cajun II Plant. The State of Louisiana joined in the settlement and will receive one-half of the 

$3.5 million civil penalty. 

Addressing Air Pollution from Oil Refineries and Chemical Plants

Reduction in Pollution from Flares

Improperly operated industrial flares, which are used to burn off waste gases, can send 

hundreds of tons of hazardous air pollutants into the air. As a result, the Division is making a 

Green Bay, Wisconsin Photo Courtesy of Chris Rand

42 | air, land, and water
national effort to reduce air pollution from refinery, petrochemical, and chemical flares. The 

goals are to have companies send less waste gas to flares, and, when gas must be sent, to have 

companies burn completely the harmful chemicals in the gas. As part of this effort, the Division 

negotiated two innovative consent decrees in fiscal year 2013. 

—The settlement in United States v. Shell Oil Co. resolved alleged violations of the CAA at a 

large refinery and chemical plant in Deer Park, Texas. The complaint alleged that the company 

improperly operated its 12 steam-assisted flaring devices in such a way that excess volatile 

organic compounds (VOCs), including benzene, and other hazardous air pollutants were 

emitted. Shell Oil agreed to spend at least $115 million to control harmful air pollution from 

industrial flares and other processes, and pay a $2.6 million civil penalty. Of this, Shell agreed 

to spend $1 million on a state-of-the-art system to monitor benzene levels at the facility fence 

line near a residential neighborhood and school and to make the data available to the public 

through a website. The company also will spend $100 million on innovative technology to 

reduce harmful air pollution from industrial flares. Shell is required to take various actions to 

improve flaring operations—minimize flaring by recovering and recycling waste gases (flare 

gas recovery, in which the gas may then be reused by Shell as a fuel or product), comply with 

limitations on how much waste gas can be burned in a flare (flare caps), and install and operate 

instruments and monitoring systems to ensure that gases that are sent to flares are burned with 

98% efficiency. Shell’s agreement to recover and recycle waste gases at its chemical plant is the 

first of its kind. Once fully implemented, the pollution controls required by the settlement will 

reduce emissions of SO2, VOCs, including benzene, and other hazardous air pollutants by an 

estimated 4,550 tons or more per year. These controls also will reduce emission of greenhouse 

gases by approximately 260,000 tons per year. 

In addition to reducing pollution from flares, Shell will significantly modify its wastewater 

treatment plant, replace and repair tanks as necessary, inspect tanks biweekly with an infrared 

camera to better identify potential integrity problems that may lead to leaks, and implement 

enhanced monitoring and repair practices at the benzene production unit. When fully 

implemented, these specific projects are estimated to cost between $15 and $60 million. 

—The second settlement was United States v. CountryMark Refining and Logistics, L.L.C. 

CountryMark agreed to spend $18 million on new pollution controls, perform environmental 

projects totaling more than $180,000, and pay 

a $167,000 civil penalty to resolve alleged CAA 

violations at its refinery in Mount Vernon, Indiana. 

The settlement requires new and upgraded 

pollution controls, more stringent emission limits, 

and aggressive leak-detection-and-repair practices 

to reduce emissions from refinery equipment and 

processing units. It also requires new controls 

on the refinery’s flaring devices. The settlement 

will ensure proper combustion efficiency for any 

gases that are sent to a flare and also will cap the 

total amount of waste gases that can be sent to a 

flare at the refinery. Once fully implemented, the 

pollution controls required by the settlement will 

reduce emission of air pollution by an estimated 

1,000 tons or more per year.

Mount Vernon, Indiana

air, land, and water | 43 
44 | air, land, and water

The State of Indiana actively participated in the settlement with CountryMark and has received 

over $110,000 to fund a SEP to remove asbestos-containing material from an old grain elevator 

in downtown Mount Vernon. The settlement also requires CountryMark to provide at least 

$70,000 in funding for a SEP that will install diesel-retrofit and/or idle-reduction technologies 

on school buses and/or other publicly owned vehicles located within 50 miles of the refinery.

Refinery Initiative

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

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

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

SO2, NOx, and VOCs. The settling refiners have invested or will invest more than $6.5 billion 

in new pollution control technologies and have paid more than $93 million in penalties. In 

addition, the settlements reached to date account for more than $80 million in SEPs.

Two additional settlements were obtained under this initiative during fiscal year 2013. One was 

the settlement with CountryMark, discussed above. In additional to requiring flare controls, 

that settlement also covered the kinds of issues addressed in the refinery initiative: emissions 

from FCCUs (fluidized catalytic cracking units), heaters and boilers, sulfur recover units, 

benzene-containing equipment, poor leak-control procedures, etc. 

The other refinery initiative settlement was United States v. Big West Oil, L.L.C. Big West Oil 

agreed to pay a $175,000 penalty and to spend approximately $18 million to install emission 

controls at its refinery in North Salt Lake, Utah. The company also will invest $253,000 to 

improve the monitoring and management of potential releases of hydrofluoric acid at the 

facility. When fully implemented, the controls and requirements under the agreement will 

reduce emissions of SO2 by approximately 158 tons per year, NOx by approximately 32 tons 

per year, and PM by approximately 36 tons per year. Additional reductions of volatile and 

hazardous pollutants also are expected as a result of compliance with leak-detection-and-repair 

requirements.

The settlement requires Big West Oil to install a state-of-the-art flue-gas filter system to control 

emissions of PM and to place ultra-low NOx burners on four heaters and boilers. The company 

also will undertake measures to reduce SO2 emissions from the refinery by, among other things, 

restricting hydrogen sulfide (H2S) in fuel gas and installing and operating a caustic scrubber 

system at the sulfur recovery plant. Additionally, Big West Oil has agreed to make numerous 

upgrades to its leak-detection-and-repair program, including the installation of low-leak valves, 

and to enhance its waste operations to minimize or eliminate fugitive benzene emissions. 

Reducing Air Pollution at Other Facilities 

As part of its national initiative to reduce air pollution from major industries, the Division 

concluded three settlements with cement manufacturing companies and two settlements with 

glass manufacturers. 
Cement Initiative

These cases typically involve allegations that a company unlawfully made modifications at a 

plant that resulted in significant net increases in emissions of SO2, NOx, or PM. 

—In United States v. Ash Grove Cement Co., Ash 

Grove agreed to pay a $2.5 million penalty and invest 

approximately $30 million in pollution control 

technology at its nine Portland cement manufacturing 

plants to resolve alleged violations of the CAA. The 

agreement, which was approved by the district court 

in Kansas, will reduce annual emissions of SO2 and 

NOx by more than 17,000 tons each year. The plants 

covered by the agreement are in Foreman, Arkansas; 

Inkom, Idaho; Chanute, Kansas; Clancy, Montana; 

Louisville, Nebraska; Durkee, Oregon; Leamington, 

Utah; Seattle, Washington; and Midlothian, Texas. 

The Puget Sound Clean Air Agency and all of the states 

with Ash Grove plants, with the exception of Texas, 

joined the United States in the settlement. 

The settlement requires Ash Grove to meet stringent emission limits and install and continuously operate modern technology to reduce SO2, NOx, and PM. Ash Grove will reduce NOx at 

nine kilns, some of which will have the lowest emission limits applicable to a retrofitted control 

system in the country. In addition, modern pollution controls must be installed on every kiln to 

reduce PM emissions, and on several kilns to reduce SO2 emissions. At its Texas facility, Ash 

Grove will shut down two older, inefficient kilns, and replace a third with a cleaner, newly reconstructed kiln. 

To mitigate the effects of past excess emissions, Ash Grove will spend $750,000 on a project to 

replace old diesel truck engines at its facilities in Kansas, Arkansas, and Texas. The project is 

estimated to reduce smog-forming NOx by approximately 27 tons per year. 

—The United States alleged in United States v. Holcim (US), Inc., that Holcim modified a 

cement plant in Hagerstown, Maryland, without obtaining the required permit or installing the 

required pollution control equipment. Under the settlement, the company agreed to meet strict 

emission limits by installing one of two kinds of advanced pollution controls (estimated to cost 

approximately $20 or $85 million, respectively), or retire the kiln. To mitigate past emissions, 

Holcim will spend $150,000 to replace a device powered by an old engine with modern 

equipment. Finally, Holcim paid a $700,000 civil penalty. 

—In United States v. CEMEX, Inc., CEMEX, the owner and operator of a Portland cement 

manufacturing facility in Lyons, Colorado, agreed to operate advanced pollution controls on its 

kiln and pay a $1 million civil penalty to resolve alleged violations of the CAA. The company 

will install “selective non-catalytic reduction” (SNCR) technology, which is expected to reduce 

emissions of NOx by approximately 870 to 1,200 tons per year. The initial capital cost for 

installing SNCR is approximately $600,000 and the cost of injecting ammonia into the stack 

emissions stream, a necessary part of the process, is anticipated to be about $1.5 million per 

year. 

air, land, and water | 45 

Ash Grove Cement Manufacturing Plant in Seattle, WA 

Photo Courtesy of Joe Mabel
Glass Initiative

—In United States v. Owens-Brockway Glass Container, Inc., the nation’s largest glass 

container manufacturer agreed to install pollution control equipment to reduce harmful 

emissions of SO2, NOx, and PM by nearly 2,500 tons per year and to pay a $1.45 million penalty 

to resolve alleged CAA violations at five of the company’s manufacturing plants. The pollution 

control equipment is estimated to cost $37.5 million. Owens-Brockway also will spend an 

additional $200,000 to mitigate excess emissions at its plant in Atlanta; and the company will 

work with the Georgia Retrofit Program to retrofit diesel school buses and other vehicles with 

emission controls or assist with the purchase of new propane, hybrid, or natural gas vehicles. 

The facilities covered by the settlement are located in Atlanta, Georgia; Clarion, Pennsylvania; 

Crenshaw, Pennsylvania; Muskogee, Oklahoma; and Waco, Texas. The Oklahoma Department 

of Environmental Quality also was a signatory to the consent decree. 

—The complaint in United States v. Durand Glass Manufacturing Company, Inc., alleged 

that Durand constructed a new glass melting furnace at its facility in Millville, New Jersey, 

resulting in increased emissions of NOx and PM, without first obtaining pre-construction 

permits or installing the required pollution control equipment. In the settlement resolving the 

legal action, the company agreed to install emission controls on its three glass furnaces that 

will reduce emission of NOx by more than 173 tons per year and emission of PM by 23 tons per 

year. Durand also installed monitoring systems that will allow it to continuously measure its 

NOx emissions. The cost of the pollution control equipment is estimated to be $9.1 million. 

To control NOx, the consent decree requires Durand to operate the first “selective catalytic 

reduction” (SCR) device installed on a tableware glass furnace in the United States. (SCR is a 

highly effective method of pollution control that uses heat and a catalyst to convert oxides of 

nitrogen into nitrogen and water.) Durand also paid a $300,000 civil penalty. The State of New 

Jersey was an active partner in resolving this matter.

“This agreement will significantly reduce the amount of air pollution, 

known to cause a variety of environmental and health problems, from 

the nation’s largest manufacturer of glass containers. The settlement, 

the latest in a series of agreements with the glass manufacturing sector, 

addresses major sources of pollution at facilities located in four states and will 

mean cleaner air for the people living in those communities.”

—Former Assistant Attorney General Ignacia S. Moreno, United States v. OwensBrockway Glass Container, Inc., Press Release

46 | air, land, and water
NONCOMPLIANCE IN UNITED STATES V. 

TYSON FOODS, INC.

—The Clean Air Act’s Risk Management Program (section 112(r)) requires 

owners and operators of facilities that exceed a threshold quantity 

of a regulated substance, such as anhydrous ammonia, to develop 

and implement a risk management plan that must be submitted to 

EPA. The 23 Tyson facilities named in the consent decree are subject 

to the regulations because the refrigeration systems at the facilities 

each contained more than 10,000 pounds of anhydrous ammonia. The 

facilities had a combined inventory of more than 1.7 million pounds of 

anhydrous ammonia.

—The gas was released during incidents at Tyson facilities in Kansas, 

Missouri, Iowa, and Nebraska, and resulted in multiple injuries, property 

damage, and one fatality.

—Anhydrous ammonia is a poisonous gas and considered an extremely 

hazardous substance under the Clean Air Act. Exposure to vapors 

can cause temporary blindness and eye damage, as well as irritation 

of the skin, mouth, throat, respiratory tract, and mucous membranes. 

Prolonged exposure to anhydrous ammonia vapor at high concentrations can lead to serious lung damage and even death.

 

—EPA Website

air, land, and water | 47 

Other Industries

In the settlement in United States v. Honeywell Chemicals & Resins, L.L.C., Honeywell agreed 

to pay a $3 million civil penalty and spend approximately $66 million dollars to improve the air 

pollution control equipment at its plant in Hopewell, Virginia. To reduce emissions, Honeywell 

will install SCR at four production trains at the facility, conduct a third-party audit of benzene 

waste operations, and implement an enhanced leak-detection-and-repair program. Honeywell 

also will perform a mitigation project valued at approximately $1 million at the facility. The 

settlement is expected to reduce annual emissions of NOx by about 6,260 tons and emissions 

of benzene, 

other VOCs, and 

hazardous air 

pollutants by 100 

tons. The State of 

Virginia joined the 

United States in 

bringing the matter. 

The CAA’s “Risk 

Management 

Program” requires 

facilities with 

sufficient quantities 

of regulated 

substances to 

develop and 

implement a risk 

management plan—a 

plan to minimize the 

risk of a chemical 

accident. The 

United States filed 

United States v. 

Tyson Foods, Inc., 

after anhydrous 

ammonia was 

released from Tyson 

facilities in Kansas, 

Missouri, Iowa, 

and Nebraska. The 

settlement requires Tyson to pay a $3.95 million civil penalty, to have outside experts audit 

Tyson’s compliance with the Risk Management Program at all 23 of Tyson’s facilities in the four 

states, and to correct any violations discovered. Tyson also must test certain piping in its refrigeration systems at the 23 facilities to identify any problems that might have led to the releases of 

anhydrous ammonia, and to replace any non-compliant piping. As a SEP, Tyson will purchase 

$300,000 worth of emergency response equipment for first responders in communities in which 

Tyson operates facilities where there are environmental justice concerns. 
48 | air, land, and water

Ensuring the Integrity of Municipal Wastewater Treatment Systems 

These cases involve one of the 

most pressing infrastructure issues 

in the nation’s cities—discharges 

of untreated sewage from aging 

collection systems. Raw sewage 

contains pathogens that threaten 

public health and may cause beach 

closures as well as the issuance 

of public advisories against 

consumption of fish. Low-income 

and minority communities often live in older urban areas. Clean Water Act enforcement also 

protects national treasures like the Chesapeake Bay and the Great Lakes.

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

and stormwater treatment and collection. From January 2009 through September 2013, courts 

entered 49 settlements in these cases, requiring long-term control measures and other relief 

estimated to cost violators more than $22.5 billion. 

Nine consent decrees with municipalities or regional sewer districts were entered in fiscal year 

2013. Collectively, they provide for the expenditure of more than $2.5 billion in improvements, 

the payment of more than $1.1 million in civil penalties, and the performance of SEPs valued at 

approximately $1.8 million. Four examples follow:

—United States v. King County, Washington and United States v. City of Seattle: The State of 

Washington was a co-plaintiff and partner in these settlements, also discussed in the previous 

chapter, in which King County and the City of Seattle agreed to invest in major upgrades to 

sewage and stormwater collection, piping, and treatment. The agreements, which resulted 

from extensive federal and state government cooperation, integrate green infrastructure into 

long-term planning for the management of the area’s stormwater. Both agreements allow the 

city and county to use an integrated planning approach, which encourages communities to 

set their own clean-water-project priorities and invest in fixing the most pressing problems 

first. Seattle conveys its sewage to King County’s system for treatment prior to discharge. As a 

result, the settlements require King County and Seattle to develop and implement a joint plan to 

improve system-wide operations and maintenance. 

Under its settlement, King County will implement a long-term plan for controlling sewer 

overflows, reducing its raw sewage discharges by approximately 95 to 99%. Between 2006 and 

2010, King County discharged approximately 900 million gallons of raw sewage to waters of 

the United States on an annual basis through discharges from its combined sewer system. The 

improvements and upgrades are expected to cost approximately $860 million. In addition, King 

County will pay a civil penalty of $400,000. The agreement allows the county to make use of 

green infrastructure projects, like green roofs, permeable pavements, and urban gardens, which 

help reduce the demands on local sewer and stormwater systems, at four of its sewer overflow 

control projects. 

Between 2007 and 2010, Seattle discharged approximately 200 million gallons of raw sewage 

into area waterways on an annual basis. During this time period, the city also improperly 

From January 2009 through September 2013, courts 

entered 49 settlements of cases nationwide to improve 

municipal wastewater and stormwater treatment and 

collection, requiring long-term control measures and other 

relief estimated to cost violators more than $22.5 billion.
Downtown Chattanooga, Tennessee

air, land, and water | 49 

operated and maintained its sanitary sewer system, resulting in unauthorized discharges of raw 

sewage to public and private properties, including basement backups. Under its settlement, 

Seattle will develop and implement a long-term plan for better controlling sewer overflows 

and improve system-wide operations and maintenance. The city also will implement plans to 

control fats, oils, and greases, and to reduce debris being discharged by the system. In addition, 

the settlement provides Seattle with the opportunity to use an integrated-planning approach 

and to substitute green infrastructure at several of its sewer overflow control projects. By implementing these measures, Seattle will reduce its raw sewage discharges by approximately 99% at 

an estimated cost of $600 million. The city will pay a civil penalty of $350,000.

—United States v. 

City of Chattanooga, 

Tennessee: In this 

comprehensive 

CWA settlement, the 

city agreed to make 

improvements to 

its sewer systems, 

estimated by the city 

to cost $250 million; 

eliminate unauthorized overflows 

of untreated raw 

sewage; implement 

a green infrastructure plan; perform 

an $800,000 stream 

restoration project; 

and pay a $476,400 

civil penalty. The 

consent decree represented the combined efforts of the United States, the State of Tennessee, 

and the Tennessee Clean Water Network, a citizens’ plaintiff in this action. The settlement 

also is noteworthy for its environmental justice elements, which are discussed in the previous 

chapter.

The decree will require Chattanooga to comprehensively assess and rehabilitate its entire sewer 

collection system to eliminate overflows of untreated raw sewage. The city must implement 

programs to ensure proper management, operation, and maintenance of its sewer systems; 

and install additional controls on the Chattanooga Creek combined sewer outfalls to ensure 

compliance with water quality standards. 

—United States v. City of Jackson, Mississippi: The City of Jackson has agreed to make 

improvements to its sewer systems, at an estimated cost of $400 million, to eliminate unauthorized overflows of untreated raw sewage and unauthorized bypasses of its largest wastewater 

treatment facility, the Savanna Street Wastewater Treatment Plant. The United States worked 

closely with the Mississippi Department of Environmental Quality in crafting the settlement, 

which also contains environmental justice-related provisions as noted in the previous chapter.
Port of Tacoma, Washington Photo Courtesy of Scott Hingst

50 | air, land, and water

The decree requires Jackson to implement specific programs designed to ensure proper 

management, operation, and maintenance of its sewer systems. In order to address the 

problem of wet weather overflows of raw sewage from the sewer lines, Jackson will develop 

and implement a comprehensive sewer system assessment and rehabilitation program. The 

city also will develop and implement a comprehensive performance evaluation and a correction 

program to reduce the bypasses of the Savanna Street Wastewater Treatment Plant. The 

consent decree also requires Jackson to develop and implement management, operations, 

and maintenance programs, including a pump station operation and preventive maintenance 

program, a wastewater treatment plant operation and maintenance program, and a water 

quality monitoring program. Finally, Jackson must pay a civil penalty of $437,916. 

Consent decrees also were entered in five other matters: United States v. City of Fitchburg, 

Massachusetts ($51 million in capital investments); United States v. Sewer Auth. of the City 

of Scranton ($169 million); United States v. Hampton Roads Sanitation Dist. ($60 million); 

United States v. The Unified Government of Wyandotte County and the City of Kansas City, 

Kansas ($65 million); and United States v. City of Gloucester, Massachusetts ($19.5 million). 

Protecting the Nation’s Waters and Wetlands 

This year, the Division also obtained several favorable settlements under its program to protect 

wetlands and other waters of the United States. 

—In United States v. New River Royalty, L.L.C., a civil enforcement action for timbering 

activities that resulted in unauthorized filling of stream channels connected to Pond Creek and 

the Big Muddy River in Illinois, the district court entered a consent decree in August 2013. 

The consent decree 

provided for a civil 

penalty of $820,000, 

and injunctive relief 

requiring compliance 

with stormwater 

regulations, implementation of a mitigation 

plan requiring 

in-stream stabilization 

and restoration, and 

creation of a riparian 

buffer zone. 

—The Division brought 

a civil enforcement 

action against the 

Port of Tacoma and 

three of its contractors 

for the unpermitted 

discharge of dredge 

and fill material in 

six acres on the BlairHylebos Peninsula in 
air, land, and water | 51 

United States v. Port of Tacoma. In fiscal year 2013, we negotiated and lodged a consent decree under 

which defendants paid a $500,000 civil penalty, and will perform wetlands restoration and provide for 

mitigation that EPA estimates costs $3.05 million. 

—In Smith Farm Enterprises v. EPA, petitioner filed a challenge in the Fourth Circuit to an administrative penalty assessed by EPA. The company had discharged fill material (wood chips) into wetlands in 

Chesapeake and Suffolk, Virginia, as part of its activities to clear and prepare a path for heavy excavation 

equipment used to excavate ditches, in an effort to drain and convert the wetlands into uplands. ENRD 

negotiated a consent decree under which petitioner placed a conservation easement on 331 acres of 

wetlands for their preservation, plugged the excavated ditches to restore the status quo hydrology on the 

site, paid a $10,000 civil penalty, and dismissed their challenge. 

—We also achieved a speedy and favorable resolution of United States v. Dungy. The case involved 

violations of the CWA in connection with farming activities in tributaries and wetlands adjacent to the 

Middle Fork of the Big Muddy River near Benton, Illinois. In April 2013, the court entered a consent 

decree that requires payment of a civil penalty in the amount of $37,500, restoration of most of the 

affected area, and compensatory restoration of nearby wetland areas.

—In United States v. Roquette America, Inc., Roquette settled alleged violations of its CWA discharge 

permit for its grain processing facility in Keokuk, Iowa. The company agreed to pay a $4.1 million civil 

penalty and upgrade its wastewater treatment system at an estimated cost of more than $17 million. The 

Iowa Department of Natural Resources 

issued three administrative orders and 

eight notices of violation to Roquette 

beginning in 2000. Despite these orders 

and notices, Roquette continued to 

overload its wastewater treatment plant 

and failed to address the deficiencies at 

other portions of its facility. The Keokuk 

facility violated its CWA permit at least 

1,174 times. On at least 30 occasions, 

the facility illegally discharged to storm 

drains, resulting in at least 250,000 

gallons of industrial waste being released 

into Soap Creek and the Mississippi 

River. The settlement requires sewer 

improvements, wastewater treatment 

upgrades, and enhanced monitoring. 

Roquette also 

will obtain 

annual 

third-party 

audits of its 

compliance 

with the 

CWA, its 

discharge 

permit, and 

the consent 

decree. 

“Roquette’s actions resulted in over 

a thousand permit violations and 

allowed the discharge of untreated 

industrial waste into the Mississippi River 

and another Iowa waterway even after it was 

informed on numerous occasions it was violating 

its state permit and federal law. This settlement 

holds Roquette accountable for its multiple 

violations of the nation’s Clean Water Act and 

requires sewer improvements, wastewater 

treatment upgrades, enhanced monitoring, and 

independent compliance audits that will benefit 

public health and the environment for the 

people of Iowa for years to come.”

—Former Assistant Attorney General 

Ignacia S. Moreno, United States v. 

Roquette America, Inc., Press Release

Mississippi River at Keokuk, Iowa Corps Photo
52 | oil & superfund waste

Work at the Federal Creosote Superfund Site

Work at the Lower Fox River and Green Bay Superfund Site
Civil Affirmative Litigation Responding to the Deepwater Horizon 

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

Activities

On April 20, 2010, explosion and fire 

destroyed the Deepwater Horizon 

offshore drilling rig in the Gulf of 

Mexico, triggering a massive oil spill 

of millions of barrels. The discharge 

continued for 87 days, at which 

time BP regained control of the 

well. Immediately, ENRD and the 

Department’s Civil Division—along 

with local U.S. Attorneys’ Offices, 

the Gulf States, and client agencies—

launched a civil investigation into 

the matter. In December 2010, as 

part of a multidistrict litigation in 

the Eastern District of Louisiana, the 

United States brought suit against BP, 

Anadarko, MOEX, and Transocean for 

civil penalties under the CWA and a 

declaration of liability under OPA. 

On February 17, 2012, as reported last year, the Department announced an agreement with 

MOEX to settle its liability in the Deepwater Horizon oil spill explosion, fire, and oil spill. 

According to the terms of the settlement, MOEX agreed to pay $70 million in civil penalties to 

resolve alleged violations of the CWA and spend at least $20 million to facilitate land acquisition 

projects in several Gulf States that will preserve and protect in perpetuity habitat and resources 

important to water quality. Of the $70 million in civil penalties, $25 million goes to the States of 

Alabama, Florida, Louisiana, Mississippi, and Texas.

oil & superfund waste | 53 

ENSURING CLEANUP OF 

OIL AND SUPERFUND WASTE

Deepwater Horizon Response USCG Photo
In January 2013, pursuant 

to the terms of a partial civil 

consent decree, the Transocean 

defendants (Transocean Ocean 

Holdings, L.L.C., Transocean 

Offshore Deepwater Drilling, 

Inc., Transocean Deepwater, 

Inc., and Triton Asset Leasing 

G.M.B.H.) agreed to pay $1 

billion to resolve federal CWA 

civil penalty claims, a record 

amount. The unprecedented 

civil penalty is subject to the 

Resources and Ecosystems 

Sustainability, Tourist Opportunities, and Revived Economies 

of the Gulf Coast States Act of 2012 (the RESTORE Act), which is discussed below. This civil 

resolution reserves all other claims, including those for NRD and cleanup costs. Under the 

partial civil settlement, the Transocean defendants also must observe various court-enforceable strictures in drilling operations, aimed at reducing the chances of another blowout and 

discharge of oil and at improving emergency response capabilities. Examples of these requirements include certifications of maintenance and repair of blowout preventers before each new 

drilling job, consideration of process safety risks, and personnel training related to oil spills 

and responses to other emergencies. These measures apply to all rigs operated or owned by the 

Transocean defendants in all U.S. waters and will be in place for at least five years. 

Civil trial preparations continued in fiscal year 2013 against the remaining defendants. The 

district court has divided the case into phases. Phase one addresses the causation of and liability 

for the oil spill. Phase two concerns the quantification of the amount of oil discharged from the 

well to the ocean waters. The United States completed document production for both phases, 

producing some 100 million pages in documents. The trial of phase one took nine weeks from 

the end of February through April 2013 and involved several weeks of live testimony along 

with voluminous 

evidentiary 

submissions. 

Phase two 

was tried over 

three weeks in 

September and 

October 2013. 

Post-trial briefing 

in phase one 

concluded in July 

2013 and in phase 

two in January 

2014. We await 

the court’s rulings 

in both phases.

“The development and exploration of a domestic source of 

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

responsible and sound manner. This unprecedented settlement 

under the Clean Water Act demonstrates that companies will be held fully 

accountable for their conduct and share responsibility for compliance with 

the laws that protect the public and the environment from harm. This 

settlement will provide immediate relief and benefits to the people of the 

five Gulf States, and requires Transocean to implement significant safety 

measures, as well as stringent auditing and monitoring to reduce the risk of 

any future disasters.”

—Former Assistant Attorney General Ignacia S. Moreno, Transocean Plea 

and Agreement Announcement

54 | oil & superfund waste

Deepwater Horizon Response NOAA Photo
THE RESTORE ACT

—The Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of 

the Gulf Coast States Act of 2012, or the RESTORE Act, was passed by Congress on June 29, 2012, and 

signed into law by President Obama on July 6, 2012.

—The RESTORE Act envisions a regional approach to restoring the long-term health of the valuable 

natural ecosystems and economy of the Gulf Coast region. 

—The RESTORE Act dedicates 80% of any civil and administrative penalties paid under the Clean 

Water Act, after the date of enactment, by responsible parties in connection with the Deepwater 

Horizon oil spill to the Trust Fund for ecosystem restoration, economic recovery, and tourism 

promotion in the Gulf Coast region. 

—This effort is in addition to the restoration of natural resources injured by the spill which will be 

accomplished through a separate Natural Resource Damage Assessment and restoration process 

pursuant to the Oil Pollution Act.

—The RESTORE Act defines where and how funds may be spent. The Act defines “Gulf Coast State” 

to mean any of the States of Alabama, Florida, Louisiana, Mississippi, and Texas, and includes 

the following areas within the “Gulf Coast region”: (1) in the Gulf Coast States, the coastal zones 

(including federal lands within the coastal zones) that border the Gulf of Mexico; (2) any adjacent 

land, water, and watersheds within 25 miles of the coastal zones; and (3) all federal waters in the Gulf 

of Mexico.

—In addition to establishing the Trust Fund, the RESTORE Act establishes the Gulf Coast Ecosystem 

Restoration Council as an independent entity in the federal government. The Council is charged 

with helping to restore the ecosystem and economy of the Gulf Coast region by developing and 

overseeing implementation of a Comprehensive Plan and carrying out other responsibilities. 

—The Council is chaired by the Secretary of the U.S. Department of Commerce and includes the 

Governors of the States of Alabama, Florida, Louisiana, Mississippi and Texas and the Secretaries of 

the U.S. Departments of Agriculture, Army, Homeland Security and the Interior, and the Administrator 

of the U.S. Environmental Protection Agency.

—August 2013 Gulf Coast Ecosystem 

Restoration Council’s Initial Comprehensive 

Plan: Restoring the Gulf Coast’s Ecosystem and 

Economy

oil & superfund waste | 55 
The RESTORE Act provides for 80% of any civil or administrative fines awarded in the ongoing 

enforcement action related to the Deepwater Horizon explosion, fire, and oil spill in the Gulf 

of Mexico to be paid into a special Gulf Coast Restoration Trust Fund. The statute authorizes 

the trust fund monies to be expended for Gulf environmental and economic restoration 

purposes, without further appropriation by Congress, and requires the Secretary of the 

Treasury to establish procedures related to the operation of the trust fund. The RESTORE Act 

also establishes the Gulf Coast Ecosystem Restoration Council, a federal entity comprised of 

senior-level representatives of the Department of the Interior, the Department of the Army, 

the Department of Commerce, EPA, the Department of Agriculture, and the U.S. Coast Guard, 

as well as representatives of the Governors of the States of Alabama, Florida, Louisiana, 

Mississippi, and Texas. The council is charged with developing a comprehensive plan “to restore 

and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, 

and coastal wetlands of the Gulf Coast region,” and may expend funds from the trust fund in 

accordance with this comprehensive plan. Although the Department is not an official member of 

the council, ENRD continues to assist other interested agencies in this process, with a particular 

focus on potential legal issues that may arise during implementation.

Recovering Damages and Penalties for Other Oil Spills

The settlement in United States v. Delta Fuels, Inc., resolved the Division’s civil action against 

Delta Fuels, Inc., and its parent company, Knight Enterprises, Inc., for violations of the CWA 

and OPA resulting from an oil spill at defendants’ oil tank farm in Toledo, Ohio. Defendants 

paid EPA a civil penalty of $582,500, primarily for violations of the CWA, and reimbursed 

the Coast Guard for $1,747,500 in response costs. Defendants also agreed to investigate 

and potentially repair or replace the tank farm’s secondary containment system; implement 

procedures regarding spill prevention and countermeasures; implement oil spill cleanup plans; 

establish an environmental management system; undertake response training; and implement 

spill-notification 

procedures. 

In United States v. 

BP Products North 

America, BP Products 

agreed to implement 

an enhanced oil spill 

response program 

and a comprehensive 

compliance audit 

at its oil terminals 

nationwide to settle 

this civil action 

resulting from the 

company’s failure 

to be adequately 

prepared to respond 

to a potential spill. 

The United States 

also collected a 

56 | oil & superfund waste

Delta Fuels Tank Farm, Toledo, Ohio
$210,000 civil 

penalty, the 

largest to date for 

violations of oil-spill 

drill requirements 

not involving a 

discharge of oil. 

Federal regulations require oil storage facilities to conduct drills and exercises in order to be 

prepared to respond to oil spills. EPA and the U.S. Coast Guard twice conducted unannounced 

response exercises at BP’s Curtis Bay Terminal in Maryland. BP was required to demonstrate 

that it was prepared to respond to a discharge of fuel oil by deploying 1,000 feet of oil 

containment boom within one hour. On both occasions, the company did not complete the 

exercise in the allotted time and failed to adequately deploy the boom. BP also will implement 

a first-of-its-kind program of spill prevention measures at its 33 non-refinery petroleum 

products terminals across the country. In addition, BP has agreed as part of the settlement to 

an independent compliance audit of 12 of its marine and high-risk petroleum product terminal 

facilities. 

Conserving the Superfund by Securing Cleanups and Recovering 

Superfund Monies

The Division brings actions under CERCLA to require direct cleanup by responsible parties or 

to recover EPA’s clean-up 

costs. In fiscal year 2013, 

we concluded a number 

of settlements requiring 

responsible parties to 

reimburse the United 

States for clean-up costs, 

to undertake the clean-up 

work themselves, or both. 

Examples include the 

following cases: 

—As a result of the 

production and 

recycling of PCB-containing carbonless copy 

paper made by NCR 

Corporation from 1954 

to 1971, approximately 

seven million cubic 

yards of PCB-contaminated sediment were 

deposited at the bottom of the Fox River and Green Bay. To address this contamination, EPA 

listed the areas as the Lower Fox River and Green Bay Superfund Site and issued an administrative order requiring NCR and several paper recycling mill owners to clean up the PCBs by 

dredging the contaminated sediment or containing it under specially engineered underwater 

In fiscal year 2013, the Division secured the commitment of 

responsible parties to clean up hazardous waste sites at costs 

estimated in excess of $1 billion; and recovered over $633 million

in costs for the Superfund to finance future cleanups and more than 

$31 million in natural resource damages.

oil & superfund waste | 57 

Fox River, Wisconsin
caps. In United States v. NCR Corp., the 

United States and the State of Wisconsin 

sued to require the companies to comply with 

EPA’s clean-up order. The United States 

and the state conducted a three-week trial in 

December 2012. NCR argued that the harm 

at the Superfund site was “divisible” (a term 

of art) and that the company had already 

paid more than the cost of the cleanup of its 

part of the contamination. In May 2013, the 

district court in Wisconsin issued a decision 

rejecting the divisibility arguments and 

holding seven defendants jointly and severally 

liable for complying with EPA’s clean-up order. 

(“Joint and several liability” means that the 

government can require all of the companies 

that received EPA’s order, or any one or group of them, to perform all or part of the remaining 

clean-up work.) Most importantly, the court’s order means that the cleanup will continue. The 

remaining clean-up work at the site is projected to cost at least $360 million. The total cost of 

the clean-up work already done and remaining to be done, plus damages for injuries to natural 

resources, is expected to exceed $1 billion.

—In United States v. AVX Corp., the United States and the Commonwealth of Massachusetts 

reached a $366 million 

settlement with AVX. 

The money, the largest 

settlement at a single 

Superfund site, will be 

used in the cleanup of 

the New Bedford Harbor 

Superfund Site. From the 

1940s to the 1970s, AVX’s 

corporate predecessor, 

Aerovox Corporation, 

owned and operated 

what was known as 

the Aerovox facility, 

an electrical capacitor 

manufacturing facility 

located on the western 

shore of New Bedford 

Harbor. The United 

States and the Commonwealth determined that 

Aerovox discharged 

hazardous substances, 

including PCBs, into the 

harbor, and that Aerovox’s 

facility was the primary source of PCBs released into the harbor. AVX previously paid over 

58 | oil & superfund waste

Dewatered Fox River Sediment Being Loaded into Trucks 

for Transportation to the Landfill at a Specially Constructed 

Processing Facility in Green Bay, Wisconsin

Clean-up Activities at the New Bedford Harbor Superfund Site EPA Photo
$66 million for past and future response costs and NRD at the New Bedford Harbor Site as a 

result of a 1992 settlement with the United States and the Commonwealth. The governments 

reserved certain rights in that settlement through “reopener” provisions, which were exercised 

to bring about the $366 million settlement. Sediments in the harbor are contaminated with 

PCBs, probable carcinogens resistant to biodegradation. Some of the dredged PCB-contaminated sediment will be disposed of at an off-site facility, some in a confined aquatic disposal cell 

in the Lower Harbor, and some in confined disposal facilities to be built along the shoreline. 

The settlement with AVX is expected to allow EPA to complete the cleanup of the New Bedford 

Harbor Superfund Site in approximately five to seven years, instead of the estimated 40 or more 

years it would have taken at pre-settlement funding levels. The Department of Justice, EPA, the 

Massachusetts Attorney General’s Office, and the Massachusetts Department of Environmental 

Protection worked closely together to reach the settlement.

—The settlement in United States v. Honeywell Int’l represented an important step in the 

cleanup of the Quanta Resources Superfund Site, which is located adjacent to the Hudson River 

in Edgewater, New Jersey. The agreement, which was executed with Honeywell International, 

Inc., and 23 other parties, requires 

the design, construction, operation, 

and maintenance of EPA’s clean-up 

plan for contaminated soil and 

groundwater. The work is expected 

to take approximately two to three 

years and to cost approximately 

$78 million. Currently, soil and 

groundwater at the site are contaminated with arsenic, lead, polycyclic 

aromatic hydrocarbons, and VOCs 

resulting from over 100 years of 

industrial activities in the area. EPA 

has divided the site cleanup into at 

least two phases. The 2013 consent 

decree funds the cleanup of contaminated soil and groundwater. Other 

areas—for example contaminated 

river sediments—will be handled 

separately. 

Securing Natural Resource Damages

Even after an oil spill or a release of hazardous substances has been cleaned up, injury to 

natural resources—wildlife, fish, air, land, water, groundwater, drinking water supplies, and 

the like—will often persist for years. As a result, several statues authorize federal, state, and 

tribal trustees of natural resources to sue to collect NRD. Generally speaking, recoveries must 

be used to help restore, replace, or acquire the equivalent of the injured natural resources. In 

the settlement of United States v. Mosaic Fertilizer, L.L.C., Mosaic agreed to enhance wetlands 

by removing invasive plant species, re-establishing historic tidal flows, and creating an oyster 

habitat. In addition, Mosaic agreed to place conservation easements over approximately 103.76 

acres of habitat adjacent to the area affected by Mosaic’s releases. Mosaic’s phosphoric acid and 

fertilizer production facility in Riverview, Florida, had released acidic process water from the 

oil & superfund waste | 59 

Quanta Resources Superfund Site, Edgewater, New Jersey EPA Photo
60 | oil & superfund waste

gypsum stack at the facility during a hurricane. The United States and the Florida Department 

of Environmental Protection alleged that the release entered several swales on Mosaic’s property 

and ultimately flowed into Hillsborough Bay and Tampa Bay. Mosaic estimated that the 

restoration projects could cost as much as $5.1 million. 

Reaching Settlements with Federal Potentially Responsible Parties

In addition to actions against private parties, the Division settles claims for clean-up liability 

under CERCLA against federal agencies. In fiscal year 2013, these included such multimillion-dollar settlements as Colorado v. United States (Colorado School of Mines Research 

Institute in Golden, Colorado); City of Salina v. United States (former Schilling Air Force Base 

in Salina, Kansas); City of Colton v. American Promotional Events and City of Rialto v. U.S. 

Dep’t of Defense (B.F. Goodrich Superfund Site in San Bernardino County, California); In re 

Camp Lonely, Alaska (unfiled) (Camp Lonely, a federal facility located on the Naval Petroleum 

Reserve, near the Beaufort Sea in Alaska). 

Enforcing Clean-up Obligations in 

Bankruptcy Cases

ENRD files claims to protect environmental 

obligations owed to the United States when 

a responsible party goes into bankruptcy. 

In fiscal year 2013, in the context of several 

bankruptcy proceedings, ENRD secured 

significant commitments of responsible 

parties to clean up hazardous waste sites, 

reimburse the Superfund, and pay damages 

for injuries to natural resources. One case, 

Tronox, Inc. v. Anadarko Petroleum Corp., is 

particularly noteworthy.

In Tronox, Inc. v. Anadarko Petroleum Corp., the United States and co-plaintiff Anadarko 

Litigation Trust won an award of between $5.1 billion and $14.1 billion against defendant “New” 

Kerr-McGee Corporation and certain related defendant companies, all of which are subsidiaries 

of the Anadarko Petroleum Corporation. Subsequently, on April 3, 2014, the parties entered 

into a proposed $5.15 billion settlement ($4.4 billion of which is for environmental cleanup and 

claims), which is the largest recovery for the cleanup of environmental contamination in history.

The action was a fraudulent conveyance case in the bankruptcy of Tronox, Inc., and its subsidiaries in the United States Bankruptcy Court for the Southern District of New York. It was 

handled by the U.S. Attorney’s Office for the Southern District of New York, working closely 

with Division attorneys, and assisted by EPA, FWS, BLM, NOAA, the U.S. Nuclear Regulatory 

Commission, the Forest Service, the Department of Defense, numerous state governments, and 

the Navajo Nation.

The court found that in 2005 the historic Kerr-McGee Corporation (Old Kerr-McGee) fraudulently conveyed assets to New Kerr-McGee to evade its debts, including its liability for 

environmental cleanup at toxic sites around the country. Old Kerr-McGee operated numerous 

Federal Creosote Superfund Site, Manville, New Jersey 

EPA Photo
From the beginning of fiscal year 2009 through the end of fiscal year 

2013, ENRD obtained agreements in 35 bankruptcy proceedings, 

under which debtors committed to spend an estimated 

$1.678 billion to clean up hazardous waste sites, reimburse the 

Superfund over $710 million plus $88 million in interest, and 

pay more than $83 million in natural resource damages. Over that 

same time period, the United States also recovered an additional 

$244 million plus $57 million in interest for the Superfund and 

over an additional $101 million in natural resource damages as a 

result of payment of claims settled in earlier years.

oil & superfund waste | 61 

businesses, which included uranium mining, the processing of radioactive thorium, creosote 

wood treating, and manufacture of perchlorate, a component of rocket fuel. These operations 

left contamination across the nation, including radioactive uranium waste across the Navajo 

Nation; radioactive 

thorium in Chicago and 

West Chicago, Illinois; 

creosote waste in the 

Midwest and northeastern and southern 

parts of the United 

States; and perchlorate 

waste in Nevada.

In the years prior to 

2005, Old Kerr-McGee 

concluded that the 

liabilities associated 

with this environmental 

contamination were a drag on its “crown jewel” business, the exploration and production of oil 

and gas. With the intention of evading these and other liabilities, Old Kerr-McGee created a new 

corporate entity—defendant New Kerr-McGee—and through a series of corporate transactions 

in 2005 and 2006, transferred its valuable oil and gas exploration assets to the new company. 

The legacy environmental liabilities were left behind in the old company, which was re-named 

Tronox. As a result of these transactions, Tronox was rendered insolvent and unable to address 

its environmental and other liabilities. In 2009, Tronox went into bankruptcy. 

The United States and the bankruptcy estate (now represented by a trust) brought this lawsuit to 

require defendants to repay the value of the assets fraudulently conveyed from Old Kerr-McGee.

In its decision, the court found that Old Kerr-McGee transferred assets with the intention to 

hinder or delay creditors, in particular environmental creditors, and also transferred those 

assets for less than their fair value. This left Tronox insolvent and undercapitalized. The court 

concluded that the net proceeds of the fraudulent transfer were $14,459,000,000; depending 

on a question of bankruptcy law still to be decided in further proceedings, this will result in a 

damages award of between $5,150,490,000 and $14,166,148,000. 

In 2011, in connection with Tronox’s plan of reorganization, the estate paid approximately 

$270 million to fund environmental response trusts created to own and clean up contaminated 

property and to federal and state agencies to fund cleanup. Additionally, pursuant to the plan 

of reorganization and agreements signed at that time, approximately 88% of the recovery in 

this lawsuit, net of trust expenses, will be distributed to the environmental trusts and to federal, 

state, and local environmental creditors for environmental cleanup of contaminated sites 

around the nation. 

In addition to bringing new actions, the Division received payments in fiscal year 2013 from 

debtors as the result of settlement agreements obtained in bankruptcy proceedings in previous 

years, including over $26 million from In re Motors Liquidation Co. (formerly General Motors) 

and over $3.6 million from In re Dana Corp. 
62 | wildlife and natural resources

Yosemite National Park Photo by Jeff Bank

Acadia National Park NPS Photo
wildlife and natural resources | 63

Protecting National Park Interests

In Drakes Bay Oyster Co. v. Salazar, the Division successfully defended against a motion for 

preliminary injunction in both the district court and the Ninth Circuit against the Secretary of the 

Interior’s decision to allow a special use permit to expire for an oyster farm operated by plaintiff, 

Drakes Bay, within Point Reyes National Seashore in California. In 1972, the United States purchased 

lands and waters from plaintiff’s predecessor for inclusion within the Point Reyes National Seashore, 

a part of which is designated as wilderness under the Wilderness Act. The United States gave the 

predecessor a lease to continue operations for 40 years. In 2004, Drakes Bay bought the lease, 

knowing that it would expire in 2012. Plaintiff sought special legislation to allow the lease to continue 

beyond 2012, but the Secretary of the Interior interpreted the new legislation to grant him discretion 

to decide whether to extend the lease or let it expire. In November 2012, the Secretary chose to let the 

lease expire so the land and surrounding waters could be managed under the wilderness standards 

contemplated for the area. By allowing the permit to expire, the last commercial use within a tidal 

region of Point Reyes known as Drakes Estero was eliminated. As a result, Drakes Estero was 

converted from potential wilderness to designated wilderness, the only marine wilderness on the 

Pacific Coast outside of Alaska. 

We secured relief from an adverse judgment which limited the number of commercial stock use 

permits that may be issued for Sequoia and Kings Canyon National Parks while the National Park 

Service completes its wilderness stewardship plan for the parks in High Sierra Hikers Ass’n v. Dep’t 

of the Interior. The district court agreed with the U.S. argument that a supervening federal statute, 

PROMOTING RESPONSIBLE 

STEWARDSHIP OF AMERICA’S 

WILDLIFE AND NATURAL 

RESOURCES

Point Reyes Beach, California NPS Photo
64 | wildlife and natural resources

the Sequoia and Kings Canyon 

National Parks Backcountry 

Access Act, gives the National 

Park Service full discretion 

to issue permits for the next 

three years while the agency 

completes the plan.

In Grunewald v. Jarvis, ENRD 

successfully defended the 

National Park Service’s decision 

to lethally remove excess deer 

from Rock Creek National Park 

against a challenge in District 

of Columbia District Court by 

local residents and an animal 

advocacy group.

Facilitating Land Management Decisions Designed to Protect Federal 

Lands from Catastrophic Fire, Insects, Predators, and Drought

Federal land management agencies, including the Forest Service and BLM, have increasingly focused 

their efforts to manage public lands to ameliorate threats posed by wildfire, insects, predators, and 

drought. In 2013, the Division defended a number of these decisions.

In Pacific Rivers Council v. United States Forest Service, plaintiff brought a facial challenge under 

NEPA to a January 2004 Supplemental Environmental Impact Statement (the 2004 Framework). 

The Supreme Court granted the U.S. petition for a writ of certiorari to review two questions of justiciability: whether plaintiff had standing to bring its facial challenge without identifying a specific 

application of the 2004 Framework that threatens to harm plaintiff’s interests, and whether plaintiff’s 

facial claim is ripe. The Supreme Court also granted certiorari on the merits question of whether the 

Ninth Circuit erred in holding that in a programmatic NEPA document, all impacts of the decision 

must be analyzed “as soon as it is reasonably possible to do so.” In June 2013, plaintiffs moved to 

withdraw their case, conceding that the Ninth Circuit’s decision could be vacated. The Supreme 

Court granted the motion and directed the court 

of appeals to vacate its decision. Vacatur of the 

decision preserves the U.S. position that Forest 

Service management decisions are appropriately 

subject to court review only when concrete impacts 

to litigants can be identified.

In League of Wilderness Defenders v. 

Connaughton, the Division successfully defended 

a challenge to the Snow Basin Vegetation 

Management Project on the Wallowa-Whitman 

National Forest. The project, which is the largest 

landscape-scale commercial timber project in 

Drakes Bay USGS Map

Wallowa-Whitman National Forest FS Photo
wildlife and natural resources | 65

FS Map
Adult Mountain Pine 

Beetle FS Photo

Black Hills Tree 

Infected by the 

Mountain Pine 

Beetle 

 FS Photo

66 | wildlife and natural resources

Oregon in recent years, covers over 28,500 acres and is designed to improve forest health. In July 

2013, the district court in Oregon denied a preliminary injunction motion seeking to halt implementation of the project because plaintiffs could not establish a likelihood of success on the merits under 

NEPA and the ESA. 

Plaintiffs in Biodiversity Conservation Alliance v. 

U.S. Forest Service challenged an amendment to 

the Black Hills Land and Resources Management 

Plan and nine site-specific projects approved 

pursuant to the amended forest plan. The 

amendment focuses on the agency’s efforts 

at fighting a serious mountain pine beetle 

infestation. The group alleged violations of 

NEPA and the National Forest Management 

Act (NFMA), and contended that the amendment 

violated a 1999 administrative decision from the 

Chief of the Forest Service and a 2000 settlement 

agreement regarding forest plan revisions. The 

district court in Wyoming issued a favorable decision 

on all counts in November 2012, and simultaneously 

denied plaintiff’s motion for a preliminary injunction. 

The court also denied the group’s motion for reconsideration in April 2013. Importantly, the court’s decisions affirmed the 

agency’s interpretation of the “best available science” standard for forest 

planning, and species viability standards under the NFMA.

In Alliance for the Wild Rockies v. Weber, ENRD successfully defended a challenge brought against 

a Forest Service project in Wyoming to promote forest health, restore western white pine stands, 

and reduce the risk of wildfire in the wildland urban interface. The district court held that the Forest 

Service appropriately considered whether extraordinary circumstances were present when relying 

on a categorical exclusion for the project under NEPA. The court also found that the Forest Service 

complied with the NFMA by properly applying standards with respect to timber management 

activities in riparian areas. Finally, the court held that the Forest Service reasonably determined that 

the project would not impact bull trout or Canada lynx, two species listed under the ESA.

Center for Biological Diversity v. Forest Service concerned a challenge to the Jacob Ryan Project on 

the Kaibab National Forest in Arizona. This case involved the interpretation of a region-wide forest 

plan amendment that affects several national forests. In January 2013, the district court ruled that 

the Forest Service is entitled to deference in its interpretation of the Forest Plan and upheld the Forest 

Service’s decision on how to calculate vegetation structural stage and canopy cover under the NFMA. 

The court also found that the Forest Service complied with NEPA and that the environmental review 

did not need to specifically respond to opposing science under relevant case law. 

The Division also successfully defended a number of cases involving the 2004 Sierra Nevada Forest 

Plan Amendment (the 2004 Framework)—a regional amendment to the forest plans for multiple 

national forests in the Sierra Nevada region. The case of Sierra Forest Legacy v. Sherman remained 

before the district court in California on the issue of the appropriate remedy for an error in the 

comparison of alternatives in the Supplemental Environmental Impact Statement. In April 2013, 

the court adopted the Forest Service’s requested remedy and refused to vacate the 2004 Framework 
wildlife and natural resources | 67

decision or enjoin any existing or future projects issued pursuant to the 2004 Framework. The court 

concluded that the equities weighed against vacating the 2004 Framework because it is environmentally superior to a prior framework and reverting to the prior framework would have serious adverse 

impacts on the agency and the public. In addition to allowing critical forest management to continue 

on 11 national forests covering 11.5 million acres, this decision makes clear that vacatur is an equitable 

remedy subject to a balancing-of-the-harms analysis.

Protecting Federal Land Management Authority with Regard to R.S. 

2477

R.S. 2477 was originally enacted as section 8 of “An Act Granting the Right of Way to Ditch and Canal 

Owners over the Public Lands, and for other Purposes,” commonly called the Mining Act of 1866. The 

statute stated: “And be it further enacted, that the right-of-way for the construction of highways over 

public lands, not reserved for public uses, is hereby granted.” As a result, lands on which highways 

were constructed prior to removal from the public domain are encumbered by public highway rightsof-way. In 1976, through Federal Land Policy and Management (FLPMA) sections 701(a) and 706(a), 

Congress repealed R.S. 2477, but preserved “any valid” right-of-way “existing on the date of approval 

of this Act.” The United States is handling a number of cases presenting R.S. 2477 claims relative to 

western public lands.

Significantly, in fiscal year 2013, the Division negotiated a comprehensive case management proposal 

for dozens of cases filed by the State of Utah and its various counties seeking quiet title to more than 

12,000 alleged R.S. 2477 rights-of-way across federal lands. Under the agreement, only four of the 

newly filed cases, in addition to three previously filed cases, will be actively litigated, allowing the 

United States to use limited litigation resources in protecting federal land management authority 

more efficiently. The remaining cases will be stayed for two years through February 28, 2015, during 

which time the parties may each complete up to 225 depositions in order to preserve the testimony 

of elderly or infirm witnesses whose testimony might otherwise be at a risk of loss. We subsequently 

secured approval of the agreement by all of the eight judges to whom the dozens of cases have been 

assigned.

ENRD successfully settled litigation by the State of Utah and one of its counties seeking to quiet title to 

alleged R.S. 2477 rights-of-way in the Deep Creek Mountains Wilderness Study Area on BLM land in 

Utah in Juab County v. Bureau of Land Mgmt. This settlement—the 

first to involve Utah state and county governments, environmental 

defendant-intervenors, and the United States—utilizes a consent 

decree to promote the United States’ ability to judicially enforce the 

state’s and county’s commitments concerning the affected roads.

In Board of Comm’rs for Catron County v. United States, a New 

Mexico county brought suit to quiet title to an alleged right-of-way 

under R.S. 2477 across federal public lands on the Gila National Forest, 

as well as private lands in the vicinity, and to compel the Forest Service 

to provide access to the alleged right-of-way across federal public 

lands. In March 2013, the court granted the U.S. motion to dismiss 

on all grounds. The court held that the county’s quiet title claim was 

barred by the Quiet Title Act’s 12-year statute of limitations. The court 

also held that ambiguities and missing information in the county’s 

Gila National Forest, Arizona

FS/ Kari Greer Photo
 The Idaho Panhandle National Forests are:

— Kaniksu (North),

— Coeur d’Alene (Middle), and

— St. Joe (South).

—FS Fact Sheet

Coeur d’Alene River, Coeur d’Alene National Forest FS Photo

Rocky Flats National Wildlife Refuge Open Space FWS Map

complaint failed to meet the jurisdictional requirement of the Quiet Title Act 

that a party plead its claims with particularity. The court rejected the county’s 

related claims for declaratory judgment 

and mandamus against the Forest Service 

because the Quiet Title Act provides the sole 

basis for the court’s jurisdiction over claims 

challenging the United States’ title.

The district court in Shoshone County, 

Idaho v. United States ruled for the United 

States on the merits, dismissing this action 

by a county and a mining company seeking 

to quiet title to an alleged R.S. 2477 rightof-way on Eagle Creek Road, located on 

National Forest System land within the 

Coeur d’Alene National Forest in Idaho. 

Notably, the court rejected, on grounds of 

sovereign immunity, plaintiffs’ assertion 

that the right-of-way was established by the 

federal government’s failure to challenge 

an official action taken by the county to 

“validate” the putative right-of-way in 

2009, pursuant to a state law purporting to 

authorize such validations.

Supporting the Management of the National Wildlife Refuge System 

In Town of Superior v. United States Fish 

and Wildlife Service, two municipalities 

and two environmental groups challenged 

the FWS’s decision to convey an easement 

totaling 100 acres for the construction of a 

four-lane highway along the eastern border 

of the Rocky Flats National Wildlife Refuge 

in Colorado. In return, the Service would 

receive conservation elements, including a 

617-acre parcel that would be used to extend 

the refuge elsewhere. Various complexities 

in the proposed land exchange, including 

the involvement of numerous properties 

and property owners, made it necessary to 

consummate the exchange by December 31, 

2012. Plaintiffs alleged that the proposed 

land exchange violated NEPA, the ESA, and 

the Rocky Flats National Wildlife Refuge 

Act of 2001, but the court ruled in the 

Service’s favor on all counts on December 

68 | wildlife and natural resources
Watercolor of the Red-Cockaded Woodpecker

21, 2012. Days later, the Division defeated plaintiffs’ motion for an injunction pending appeal in both 

the district court and court of appeals, and the land exchange was completed as planned on December 

31, 2012. 

Another refuge case, Copeland v. Salazar, involved a challenge to 

FWS’s management of the Noxubee National Wildlife Refuge in 

east-central Mississippi. Plaintiffs alleged that the Service had failed 

to address the decline of the Red-cockaded woodpecker population 

in the refuge in violation of the ESA and further alleged that certain 

timber sales within the refuge had been approved in violation of 

NEPA. ENRD negotiated a settlement pursuant to which FWS 

agreed to limit timber harvesting on the refuge while it prepared a 

new management plan and associated environmental review, thereby 

avoiding costly and protracted litigation while also preserving the 

most important management priorities. 

The Division also defended FWS’s use of cooperative farming 

agreements on National Wildlife Refuges, which allow certain land 

within the refuges to be farmed in exchange for making a portion 

of the crops available to sustain the local wildlife. Such agreements 

have recently been the subject of litigation because they allow, in 

some cases, the planting and use of genetically modified crops. 

The Division successfully defended against one such challenge in 

Center for Food Safety v. Salazar, which involved the approval of 

cooperative farming agreements in the Refuge System’s Midwest 

Region. 

Defending the Forest Service’s Implementation of the 2005 Travel 

Management Rule

Motorized recreational use of National Forest System lands grows each year as the number and 

capabilities of vehicles increase. This has led to difficult management issues for the Forest Service. 

As the Forest Service has continued working to implement the 2005 Travel Management Rule, 

the Division has led the defense of motorized travel management decisions for national forests 

across the United States. National forests have been completing their environmental analyses and 

issuing decisions designating roads, trails, and areas open to the public for motor vehicle use. The 

decisions typically take years for the Forest Service to analyze and prepare, and involve evaluation 

of nearly every aspect of the Forest Service’s multiple-use management approach. Litigation over 

these decisions is brought by both off-highway vehicle user groups and environmental groups and 

raise complex issues under NEPA, Executive Orders 11644 and 11989, the 2005 Travel Management 

Rule, and the NFMA. The Division is currently defending 20 cases in nine states at various stages of 

litigation and appeals, and more litigation is expected as the Forest Service continues issuing decisions 

for various national forests across the country. ENRD has been working closely with the Forest 

Service regional and headquarters’ offices and U.S. Attorneys’ Offices across the country to coordinate 

litigation strategy and defend the Forest Service’s decisions.

The following cases are illustrative of this type of litigation in fiscal year 2013:

wildlife and natural resources | 69
San Juan National Forest FS Photo

70 | wildlife and natural resources

—Backcountry Hunters and Anglers v. U.S. Forest Service concerned a 2010 closure order by the 

Forest Service that carried forward decisions from a 1999 Forest Service order that adopted the San 

Juan National Forest’s motorized vehicle travel map. The Division secured a favorable ruling from 

the district court in Colorado, 

which held that the 1999 order 

was the current operative Forest 

Service decision governing 

motorized use. The court also 

found that the Forest Service had 

properly exercised its discretion 

in determining that there were 

no “considerable adverse effects” 

sufficient to justify trail closures 

under the executive orders.

—In Central Sierra Envtl. Res. 

Ctr. v. United States Forest 

Service, the Division successfully 

defended significant portions 

of the travel management plan 

governing motorized vehicle 

use for the Stanislaus National 

Forest in California under 

NEPA and the 2005 Travel 

Management Rule. 

—The Division successfully defended the Forest Service’s travel management decision for the Tahoe 

National Forest in Friends of Tahoe Forest Access v. USDA. In November 2013, the district court 

in California ruled in the Forest Service’s favor on all of plaintiffs’ challenges, holding that the travel 

plan fully complied with NEPA and the 2005 Travel Management Rule. The court concluded that the 

depth and scope of the analysis allowed for adequate consideration of the impacts of the alternatives. 

Defending Other Forest Service Land 

Management Planning Actions

American Whitewater v. Tidwell concerned a challenge by 

whitewater boating groups to the Forest Service’s recreation 

management plan for the Chattooga Wild and Scenic River. 

The decision involves three national forests in two states. The 

recreation management plan allowed, for the first time in more 

than 30 years, whitewater rafting enthusiasts to boat on the 

upper one-third of the river, subject to seasonal and flow restrictions. A recreation group argued that the management plan 

was too restrictive and that the Forest Service violated several 

laws, including the Wild and Scenic Rivers Act and NEPA. The 

district court in South Carolina rejected all of plaintiff’s claims 

and held that the Forest Service achieved an appropriate balance 

of competing uses for National Forest System lands, including Chattooga River FS Photo
Carson National Forest FS Map

recreation management, 

wilderness, and environmental protection. This 

decision ends years 

of litigation involving 

management of this 

important river resource.

In Alliance for the Wild 

Rockies v. Weldon, 

plaintiff brought 

a challenge to the 

purported “authorization” of helicopter hazing 

operations by the Forest 

Service, National Park 

Service, and Animal Plant Health Inspection Service, which the State of Montana conducts in order to 

move bison from state lands into Yellowstone National Park. The state moves bison into Yellowstone 

to help avoid the spread of brucellosis from bison to livestock. Plaintiff alleged violations of NEPA, 

the NMFA, and the ESA. In March 2013, the district court in Wyoming issued a favorable decision on 

wildlife and natural resources | 71

THE CHATTOOGA 

WILD AND SCENIC RIVER

—The Chattooga River was designated as a wild and scenic river in 1974.

—Beginning in the mountains of North Carolina, the river descends for 50 miles 

to end at Lake Tugaloo between South Carolina and Georgia, dropping almost 

one-half mile in elevation.

—The Chattooga River is considered one of the longest and most spectacular 

free-flowing mountain rivers in the Southeast.

—FS Factsheet
Bison in Yellowstone National Park 

NPS/Peaco Photo

72 | wildlife and natural resources

all claims, finding that plaintiff lacked standing to pursue its 

ESA claims and that the statute of limitations had expired 

on plaintiff’s NEPA claim.

The Division worked with the United States Attorney’s 

Office to obtain the dismissal of a claim alleging that a Forest 

Service district ranger violated livestock grazing permittees’ 

First Amendment rights by reducing grazing on the Jarita 

Mesa and Alamosa allotments of the Carson National Forest 

in Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest 

Service. Plaintiffs, who are local livestock associations 

and Spanish-American/Hispanic permittees, accused the 

district ranger of reducing permitted livestock numbers on 

the allotments in retaliation for their speaking out against the ranger’s management practices. The 

district court in New Mexico dismissed plaintiffs’ First Amendment claim. The court found that 

plaintiffs’ administrative appeals before the agency had failed to raise any issue or assertion that the 

district ranger’s decision was motivated by retaliatory animus, and therefore plaintiffs were barred 

from raising the claim for the first time in litigation. We continue to litigate plaintiffs’ remaining 

environmental claims.

Defending the Forest Service Against Constitutional Claims

In City of Tombstone v. United States, the Ninth Circuit affirmed the denial of a preliminary 

injunction, rejecting a claim by the City of Tombstone, Arizona, that it had an unfettered right to use 

mechanized equipment in a designated wilderness area to restore water supply routes without interference or regulation by the Forest Service, which managed the wilderness areas. After a fire and 

flood, the city obtained permission from the Forest Service to use certain motorized equipment in 

the wilderness area to rebuild water supply facilities, but the Forest Service did not allow motorized 

equipment to work at additional springs not previously utilized. The city sued, claiming that the 

Forest Service was violating the Tenth Amendment by interfering with the sovereign prerogatives of 

the State of Arizona, which had declared an emergency based on damage to the city’s water system. 

The court of appeals found that Tombstone had failed to raise any serious questions going to the 

merits of its Tenth Amendment challenge. The Supreme Court subsequently declined the city’s 

request to review the case.

Protecting National Forest Roadless Areas

In 2011, following a judicial decision reinstating the USDA’s 2001 Roadless Rule in the Tongass 

National Forest in Alaska, the State of Alaska and a coalition of industry groups filed suit in Alaska v. 

United States Dep’t of Agriculture, raising a host of challenges to the promulgation of the 2001 Rule. 

In March 2013, the district court in Alaska granted our motion to dismiss the lawsuit as barred by the 

statute of limitations. 

Protecting Federal Reclamation Interests in the Central Valley Project

In Pacific Coast Fed’n of Fishermen’s Ass’n v. Interior, we secured a partial dismissal of a suit 

challenging the Bureau of Reclamation’s compliance with NEPA for interim renewal of water 

service contracts in the West San Joaquin Division and San Luis District of the Central Valley 
CALIFORNIA’S 

CENTRAL VALLEY PROJECT

—The Central Valley Project, one of the world’s largest 

systems for storing and moving water, extends 400 miles 

from the Cascade Range in the north to the Tehachapi 

Mountains near Bakersfield, California, in the south.

—The project provides flood protection for and water 

irrigation to large parts of the Central Valley. It also operates 

to supply water to domestic and industrial users in the 

Central Valley, as well as major urban centers in the San 

Francisco Bay Area; to restore and protect fish, wildlife, and 

wetlands; and to enhance water quality.

—Construction of major Central Valley Project facilities 

began in 1938 with the breaking of ground for the Shasta 

Dam on the Sacramento River near Redding, California. 

Over the next five decades, the project was expanded into 

a system of 20 dams and reservoirs that together can hold 

nearly 12 million acre-feet of water. It includes 500 miles of 

canals and aqueducts and 11 hydroelectric power plants. 

—Water for the Central Valley Project comes from rain 

and runoff from snowmelt in the Sierra Nevada and 

Shasta-Trinity Mountains that is captured and stored in 

reservoirs. Releases from dams pass through rivers and canals 

to the Central Valley, serving contractors in the northern half, referred to as the 

Sacramento Valley, and the southern half, referred to as the San Joaquin Valley.

—Bureau of Reclamation Website

wildlife and natural resources | 73

Project in California. Notably, the district court held that, as a matter of law, renewal of water 

service contracts on existing terms does not cause significant environmental effects requiring 

preparation of an environmental impact statement.

Securing Federal Water Rights

In fiscal year 2013, the Division successfully concluded several longstanding water rights cases in state 

court.

—After a trial in Montana General Adjudication, the general stream adjudication for all 90 basins in 

the State of Montana, the Montana Water Court ruled in favor of the United States, rejecting the two 

sole remaining objections to a compact negotiated between the United States and Montana in 2007 to 

resolve U.S. claims on behalf of the U.S. Forest Service.

Central Valley Project 

DOI Map
74 | wildlife and natural resources

—In the administrative phase of the Oregon state general stream adjudication in the Klamath River 

Basin, the Division secured a largely favorable disposition of more than 700 claims for pre-1910 and 

federal reserved water rights. If the administrative findings and conclusions are ultimately sustained 

by the state circuit court, they will approve numerous significant federal reserved rights and state 

appropriative rights for a national park, national forests, wilderness areas, wild and scenic rivers, 

wildlife refuges, Indian reservations, and the Klamath Reclamation Project encompassing 200,000 

acres in southern Oregon and northern California. In the initial judicial proceedings in Klamath 

County Circuit Court in Oregon, we defeated several petitions to stay enforcement of the Klamath 

Project and tribal water rights.

—ENRD achieved numerous favorable results in In re Snake River Basin Adjudication, a general 

stream adjudication in Idaho covering 87% of the state. For example, in a subcase concerning the 

Palisades Reservoir Hydropower Water Rights, the Special Master issued a recommendation rejecting 

objections to the Bureau of Reclamation’s (BOR’s) water rights for Minidoka Reservoir.

Defending Management of Mineral Resources Against Constitutional 

Challenges

This year, the Division 

successfully defended 

the Department of the 

Interior’s withdrawal of 

public lands from mineral 

prospecting. Various 

plaintiffs in four consolidated cases titled Yount 

v. Jewell alleged that the 

Secretary of the Interior’s 

decision to withdraw 

from mineral location 

and entry for 20 years 

approximately one million 

acres of public lands and 

national forest lands in the Grand Canyon watershed was unlawful because the statutory provision 

authorizing the withdrawal contains an unconstitutional legislative veto provision. The veto provision 

purports to authorize the U.S. Congress, by concurrent resolution of both houses, to invalidate a 

secretarial withdrawal without presentment of the resolution to the President. In a matter of first 

impression, ENRD argued that the veto provision is severable from the withdrawal authority. In 

March 2013, the district court agreed, holding that the veto provision is unconstitutional but that the 

Secretary’s withdrawal authority remains valid. 

In McKown v. United States, a mining claimant asserted that the Forest Service’s improper implementation of mining restrictions under the California Desert Protection Act of 1994 resulted in a 

taking of his property under the Fifth Amendment and a violation of numerous other constitutional 

rights. The district court rejected the claims in November 2012, and upheld the Interior Board of 

Land Appeal’s determination that plaintiff’s mining claims were invalid for lack of a valuable mineral 

deposit. Later, in March 2013, the court dismissed plaintiff’s remaining claims with prejudice, 

including claims to quiet title and to vindicate alleged civil rights violations. 

“A withdrawal is the right approach for this priceless American 

landscape. People from all over the country and around the world 

come to visit the Grand Canyon. Numerous American Indian tribes 

regard this magnificent icon as a sacred place and millions of people in 

the Colorado River Basin depend on the river for drinking water, irrigation, 

industrial and environmental use. We have been entrusted to care for and 

protect our precious environmental and cultural resources, and we have chosen 

a responsible path that makes sense for this and future generations.”

—Former Secretary of the Interior Kenneth Salazar’s January 9, 2012 Announcement of the Decision to Withdraw Public Lands near the Grand Canyon from New 

Mining Claims
wildlife and natural resources | 75

Handling Litigation Related to 

Management of Wild Horses

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, which sometimes requires BLM to 

remove excess horses from the range when the number of horses 

exceeds carrying capacity. To implement this mandate, BLM 

conducts a number of gathers each year to remove excess horses 

from the wild and hold them available for adoption. These gathers 

often result in motions for a temporary restraining order and/or 

a preliminary injunction. In addition, wild horse gathers often prompt plaintiff groups to challenge 

the BLM’s allocation of rangeland resources to livestock. This year, the Division, on behalf of BLM, 

successfully defended against such challenges in the cases of Leigh v. Salazar (Owyhee Complex 

Roundups in Nevada); In Defense of Animals v. U.S. Dep’t of the Interior (Twin Peaks gather in 

California); Cloud Found. v. Salazar (Triple B gather in Nevada); and Leigh v. Salazar (Silver King 

gather in Nevada). In each of these cases, the gathers proceeded as planned, thereby allowing BLM to 

carry out its statutory mandate. Also, the district courts in Cloud Found. v. Salazar and In Defense of 

Animals v. U.S. Dep’t of the Interior agreed with the Division’s view that wild horse gather decisions 

are not an appropriate forum for changing a land use plan’s allocation of rangeland resources.

Successful Implementation of the Endangered Species Act

Congress enacted the ESA “to provide a means whereby the ecosystems upon which endangered and 

threatened species depend may be conserved, [and] to provide a program for the conservation of such 

endangered species and threatened species . . . .” Congress authorized the Departments of the Interior 

and Commerce, acting through FWS and NMFS, respectively, to achieve this objective by listing 

imperiled species, designating critical habitat for such species, and then applying the protections of 

ESA section 7 (consultation obligations) and section 9 (take prohibition). Such decisions are often 

challenged. 

In fiscal year 2013, ENRD attorneys achieved favorable results in a number of such cases, thereby 

allowing full and effective implementation of the act and its protections. 

—The D.C. Circuit upheld the FWS decision to list the polar bear 

as a threatened species throughout its range in In re Polar Bear 

Endangered Species Act Listing. The State of Alaska and various 

hunting groups had challenged that decision as arbitrary and 

capricious and contrary to law. In 2008, the Service listed the 

polar bear as threatened for three principal reasons: the bears’ 

dependence on Arctic sea ice for its survival; existing and projected 

reductions in the extent and quality of sea ice habitat because of 

global climate change; and the inadequacy of existing regulatory 

measures to preserve the species. The court found meritless all of 

the challenges to the listing decision, which included claims that: (1) FWS failed to adequately explain 

each step in its decision-making process, particularly in linking habitat loss to future extinction; (2) 

FWS erred by issuing a single, range-wide determination; (3) FWS relied on defective population 

models; (4) FWS misapplied the term “likely” when it determined that the species was likely to 

Polar Bear DOI Photo

Wild Horses in Nevada BLM Photo
76 | wildlife and natural resources

become endangered; (5) FWS erred in selecting a period of 45 years as the “foreseeable future”; (6) 

FWS failed to “take into account” Canadian polar bear conservation efforts; and (7) FWS violated 

section 4(i) of the ESA by failing to give an adequate response to the comments submitted by the State 

of Alaska regarding the listing decision.

—In Bear Valley Mut. Water Co. v. Salazar, plaintiffs challenged FWS’s designation of critical habitat 

for the Santa Ana sucker, a threatened fish species in southern California. Because of the potential 

for impacts on water supply and development, this particular designation has been controversial and 

in legal limbo for years, with several past designations being remanded by courts. On the challenge 

to this newest critical habitat designation, the district court granted the U.S. motion for summary 

judgment in its entirety and rejected all of plaintiffs’ claims. In so doing, ESA protections provided by 

the designation will remain in place for the first time in over a decade. 

—In Building Indus. Ass’n of the Bay Area v. U.S. Dept. of Commerce, ENRD successfully defended 

a challenge to NMFS’s final rule designating critical habitat for the threatened Southern distinct 

population segment of North American green sturgeon in northern California. After extensive 

summary judgment briefing and oral argument, the court upheld the designation in full, thereby 

affording the species the full protection of the ESA. 

—The Division had similar success in Safari Club Int’l v. Salazar and Exotic Wildlife Ass’n v. U.S. 

Dep’t of Interior. These cases raised novel questions regarding the appropriate legal treatment for 

three antelope species—the Scimitar-horned oryx, the Addax, and the Dama gazelle—that now exist 

almost exclusively in captivity. Hunting organizations challenged the rule listing these species under 

the ESA as well as a FWS rule addressing the appropriate 

management regime for these species. On cross-motions 

for summary judgment, the district court in the District of 

Columbia upheld both rules in their entirety. 

Antelopes: Scimitar-Horned Oryx, Dama Gazelle, and Addax

Photos Courtesy of the Smithsonian National Zoo and

Susan E. Adams
wildlife and natural resources | 77

—The D.C. Circuit unanimously rejected an attempt by Safari Club International to intervene in 

long-pending litigation between environmental groups and the FWS in In re Endangered Species Act 

Section 4 Deadline Litigation. Safari Club wanted to oppose a consent decree intended to address 

the Service’s delinquencies in considering whether to propose more than 250 “candidate” species 

for listing under the ESA. The consent decree established time schedules for the Service to make 

decisions whether each candidate species was either (1) warranted or (2) not warranted. Safari 

Club contended that the decree violated its procedural right to have the Service consider making a 

third finding—a warranted-but-precluded finding—which would have allowed the Service to defer 

further listing action until other higher priority species are addressed. The D.C. Circuit affirmed the 

district court’s rejection of the intervention request. The appellate court held that Safari Club had not 

demonstrated any violation of a procedural right as the ESA does not require the Service to decide 

whether listing a species is precluded before it issues a warranted finding and proposes a listing rule. 

Further, it concluded that Congress had not designed the warranted-but-precluded provision of the 

ESA to protect Safari Club’s interest in delaying listing decisions. In the absence of showing a valid 

procedural violation of the ESA, Safari Club lacked standing to intervene. 

 

Defending NMFS Management of Ocean Fisheries

The Magnuson-Stevens Fishery Conservation and Management Act and other related statutes charge 

NMFS with the difficult task of managing ocean commercial fishing to provide for conservation and 

sustainable fishing while, at the same time, optimizing fishing yield. In fiscal year 2013, ENRD again 

successfully defended various fishery management actions necessary to meet these objectives. Of 

note this year was the Division’s successful defense of NMFS’s authorization of the Hawaii-based 

Shallow-set Longline Fishery in Turtle Island Restoration Network v. Commerce. The authorization 

of this fishery has been particularly contentious over the years due to the fishery’s potential for interactions with listed sea turtles and sea birds. In this latest litigation, FWS issued its first-ever special 

use permit for incidental take of sea birds under the MBTA. The MBTA permit, along with NOAA’s 

authorization of the fishery, was challenged on multiple grounds, including for failure to comply with 

the MBTA, the ESA, and NEPA. After extensive summary judgment briefing and oral argument, the 

district court in Hawaii rejected all challenges and upheld both the FWS permit and NOAA authorization, thereby allowing the fishery to proceed under the new rule. 

The Division had similar success in Oceana v. NMFS, a case challenging Amendment 13 to the Coastal 

Pelagic Species Fishery Management Plan (FMP). Amendment 13 was intended to bring the FMP 

into compliance with the requirements of the Magnuson-Stevens Act and NMFS’s associated revisions 

to the National Standard guidelines. After summary judgment briefing and oral argument, the court 

upheld the amendment. 

Center for Biological Diversity v. Bryson involved a challenge to a NMFS final rule modifying fishing 

seasons and retention limits applicable to the Atlantic Bluefin Tuna General Category (Rod and 

Reel) and Harpoon Fisheries. The rule was carefully crafted to balance the Magnuson-Stevens Act’s 

requirements to maximize fishing opportunities as appropriate with the United States’ international 

obligations under Atlantic Tuna Conventions. The district court in the District of Columbia granted 

our cross-motion for summary judgment, rejecting all of plaintiffs’ claims and upholding the rule. 
Black Rhinoceros

Mohawk River, New York

78 | enforcing criminal pollution and wildlife laws
ENFORCING THE NATION’S 

CRIMINAL POLLUTION AND 

WILDLIFE LAWS

Safeguarding America’s Waters

Dominick Mazza and his company, Mazza & Sons, Inc., operated a solid waste management 

company in New Jersey. From 2006 to 2011, defendants and co-conspirators transported 

thousands of tons of pulverized construction and asbestos-contaminated demolition debris 

from their facility to a farm containing federally protected wetlands owned by co-defendant 

Cross Nicastro along the Mohawk River in upstate New York. As part of the scheme, defendants 

fabricated a New York State Department of Environmental Conservation permit and forged 

the name of an official on the 

fake permit, and destroyed 

documents responsive to grand 

jury subpoenas. Dominick 

Mazza, Mazza & Sons, and Cross 

Nicastro were convicted by a jury 

of conspiracy, CWA, obstruction 

of justice, false statement, and 

CERCLA violations. Mazza was 

sentenced to serve 51 months 

of incarceration and to pay a 

$75,000 fine. Mazza & Sons 

received a $100,000 fine and 

a five-year term of probation, 

and was required to implement 

an environmental compliance 

plan at its New Jersey facility. 

Nicastro was sentenced to serve 

33 months of incarceration and 

to pay a $25,000 fine. Mazza, 

the company, and Nicastro also were ordered to pay a total of $494,000 in restitution to EPA 

for clean-up costs and to third-party solid waste management facilities that were fraudulently 

solicited to dump at the site. Three more defendants pleaded guilty to similar charges and were 

sentenced to serve a total of 57 months of incarceration and to pay restitution. 

enforcing criminal pollution and wildlife laws | 79

Demolition Debris at Mazza Facility
“By improperly handling hazardous waste, pesticides and other 

materials in violation of federal laws, Wal-Mart put the public 

and the environment at risk and gained an unfair economic 

advantage over other companies. Today, Wal-Mart acknowledged 

responsibility for violations of federal laws and will pay significant fines 

and penalties, which will, in part, fund important environmental projects 

in the communities impacted by the violations and help prevent future 

harm to the environment.”

—Former Assistant Attorney General Ignacia S. Moreno, Wal-Mart Plea 

Announcement 

80 | enforcing criminal pollution and wildlife laws

Between July 2006 and 

February 2008, Wal-Mart 

Store, Inc., shipped more 

than two million pounds 

of damaged household 

products including solid 

and liquid pesticides 

from its six return centers 

to Greenleaf, L.L.C., a 

recycling facility located 

in Missouri. Wal-Mart 

failed to provide oversight 

for proper disposal of these pesticides, which resulted in the pesticides being mixed together 

and offered for sale to customers without the required registration, ingredient lists, or use 

information. In this prosecution, handled jointly by the Division and the U.S. Attorney’s Office, 

Wal-Mart pleaded guilty to violating the Federal Insecticide, Fungicide, and Rodenticide Act 

and was sentenced to pay an $11 million fine and a $3 million community service payment, and 

to complete a three-year term of probation. On the same day, in a multidistrict case handled by 

several U.S. Attorneys’ Offices, Wal-Mart pleaded guilty to CWA violations for illegally handling 

and disposing of hazardous waste. Prior to 2006, Wal-Mart operated its 4,000 stores without 

a program in place to train its employees on how to properly manage and dispose of hazardous 

waste. Instead, hazardous wastes were routinely dumped down sinks or placed in municipal 

dumpsters. In this case, Wal-Mart was sentenced to pay a $40 million fine and an additional 

$20 million community service payment, including $6 million to open a Retail Compliance 

Assistance Center that will help retail stores across the nation learn how to properly handle 

hazardous waste, and to complete a two-year term of probation.

Protecting the Environment, Public Health, and Worker Safety

In January 2013, in United States v. Yi, the Ninth Circuit upheld the conviction and sentence 

of Charles Yi. Yi was an experienced real estate investor who purchased a 214-unit apartment 

complex in Winnetka, California, for the purpose of converting it into condominiums. In 2006, 

knowing that there was asbestos in the ceilings at the complex, he hired a group of day laborers 

to scrape the ceilings of 47 units without telling them that there was asbestos in the ceilings, 

without providing them with the required protective gear, and without complying with the work 

standards for asbestos removal required by the CAA. Yi was convicted of conspiracy and five 

substantive CAA violations and sentenced to 48 months of imprisonment. The appellate court 

rejected Yi’s challenge to the “deliberate ignorance” instruction the district court had given, 

holding that the instruction was a correct statement of the law and that there was sufficient 

evidence in the record to justify giving the instruction. (The district court instructed the jury 

that defendant acted “knowingly” if the jury found beyond a reasonable doubt that defendant 

was aware of a high probability that there was asbestos in the ceilings but deliberately avoided 

learning the truth. It also instructed the jury, however, that it may not find such knowledge if 

the jury found that defendant actually believed that there was no asbestos in the ceilings or if 

the defendant was simply careless.) The court also rejected Yi’s challenge to the district court’s 

Sentencing Guidelines calculations, finding that the district court properly gave enhancements 

for an offense resulting in a substantial likelihood of death or serious bodily injury and for Yi’s 

role as an organizer or leader of the crime.
enforcing criminal pollution and wildlife laws | 81

Matthew Bowman, president of Port Arthur 

Chemical and Environmental Services, L.L.C. 

(PACES), pleaded guilty to OSHA and false 

statement violations for his involvement in 

an incident that caused the death of a PACES 

employee. The company was in the business of 

producing and selling caustic materials to paper 

mills. The production of the caustic materials 

involved hydrogen sulfide, a poisonous gas. 

According to the National Institute for Occupational Safety and Health, hydrogen sulfide is an 

acute toxic substance that is the leading cause 

of sudden death in the workplace. Bowman did 

not properly protect PACES employees from 

exposure to hydrogen sulfide, which resulted 

in the death of truck driver Joey Sutter on 

December 18, 2008. 

Bowman also was responsible for approving and directing the disposal of wastewater at 

PACES. He admitted to directing employees to falsify transportation documents to conceal that 

the wastewater was coming from PACES after a disposal facility placed a moratorium on all 

shipments from PACES following receipt of loads containing hydrogen sulfide. Bowman was 

sentenced to the maximum sentence of six months under OSHA for the death, plus a one-year 

sentence for his false statement.

Ensuring Safe Storage of Hazardous Waste

William Duran Vizzerra was president, director, and part owner of Precision Pavement 

Markings, Inc., a road and parking lot painting and striping business that operated in 

Anchorage, Alaska, from 2006 to 2009. He illegally stored hazardous waste, including methyl 

methacrylate paint and toluene, which 

was used to clean paint wastes, at the 

company’s facility. He ordered his 

employees to dispose of the waste at a 

local landfill, but the landfill refused to 

accept hazardous wastes. After Vizzerra 

was told by an environmental services 

company that it would cost tens of 

thousands of dollars to properly dispose 

of the hazardous waste, he abandoned 

321 55-gallon drums, 179 five-gallon 

pails, and two 200-gallon totes of 

extremely flammable paint waste at 

a storage facility. Many of the drums 

were rusted and bulging. Vizzerra 

pleaded guilty to the illegal disposal of 

hazardous waste, and was sentenced to 

serve 15 months of incarceration and to 

Abandoned Paint Waste

PACES Facility
82 | enforcing criminal pollution and wildlife laws

pay $395,319 in restitution to the victims of his crime for the costs they incurred to clean up and 

dispose of the abandoned waste.

Co-Chairing the Presidential Task Force on Wildlife Trafficking 

The Department of Justice has long been a leader in the fight against wildlife trafficking. ENRD 

works with United States Attorneys’ offices across the country, and in coordination with investigators from FWS, NOAA, and other agencies, to prosecute international wildlife trafficking 

crimes, primarily under the ESA and the Lacey Act, as well as crimes related to wildlife 

trafficking, such as smuggling, money laundering, and criminal conspiracy. The Division also 

works in the international sphere by assisting enforcement partners in source, transit, and 

destination countries to combat the illegal trade in protected wildlife. The Justice Department 

also collaborates on wildlife trafficking-related initiatives with the State Department, the U.S. 

Agency for International Development, Interpol, and various international organizations, 

including efforts to train investigators, prosecutors, and judges.

Illegal trafficking in wildlife, plants and timber, and marine creatures has reached truly 

epidemic proportions. It is both a critical conservation concern and a threat to regional stability 

and global security. Because of this, on July 1, 2013, President Obama signed Executive Order 

13648, establishing a new Presidential Task Force to Combat Wildlife Trafficking (the Executive 

Order).

The Division represents the Department of Justice on the Presidential Task Force on Wildlife 

Trafficking (the Task Force), co-chaired by the Attorney General and the Secretaries of State 

and the Interior, or their designees. The Task Force also includes senior-level representatives 

from 14 additional federal departments and agencies, including the Departments of Commerce, 

Treasury, Defense, Agriculture, and Homeland Security. The Executive Order recognizes that 

because wildlife trafficking is an escalating international crisis, it is in the national interest of 

the United States to increase efforts to combat wildlife trafficking. The Executive Order calls 

for a “whole-of-government” approach that will both strengthen anti-trafficking efforts already 

underway in ENRD and other federal agencies and elevate illegal wildlife trafficking as a priority 

for additional agencies whose missions include law enforcement, trade regulation, national 

security, international relations, and global development. In fiscal year 2013, among other 

tasks, ENRD began work in close coordination with the other Task Force agencies to draft the 

first-ever National Strategy for Combating Wildlife Trafficking. The strategy was issued by the 

President on February 12, 2014.

Protecting Wildlife Through Enforcement 

Federal criminal enforcement of wildlife statutes is a critical factor in deterring the illegal killing 

of wildlife and augments state, tribal, and foreign wildlife management efforts. Criminal prosecutions for these violations focus on both the individual and corporate perpetrators, result in 

disgorgement of the profits of the illegal conduct, include community service and restitution to 

help mitigate the harm caused by the violations, and result in forfeiture of the instrumentalities 

used to commit the crimes. The Division prosecuted a number of these cases in fiscal year 2013, 

as explained below.
Operation Crash

With no known predators other than humans, 

the rhinoceros is a prehistoric species and one of 

the largest herbivores on earth. All rhinoceros 

species are protected under U.S. and international law, and the black rhinoceros is listed as 

endangered under the ESA. Despite national 

and international protection efforts dating back 

to 1976, the demand for rhinoceros horn and 

black market prices have skyrocketed in recent 

years due to the value some cultures place on the 

horns for 

ornamental 

carvings, 

good luck 

charms, and 

medicinal 

purposes. 

This has led to a decline of the global rhinoceros 

population, which has plummeted by more than 90% since 

1970. Between 2007 and 2013, the poaching of wild South 

African rhinoceros increased from a low of 13 animals taken 

in 2007 to 1004 taken in 2013. 

“Operation Crash” is an ongoing nationwide effort led by 

the FWS and ENRD in conjunction with United States Attorneys’ Offices, to investigate and 

prosecute those involved in the black market trade of rhinoceros horns and other protected 

species. (A “crash” is a herd of rhinoceroses.) In fiscal year 2013, it resulted in successful 

prosecutions against nine individuals and one company totaling 131 months of incarceration, 

$135,000 in fines, $185,624 in restitution, and the forfeiture of several million dollars in cash, 

gold ingot, watches, precious stones, vehicles, rhinoceros horns and feet, and ivory pieces. Two 

cases are described below.

Between January 2011 and February 2013, Qiang Wang a/k/a Jeffrey Wang, smuggled over 

$1,000,000 worth of Asian artifacts, including libation cups, made from rhinoceros horns and 

elephant ivory from his antiques business known as Bao Qing Gallery in Flushing, New York, to 

China. There is a tradition in China dating back centuries of making intricately carved “libation” 

cups out of rhinoceros horns. Drinking from such a cup was believed by some to bring good 

health. The escalating value of these items has resulted in an increased demand for rhinoceros 

enforcing criminal pollution and wildlife laws | 83

Evidence Seized by FWS Agents Searches in Operation Crash

FWS Photo

Rhinoceros FWS/Karl Stromayer Photo

“We’re reaching a tipping point, where the unprecedented slaughter of rhinos and elephants 

happening now threatens the viability of these iconic species’ wild populations in Africa. This 

slaughter is fueled by illegal trade, including that exposed by Operation Crash. We will continue 

to work relentlessly across the United States government and with our international partners to crack down on 

poaching and wildlife trafficking.”

—U.S. Fish and Wildlife Service Director Dan Ashe, Wang Sentencing Announcement
horn, which has helped fuel a thriving 

black market. Wang made and used 

false U.S. Customs Declarations for the 

packages containing rhinoceros horns and 

ivory objects in order to conceal the true 

contents of the packages. He pleaded guilty 

to smuggling and Lacey Act conspiracy 

violations and was sentenced to serve 37 

months of incarceration, ordered to forfeit 

all ivory in his possession, and was banned 

from all future trade in elephant ivory and 

rhinoceros horns. 

Vinh Chung “Jimmy” Kha and Felix Kha were involved in a U.S.-based trafficking operation in 

the black market trade of white and black rhinoceros horns to be made into libation cups and 

exported to Vietnam. The Khas admitted making payments to Vietnamese customs officials 

to ensure the rhinoceros horns would clear customs there and acknowledged failing to pay 

U.S. income taxes for 2009 and 2010. The Khas pleaded guilty to conspiracy, smuggling, 

Lacey Act, money laundering, and tax fraud violations. Jimmy Kha was sentenced to serve 42 

months of incarceration, and to pay a $10,000 fine and $76,062 in restitution to the Internal 

Revenue Service (IRS). Felix Kha was sentenced to serve 46 months of incarceration, and to 

pay a $10,000 fine and $109,562 in restitution to the IRS. The Khas also forfeited rhinoceros 

mounts, rhinoceros horns, one million dollars in cash, approximately one million dollars in 

gold ingots, jewelry, watches, precious stones, and vehicles. A third defendant, Jin Zhao Feng, 

pleaded guilty to a smuggling violation and was sentenced to serve eight months of incarceration. Win Lee Corporation, the Khas’ company, pleaded guilty to smuggling and Lacey Act 

violations and was ordered to pay a $100,000 fine and complete a five-year term of probation. 

84 | enforcing criminal pollution and wildlife laws

“Smuggling wildlife artifacts made from rhino horn 

and elephant ivory undermines the international 

conservation protections put in place to save 

these species from extinction. This is an active and 

ongoing investigation that is designed to send a clear 

message to buyers and sellers that we will vigorously 

investigate and prosecute those who are involved in this 

devastating trade.”

—Acting Assistant Attorney General Robert G. Dreher, 

Wang Sentencing Announcement

OPERATION CRASH

—Operation Crash is an ongoing multidistrict criminal investigation that is addressing all aspects of U.S. involvement in the 

black market rhino horn trade. 

—It is being led by the U.S. Fish and Wildlife Service, partnering with the U.S. Postal Investigative Service; the U.S. 

Immigration and Customs Enforcement’s Homeland Security Investigations; the Internal Revenue Service; and the Bureau 

of Alcohol, Tobacco, Firearms and Explosives. Prosecutions have been, or are being conducted, by ENRD’s Environmental 

Crimes Section and the U.S. Attorneys’ Offices for C.D. California, S.D. New York, E.D. New York, New Jersey, S.D. Florida, E.D. 

Texas, and W.D. Texas. 

—Charges filed against defendants include conspiracy, smuggling, money laundering, tax evasion, and bribery, as well as 

violations of the Endangered Species Act and Lacey Act (a law that prohibits the illegal trafficking of wildlife and plants).

— In fiscal year 2013 alone, Operation Crash resulted in successful prosecutions against nine individuals and one company 

totaling 131 months of incarceration, $135,000 in fines, $185,624 in restitution, and the forfeiture of several million dollars 

in cash, gold ingot, watches, precious stones, vehicles, rhinoceros horns and feet, and ivory pieces.
enforcing criminal pollution and wildlife laws | 85

Operation Silent Wilderness

The Division is wrapping up its prosecutions resulting from a nationwide investigation by FWS 

into the illegal killing and commercialization of eagles and other migratory birds protected by 

federal law, known as “Operation Silent Wilderness.” The comprehensive effort has resulted in 

charges for selling and purchasing migratory bird feathers against 33 individuals in seven states. 

The covert investigation was jointly conducted with the Navajo Nation Department of Fish and 

Wildlife. To date, the investigation has resulted in $25,210 in fines, $66,700 in restitution, 1060 

hours of community service, 26 months of home confinement, and more than seven years of 

incarceration.

 Illegal Big Game Hunting of Deer and Elk

Beginning in 1988, Dennis Rodebaugh operated a Colorado big game outfitting business 

called D&S Guide and Outfitters. D&S offered multi-day elk and deer hunts in the White River 

National Forest for between $1,200 and $1,600 per hunt. Each spring and summer, Rodebaugh 

placed hundreds of pounds of salt 

as bait near the tree-stands. It is 

illegal to use bait to hunt big game 

in Colorado. Out-of-state clients 

then would shoot deer and elk from 

the tree stations, using archery 

equipment. A jury found Rodebaugh 

guilty of six Lacey Act violations, and 

he was sentenced to serve 41 months 

of incarceration and to pay a $7,500 

fine and $37,390 in restitution to 

the State of Colorado for the value of 

illegally taken elk and deer. 

Reducing Pollution from 

Ocean-Going Vessels

In fiscal year 2013, the penalties imposed in vessel pollution cases prosecuted by the Division 

totaled nearly $12.7 million. This brought the penalties imposed as a result of ENRD’s Vessel 

Pollution Initiative, which began in the late 1990s, to more than $342 million in criminal fines 

and more than 27 years of confinement. The Division’s most recent prosecutions of these 

deliberate violations include the representative cases below.

In May 2012, several crew members provided photos and videos of illegal discharges of bilge 

waste from four vessels (M/T King Emerald, M/T Nordic Passat, M/V Cape Maas, and M/T 

Cape Taft) operated by Columbia Shipmanagement (Deutschland) and Columbia Shipmanagement, Ltd. The illegal discharges of bilge waste from the M/T King Emerald were made at night 

off the coast of Central America, including a discharge within the Exclusive Economic Zone of 

Costa Rica where a national park is located. The discharges from the M/T Nordic Passat, the 

M/V Cape Maas, and the M/T Cape Taft occurred off the coasts of Delaware, San Francisco, 

and New York. The firms pleaded guilty in two districts to violations of the Act to Prevent 

Pollution from Ships (APPS) and obstruction-of-justice violations. They were sentenced to pay 

Elk Kneeling to Reach Salt on the Ground
86 | enforcing criminal pollution and wildlife laws

a $7.8 million fine 

and an additional 

$2.6 million as a 

community service 

payment to the 

National Fish and 

Wildlife Fund that 

will be used to help 

restore the coastal 

environment of New 

Jersey and Delaware 

hit by Hurricane 

Sandy. Jeffrey 

Lupera, a second 

engineer on the 

M/T King Emerald, 

pleaded guilty to 

obstruction and false 

statement violations 

and was sentenced 

to a two-year term of probation. Vladimer Kondratyev, chief engineer for the M/T Nordic 

Passat, pleaded guilty to obstruction of justice and falsification of records and was sentenced to 

pay a $500 fine followed by a two-year term of probation; second engineer Sergiy Shapovalov 

pleaded guilty to a false statement violation and was sentenced to a one-year term of unsupervised probation and sent back to Ukraine. 

Sanford, Ltd., of New Zealand owned and operated the fishing vessel the F/V San Nikunau, 

which fished primarily tuna in the South Pacific Ocean and sold its catch at U.S. ports. The San 

Nikunau routinely dumped oily bilge waste from the ship both at sea and in port at Pago Pago, 

American Samoa, without processing the waste through the required oil water separator or 

recording the discharges in the oil record 

book. Some of the world’s most pristine 

marine ecosystems are in the South Pacific. 

Sanford, Ltd., and the San Nikunau’s 

chief engineer, Ronald Pogue, were 

convicted by a jury of conspiracy, APPS, 

and obstruction-of-justice violations. 

Sanford, Ltd., was sentenced to pay a $1.9 

million fine and a $500,000 community 

service payment to the National Marine 

Sanctuaries Foundation. The company 

also must serve a three-year term of 

probation and institute an environmental 

compliance plan. Pogue was sentenced to 

serve 30 days of incarceration, followed 

by five months of home confinement, to pay a $6,000 fine, and to complete a two-year term of 

supervised release. Another chief engineer for the San Nikunau, Rolando Ong Vano, pleaded 

guilty to an APPS violation and was sentenced to pay a $2,000 fine and to complete a one-year 

term of unsupervised probation. 

M/T King Emerald

Pago Pago, American Samoa NOAA Photo
enforcing criminal pollution and wildlife laws | 87

Guilty pleas or convictions by a jury were entered in two additional cases involving deliberate 

violations by vessel operators and crew members: United States v. Pacific Int’l Lines, Ltd., and 

United States v. Nimmrich. In these cases, companies and individuals were sentenced to pay 

a total of $3 million in fines and $400,000 in community service payments, and probation, 

for crimes including conspiracy, false statements, obstruction-of-justice, and oil record book 

violations under APPS. 

Working With Others to Protect the Environment Through Pollution 

and Wildlife Prosecutions

In fiscal year 2013, the Division continued to partner with state and local agencies and working 

groups to ensure that pollution and wildlife prosecutions are given the attention and resources 

they merit. We developed and participated in major training events and meetings. Division 

attorneys provided environmental crimes training to EPA Criminal Investigation Division 

agents, FWS agents, NOAA agents, Deputy U.S. Marshals, regional associations such as the 

Northeastern Environmental Enforcement Project and Western States Project, and Assistant 

United States Attorneys. ENRD also participated in meetings of the Environmental Issues 

Working Group of the Attorney General’s Advisory Committee. Additional international 

training activities conducted by the Division are discussed in the next chapter. 
Skyline Drive, Virginia Photo by Jeff Bank

Everglades, Florida NPS/Rodney Cammauf Photo

88 | defending federal programs
DEFENDING 

VITAL FEDERAL PROGRAMS 

AND INTERESTS

Upholding Administrative Actions Related to Regulation of 

Greenhouse Gases and Climate Change

 

Over the past several years, EPA has developed a regulatory program under the CAA to regulate 

greenhouse gas emissions that contribute to global climate change. In 2012, the Division 

obtained a groundbreaking victory in Coalition for Responsible Regulation v. EPA, a large, 

consolidated CAA case in which the D.C. Circuit upheld EPA’s principal regulations setting 

greenhouse gas emission standards for motor vehicles and phasing in greenhouse gas permit 

requirements for stationary sources. In July 2013, in Utility Air Regulatory Group v. EPA, 

ENRD secured a favorable decision from the D.C. Circuit dismissing challenges to follow-up 

EPA actions to facilitate permitting for major stationary sources of greenhouse gas emissions, 

such as power plants, in 13 states whose State Implementation Plans did not already provide 

authority to address greenhouse gas emissions in preconstruction permits for major sources. 

In October 2013, following extensive briefing by the Solicitor General’s Office (in conjunction 

with the Division), the Supreme Court denied the lion’s share of nine separate petitions for 

certiorari seeking further review of the D.C. Circuit’s 2012 decision in Coalition for Responsible 

Regulation. The Supreme Court did agree to consider a single issue pertaining to stationary 

source greenhouse gas permit requirements, which was argued in February 2014. 

Defending the U.S. Response to the Deepwater Horizon Explosion, 

Fire, and Oil Spill 

The Division continues to defend some cases arising from the Deepwater Horizon explosion, 

fire, and oil spill, which occurred in the Gulf of Mexico in April 2010. 

—In November 2012, the Fifth Circuit issued a decision reversing a finding of contempt made 

against the Secretary of the Interior for his actions taken and statements made following the 

Deepwater Horizon disaster; it also vacated the $530,000 award of attorneys’ fees given to the 

industry plaintiffs. The Fifth Circuit concluded that the district court had abused its discretion 

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

issuance of a subsequent drilling suspension in the Gulf of Mexico in July 2010 did not clearly 

defending federal programs | 89
90 | defending federal programs

and convincingly violate the district court’s order prohibiting the Secretary from enforcing a 

drilling suspension that he had issued in May 2010. The court further concluded that, because 

the industry plaintiffs failed to adequately brief the issue on appeal, they had waived their 

alternative basis for affirming the award of attorneys’ fees based on the government’s alleged 

bad faith litigation tactics. The industry plaintiffs subsequently filed a petition for a writ of 

certiorari, which the Supreme Court denied in December 2013.

—Several cases challenge aspects of the federal government’s approval of exploration and 

production plans and lease sales in the Gulf of Mexico and Alaskan waters after the Deepwater 

Horizon explosion, fire, and oil spill. For example, in Oceana v. Bureau of Ocean Energy 

Mgmt., a group of plaintiffs dispute the Bureau’s decision to conduct Lease Sale 216/222, which 

is the first Outer Continental Shelf lease sale to be conducted in the Central Gulf of Mexico 

following the Deepwater Horizon explosion, fire, and oil spill. The Division completed briefing 

on summary judgment in 2013 and the matter is now fully submitted for disposition by the 

district court.

KEY FEDERAL CLEAN AIR ACT REGULATORY INITIATIVES CHALLENGED IN 

COALITION FOR RESPONSIBLE REGULATION V. ENVIRONMENTAL PROTECTION 

AGENCY (D.C. CIRCUIT)

— The Endangerment Finding: 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.

— The Tailpipe Rule: 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.

— The Timing Rule: Regulation Establishing When 

Certain Stationary Source Permitting Takes Effect (March 

29, 2010)

EPA concluded that an air pollutant becomes subject 

to permitting under the Clean Air Act New Source 

Review Prevention of Significant Deterioration and 

Title V Operating Permit Programs only when a 

regulation requiring control of that pollutant takes 

effect.

— The Tailoring Rule: Regulation Controlling 

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 phase in which facilities will be required 

to obtain such permits. Facilities responsible for 

nearly 70% of the U.S. greenhouse gas emissions from 

stationary sources are subject to permitting requirements under this rule. This includes the nation’s 

largest greenhouse gas emitters—power plants, 

refineries, and cement production facilities.
defending federal programs | 91

Continuing Defense of EPA’s Cross-State Air Pollution Rule

In 2012, the D.C. Circuit issued 

an adverse decision in EME 

Homer City Generation v. EPA, 

striking down the Cross-State Air 

Pollution Rule (also known as the 

Transport Rule), a very important 

EPA CAA rule intended to control 

interstate contributions to ozone 

and particulate matter pollution 

in almost 30 states in the eastern 

part of the country. Following 

the D.C. Circuit’s denial of a 

petition for rehearing in January 

2013, ENRD worked closely (and 

on an expedited basis) with the 

Solicitor General’s Office to file 

a petition for a writ of certiorari 

with the Supreme Court, and that 

petition was granted in June 2013. 

ENRD and the Solicitor General’s Office then collaborated on merits briefing in support of the 

Transport Rule. The case was argued before the Court in December 2013.

Successful Defense of EPA’s Actions Implementing the Regional Haze 

Program

During fiscal year 2013, the Division obtained important decisions from the Eighth and 

Tenth Circuits largely upholding actions that EPA has taken to implement CAA requirements 

intended to improve visibility in national parks and wilderness areas. In a July 2013 decision 

in Oklahoma v. EPA, the Tenth Circuit strongly affirmed EPA’s authority to disapprove state 

regional haze plans that do not meet the act’s requirements and to issue a federal plan to correct 

the noted deficiencies in the state plan. The Eighth Circuit reached a similarly favorable result 

in its September 2013 decision in North Dakota v. EPA, also affirming EPA’s general regional 

haze authority in a case involving North Dakota’s regional haze plan, while remanding only a 

single narrow issue to the agency. These two decisions are among the first to consider the scope 

of EPA’s authority to review state regional haze plans and are not only important in their own 

right, but also as precedent for a number of other regional haze cases that currently are pending 

in these and other circuits.

Defending Controls on Air Pollution from Ships in Coastal Waters

In State of Alaska v. Clinton, the State of Alaska sued to challenge federal enforcement of 

low-sulfur fuel requirements for marine vessels operating in certain Alaskan coastal waters. The 

low-sulfur requirements were implemented pursuant to the United States’ obligations as a party 

country to the International Convention for the Prevention of Pollution from Ships and APPS. 

Alaska filed a motion for a preliminary injunction, arguing that the low-sulfur requirement 

constituted a treaty amendment that was invalid because it had not been accepted by the U.S. 

“No community should have to bear the burden of 

another community’s polluters, or be powerless to 

prevent air pollution that leads to asthma, heart attacks 

and other harmful illnesses. These Clean Air Act safeguards will 

help protect the health of millions of Americans and save lives 

by preventing smog and soot pollution from traveling hundreds 

of miles and contaminating the air they breathe. By maximizing 

flexibility and leveraging existing technology, the Cross-State 

Air Pollution Rule will help ensure that American families aren’t 

suffering the consequences of pollution generated far from home, 

while allowing states to decide how best to decrease dangerous air 

pollution in the most cost effective way.” 

—Former EPA Administrator Lisa Jackson’s Announcement of the 

Cross-State Air Pollution Rule
92 | defending federal programs

Senate and because it allegedly did not comply with APPS. The Division filed motions to dismiss 

arguing, among other things, that the court lacked jurisdiction to review the claims under the 

political question doctrine and the Administrative Procedure Act (APA). In September 2013, the 

district court in Alaska granted our motions to dismiss, denied Alaska’s injunction motion, and 

entered judgment in favor of the United States. 

Upholding the Integrity of EPA’s Rulemaking Discretion

Plaintiffs in Trumpeter Swan Soc’y v. EPA sought judicial review of EPA’s denial of a petition 

to initiate a rulemaking to regulate lead in bullets and shot under the Toxic Substances Control 

Act. The district court in the District of Columbia had dismissed an earlier case on grounds 

that plaintiffs did not file the action within the time limit established by the law to obtain de 

novo review of whether a chemical substance poses an unreasonable risk to human health and 

the environment. When plaintiffs refiled their petition with no material changes, EPA treated 

the second petition as a petition for reconsideration and denied it. We moved to dismiss the 

second suit for lack of jurisdiction, and the court granted that motion. The court found that 

EPA is entitled to deference concerning decisions on how to manage its docket and had offered a 

reasoned and persuasive explanation for why it treated the second petition as merely a petition 

for reconsideration. The case is significant in that it confirmed that when a plaintiff misses a 

deadline to obtain review of EPA’s denial of a rulemaking petition, the plaintiff cannot get a 

second bite at the apple simply by filing a new rulemaking petition.

Defending Challenges to EPA Oversight of Water Quality Planning in 

and Around Cape Cod, Massachusetts

In Conservation Law Found. v. EPA, the Division successfully defended EPA’s oversight of 

water quality planning efforts by the State of Massachusetts and municipal entities concerning 

nitrogen loading in and around Cape Cod and Nantucket, Massachusetts. The district court 

in Massachusetts upheld 13 separate Total Maximum Daily Loads (TMDLs) for impaired 

waters, rejecting claims that the TMDLs should have classified 130,000 septic systems and 

all waste treatment facilities on Cape Cod as point sources in the waste load allocation, and 

were otherwise deficient because they failed to consider climate change impacts on nitrogen 

loading to Cape Cod’s bays. 

(The TMDLs identify the 

maximum annual and daily 

amounts of pollutants that 

waters can receive and 

still meet water quality 

standards issued under 

the CWA.) The case had 

potentially significant 

programmatic ramifications because utilizing the 

categorization of sources in 

a TMDL to essentially create 

additional federal permitting 

Impaired Waters and Total Maximum Daily Loads

Under section 303(d)(1)(A) of the Clean Water Act, states, territories, 

and authorized tribes are required to develop lists of impaired 

waters. These are waters that are too polluted or otherwise 

degraded to meet the water quality standards set by states, 

territories, or authorized tribes. Section 303(d)(1)(C) requires that 

these jurisdictions establish priority rankings for waters on the lists 

and develop Total Maximum Daily Loads (TMDLs) for these waters. 

A TMDL is a calculation of the maximum amount of a pollutant that a 

waterbody can receive and still safely meet water quality standards.
defending federal programs | 93

requirements would substantially alter the manner in which EPA responds to discharges of 

pollutants. 

Upholding EPA’s TMDL for the Chesapeake Bay

In American Farm Bureau Fed’n v. EPA, industry groups challenged EPA’s 2010 TMDL determination for the Chesapeake Bay and its watershed area, which encompasses states from 

New York to Virginia. The Chesapeake Bay TMDLs establish pollutant loads for nitrogen, 

phosphorus, and sediment for the Chesapeake Bay and its tidal tributaries. Plaintiffs, including 

CHESAPEAKE BAY 

TMDL

—On December 29, 2010, EPA established 

the Total Maximum Daily Load (TMDL) for 

the 64,000 square-mile Chesapeake Bay 

Watershed, the largest TMDL ever developed 

by the agency.

—The TMDL identifies the necessary pollution 

reductions of nitrogen, phosphorus, and 

sediment across the District of Columbia and 

large sections of Delaware, Maryland, New 

York, Pennsylvania, Virginia, and West Virginia, 

and sets pollution limits necessary to meet 

water quality standards in the Bay and its tidal 

rivers.

—Specifically, the TMDL sets limits of 185.9 

million pounds of nitrogen, 12.5 million 

pounds of phosphorus, and 6.45 billion 

pounds of sediment per year—a 25% 

reduction in nitrogen, 24% reduction in 

phosphorus, and 20% reduction in sediment.

—The pollution limits were further divided 

by jurisdiction and major river basin based 

on state-of-the-art modeling tools, extensive 

monitoring data, peer-reviewed science, and 

close interaction with jurisdiction partners. 

—The TMDL is designed to ensure that all 

pollution control measures needed to restore 

the Chesapeake Bay and its tidal rivers are 

in place by 2025, with practices in place by 

2017 to meet 60% of the overall nitrogen, 

phosphorus, and sediment reductions.

—On September 13, 2013, in the case of 

American Farm Bureau v. EPA, a district court in 

Pennsylvania ruled in EPA’s favor, upholding 

the validity of the TMDL in all respects.

—EPA Fact Sheet

Chesapeake Bay Watershed EPA Map
94 | defending federal programs

a number of trade associations representing agri-business, contended, among other things, that 

EPA’s issuance of the TMDLs and pollution loads in cooperation with the seven affected states 

in the Chesapeake Bay watershed area was not authorized under the CWA. In September 2013, 

the district court in Pennsylvania denied plaintiffs’ motion for summary judgment and granted 

EPA’s cross-motion, ruling in EPA’s favor on all issues. 

Defending the CWA Regulatory Program for Protecting Wetlands and 

Other Waters of the United States

The D.C. Circuit, in a unanimous opinion in Mingo Logan Coal Co. v. EPA, reversed a district 

court decision concluding that EPA’s authority under section 404(c) of the CWA to “veto” the 

Army Corps’ specification of fill disposal sites in a section 404 permit did not allow the exercise 

of that authority after the permit had issued. The Corps had issued Mingo Logan Coal Company 

a section 404 permit in 2007 for discharge of waste into wetlands associated with coal mining. 

At the time, EPA had decided not to invoke its section 404(c) authority to “prohibit” specification of the disposal sites in that permit. Four years later, however, based on information 

concerning the adverse effects of such disposal, EPA “withdrew” those same specifications 

using its section 404(c) authority. This was only the third post-permit veto in the history of 

the CWA. In its reversal, the D.C. Circuit held that section 404(c) unambiguously grants EPA 

“backstop” authority to withdraw specification of a disposal site at any time, so long as the 

agency determines that discharges of fill material into that site will have one of four enumerated 

“unacceptable adverse effects.” Mingo Logan filed a petition for certiorari requesting that the 

Supreme Court review the D.C. Circuit’s decision, which was denied in March 2014.

In two cases, the Division defeated efforts to obtain premature judicial review of Corps determinations regarding the status of certain waters 

for purposes of federal regulatory jurisdiction. In 

Belle Company, L.L.C. v. Army Corps of Eng’rs, 

we successfully moved to dismiss a challenge to a 

Corps’ determination that plaintiff’s land contained 

wetlands within federal regulatory jurisdiction. 

Plaintiff argued that the Supreme Court’s 2012 

decision in Sackett v. EPA changed the analysis 

of whether courts have jurisdiction to review such 

agency determinations. We persuaded the district 

court in Louisiana otherwise, and it dismissed the 

case. Similarly, in Hawkes Co. v. Corps of Eng’rs, 

a challenge to a Corps’ jurisdictional determination in connection with peat mining operations 

in Minnesota, the district court concluded that 

the Sackett holding on pre-enforcement review of 

administrative compliance orders should not be 

extended to Corps’ jurisdictional determinations, 

and dismissed the case. In a third case, Nat’l Ass’n 

of Home Builders v. EPA, the district court in the 

District of Columbia used a similar rationale in 

dismissing a challenge to a determination that two 

segments of the Santa Cruz River in Arizona are 

Santa Cruz Watershed EPA Map
defending federal programs | 95

Santa Cruz River EPA Photo

traditional navigable waters. The court first 

found that plaintiffs lacked standing to sue, and 

then went on, in the alternative, to conclude 

that even if plaintiffs have standing, the determination does not establish any rights or 

obligations or have any legal consequences and, 

therefore, it lacks finality and is not subject to 

judicial review. 

Kentuckians for the Commonwealth v. U.S. 

Army Corps of Eng’rs involved claims under 

the APA, CWA, and NEPA asserting that the 

Corps unlawfully issued a CWA section 404 

fill permit for a mountaintop mining project in 

eastern Kentucky. Plaintiffs filed two motions 

for partial summary judgment, arguing that the 

Corps violated NEPA and the CWA by failing to consider effects of the mining project on human 

health in the nearby community, and that the Corps violated its regulations and the CWA section 

404(b)(1) guidelines with respect to various aspects of compensatory mitigation required by the 

permit. We moved for partial summary judgment on both issues. In August 2013, the district 

court in Kentucky granted our cross-motions, upholding the permit. As to the first motion, the 

court agreed with our position that, under NEPA and the CWA, the Corps is required only to 

examine the impacts of the specific permitted activity—the discharge of dredged or fill material 

into jurisdictional waters—and not the entire project. Regarding the second motion, the court 

held that Corps’ determinations regarding a variety of permit-specific issues involving compensatory mitigation were not arbitrary, capricious, or contrary to law. 

The Division handled litigation related to multiple decisions by the Corps to issue CWA section 

404 permits authorizing the discharge of dredge and fill materials into various waters of the 

United States in conjunction with important infrastructure projects. Several victories in this 

area include: 

—Ouachita Riverkeeper v. Corps of Eng’rs, 

in which the court upheld the Corps’ use of a 

nationwide permit to allow water crossings 

associated with a pipeline to safely transport 

treated wastewater to a discharge point;

—Cook Inletkeeper v. U.S. Army Corps of 

Eng’rs, in which the court denied plaintiffs’ 

motion for a preliminary injunction in a 

case involving a challenge under the CWA 

and NEPA to the Corps’ issuance of an 

individual section 404 permit to the Alaska 

Railroad Corporation for the construction of 

a railroad line that will link Port Mackenzie, 

which is located in Anchorage, Alaska, with 

an existing railroad line farther north; and View of Port Mackenzie, Anchorage, Alaska

Photo Courtesy of NJWilson23
96 | defending federal programs

—City of Dania Beach, Florida v. U.S. Army Corps of Eng’rs, in which the court sustained a 

permit authorizing the discharge of dredge and fill materials with respect to the expansion of the 

southern runway at the Fort Lauderdale-Hollywood International Airport.

Supporting the Corps’ Management of Critical Waterways—the Great 

Lakes Ecosystem

Invasive species are a significant threat to the Great Lakes ecosystem. Asian carp have come to 

dominate sections of the 

Mississippi River and its 

tributaries. If the carp 

were to become established 

in the Great Lakes, it is 

feared that the species 

could create an ecological 

disaster by consuming the 

bottom of the food chain 

and negatively impacting 

the Great Lakes’ multibillion-dollar fishery industry. 

In 2013, the Division 

continued its defense 

before the Seventh Circuit 

of the interests of the 

United States in litigation 

involving the migration of Asian carp into the Great Lakes through the 

Chicago Area Waterway System. This appellate court litigation follows 

favorable decisions in State of Michigan v. U.S. Army Corps of Eng’rs, in 

which the States of Michigan, Wisconsin, Illinois, Pennsylvania, and Ohio 

filed suit against the Corps, alleging that the Corps had created a public 

nuisance by operating structures around Chicago in such a way as to 

allow Asian carp to enter Lake Michigan. Plaintiffs sought a preliminary 

injunction, which the district court denied and the Seventh Circuit upheld. 

The appellate court held that the injunctive relief sought would only 

marginally decrease the likelihood of harm during the pendency of the 

litigation while imposing great costs on the government and the public. 

It concluded that any effort by the courts to intervene in the ongoing 

extensive interagency effort to stop the invasion of carp was unnecessary 

and might do more harm than good given the relative competency of the 

branches of government. Following the Seventh Circuit’s affirmation of 

the denial of a preliminary injunction, the states filed a petition for a writ 

of certiorari in the U.S. Supreme Court. In February 2012, the Supreme 

Bighead Carp

Photo Courtesy of the Asian Carp Regional Coordinating Committee

Silver Carp 

Photo Courtesy of the Asian 

Carp Regional Coordinating 

Committee
defending federal programs | 97

Court denied the petition. In December 2012, the district court granted our motion to dismiss 

the case, and the Division is actively defending that decision on appeal.

Protecting Water Quality in the Everglades

In 2013, the United 

States and Florida 

worked collaboratively to restore water 

quality in the Florida 

Everglades. The 

South Florida Water 

Management District 

initiated implementation of $880 million 

worth of remedial 

projects under a CWA 

National Pollutant 

Discharge Elimination 

System permit issued 

last year by the 

Florida Department 

of Environmental 

Protection, in coordination with EPA. 

Also underway is a 

host of other major 

restoration initiatives 

designed to restore 

historic flows to the 

Everglades. The Department continues to provide legal advice to the federal agencies working 

on these initiatives, and to participate in periodic meetings of the South Florida Ecosystem 

Restoration Task Force.

Upholding Important Department of Agriculture Programs

In WildEarth Guardians v. Animal and Plant Health Inspection Service (APHIS), the Division 

successfully defended APHIS’s predator damage management program from a NEPA challenge. 

The district court in Nevada granted the Division’s motion to dismiss all of plaintiffs’ NEPA 

claims for failure to establish standing. The court held that plaintiffs failed to satisfy the 

redressability requirement for standing because the State of Nevada would carry out predator 

damage management even in the absence of APHIS’s participation. After the court’s ruling, 

plaintiffs voluntarily dismissed their one remaining claim under the Wilderness Act, ending the 

litigation.

In May 2013, the Ninth Circuit in Center for Food Safety v. Vilsack upheld a decision of APHIS 

to deregulate “Roundup Ready” alfalfa, a genetically modified product created by Monsanto 

Corporation. The deregulation decision allows the product to be sold for commercial planting 

Eco Pond in Everglades National Park USGS Photo
98 | defending federal programs

by farmers. Monsanto genetically engineered this alfalfa to be resistant to the herbicide 

glyphosate, a pesticide manufactured by Monsanto known as “Roundup.” Following years 

of litigation over a prior decision by APHIS to deregulate “Roundup Ready” alfalfa, APHIS 

completed the Environmental Impact Statement and concluded that the genetically engineered 

alfalfa no longer should be considered a “plant pest” subject to regulation under the Plant 

Protection Act (PPA). The court of appeals held that because APHIS had properly concluded 

that “Roundup Ready” alfalfa no longer constituted a “plant pest,” it lacked authority to regulate 

the harms that plaintiffs complain about, such as contamination of non-genetically engineered 

alfalfa and increased glyphosate usage. Additionally, because APHIS had no further authority 

under the PPA, it was not required to engage in consultation under the ESA to consider post-deregulation impacts on listed species and was not required by NEPA to look at alternatives to 

unconditional deregulation because it lacked the authority to adopt them where the product met 

the standards for deregulation. Finally, the court held that APHIS was not required to analyze 

whether “Roundup Ready” alfalfa is a noxious weed because Monsanto’s petition did not trigger 

APHIS’s separate noxious weed authority.

Supporting Investments in Transportation Infrastructure

In St. Paul Branch of the NAACP v. Dep’t of Transp., plaintiffs challenged an 11-mile light 

rail project that will connect St. Paul with Minneapolis, on the ground that the Department of 

Transportation did not comply with NEPA. In an earlier ruling, the court granted defendants’ 

motions for summary judgment in most respects and denied plaintiffs’ request for an injunction, 

but ordered the agency to supplement the Environmental Impact Statement with discussion 

of impacts of light rail construction on small business revenues. Plaintiffs claimed that the 

agency’s effort was proceeding too slowly. The district court denied plaintiffs’ renewed request 

for an injunction, finding that the agency was proceeding appropriately to comply with the 

court’s order. The court’s order allowed this important project to proceed while the agency 

addresses the court’s remaining concerns. The case has now been dismissed. Throughout the 

course of this litigation, the Division worked closely with the U.S. Attorney’s Office.

Milwaukee Inner-City Congregations Allied for Hope v. Gottlieb concerns an infrastructure 

project that would upgrade and provide additional capacity on the Zoo Interchange in western 

Milwaukee County, Wisconsin. The Zoo Interchange is a key link in the local, state, and national 

transportation network. Milwaukee community-based organizations brought a challenge to the 

project under NEPA, including stating a claim that the agency failed to comply with Title VI of 

the Civil Rights Act. In 2013, the district court dismissed this claim, holding that NEPA does not 

provide an avenue through which plaintiffs may seek compliance with Title VI or the agency’s 

Title VI disparate impact regulations. We continue to work closely with the federal and state 

agencies involved to help ensure that project impacts on minority communities in the City and 

County of Milwaukee are appropriately addressed.

The Division worked successfully with City and County of Honolulu transportation agencies to 

defend a major rail transit project linking western O`ahu with downtown Honolulu, obtaining 

a largely favorable ruling on summary judgment in Honolulu Traffic.com v. Federal Transit 

Admin. The project will provide significant transit benefits to minority and disadvantaged 

communities in western O`ahu, as noted above, in addition to easing severe traffic congestion 

and alleviating air pollution. The Division is currently defending the agencies’ compliance with 

the district court’s limited remand order.
defending federal programs | 99

In Defenders of Wildlife v. North Carolina Dep’t of 

Transp. and Federal Highway Admin., the Division 

worked closely with the U.S. Attorney’s Office for the 

Eastern District of North Carolina to successfully 

defend the Federal Highway Administration’s planned 

replacement of the Herbert C. Bonner Bridge in Dare 

County, North Carolina. The project will replace the 

existing bridge across Oregon Inlet between Bodie 

Island and Hatteras Island that is nearing the end of 

its useful life, and maintain a transportation route 

from the Oregon Inlet to Rodanthe. In September 

2013, the court ruled in our favor on all claims under 

NEPA and section 4(f) of the Department of Transportation Act.

Native Songbird Care and Conservation v. Foxx concerns an important infrastructure project 

to widen and realign existing Highway 101 to provide additional high-occupancy vehicle lanes 

that will reduce congestion and improve traffic operations between Marin County and Sonoma 

County, California. In 2013, the Division, working with the state transportation agency, 

obtained a court decision that denied a motion for preliminary injunction that would have 

limited certain construction activities to one month out of each year. 

Protecting the Public Fisc from Unfounded Takings Claims

Over the past year, the Division has defended numerous cases seeking compensation under the 

Fifth Amendment to the U.S. Constitution for the alleged taking of private property. 

Of particular note is the Division’s ongoing defense against flooding-related takings claims, 

including cases related to storm-event flooding and cases related to the operation and 

maintenance of dams and other flood control structures throughout the United States. One 

of these cases is St. Bernard Parish v. United States, a proposed class action of approximately 

75,000 landowners brought in the aftermath of Hurricane Katrina. The Division represented 

the United States in a valuation trial in November 2013, arguing that damages to the plaintiffs’ 

properties were not caused by actions of the United States. Another flooding-related case 

handled by the Division over the past year is Lone Star Indus. v. United States, in which the trial 

court dismissed claims alleging the taking of the plaintiff’s deep draft offshore marine import 

terminal as a result of the 2008 de-authorization and 2009 closure of the Mississippi River Gulf 

Outlet. Finally, in Steuve Brothers Farms, L.L.C. v. United States, the Federal Circuit issued 

an opinion in December 2013 affirming the trial court’s dismissal of claims alleging the taking 

of a flowage easement related to modifications to the Prado Dam on the Santa Ana River in 

California, finding that the mere apprehension of future flooding does not constitute a taking of 

a flowage easement. 

In Casitas Mun. Water Dist. v. United States, the Federal Circuit affirmed the Court of Federal 

Claims’ (CFC’s) dismissal of this Fifth Amendment takings action on ripeness grounds. Casitas 

operates and holds the water rights to a water project constructed by the Bureau of Reclamation. 

Casitas alleged that the United States took a portion of its water rights by requiring it to install 

and operate a fish ladder at the project, which reduced Casitas’ diversions of water from the 

Ventura River. In a prior appeal, the Federal Circuit held that the taking claim should be 

Herbert C. Bonner Bridge, Dare County, North Carolina 
100 | defending federal programs

analyzed as a physical appropriation of Casitas’ water rights, rather than as a regulatory taking. 

On remand, the CFC held that Casitas’ taking claim is not ripe because Casitas has suffered no 

harm to its property interest in the beneficial use of water to date. The CFC dismissed, without 

prejudice to refiling if and when the fish ladder’s operation does affect Casitas’ interest in the 

beneficial use of water. In affirming, the Federal Circuit held that, under California law, Casitas 

has a property interest only in the beneficial use of water and that storage of water in Casitas’ 

reservoir was not itself a beneficial use. The court concluded that the CFC did not clearly err in 

finding that the fish ladder flows had not deprived Casitas of any beneficial use of water, and that 

absent any infringement by the federal government of Casitas’ property interest in beneficial 

use, its taking claim had not accrued.

Resolving Ongoing Constitutional Claims Deriving from the Federal 

Rails-to-Trails Program

The Division continues to defend nearly 10,000 claims brought under the Fifth Amendment 

deriving from the implementation of the National Trails System Act. Under that statute, 

thousands of miles of railroad corridors throughout the United States that are no longer needed 

for active rail use have been 

preserved for future rail use and 

converted into trails. While these 

trails provide significant benefit 

to countless communities, their 

creation also has led to numerous 

lawsuits in which adjacent property 

owners argue that they should be 

compensated by the United States 

because the property interests 

conveyed to the railroads did not 

contemplate trail use. Most of 

these cases are filed as class actions 

that may include hundreds of 

landowners seeking compensation. 

The Division continues to work 

diligently to bring these cases to 

a fair and efficient conclusion. In 

addition to securing court dismissal 

of numerous claims that did not 

have merit through briefing or by 

stipulation, we have negotiated favorable settlements of other claims, resulting in resolution of 

many longstanding cases.

 

Acquiring Property for Public Purposes

Consistent with the Fifth Amendment’s mandate to pay just compensation when the United 

States must acquire private property, ENRD works to ensure that all landowners receive fair 

market value, while taxpayers are not required to pay in excess of fair market value. Great 

efforts are made to resolve disputes without litigation where feasible. During fiscal year 2013, 

six major leasehold acquisitions for government administrative space were secured on behalf 

Trail on Upper Gold Camp Road, Colorado 

Photo Courtesy of the Rails-to-Trails Conservancy and ascentionist
defending federal programs | 101

of the General Services Administration (GSA) with Division assistance after initial negotiations 

failed. The total cost savings to the United States for these six acquisitions alone exceeded $1.1 

billion.

The federal government’s power of eminent domain was 

exercised successfully to enable the efficient transfer of title 

to the Thomson Correctional Center in Illinois from the State 

of Illinois to the Federal Bureau of Prisons. United States v. 

146.541 Acres of Land Situate in Carroll County, Illinois, and 

the Illinois Dep’t of Central Mgmt. Serv. The Division guided 

valuation of the Thomson property on behalf of the Bureau of 

Prisons by qualified, independent experts, with the end result 

that the State of Illinois consented to accept $165 million as 

just compensation. In April 2013, the district court approved 

the parties’ joint stipulation of just compensation, bringing 

years of negotiations to a close. 

Eminent domain also was used to acquire approximately 154,000 square feet of office space in 

Washington, D.C., for use by Department of Commerce components for a term of three years 

in United States v. 176,071 Rentable Square Feet of Office and Related Space in the Building 

Located at 1441 L St., NW, Washington, D.C. This case was filed at the request of GSA. The 

Division negotiated a favorable agreement with the landlord retroactive to the date of expiration 

of the preceding lease. This settlement will result in payment of approximately $20,500,000 

over three years, with GSA gaining the ability to terminate the lease in some of the space earlier 

if the space is no longer needed.

The Second Circuit affirmed the district court’s favorable decision in United States v. 25.202 

Acres of Land in the Town of Champlain, Clinton County, New York, and Amexx Warehouse 

Company, Inc., d/b/a Duty Free Americas, Inc. We filed the case to acquire property on the 

United States/Canada border for construction of a crossing facility on behalf of U.S. Customs 

and Border Protection and GSA. At trial, the United States presented evidence supporting a 

fair market value of $208,000. Defendant’s expert had estimated the taking at $10.3 million 

and the landowner had claimed $18 million. A jury returned a verdict of $208,000. The trial 

result and affirmation on appeal represent significant favorable precedent for a number of other 

land port of entry acquisitions in which millions of dollars are at issue, and for ENRD’s eminent 

domain practice as a whole.

During fiscal year 2013, the Division also continued a multi-year project of representation of the 

Corps in eminent domain actions filed to compensate landowners for property taken to enable 

repair and strengthening of levees surrounding New Orleans. 

Responding to U.S. Congressional Proposals for Environmental and 

Natural Resources Legislation and Related Matters

The Division responds to a variety of relevant legislative proposals and Congressional requests, 

including those from the U.S. Government Accountability Office; prepares for appearances of 

Division witnesses before Congressional committees; and drafts legislative proposals, including 

proposals implementing settlements of Division litigation. This work continued in fiscal year 2013. 

Thomson Correctional Center, Illinois
102 | defending federal programs

Reviewing Administrative Rulemakings

The Department serves as part of the interagency review team for federal rulemakings developed 

pursuant to Executive Order 12866. The Division reviewed a substantial number of such rules 

in fiscal year 2013. 

Enforcing Environmental Law Through International Capacity Building 

and Other Activities

The Division actively implements a wide-ranging program of international activities, frequently 

in collaboration with partners from other federal agencies. The Division’s international 

activities advance the goal of protecting 

and promoting effective environmental 

enforcement and support important 

Administration and Department 

objectives:

—We successfully prosecute transnational environmental and natural 

resources crimes that involve foreign 

evidence or foreign assistance, or that 

rely on the violation of underlying 

foreign statutes. 

—We provide critical training for law 

enforcement partners in other countries 

to ensure that they may work effectively 

with us in investigating and prosecuting 

transnational environmental crimes. 

—We participate in the development 

and implementation of trade and investment agreements, treaties, international environmental 

agreements, and domestic implementing legislation in order to ensure that they protect and 

promote effective environmental enforcement. 

—We also help to develop and facilitate international partnerships and networks that promote 

effective prosecution of transnational environmental crimes. 

In carrying out these objectives in fiscal year 2013, ENRD attorneys spoke at joint training and 

cooperative activities and met with law enforcement counterparts in Brazil, China, Hungary, 

Nicaragua, and Thailand. ENRD also participated in meetings in Washington, D.C., or by 

teleconference with officials representing governments and non-governmental organizations 

from Angola, Botswana, Brazil, Canada, Colombia, Kenya, the Republic of Korea, Mozambique, 

New Zealand, Peru, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. 

Division attorneys spoke at and participated in a number of meetings to promote the Administration’s effort to combat wildlife trafficking. They addressed meetings of the Association of 

South East Asian Nations Wildlife Enforcement Network in Thailand and the Central American 

Acting Assistant Attorney General Robert Dreher Speaking at the 

United States-China Strategic and Economic Dialogue
defending federal programs | 103

Wildlife Enforcement Network in Nicaragua. The Chief of the Environmental Crimes Section 

participated in the U.S. delegation to the 10th Meeting of the China-U.S. Joint Liaison Group 

on Law Enforcement Cooperation in Guangzhou, China, and spoke about law enforcement with 

respect to wildlife crimes. Acting Assistant Attorney General Robert Dreher met with Chinese 

officials to discuss wildlife trafficking during the United States-China Strategic and Economic 

Dialogue. ENRD attorneys also spoke about the Division’s efforts to prosecute wildlife 

trafficking cases with a visiting group of wildlife officials from countries in Sub-Saharan Africa.

ENRD participates in negotiations led by the Office of the U.S. Trade Representative for the 

environment chapter of the Trans-Pacific Partnership Trade Agreement with 11 Asian and South 

American countries, and the Transatlantic Trade and Investment Partnership Agreement with 

the European Union. The United States is seeking to incorporate conservation provisions into 

these trade agreements to deter trafficking in illegally taken flora and fauna. The Division also 

took part in the first meetings of the U.S.-Republic of Korea Environmental Affairs Council and 

Environmental Cooperation Commission under the recent free trade agreement with South 

Korea.

As a member of the presidentially appointed Interagency Committee on Trade in Timber 

Products from Peru, ENRD representatives actively participated in the review of a petition filed 

by the Environmental Investigation Agency alleging shipments of illegal timber from Peru to the 

United States. The Interagency Committee was created under the Forest Governance Annex to 

the United States-Peru Trade Promotion Agreement.

The Division continued to conduct domestic and international outreach in order to disseminate 

information about the 2008 amendments to the Lacey Act, which added enforcement tools to 

combat international trafficking in illegally harvested timber and wood products. For example, 

ENRD attorneys conducted workshops about the Lacey Act for Brazilian wood products 

exporters in Sao Paulo and Belem, Brazil. 

ENRD provided training on prosecution of environmental crimes to prosecutors and other 

officials from Eastern European countries at the International Law Enforcement Academy 

(ILEA) in Budapest, Hungary, and from Southeast Asian countries at the ILEA in Bangkok, 

Thailand. Division attorneys also continued to be actively involved in the INTERPOL Wildlife 

Crime, Fisheries Crime, Timber Crime, and Pollution Crime Working Groups.

Protecting the Interests of the United States in Litigation Involving 

Third Parties

The Division 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 amicus 

curiae briefs in several important cases in fiscal year 2013. 

One illustration is the case of Decker v. Northwest Envt’l Defense Ctr. (NEDC) and Georgia-Pacific West v. NEDC, a citizen suit brought by NEDC under the CWA. It implicates a longstanding 

EPA rule addressing what silvicultural activities are subject to National Pollutant Discharge 

Elimination System (NPDES) permitting requirements under the CWA. The United States 

participated in the district court and Ninth Circuit as amicus curiae in support of defendants, 

the State of Oregon and the private timber entities, arguing that EPA regulations exempted 
104 | defending federal programs

stormwater discharges 

from logging roads from the 

NPDES permitting requirements and that EPA’s interpretation should be given 

deference. The Ninth Circuit 

disagreed, holding that the 

CWA precluded that interpretation of the EPA regulations. 

In its revised opinion after 

petitions for rehearing, the 

Ninth Circuit kept intact its 

entire opinion on the merits, 

but clarified in a new section 

that the court has subject 

matter jurisdiction to decide 

the issue. 

After issuance of the revised 

opinion, the State of Oregon and the timber defendants petitioned for writs of certiorari in 

the U.S. Supreme Court. Following the Supreme Court’s grant of certiorari, the United States 

filed an amicus brief in the Supreme Court in support of petitioners. In 2013, the Supreme 

Court reversed the Ninth Circuit. The Court accorded Auer deference to EPA’s interpretation 

of its stormwater rule expressed in the amicus brief, finding it was reasonable for the agency to 

conclude that the stormwater discharges from logging roads at issue were not subject to permits, 

particularly in light of the “broad discretion the [CWA] gives the EPA in the realm of stormwater 

runoff.” Finding the discharges at issue exempt from NPDES permitting requirements, the 

Court declined to address whether the discharges of channeled runoff were “point sources” 

within the meaning of EPA’s Silvicultural Rule and the CWA. 

Another case in which ENRD filed an amicus brief is Trinity Indus. v. Chicago Bridge and 

Iron Co. Trinity appealed to the Third Circuit an order of the district court dismissing its 

CERCLA section 113 contribution and section 107 cost recovery claims. The district court had 

held that an administrative order on consent between Trinity and the State of Pennsylvania 

did not authorize a contribution claim under section 113(f)(3)(B) because Trinity’s settlement 

with the state did not expressly resolve Pennsylvania’s CERCLA claims. The district court also 

found that Trinity could not pursue its section 107 claim for response costs because Trinity did 

not “voluntarily” incur response costs at the site in question, raising the question of whether a 

potentially responsible party is entitled to pursue a cost recovery whenever it incurs response 

costs and a contribution action is not available to it. Neither question had been addressed by 

the Third Circuit. We filed a brief as amicus curiae in support of Trinity on both issues, arguing 

that a state consent order need not expressly resolve CERCLA liability to authorize a contribution claim under CERCLA section 113, and that, if Trinity lacked a section 113 claim, Trinity 

was entitled to proceed under section 107. In August 2013, the Third Circuit issued an opinion 

reversing the district court on the section 113 issue on the basis of arguments made in the U.S. 

briefs. Given its decision on the section 113 issue, the court did not reach the section 107 issue. 

The Division also participated as amicus curiae in Munce’s Superior Petroleum Products, Inc. 

v. New Hampshire Dep’t of Envt’l Serv. This was a bankruptcy case in the First Circuit that 

EPA Regulation of Stormwater Runoff 

from Logging Roads

—In December 2012 EPA revised its Phase I stormwater regulations 

to clarify that stormwater discharges from logging roads do not 

constitute stormwater discharges associated with industrial activity 

under the Clean Water Act and that National Pollutant Discharge 

Elimination System permits are not required for these stormwater 

discharges. 

—The agency modified language to clarify that the only facilities 

under Standard Industry Classification (SIC) code 2411 that are 

“industrial” for purposes of assessing whether stormwater discharges 

are “associated with industrial activity” are rock crushing, gravel 

washing, log sorting, and log storage. See 40 C.F.R. 122.26(b)(14).
defending federal programs | 105

involved the question of whether civil penalties assessed against a Chapter 11 debtor-in-possession for violations of environmental law that occur after bankruptcy qualify for administrative expense priority, which typically requires the debtor to pay the penalties in full. The 

Bankruptcy Court for the District of New Hampshire determined that the fines assessed by the 

state’s Department of Environmental Services for the debtor’s violations of state groundwater 

protection laws should be given administrative priority and the district court agreed. We filed 

a brief in the First Circuit and participated in oral argument in support of the State of New 

Hampshire. In November 2013, the First Circuit upheld the lower court decision. The U.S. 

filing in this case supported the federal government’s interest in ensuring that bankrupt entities 

violating environmental laws and regulations remain subject to legal requirements, including 

penalties for noncompliance applicable to their conduct.

The Division also conducts the Department’s review of citizen suit complaints and consent 

judgments under the CAA and CWA. The statutes contain provisions allowing citizens to file 

suit for violations of the statutes, and require that citizen suit complaints and consent judgments 

be served on the Department and EPA. When served with complaints, we offer our assistance to 

counsel for the parties, and we review all consent judgments to ensure that they comply with the 

requirements of the relevant statute and are consistent with the statute’s purposes. An example 

of the citizen suit settlements that we reviewed in 2013 is Ogeechee-Canoochee Riverkeeper, 

Inc. v. King America Finishing, Inc. The Riverkeeper, a Georgia non-profit, claimed that 

defendant had violated the CWA by discharging wastewater and substances related to its fabric 

finishing facility into the Ogeechee River and that the discharges had resulted in a fish kill 

downstream from the facility. The proposed consent decree included extensive injunctive relief 

and the payment of funds for SEPs. In coordination with EPA, we worked with the parties to 

ensure that implementation of the SEPs under this settlement will be transparent and consistent 

with EPA’s and the Division’s standards. Under this decree, $350,000 would be spent on future 

SEPs that directly benefit the watershed.

Responding to Freedom of Information Act Requests 

ENRD continues to be one of 

the Department’s highest-performing components in its 

Freedom of Information Act 

(FOIA) work. In fiscal year 2013, 

the Division received more than 

a hundred such requests and 

completed the processing of 

more than a hundred responses 

to outstanding requests. We closed nine of the 10 oldest pending requests from fiscal year 

2012, as well as the sole outstanding request for “consultation” from another federal agency as 

to how it should respond to a FOIA request. ENRD also worked with the Department’s Office 

of Information Policy on several appeals related to FOIA requests, the majority of which were 

affirmed in the Division’s favor or withdrawn by the requester. The Division continues to 

explore the use of new technology to expedite FOIA processing, increase proactive disclosures, 

and reach out to requesters to ensure efficient processing of their requests. 

“The Freedom of Information Act (FOIA), 5 U.S.C. § 552, 

reflects our nation’s fundamental commitment to open 

government. This memorandum is meant to underscore 

that commitment and to ensure that it is realized in practice.”

 —Attorney General Eric Holder’s 2009 

Memorandum on the Freedom of Information Act
106 | promoting national security and military preparedness

U.S. Army’s National Training Center, Fort Irwin, California Marine Photo

Planes Over Naval Air Station Whiting Field, Florida Navy Photo
promoting national security and military preparedness | 107

PROMOTING 

NATIONAL SECURITY AND 

MILITARY PREPAREDNESS

The Division makes a significant contribution to national security while ensuring robust 

compliance with the country’s environmental and natural resources laws. Increasingly, ENRD 

is responsible for defending a variety of agency actions that support the security of the United 

States.

Supporting Critical Military Training and Security Needs

The United States has decided to build and operate a second explosives-handling wharf at Naval 

Base Kitsap in Bangor, Washington. The proposed wharf is necessary to ensure the continuing 

viability of the Navy’s “Trident” class ballistic missile submarines, which the Navy developed 

during the Cold War to serve as a survivable 

retaliatory strike force in the event of a 

nuclear attack against the United States. 

The naval base houses eight “Trident” class 

ballistic missile submarines, each capable 

of carrying up to 24 missiles. The proposed 

wharf would increase the Navy’s capability 

to load and unload Trident missiles from 

the submarines for purposes of conducting 

maintenance. Plaintiffs in Ground Zero 

Center for Nonviolent Action v. Navy argued 

that the Navy violated NEPA in approving 

construction of the wharf because the Navy 

allegedly withheld project information from 

public review and insufficiently analyzed 

means of mitigating the environmental 

impacts of the proposed wharf. Plaintiffs in Suquamish Tribe v. U.S. Army Corps of Eng’rs

challenged the Navy’s decision, as well as the Corps’ and NMFS’s authorization of the proposed 

explosives handling wharf, and alleged that the agencies violated a number of statutes, including 

the ESA, as well as fishing rights secured to them by treaty. In January 2013, the district court 

issued orders denying plaintiffs’ motions for preliminary injunction in both cases and finding 

that plaintiffs were unlikely to succeed on the merits of their claims. The Suquamish Tribe 

Navy Base Kitsap, Bangor, Maine Navy Photo

Naval Base Kitsap was created in 2004 by merging the former Naval 

Station Bremerton with Naval Submarine Base Bangor.
108 | promoting national security and military preparedness

voluntarily dismissed its lawsuit shortly thereafter. The Division then briefed cross-motions for 

summary judgment in the Ground Zero case and ultimately prevailed on all counts. 

In fiscal year 2013, we successfully defended against an appellate challenge to the Navy’s 

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

75 miles off the Atlantic coast of Florida. The USWTR facility will enhance and improve the 

Navy’s anti-submarine warfare training activities, which are essential to the Navy’s ability to 

detect and defeat submarines operating in shallow water environments where environmental 

conditions coupled with new noise reduction technologies make detection increasingly difficult. 

The USWTR will be the only training range of its kind on the East Coast, and it will provide 

ships, submarines, and aircraft in the Atlantic Fleet with a realistic and challenging training 

environment that mirrors the areas in which the Navy finds itself increasingly operating. In 

Defenders of Wildlife v. U.S. Dep’t of the Navy, plaintiffs brought suit, alleging that the Navy’s 

decision to construct the USWTR violated NEPA and the ESA. Plaintiffs also challenged the 

associated biological opinion prepared by NMFS. As we reported last year, after extensive 

summary judgment briefing and oral argument, the district court ruled in the Navy’s and 

NMFS’s favor on all claims, putting the Navy in position to begin implementing the next steps of 

this vital project. In October 2013, the Eleventh Circuit upheld that decision. 

Defending Dredging Projects Necessary for National Defense and 

Economic Vitality

In Town of Bald Head Island v. Army Corps of Eng’rs, plaintiffs challenged a Corps’ dredging 

project that was essential to the operation of the Military Ocean Terminal–Sunny Point 

(MOTSU), which is located between Wilmington and Southport, North Carolina, on the west 

bank of the Cape Fear River. The MOTSU is the largest ammunition terminal in the United 

States. Ammunition and weapons are transported to MOTSU from all over the United States, 

loaded onto ships, and transported to supply forward-deployed troops overseas. MOTSU 

serves a critical role in numerous operations plans supporting the European and Southwest 

Asia theaters. Ninety percent of the ammunition supplied to troops in Iraq and Afghanistan is 

shipped from MOTSU. Additionally, the dredging was required to keep the Port of Wilmington 

available for deep-draft ships and assure sound economic development for the Wilmington area. 

In fiscal year 2013, ENRD secured an appellate victory in this case, when the Fourth Circuit 

upheld an earlier ruling by the district court dismissing the case. This ruling finally ensured 

unfettered access to Cape Fear River channels serving MOTSU and the Port of Wilmington. 

Supporting the Administration’s Renewable Energy Agenda

A key element of U.S. efforts to reduce 

its dependence on foreign oil and 

the emission of greenhouse gases 

from the burning of fossil fuels is the 

expansion of cleaner domestic sources 

of renewable energy such as solar and 

wind power. In fiscal year 2013, the 

Division continued to defend against 

challenges to permits and rightsof-way issued by BLM to promote the 

“The all-of-the-above energy strategy I 

announced a few years ago is working, 

and today, America is closer to energy 

independence than we’ve been in decades.”

—President Barack Obama, 2014 State of 

the Union Address
promoting national security and military preparedness | 109

development of renewable energy projects on western public lands. ENRD is handling more 

than 25 cases involving solar, wind, and transmission projects located in California, Oregon, 

Tennessee, Delaware, Maine, Massachusetts, Ohio, and Vermont. We successfully prevailed 

on summary judgment in cases involving the Ivanpah Solar Project, Genesis Solar Project, 

North Sky River Wind Energy Project, Ocotillo Wind Energy Project, West Tennessee Solar 

Farm Project, and Steens Mountain Wind Project. These successes have enabled substantial 

development of renewable energy resources.

The Ivanpah Solar Energy Generating System (ISEGS) is the largest solar project in the world. 

The 377-megawatt solar complex uses mirrors to focus the power of the sun on solar receivers 

atop power towers. When completed, the $2.2 billion system will use 173,500 computer-controlled mirrors to aim 1,000-degree rays at boilers mounted on three 459-foot towers, turning 

water into enough steam-generated electricity to power 140,000 homes. The project has already 

begun to deliver power to the grid. As reported last year, we successfully prevailed in the Ninth 

Circuit on a request for a preliminary injunction in Western Watersheds Project v. BLM, which 

was the first appellate preliminary injunction decision to address new solar projects sited on 

federal land. In fiscal year 2013, the Division secured victories at the district court level on 

motions for summary judgments in Western Watersheds Project v. BLM and La Cuna v. U.S. 

Dept. of the Interior.

As reported last year, the Genesis Solar Energy Project is another of the first large-scale 

renewable energy projects to be constructed on federal public land managed by BLM. When 

complete, the project will provide up to 250 megawatts of clean solar energy to southern 

California. The Division has successfully defended this important project in three different 

lawsuits. In fiscal year 2012, we obtained the complete dismissal of California Unions for 

Reliable Energy v. U.S. Dep’t of the Interior. In fiscal year 2013, we secured a stipulation of 

dismissal after multiple favorable rulings in Colorado River Indian Tribes v. U.S. Dep’t of the 

Interior. In La Cuna de Aztlan v. U.S. Dep’t of the Interior, a group of individuals alleged that 

BLM violated various laws governing public lands, and failed to adequately analyze the impacts 

of the project under NEPA. After several rulings granting dismissal but allowing for the filing of 

amended complaints, in fiscal year 2013 the district court dismissed with prejudice the bulk of 

plaintiffs’ claims. 

The Ocotillo Wind Energy Project, which is located on 10,000 acres of BLM lands in western 

Imperial County in California, will produce up to 465 megawatts of electricity. As reported last 

year, the Division has defended five separate actions regarding this project and has defeated 

each of the three requests for emergency injunctive relief filed to stop the development of the 

project. During fiscal year 2013, in the two cases remaining, we secured favorable opinions in 

Desert Protective Council v. U.S. Dep’t. of the Interior and Quechan Tribe of the Fort Yuma 

Reservation v. U.S. Dep’t of the Interior. The opinions confirm BLM’s full compliance with 

environmental laws in its decision to allow development of the Ocotillo Project, including NEPA, 

the National Historic Preservation Act, FLPMA, the Archaeological Resources Protection Act, 

and the Native American Graves Protection and Repatriation Act. 

The Division also continues to defend a permit issued for the Cape Wind Project in Nantucket 

Sound, which is America’s first offshore wind project. In four separately filed cases that have 

been consolidated, environmental groups, fishermen, a local township, and an Indian tribe 

seek to overturn the decision by the Secretary of the Interior to approve the construction of 

the project under multiple statutes. We have fully briefed all the claims in this very complex 
110 | promoting national security and military preparedness

litigation. The court earlier this year denied challenges to the completeness and contents of the 

administrative record, challenges that if granted could have resulted in years of delay. We have 

aggressively sought resolution of the case on an expedited schedule. 

In fiscal year 2013, ENRD obtained a favorable ruling in Sierra Club v. Kenna, which is a 

challenge to the North Sky River Wind Energy Project. There, a developer is utilizing about 

13,000 acres of private land situated at the southern end of the Sierra Nevada mountain range 

for the purpose of wind power generation. The project will contain up to 102 wind turbines and 

have a maximum electrical output of up to 300 megawatts. The court rejected challenges under 

the ESA and NEPA to BLM’s decision to grant 

a right-of-way and allow for construction of a 

road and transmission lines to the project. In 

making its NEPA determinations, the court 

deferred to the BLM’s determination that, if 

the BLM had declined to approve the road 

and transmission line project, North Sky 

nonetheless would have built a private road 

with transmission lines to serve the project. 

Therefore, the court found that the road 

construction was not a proximate cause of the 

wind project and, accordingly, NEPA does not 

require BLM to conduct an environmental 

analysis of the wind project being constructed 

on private lands. The court further concluded 

that, because Kern County had analyzed the 

wind project under the California Environmental Quality Act, the rule of reason eliminated any 

requirement that BLM analyze the wind project a second time. The project is now operational.

In National Parks Conservation Auth. v. Jewell, the Division defended challenges, under 

multiple statutes, including NEPA and the Organic Act, to a National Park Service decision to 

issue construction and expanded right-of-way permits to two utilities for a major infrastructure upgrade to transmit power more efficiently into New York City. The transmission lines 

being upgraded have been in operation for 85 years. The transmission upgrade itself was 

fast-tracked by the Administration as one of seven projects to 

demonstrate streamlined federal 

permitting and enhanced governmental cooperation. In fiscal year 

2013, the court issued a favorable 

summary judgment opinion on all 

claims.

The Mascoma Biorefinery Project, 

which is now under construction 

in Michigan’s Upper Peninsula, is 

one of the Department of Energy’s 

(DOE) first large-scale biomass 

energy projects. When complete, 

the project will convert wood 

Wind Turbines DOI Photo

Location of the Mascoma Biorefinery Project DOE Image
promoting national security and military preparedness | 111

chips into 21 million gallons of ethanol on a daily basis. The Division successfully defended 

this important renewable energy project in Klein v. U.S. Dep’t of Energy. The federal district 

court in Michigan granted our motion for summary judgment and found that DOE had fully 

considered the environmental impacts of the project. 

Defending Fossil Fuel Development, Transportation, and Storage

In fiscal year 2013, the Division also had several key victories in cases involving fossil fuel 

development. In Native Village of Chickaloon v. NMFS, plaintiffs challenged the Incidental 

Harassment Authorization (IHA) that NMFS issued to Apache Alaska Corp. under the MMPA 

for the purpose of conducting seismic surveys as part of oil and gas exploration in the Cook 

Inlet of Alaska. On motions for summary judgment, the court largely upheld the IHA against 

challenges under the ESA, 

MMPA, and NEPA. As a result, 

surveying operations were able 

to move forward in a manner 

that complied with all environmental safeguards found 

necessary by NMFS. 

Similarly, in Shell Gulf of 

Mexico v. CBD and Alaska 

Wilderness League v. U.S. 

Dept. of the Interior, ENRD 

successfully defended the 

Department of the Interior’s 

review and approval of 

Shell Oil Company’s oil spill 

response plans for exploratory 

oil and gas drilling in the 

Beaufort and Chukchi Seas, 

off the coast of Alaska. In 

these cases, the sufficiency 

of Interior’s approval was 

challenged under a variety of 

statutes. The district court 

in Alaska granted summary 

judgment for the United States 

on all counts. This allowed 

exploration to proceed in an 

environmentally protective 

manner. 

Two major pipeline projects 

became operational following 

the resolution of litigation this 

year. In the first case, Sierra 

Club, Inc. v. Bostick, which was 

filed in Oklahoma, plaintiffs 

Map Showing Cook Inlet, Alaska Image Courtesy of Matthew Trump 

Map of the Beaufort and Chukchi Seas Image Courtesy of Norman Einstein
112 | promoting national security and military preparedness

challenged the Corps’ authorization of the $2.3 billion segment of its Keystone XL Oil Pipeline 

from Oklahoma to the Texas coast by nationwide permit. We successfully secured denial of a 

motion for a preliminary injunction in the district court, which was affirmed by the appellate 

court. 

In the second case, which was filed in the District of Columbia and also captioned Sierra Club, 

Inc. v. Bostick, the Division also obtained a denial of an emergency request to stop construction 

of a another pipeline. The Flanagan South Pipeline of Enbridge, Inc., will transport oil sands 

and crude oil from Flanagan, Illinois, to Cushing, Oklahoma, and ultimately down to the U.S. 

Gulf Coast. The 589-mile pipeline provides producers in North Dakota and western Canada 

more options to deliver crude oil supplies to refinery hubs located as far away as the Gulf Coast. 

The district court, in denying a motion for a preliminary injunction, recognized that the whole 

project was not federalized by the Corps’ authorization of the project by nationwide permit. The 

court balanced the lack of imminent harm established by plaintiffs against both the value of the 

project and of the nationwide permit process in facilitating a sensible Corps’ permitting system. 

Supporting the Border Fence Project and Securing the Nation’s 

Borders

ENRD continues to litigate land acquisition cases brought to secure the nation’s borders on 

behalf of the Department of Homeland Security. Fiscal year 2013 saw the successful resolution 

of actions filed to acquire property interests along the United States/Mexico border in California 

and in Texas; several multi-million dollar settlements were pending approval at year’s end. 

The Division 

and the U.S. 

Attorney’s Office 

for the District 

of Arizona also 

coordinated 

in initiating 

litigation on 

behalf of the 

U.S. Customs 

and Border 

Protection to 

enable installation and 

maintenance of 

towers, access 

roads, and 

other associated 

structures to 

secure the 

United States/

Mexico border 

in southern 

Arizona.

Southwest Border Fence Construction in Yuma Sector, California DHS Photo
promoting national security and military preparedness | 113

Acquiring Additional Property to Improve Military Preparedness and 

National Security

In 2011, we brought the case of United States v. 2,560 

Acres of Land in Imperial County, California on behalf 

of the U.S. Navy to acquire privately owned land located 

within El Centro Naval Air Facility. Prior landowners had 

previously leased the property to the Navy, but subsequently declined to renew the lease, thereby jeopardizing 

vital military training. El Centro is the second most 

heavily used bombing range in the United States. Tactical 

training at this air installation is critical to ensuring that 

the military is effectively prepared for combat. Based on 

alleged high-quality clay deposits and potential alternative 

energy development, the landowners initially claimed 

the property was worth $1 billion. The United States’ 

independent experts, however, opined a value of $1.203 

million. Mediation by the district court in California 

resulted in a settlement for $1.5 million in fiscal year 2013, 

providing property needed for critical military training, 

while potentially saving the government hundreds of 

millions of dollars. 

Similarly, the case of United States v. 1,136.526 Acres of 

Land in Goliad County, Texas, and the County of Goliad

was filed at the Navy’s request to acquire an airfield for 

training operations based out of Naval Air Station Corpus 

Christi. This airfield had been owned by the United States, but was closed in the 1990s during 

the Base Realignment and Closure process and deeded to Goliad County for one dollar. More 

recently, a hydrocarbon producing formation was identified in the vicinity, and hydraulic 

fracturing activities spurring mineral development were undertaken. The U.S. expert opined 

that the 1,136-acre property was worth $2,450,000 on the date of taking; Goliad County 

appraised the property at a value of at least $9,000,000. A team of Division and U.S. Attorney’s 

Office attorneys successfully mediated this dispute to a settlement favorable to the United States 

of $3,625,000.

In cooperation with the U.S. Attorney’s Office for the Central District of California, the Division 

also initiated over a dozen eminent domain cases in fiscal year 2013 to expand the National 

Training Center at Fort Irwin, California, at the request of the Department of the Army. Each 

month, the National Training Center provides thousands of troops with essential training opportunities, including force-on-force and live-fire training of the heavy brigade-sized military forces 

necessary to maintain and improve military readiness and promote national security. 

We also provided counseling and litigation services to enable the Navy to acquire avigation 

easements in support of safe operation of military aircraft at the Navy Outlying Landing Field in 

Summerdale, Alabama; Naval Air Station Whiting Field in Milton, Florida; and Evergreen Naval 

Outer Landing Field in Conecuh, Alabama. Avigation easements ensure safe flight clearance 

while compensating affected landowners for noise levels resulting from low and frequent flights. 

F-A-18A Hornets in Formation at Naval Air 

Facility El Centro, California

Navy Photo
2013 White Mountain Apache Water Rights Signing Ceremony DOI Photo

View of Monument Valley, Navajo Nation Photo Courtesy of J. Brew

114 | protecting tribal resources
PROTECTING TRIBAL RIGHTS 

AND RESOURCES AND 

ADDRESSING TRIBAL CLAIMS

In fiscal year 2013, the Division continued to handle a range of matters affecting Indian 

tribes and their members. This includes litigation to protect and defend tribal resources and 

rights; policy and litigation work to help ensure that communities in Indian Country enjoy the 

protections of the natural resources and environmental laws; and the respectful and responsible 

defense of lawsuits brought by tribes against the federal government. The United States has a 

government-to-government relationship with tribes, and we seek to work collaboratively with 

tribes in carrying out this work wherever possible.

Supporting Tribal Authority Over Tribal Lands and Resources

ENRD addressed various issues concerning reservation boundaries, the status of tribal land, and 

tribal governmental authority over that land. For example:

—The Seventh Circuit affirmed the district court’s dismissal of a case that raised, for the first 

time, the issue of the applicability of local stormwater management fees to Indian trust lands. 

The Oneida Nation of Wisconsin sued the Village of Hobart, Wisconsin, seeking a declaration 

that the village lacked authority to assess a stormwater fee on tribal trust land, including lands 

on which the Oneida Tribe maintains its own stormwater system. 

The village had filed a third-party complaint against the United 

States, alleging that the United States is liable for the fee. In 

Village of Hobart v. Oneida Tribe of Indians of Wisconsin, the 

Seventh Circuit held that states and their subdivisions are not 

authorized to regulate stormwater or other pollution on Indian 

lands, including Indian trust lands. The court found no indication 

that Congress intended to put regulation of pollution in tribal 

territory under state control. 

—The Division intervened in litigation brought by the Penobscot 

Nation against the State of Maine. The controversy concerns 

whether the Penobscot Reservation—in large part islands in 

the Penobscot River—includes some portion of the Penobscot 

River or ends at the water’s edge. The Penobscot filed a lawsuit, 

protecting tribal resources | 115

Map of the Penobscot River 

Watershed

Courtesy of Karl Musser
116 | protecting tribal resources

Penobscot Nation v. Mills, to protect the right of tribal members to exercise fishing rights in the 

river and to protect its authority to regulate the taking of wildlife and game on those portions 

of the river falling within its reservation. This case also has environmental justice elements, as 

discussed above.

—We filed, for the first time, an amicus brief in a tribal court. The brief, which was filed in 

Village of Pender v. Parker, supported the Omaha Tribe’s argument that an act of Congress 

did not alter or diminish the tribe’s reservation boundary. Our position was drawn from the 

opinion of the Solicitor’s Office in the Department of the Interior. The tribal court ruled that the 

reservation boundary remains intact. Following the ruling by the tribal court, the case returned 

to a federal district court as Smith v. Parker, and the Division filed a motion for summary 

judgment, again arguing that the reservation boundary had not been changed by Congress.

—As reported last year, the Department of the Interior has for more than 60 years actively 

promoted tribe-specific employment preferences in leases relating to a particular tribe’s trust 

resources. In 1988, the Equal Employment Opportunity Commission (EEOC) took the position 

that Title VII of the Civil Rights Act—which prohibits national origin discrimination—prohibited 

such tribe-specific preferences by private employers. The Department of the Interior, in 

contrast, takes the position that such preferences, when they involve resources held in trust for 

the tribe, are based on political (tribal) sovereignty, rather than national origin. This distinction 

is significant because political preferences fall beyond the scope of Title VII. In EEOC v. 

Peabody W. Coal, the Secretary of the Interior was pled into an EEOC enforcement action in the 

district court in Arizona due to Interior’s role in approving the mineral leases in question. As 

a result, ENRD, on behalf of Interior, asserted the validity of the tribal employment preference 

provisions in a series of leases involving Navajo Nation lands. In fiscal year 2012, ENRD 

prevailed in district court. In fiscal year 2013, the Division actively defended the lower court 

decision on appeal.

Penobscot River, Maine
protecting tribal resources | 117

Defending Tribal and Federal Interests in

Water Adjudications

We assert water rights claims for the benefit of federally recognized Indian tribes and their 

members in complex water rights adjudications throughout the western United States. 

Settlements are often the preferred way to resolve these complex matters. These settlements 

seek to protect and recognize the federally reserved water rights, which the United States holds 

in trust for tribes. In fiscal year 2013, the United States concluded some highly significant tribal 

water rights cases.

—In New Mexico ex rel. State Eng’r v. United States, the adjudication court entered a decree 

adopting the settlement resolving the water rights of the Navajo Nation in the San Juan River 

Basin. Congress ratified the settlement in 2009 through the Northwestern New Mexico Rural 

Water Projects Act, and the Secretary signed the settlement in 2010. This decree puts in place 

a historic settlement reached between the Navajo, the United States, and New Mexico and will 

ensure that potable water will be available to the tribe and its members in northwestern New 

Mexico. 

—The Division also negotiated and the United States signed three separate historic water rights 

settlements: (1) Aamodt—resolving the water rights of the Pueblo of Nambé, the Pueblo of 

Pojoaque, the Pueblo de San Ildefonso, and the Pueblo of Tesuque; (2) Taos—resolving the water 

rights of the 

Taos Pueblo; 

and (3) White 

Mountain 

Apache—

resolving the 

water rights 

of the White 

Mountain 

Apache Tribe 

in the Gila 

River Basin 

in Arizona. These settlements end decades of 

litigation and will protect tribal rights while 

bringing certainty to all the water users in these 

river basins.

Settlements are not always possible. In those 

situations, resolution of these complex water 

issues falls to the adjudicating court or administrative agency. This year, we successfully 

defended claims for the benefit of the Klamath 

Tribes in the Klamath Basin Adjudication in 

Oregon. The Oregon Water Resources Department approved the majority of an administrative 

law judge’s affirmance of water rights to support productive habitat for fish, wildlife, and edible 

plants on the Klamath River in southern Oregon.

Gila River, Arizona

Map of the Gila River Courtesy of Karl Musser
118 | protecting tribal resources

The Division also successfully litigated several water rights cases before appellate courts during 

fiscal year 2013.

—In Washington Dep’t of Ecology v. Acquavella, 

the Washington Supreme Court reversed a partially 

adverse lower court decision that had unduly 

limited the amount of federally reserved water 

rights for the Confederated Tribes of the Yakama 

Nation (the Nation) in the Yakima River Basin. The 

order at issue adjudicated water rights to Ahtanum 

Creek, which runs through a part of the Yakama 

Reservation. The state supreme court held that 

the lower court erred in ruling that a 1964 decree, 

which had been entered pursuant to litigation in the 

Ninth Circuit that quantified the Nation’s agricultural water rights, precluded the Nation from 

diverting water to storage outside the irrigation 

season and made a claim to a storage right for the 

nation premature. The supreme court remanded 

for reconsideration of the Nation’s water rights 

under the well-established “practicably irrigable 

acreage” standard, which should substantially 

increase the amount of irrigable acreage for which 

water rights are confirmed and allow the Nation to 

divert water to storage year-round, which is a critical right in arid eastern Washington where 

this portion of the Nation’s reservation is located. The state supreme court also ruled, consistent 

with our position, that non-reservation water right claimants who were not awarded water rights 

in the 1964 Ninth Circuit decree have no rights in Ahtanum Creek water. 

—In Pyramid Lake Paiute Tribe v. Nevada, in a ruling favorable to the United States and the 

Pyramid Lake Paiute Tribe, the 

Ninth Circuit limited the amount 

of agricultural water rights in the 

Newlands Reclamation Project in 

Nevada that could be transferred 

for use in restoring downstream 

wetland wildlife habitat. Such a 

transfer would have been to the 

detriment of Pyramid Lake, which 

provides habitat for two federally 

listed endangered and threatened 

fish species and is the principal 

feature of the Pyramid Lake Paiute 

Tribe’s reservation. The water 

rights in question are governed by 

the Alpine Decree, which provides 

that when irrigation water rights are 

transferred to a different use only 

the portion of the water duty that is 

Map of the Yakima River Basin Including Ahtanum Creek 

Courtesy of Shannon1

Pyramid Lake Indian Reservation, Nevada USDA/Lynn Betts Photo
protecting tribal resources | 119

consumed by the crops (here 2.99 acre-feet per acre versus the full 3.5 acre-feet per acre) may 

be transferred. The Nevada State Engineer, who has jurisdiction over applications to transfer 

water rights held pursuant to the decree, allowed the full water duty to be transferred, reasoning 

that the application of water to wetlands was for the growth of plants and thus constituted a 

continued irrigation use. The Ninth Circuit disagreed, holding that the Alpine Decree expresses 

a singular concern with providing irrigation water for agricultural use, as reflected in decades 

of Ninth Circuit decisions interpreting the decree. The court also concluded that under Nevada 

law, which generally governs the transfer of water rights under the decree, use of water for 

wetlands is a “wildlife” use distinct from an “irrigation” use. Although the court recognized that, 

as a technical matter, the use of water for wetlands involved the application of water to grow 

plants, it held that neither the decree nor the Nevada water code treat use of water for wetlands 

and wildlife habitat as irrigation.

Protecting Tribal Hunting, Fishing, and Gathering Rights

We litigate to preserve treaty-protected tribal hunting, fishing, and gathering rights. In 1970, 

the United States initiated United States v. Washington to protect the treaty fishing rights of 

the tribes in the Pacific Northwest. In 1974, the federal district court in Phase I of the case 

reaffirmed the fishing rights reserved by the tribes, holding that the right of taking fish “in 

common with the citizens” reserved to the tribes the right to take up to 50% of the harvestable 

stocks of fish, and established the tribes as co-managers of the fishery resource. 

Phase II of the litigation included a second claim related to fish habitat protection. As 

development pressures increase in western Washington, fish habitat has degraded in both 

quantity and quality. As a result, harvest levels have declined precipitously, and many stocks 

of anadromous fish are listed as threatened or endangered under the ESA. In 1980, the district 

court held that the treaty right included a right to protect the habitat needed by the fish to 

survive, but the Ninth Circuit ultimately vacated that ruling on the grounds that a declaratory 

judgment was “contrary to the exercise of sound judicial discretion” absent a concrete fact 

situation.

In the recent “Culverts Case,” one of many sub-proceedings of United States v. Washington, 

the tribes and the United States sought to litigate the Phase II habitat question in the narrow 

context of culverts beneath 

state roads. Poorly 

constructed and inadequately 

maintained culverts directly 

block passage of anadromous 

fish to spawning grounds and 

the access of juvenile fish 

to the ocean. In 2007, the 

district court ruled that “the 

right of taking fish secured to 

the tribes by treaty imposes 

a duty on the state to refrain 

from building or operating 

culverts under state-maintained roads that hinder fish passage and thereby diminish the 

number of fish that would otherwise be available for Tribal harvest.” In 2013, the court entered 

a permanent injunction against the state and in favor of the tribes and United States, requiring 

Example of Corrected Fish-Blocking Culverts in Washington 

Courtesy of Washington Department of Natural Resources
120 | protecting tribal resources

the state to inventory its fish-blocking culverts within six months and correct them within 17 

years.

 

Upholding Agency Authority to Acquire Land in Trust for Tribes

The Division continued to actively defend the Department of the Interior’s authority to take land 

into trust for tribes. In 2009, in Carcieri v. Salazar, the Supreme Court limited the Department 

of the Interior’s trust land acquisition authority to those tribes that were “under federal jurisdiction” when the Indian Reorganization Act was enacted in 1934. The decision created uncertainty 

regarding Interior’s trust acquisition authority, resulting in a backlog of trust applications. In 

fiscal year 2012, the Division worked closely with Interior to develop a framework for interpreting what “under federal jurisdiction” means in trust land acquisition cases. 

This year, the Division successfully opposed emergency motions to enjoin the Secretary from 

acquiring land in trust for tribes in two cases. In Stand Up for California v. Dep’t of the 

Interior, the district court in the District of Columbia rejected efforts to challenge the decision of 

the Secretary of the Interior to acquire land for the North Fork Rancheria of Mono Indians. In 

a significant win for the United States, the district court in the District of Columbia rejected the 

argument that North Fork Rancheria was not “under federal jurisdiction” in 1934, and therefore 

could not qualify for land acquisition pursuant to Carcieri v. Salazar. In Cachil Dehe Band of 

Wintun Indians of the Colusa Indian Cmty. v. Salazar, the district court in California denied 

emergency relief to prevent the Secretary of the Interior from acquiring land into trust for the 

Enterprise Rancheria of Maidu Indians of California.

Navajo Nation EPA Map
protecting tribal resources | 121

Empowering and Partnering with Tribes 

to Address Environmental Issues Affecting 

Tribes

Through strong enforcement of environmental laws, we 

ensure that Native Americans—like all Americans—have the 

benefit of a safe and healthy environment. For example, 

in fiscal year 2013, ENRD handled various environmental 

cases for the benefit of Indian tribes. One key case was the 

Tronox bankruptcy matter, also discussed above. Personnel 

from the Navajo Nation assisted the U.S. Government’s legal team in litigating the case. In the 

recent opinion from the Bankruptcy Court, the former parent of Tronox, Kerr McGee, was found 

liable for significant damages for the fraudulent transfer of assets in an attempt to avoid liability 

for environmental contamination—including uranium mining on Navajo Nation lands. EPA 

stands to recover a large portion of the damages, which will be used for cleanup of the former 

Kerr McGee uranium mines within the Navajo Nation. Several more environmental cases 

brought for the benefit of Indian tribes are discussed in the Environmental Justice chapter, 

above.

Defining Tribal Subsistence Rights

In July 2013, in Katie John v. United States, the Ninth Circuit issued its third decision in nearly 

twenty-five years of litigation among Alaska Natives, the State of Alaska, and the United States 

over the scope of the term “public lands” in Title VIII of the Alaska National Interest Lands 

Conservation Act (ANILCA). Title VIII accords a priority to “rural Alaska residents” in the 

taking of fish and wildlife on “public lands” for subsistence purposes. Initially, Alaska was to 

manage this subsistence program, but in 1989 the Alaska Supreme Court held that state administration of the priority violated the Alaska Constitution. As a result, the federal government 

promulgated regulations and took over administration of the priority in 1990. The original 

federal regulations excluded all navigable waters from the definition of “public lands,” which the 

statute defines as “lands, waters and interests therein, the title to which is in the United States.” 

Those regulations were challenged by both Alaska Native individuals and groups and the State 

of Alaska. During the course of that litigation, the federal government broadened its position on 

the scope of the priority in light of the statute’s purpose to protect subsistence fishing and the 

importance of fish to rural Alaska subsistence life, to include those navigable waters in which 

the United States holds federally reserved water rights. This change in position was upheld by 

the Ninth Circuit in 1995. Thereafter, the agencies promulgated new regulations to identify 

specifically the waters that are “public lands” by reason of federally reserved water rights. The 

new regulations were once again challenged by the state as too extensive, and by Alaska Native 

plaintiffs as too narrow. The district court rejected all challenges to them, and both the state and 

the Alaska Native plaintiffs appealed. Although recognizing it was a novel approach, the Ninth 

Circuit’s most recent decision upholds the federal government’s use of the federal reserved water 

rights doctrine as a measure of determining which navigable waters are subject to Title VIII’s 

priority. 

Abandoned Mine EPA Photo
122 | protecting tribal resources

Defending Against Tribal and Individual Indian Breach-of-Trust Claims

Over the past several years, the Division has sought to resolve, without protracted litigation, 

dozens of Indian tribal “breach of trust” lawsuits. In these cases, numerous federally recognized 

Indian tribes and certain tribal groups allege that the United States, principally the Departments 

of the Interior and the Treasury, violated the 

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

and complete historical trust accountings and 

failing to manage the tribes’ trust funds and 

non-monetary trust assets or resources in an 

adequate manner. The tribes seek declaratory 

and injunctive relief, as well as monetary compensation for their alleged financial injuries. By 

2009, the United States was defending approximately 97 such lawsuits brought by 114 Indian 

tribes in federal district courts in the District of Columbia and Oklahoma and in the Court of 

Federal Claims. Since 2002, when this set of tribal trust litigation began, the United States has 

been involved in formal mediation and informal settlement discussions to resolve these cases 

when possible.

In fiscal year 2012, the United States settled the trust accounting and trust mismanagement 

claims of 62 tribes for about $1.25 billion. The federal government continued its settlement 

efforts in fiscal year 2013 and resolved the trust accounting and trust mismanagement claims 

of 14 additional tribes for $427 million. Among other things, all of the settlements set forth a 

framework for promoting tribal sovereignty and improving aspects of the tribes’ relationship 

with the United States, while reducing or minimizing the possibility of future disputes and 

avoiding unnecessary litigation. Under the settlements, the tribes and the United States will 

implement measures that will lead to strengthened management of trust assets and improved 

communications between the Department of the Interior and the tribes. Also, the tribes and the 

United States will use an alternative dispute resolution process to address concerns regarding 

the future management of the tribes’ trust funds and non-monetary trust resources.

These tribal trust case settlements continue to demonstrate the United States’ strong 

commitment to resolve pending tribal trust accounting and trust management cases in an 

expeditious, fair, and just manner. At the Department of Justice, we will continue, through our 

cases, to vigilantly protect tribal sovereignty, safeguard tribal lands and resources, and honor 

tribal treaty rights.

Limiting Breach-of-Trust Claims Against the United States

This year, the Division was successful in defending the United States against various breach-oftrust claims brought by individual Indians or Indian tribes:

—ENRD prevailed on appeal in defending the dismissal in Blackfeet Housing Auth. v. United 

States, a $30 million suit for breach of trust for the failure to provide safe and proper housing 

on a reservation under the Native American Housing Assistance and Self-Determination Act. 

The district court held that the statute of limitations barred the action for breach of trust and, 

in any event, plaintiff failed to state a viable breach-of-trust claim. With regard to the statute 

of limitations, the court held that actual knowledge is not required; rather, plaintiff is on notice 

In fiscal year 2013, the United States resolved the 

trust accounting and trust mismanagement claims 

of 14 tribes for $427 million.
protecting tribal resources | 123

of the material facts underlying the claim that are not inherently unknowable. In rejecting the 

breach-of-trust claim, the court ruled that the Blackfeet Housing Authority could not rely on 

general principles of trust law to state a claim for a breach of trust. The court held that control 

and involvement alone in the oversight of the provision of housing grants and assistance in the 

absence of the violation of statutory duties is insufficient to imply a damages remedy under the 

Tucker Act. The Federal Circuit affirmed in a per curium opinion.

—In what may have been the largest claim before the Court of Federal Claims in fiscal year 

2013, we secured dismissal in Shinnecock v. United States of the tribe’s $1,105,000,000 claims 

for alleged breach of trust and a judicial taking founded on the Eastern District of New York’s 

judgment dismissing a Non-Intercourse Act claim against the State of New York for land 

situated in the Hamptons.

 

—In Wolfchild v. United States, the Division won a partially favorable final opinion in the Court 

of Federal Claims that significantly limited the monetary recovery for plaintiffs. Plaintiffs had 

claimed that damages could be in the billions of dollars based on a breach of trust action brought 

by 20,000 individuals all seeking damages from being precluded from sharing in the proceeds 

of one of the most lucrative casinos in the United States. These damages were in addition to 

damages for the misdistribution of land and money to allegedly improper tribal entities.

—In Klamath Tribe Claims Comm. 

v. United States, plaintiff alleged that 

the United States took Indian trust 

assets, violated the 1954 Klamath Tribe 

Termination Act by failing to reimburse 

the tribe and the tribal membership as 

set forth in the Termination Act, and 

effectuated a taking based on removal 

of the Chiloquin Dam. Plaintiff also 

alleged breach of fiduciary duties and 

sought damages of $10 million. Plaintiff 

represented the 1954 membership of the 

Congressionally terminated Klamath 

Tribe. The Division obtained dismissal 

of the claims in the Court of Federal 

Claims on ground that the restored 

Klamath Tribe was an indispensable 

party to the claims.

—In Villegas v. United States, plaintiff 

filed actions in both the United States 

District Court and the Court of Federal 

Claims relating to an interest in an 

allotment that was part of the Midnite 

Mine, a uranium mine on the Spokane 

Reservation. The mine, which is now 

a Superfund site, is being remediated 

pursuant to a consent decree. Plaintiff 

The Midnite Mine is an inactive former 

uranium mine in the Selkirk Mountains of 

eastern Washington. Located within the 

reservation of the Spokane Tribe of Indians, 

the mine was operated from 1955 until 1981.

—EPA Website

View of Now-Removed Chiloquin Dam BOR Photo
124 | protecting tribal resources

alleged that the Department of 

the Interior mismanaged his 

land, resources, and monetary 

accounts; committed an unconstitutional taking of his land and 

property; trespassed and allowed 

trespass by third parties; and 

committed environmental torts. 

We secured dismissal of the case 

in the district court with very 

favorable rulings on jurisdiction 

and other issues.

Defending Against Other 

Tribal Claims

The Division also prevailed in 

Hopi Tribe v. United States, a 

case involving monetary claims alleged to be worth $20 million. The tribe asserted that the 

executive orders establishing the Hopi Tribe’s reservation contain a mandatory fiduciary duty to 

build and provide drinking water infrastructure. The tribe alleged that its groundwater contains 

higher levels of arsenic than permitted under the Safe Drinking Water Act. The court rejected 

all claims.

In Pueblo of Jemez v. United States, we successfully defended the U.S. interests in the Valles 

Caldera National Preserve, which consists of approximately 94,000 acres in New Mexico. The 

tribe contended that it maintained 

aboriginal title over the entire 

preserve because it had, in the past, 

exercised control and thus retained 

present rights to the property, even 

though the land was patented in 

the 1860s to a private party. The 

court held that the Indian Claims 

Commission Act provided the 

exclusive remedy for pre-1946 tribal 

land claims against the United States.

ENRD resolved issues related 

to the need to consult with the 

Yakama Tribe prior to taking law 

enforcement action on the reservation 

in Yakama Tribe v. Holder. We 

represented multiple components 

of the Department of Justice and 

the Department of the Treasury that participated in the execution of a search warrant at the 

reservation. The parties ultimately executed a settlement in which the United States agreed to 

sign Recitals of Joint Law Enforcement Goals with the tribe.

Valles Caldera National Preserve Preserve Photo

View of the Midnite Mine Superfund Site on the Spokane Reservation 

EPA Photo
protecting tribal resources | 125

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126 | supporting the division’s staff

ENRD Land Acquisition Section, Staff Training Retreat

Acting Assistant Attorney General Robert Dreher presents award certificates to ENRD’s 

$AVE Committee members.
supporting the division’s staff | 127

SUPPORTING THE 

DIVISION’S STAFF

Promoting Diversity at Work

ENRD continues to be a leader concerning diversity in the Departmental workplace. This 

year, we administered the Department’s first employee survey on Lesbian, Gay, Bisexual, and 

Transgender issues 

in cooperation with 

DOJ Pride. The 

Division also took 

some important steps 

forward in the areas 

of hiring, training, 

and outreach. 

—The Diversity 

Committee set up 

a new program by 

which law students 

nationwide can apply 

for internships and established a new process for interviewing and evaluating candidates. The 

program is intended to create opportunities for broadening the applicant pool and promoting 

diversity among law clerks, many of whom go on to apply to the Attorney General’s Honor 

Graduate Program. Students from 87 law schools submitted applications for summer 2014 law 

clerk internships.

—The Division also established a Scoping Committee composed of ENRD support and non-attorney staff. The purpose of the Scoping Committee is to integrate support and non-attorney 

staff into the Diversity Committee and to identify areas of concern to these staff. Recently, 

the Scoping Committee recommended that the Division explore ways to recognize staff 

performance. As a result, ENRD issued a Time-Off Award Directive in 2013 to recognize 

outstanding staff performance.
128 | supporting the division’s staff

Adhering to Government Ethics and Professional Responsibility 

Standards

The Law and Policy Section serves as the Division’s government ethics and professional responsibility officer and counselor. In addition to its regular day-to-day counseling on those issues, 

the section provided in-depth advice on several significant matters, as well as conducting 

in-person training on government ethics for all Division attorneys and certain other staff in 

fiscal year 2013.

Recognition of Division Staff

This year, client agencies continued to recognize the 

efforts of Division staff. Of note:

—EPA recognized a number of ENRD attorneys. The 

agency awarded its “Gold Medal” to the Environmental Defense Section team that worked on the court 

of appeals litigation and opposition to a petition for a 

writ of certiorari in the principal CAA greenhouse gas 

case, Coalition for Responsible Regulation v. EPA; 

and to a pair of Environmental Enforcement Section 

attorneys for handling groundbreaking cases to reduce 

air pollution from 

industrial flares. 

EPA’s Region V conferred a “Green Medal” (a special award 

from the Office of Regional Counsel based on a poll of the 

attorneys in that office) to an Environmental Enforcement 

Section attorney for her work on United States v. Metropolitan Water Reclamation Dist. of Greater Chicago, a 

case in which the United States and the State of Illinois 

required the district to control sewer overflows under the 

CWA. EPA awarded a “Silver Medal” to the pair of Appellate 

and Law and Policy Section attorneys who handled Decker 

v. Northwest Envt’l Defense Ctr. and Georgia-Pacific West v. NEDC on appeal and helped 

to develop a “a plan to protect the nation’s waters from the harmful effects of stormwater 

discharges from forest roads.” The agency conferred “Bronze Medals” on the Environmental 

Defense Section team that handled the court of appeals litigation and successful petition 

for a writ of certiorari in the Cross-State Air Pollution Rule challenges in EME Homer City 

Generation v. EPA; the Environmental Crimes Section team that handled the Pelican Refinery

prosecution; and the “Mega-Pesticides Team” of the Wildlife and Marine Resources Section for 

its work in Center for Biological Diversity v. EPA, a case in which plaintiffs alleged that EPA 

had violated the ESA with respect to the impacts of 382 different pesticide active ingredients on 

more than 200 different endangered species nationwide. 

Various Environmental Enforcement Section attorneys also received “Bronze Medals” as part 

of the teams handling United States v. General Electric Co., a case involving massive PCB 

contamination in the Housatonic River; United States v. The Gillette Co., a case concerning the 

Mercury Refining Superfund Site in Albany County, New York; United States v. Suiza Dairy 

EPA-Department of Justice Team Handling 

Coalition for Responsible Regulation v. EPA
supporting the division’s staff | 129

Corp., a case resulting in the protection of thousands of citizens from potential accidental 

release of anhydrous ammonia in Puerto Rico; and United States v. Durand Glass Manufacturing Co., a case resolving CAA violations and securing the application of precedent-setting 

selective catalytic reduction technology to the facility. EPA’s Criminal Investigative Division 

also commended an Environmental Crimes Section attorney for the DPL/Aircare prosecution. 

—Attorneys from the Wildlife and Marine Resources and Natural Resources Sections have 

successfully defended against numerous challenges to horse gathers over the past several years. 

BLM Nevada State Director Amy Lueders commended the trial teams for having achieved 

excellent results time and again despite the significant time constraints routinely encountered 

in this litigation. She celebrated the “bold management decisions that we can make at the BLM 

because of the support we receive from ENRD and the confidence we have in the work you do.”

—Ms. Lueders also presented the Natural Resources Section trial team in the case of United 

States v. Estate of E. Wayne Hage with a photograph of the public lands being protected by 

their efforts. The litigation—which was the most recent installment in more than two decades 

of litigation involving illegal cattle grazing activities by the Hage family—seeks relief from 

the family’s ongoing illegal trespass on BLM and Forest Service land. The trial team devoted 

thousands of hours to the case, including a 22-day merits trial in Reno, Nevada, as well as a 

separate week-long trial dealing with civil contempt proceedings involving two government 

officials.

Several organizations also conferred awards on Environmental Crimes Section attorneys: 

“Prosecutor of the Year” from the Federal Law Enforcement Foundation and an Annual Award 

of Excellence from the Atlantic States Marine Fisheries Commission for significant contributions 

to the conservation of Atlantic Coast fisheries.

Managing the Division’s Financial Resources During Times of 

Fiscal Constraint

Fiscal year 2013 

presented historic 

budgetary challenges 

to the Department of 

Justice and other federal 

agencies. We are pleased 

to say that the Division 

was able to manage its 

budget so as to avoid 

furloughs and other 

extreme measures. The Division’s Office of the Comptroller worked closely with ENRD’s $AVE 

Committee to identify over $1.4 million in cost-saving measures in fiscal year 2013. Dozens 

of difficult cost-cutting measures were instituted in order to remain fiscally solvent: parking 

spaces were relinquished, transit benefits for volunteers were decreased, certain phone services 

were eliminated, various contractor support services were reduced, and the Division’s workforce 

became still more vigilant in spending resources.
130 | supporting the division’s staff

Enhancing the Division’s In-House Training Capacity

In fiscal year 2013, the Division took steps to enhance its capacity to provide training using 

internal resources. We outfitted a new training room with a new sectional conference room 

table that separates into several smaller training desks and a cost-effective sound system and 

technological instructor’s podium. The Division invested in interactive training “clickers,” which 

allow students to provide real-time feedback, responses, and voting during training sessions. 

Finally, the Division acquired two new large touch-screen monitors, which have enhanced 

presentation capabilities. 

Continuing to Meet Fiduciary Responsibilities under the Superfund 

Agreement

The Office of the Inspector General (OIG) routinely audits ENRD’s Superfund program focusing 

on compliance with the annual interagency agreements with EPA. In its latest review, the OIG 

conducted an in-depth audit of costs associated with the Division’s Superfund work in fiscal 

year 2011 and fiscal year 2012. The large statistical sample that was tested revealed no issues 

in the manner with which the Division accounts for the funding it receives from EPA to litigate 

CERCLA cases. The OIG’s final report contained no findings or recommendations for ENRD. 

Providing High-Quality and Cost-Effective Automated Litigation 

Support Services

Each year, innovative technology becomes more and more interwoven into the fabric of the law. 

The Division has made it a priority to ensure that the Division’s lawyers have the tools required 

to confront well-financed adversaries in the courtroom. In fiscal year 2013, ENRD provided 

high-quality and cost-effective automated litigation support (ALS) and other automated services 

to its workforce:

—We consolidated contractor-provided and in-house ALS services to support ENRD casework, 

realizing significant cost-savings and economies of scale along the way. In addition to providing 

contract support for the Deepwater Horizon explosion, fire, and oil spill case—one of the largest 

cases ever undertaken by the Department—the Division’s Office of Litigation Support also 

provided contract support to a number of large and complex cases and initiatives. These include 

the pipeline and refinery cases, Tribal Trust cases, western U.S. water rights adjudications, 

vessel pollution investigations, and power plants cases. At the same time, ALS services were 

provided in-house for more than 250 cases through the Division’s Computer Lab at a significant 

savings. Using onsite capabilities, we are able to provide such services as document scanning, 

e-discovery processing, Bates numbering, optical character recognition, media duplication, and 

audio/video digitization. We also supplied secure online database hosting services to support 

over 400 cases using state-of-the-art advanced analytics searching and collaboration with 

agency personnel and expert witnesses. 

—We designed, developed, and implemented an ALS project management system to ensure that 

project requests for processing and producing documents and data in discovery meet requirements under the Federal Rules of Civil Procedure and provide automated e-mails for trial teams 

to track the progress of their projects.
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—We expanded the existing program for processing administrative records by applying the 

technologies and processes used in discovery. The Division now routinely assembles, reviews, 

and files administrative records electronically.

—We augmented the E-Discovery Project Coordinator position to provide as-needed guidance 

and operational support as case teams move through fact-gathering and strategic decisionmaking related to the initial stages of E-Discovery on their cases. The position now functions 

as a strategic consultant in many regards, offering advice to client agencies on their litigation 

obligations and litigation-related business processes.

—ENRD’s Service Center supported Division attorneys and support staff in fiscal year 2013 by 

processing more than 37,000 e-Court filings. The Service Center downloaded the electronic 

documents from court websites, saved a copy to the lead attorney’s document management 

directory, coded each filing, and printed a paper copy for the official files. The Service Center 

also scanned more than 11,000 incoming court documents received via the U.S. Postal Service 

and reproduced over two million pages of electronic documents to paper format. 

Employing Innovative Technology for ENRD’s Workforce

In fiscal year 2013, despite budgetary constraints, ENRD achieved success in providing both 

front-end client-based automated technologies and back-end automated services. 

—On the front-end, the Division’s Office of Information Technology refreshed the operating 

system and all applications on the laptop inventory deployed throughout the Division. All 

laptops were collected, backed up, re-imaged, and returned to the users with very little 

disruption. It is important for productivity, security, and morale that ENRD keep these 

information technology assets up to date and the applications synched with the desktop 

versions. Along with the software update, we also migrated all ENRD users over to the new 

remote access solution, DOJ Connect. This new solution provides a much improved virtual 

private network (VPN) capability, increased speed, and simpler end-user experience.
132 | supporting the division’s staff

—We also replaced the Division’s Video Teleconferencing (VTC) hardware with new equipment 

from Cisco. These hardware updates include many advanced features that were not available 

with the predecessor solution. Some of the key upgrades include HD cameras which significantly improve video quality and the overall user experience and include improved user controls 

such as touch-screen interfaces which help reduce training requirements for users. Two other 

major improvements included with the deployment of the new VTC hardware were increased 

bandwidth to allow for more VTC sessions as well as the capacity to establish VTC connections 

with other Departmental components, other federal agencies, and private enterprise both 

nationally and internationally. These improvements increase employee confidence in and satisfaction with VTC as a replacement for in-person meetings that previously required travel, the 

funding for which is no longer available in the current budget environment. 

—On the back-end, the Office of Information Technology deployed new server virtualization 

hardware environment. The new hardware consists of best-of-breed hardware manufactured 

from different companies. Different manufacturers have partnered to offer a solution that 

provides advanced capabilities, increased performance, and greater storage efficiencies, but also 

offers improved maintenance and support options. The initial deployment of the new hardware 

began in 2013 at the Patrick Henry Building and the Rockville Data Center. All servers, data, 

and applications deployed on the hardware are replicated to the new hardware in Rockville, 

which will greatly improve the Division’s Continuity of Operations (COOP) and fault tolerance 

capabilities. With the new hardware, ENRD will be able to continue its virtualization evolution 

and better position the Division to respond to increased litigation and budget challenges in the 

coming years.

Supporting Records and Systems Management

In support of recent Presidential and Departmental directives, ENRD’s Office of Administrative 

Services completed an updated records series inventory. The purpose of the inventory was to 

ensure more efficient handling and tracking of important government records. The inventory 

included both electronic and paper records and for the first time, provided a full accounting of 

the Division’s permanent and temporary administrative records.

Additionally, the Division’s Office of Information Management devised and documented 

ENRD’s (and the Department’s) first data extraction guidelines and procedures to retire 

electronic case management data for cases closed for 25 years or more to the National Archives. 

Promoting Division Security

To ensure the safety of Division personnel and facilities, in fiscal year 2013, ENRD developed 

separate COOP plans for each field office that satisfy the Federal Emergency Management 

Agency’s and the Department’s COOP training requirements. The Division also completed 

annual safety inspections of all ENRD offices (Washington, D.C., and field offices) in compliance 

with DOJ Safety Order 1779.2B.
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Greening the Division

The Division held its 10th annual Earth Day service celebration at 

Marvin Gaye Park in April 2013. Enthusiastic participants built large 

planters, planted trees, removed trash, gardened, and landscaped.

ENRD also 

continued to lead the 

Department in green 

building initiatives. 

The Division maintained its trend of lowering 

energy usage, with 2013 marking the sixth 

consecutive year that energy consumption 

has decreased. The Patrick Henry Building 

(PHB), where ENRD is the primary tenant, 

also implemented many environmentally friendly changes in 2013. The building replaced its 

exterior caulking, cleaned its heat exchangers, and installed variable frequency drives to water 

pumps to increase energy efficiency. PHB also no longer runs heating and cooling systems on 

the weekends. In addition, the building recently replaced vestibule and roof lighting with LED 

fixtures, which lose much less energy to heat and have a longer lifespan 

several times over. The building remains LEED certified, and is an 

Energy Star-labeled building.

 

Finally, Division-wide participation in the bicycle transit subsidy 

program, which started in 2009, continues to be very strong.