SUMMARY OF  

LITIGATION ACCOMPLISHMENTS

FISCAL YEAR 2009
Forested Wetland Courtesy of Ohio EPA
TABLE OF CONTENTS

6 FOREWORD

10 AN INTRODUCTION TO THE  

ENVIRONMENT AND NATURAL RESOURCES DIVISION

14 COMMEMORATING THE CENTENNIAL OF THE  

ENVIRONMENT AND NATURAL RESOURCES DIVISION

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

21 ENSURING CLEANUP OF OIL AND HAZARDOUS WASTE

25 PROMOTING RESPONSIBLE STEWARDSHIP OF  

AMERICA’S WILDLIFE AND NATURAL RESOURCES

34 CRIMINALLY ENFORCING OUR NATION’S POLLUTION AND                         

WILDLIFE LAWS

41 DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS

49 PROMOTING NATIONAL SECURITY AND MILITARY PREPAREDNESS

53 PROTECTING INDIAN RESOURCES AND RESOLVING INDIAN ISSUES

58 SUPPORTING THE DIVISION’S LITIGATORS  
On the fortieth anniversary of Earth Day, I am pleased to present this summary of the litigation     

accomplishments of the Environment and Natural Resources Division (ENRD or the Division) for   

fiscal year 2009.  Last year, ENRD continued its tradition of excellence in service to the United States.  

The Division brought actions to protect the nation’s air, water, land, wildlife, and natural resources;

upheld its trust responsibilities to Native Americans; acquired land for public purposes; and            

defended important federal programs.

I am proud to report that in fiscal year 2009, the Division secured nearly $69 million in civil and stipu‐

lated penalties and $2.6 billion in corrective measures through court orders and settlements.  In addi‐

tion, the Division concluded 41 criminal cases against 85

defendants, obtaining over 42 years of jail time and nearly

$73 million in fines.

The Division advanced key civil and criminal enforcement

initiatives to reduce pollution from sewer systems, oil    

refineries, power plants, and vessels.  ENRD concluded

eight cases last year to ensure the integrity of municipal

sewage collection systems.  With the addition of these

cases, ENRD has settled 88 such cases from 1995 to 2009,

requiring the installation of control measures estimated to

cost more than $27 billion that are designed to reduce the

discharge of untreated sewage by at least 74 billion gallons

annually.  In 2009, the Division concluded two new cases

under the civil petroleum refinery initiative and finalized a

significant modification to an existing decree that secured

additional relief.  This means that from 2001 through 2009,

the civil petroleum refinery enforcement initiative pro‐

duced settlements or other court orders that have addressed more than 88% of the nation's refining

capacity, and are expected to reduce air pollutants nationally by more than 337,000 tons annually.  In

2009, the Division concluded its eighteenth case under the Clean Air Act against operators of coal‐

fired electric power generating plants.  Collectively, settlements in such cases between 1999 and

2009 will result in reductions of over 2 million tons of sulfur dioxide and nitrogen oxide each year

once the approximately $12 billion in required pollution controls are fully functioning.  ENRD prose‐

cuted 10 vessel pollution cases last year in which criminal penalties of $9.7 million were obtained and

corporate officers and managers were sentenced to more than 7 months of incarceration, 13 months

in a half‐way house, and 5 months of home confinement.  This brings the total criminal penalties in

such cases between 1998 and 2009 to over $216 million and total time of incarceration to more than

20 years.  These initiatives have made our water, air, and land cleaner and safer.

In fiscal year 2009, ENRD defended environment and natural resources programs across the federal

government.  The Division’s efforts to promote national security and military preparedness are     

Ignacia S. Moreno Was Nominated by   

President Barack Obama to Be Assistant

Attorney General for the Environment and

Natural Resources Division on June 8,

2009.  She Was Confirmed by the United

States Senate on November 5, 2009.

FOREWORD
foreword 7

particularly noteworthy.  A highlight of this work was Winter v. NRDC, in which the U.S. Supreme

Court reversed the Ninth Circuit’s judgment and vacated the district court’s preliminary injunction

imposing conditions on the Navy’s use of sonar in training exercises in California.  To honor their   

service in this important litigation, the Navy bestowed its award for Superior Public Service on four

ENRD attorneys and its award for Distinguished Public Service on four others.  The entire ENRD    

sonar litigation team received the 2009 Attorney General’s Award for Distinguished Service.

The Division defended federal natural resources agencies charged with such diverse responsibilities

as determining whether the polar bear should be listed as threatened under the Endangered Species

Act, managing fisheries resources under the Magnuson Stevens Act, and overseeing activities on

federal lands that range from recreation to wildfire control to timber harvesting to grazing and     

energy development.  ENRD worked to secure critical water rights and supplies across the country.  

For example, the Colorado Water Court approved a settlement resolving 30 years of effort to estab‐

lish water rights for the Black Canyon of the Gunnison National Park in Colorado.  The Division also

brought actions to protect tribal water, hunting, fishing, and gathering rights and defended against

claims asserted by Indian tribes that the United States has violated its trust responsibilities.

ENRD has significant expertise in handling environmental claims on behalf of the United States in

bankruptcy proceedings.  I would like to highlight the extraordinary outcome obtained last year by

the Division’s enforcement attorneys in one such case, In re Asarco, L.L.C.   The American Smelting

and Refining Co. (Asarco),

which has been in business for

more than a hundred years, is a

leading producer of copper and

one of the largest producers of

nonferrous metal in the United

States.  The company is responsible for numerous sites around the country that are contaminated

with hazardous waste.  The successful conclusion of the Asarco bankruptcy reorganization in 2009

resulted in the largest recovery of money for hazardous waste cleanup ever:  $1.79 billion to be used

to pay for past and future response costs incurred by federal and state agencies and environmental

restoration at more than 80 sites contaminated by mining operations in 19 states.  All claims by the

United States were paid in full with interest.

I am pleased to report an award bestowed on the Division last year.   

In the 2009 Best Places to Work in Federal Government Rankings

(sponsored by the Partnership for Public Service), ENRD was ranked

the best place to work from among more than 200 agency component

offices, reflecting a high degree of satisfaction among its employees.   

I am committed to ensuring that the Division continues to meet the

needs of its staff, who perform some of the most important work in

the nation.

2009 was a very special year in the life of the Division.  On November

16, 2009, more than 750 current employees, alumni, and friends gath‐

ered to commemorate the one hundredth anniversary of the Division’s

The Successful Conclusion of the Asarco Bankruptcy 

Reorganization Resulted in the Largest Recovery of 

Money for Hazardous Waste Cleanup and 

Environmental Restoration Ever: $1.79 Billion. 
8 foreword

founding.  This event was the culmination of celebratory activities held throughout the year to which

a special section of this report is devoted.  I am also proud to say that it was my first day back in the

Division.

I look forward to this opportunity to lead the Division as it begins its second century of service to the

United States.  Be assured that I could not be more committed to fulfilling ENRD’s core mission:  

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

clean land for all Americans; vigorous defense of environmental, wildlife, and natural resources laws

and agency actions; effective stewardship of our public lands and natural resources; and careful and

respectful management of the United States’ trust obligations to Native Americans.  To meet this

challenge, we must be creative and resourceful.

We will work closely with our client agencies to ensure that we focus our enforcement resources on

the most significant and egregious pollution problems.  We will look for innovative ways to settle

conflicts that have defied resolution, despite costly and fruitless litigation.

We will consult with client agencies to ensure that they, too, comply with the law as they undertake

important programs and actions.  We will review their actions to ensure that, consistent with the

President’s directive, federal decision‐making is based on sound science.

We will strive to ensure that low‐income and minority communities fully share in the protection    

afforded by our environmental laws, integrating environmental justice in all that we do.  We will   

engage our counterparts abroad to tackle the difficult global environmental challenges that we   

face together, recognizing that reducing pollution internationally will lead to a clean environment   

at home.

Important opportunities lie ahead, and this Division is full of energetic, talented, and dedicated     

career staff who are ready to meet them.  My thanks to all of them for their continued and out‐

standing service to the American people.  I am honored to be their colleague.

In closing, I would like to recognize those individuals who were in leadership positions during fiscal

year 2009 and who provided significant support to the Division:  Ronald J. Tenpas, who served the

remainder of his term as Assistant Attorney General; John C. Cruden, Deputy Assistant Attorney  

General, who served as Acting Assistant Attorney General during the transition; James Kilbourne,

Chief of the Appellate Section, who served as Acting Deputy Assistant Attorney General; Eileen

Sobeck, then Deputy Assistant Attorney General; and Cynthia Ferguson and James Gette, attorneys

in  the Environmental Enforcement and Natural Resources Sections, who served as Special Counsels

to the Acting Assistant Attorney General.  Thanks as well to each of them for their many contribu‐

tions to an outstanding year.

Ignacia S. Moreno

Assistant Attorney General

Environment and Natural Resources Division

April 22, 2010
foreword 9
The Division has a main office in Washington, D.C., and field offices in Anchorage, Boston, Denver,

Sacramento, San Francisco, and Seattle.  It has a staff of nearly 700, about 450 of whom are attor‐

neys.  It is organized into nine litigating sections plus the Office of the Assistant Attorney General

and the Executive Office.

The Division has responsibility for cases involving nearly 150 statutes and represents virtually every

federal agency in courts all over the United States and its territories and possessions.   Its litigation

docket contains more than 7,000 active cases and matters.

About one‐half of ENRD’s lawyers bring cases against

those who violate the nation’s civil and criminal pollution‐

control laws.  Others defend environmental challenges to

government programs and activities, and represent the

United States in matters concerning the stewardship of

the nation’s natural resources and public lands.  The    

Division is responsible for the acquisition of real property

by eminent domain for the federal government and for

cases arising under the wildlife protection laws.  In addi‐

tion, ENRD litigates cases concerning Indian rights and

claims.

One of the Division’s primary responsibilities is to enforce

federal civil and criminal environmental laws such as the

Clean Air Act (CAA), the Clean Water Act (CWA), the    

Resource Conservation and Recovery Act (RCRA), the

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),

the Safe Drinking Water Act, and the Lead Hazard Reduction Act.  The main federal agencies that  

the Division represents in this area are the U.S. Environmental Protection Agency (EPA) and the U.S.

Army Corps of Engineers (the Corps). The ENRD sections that carry out this work are the Environ‐

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

Section.

A substantial portion of the Division’s work includes litigation under a plethora of statutes related to

the management of public lands and associated natural and cultural resources.  All varieties of public

lands are affected by ENRD’s litigation docket, ranging from entire ecosystems, such as the nation’s

most significant sub‐tropical wetlands (the Everglades) and the nation’s largest rain forest (the    

Tongass), to individual rangelands or wildlife refuges.  Examples of ENRD’s land and natural           

resources litigation include original actions before the U.S. Supreme Court to address interstate

AN INTRODUCTION TO  

THE ENVIRONMENT AND                    

NATURAL RESOURCES DIVISION

ENRD LITIGATING SECTIONS

 Appellate

 Environmental Crimes

 Environmental Defense

 Environmental Enforcement

 Indian Resources

 Land Acquisition

 Law and Policy

 Natural Resources

 Wildlife and Marine Resources
introduction and overview 11

boundary and water allocation issues; suits over management decisions affecting economic, recrea‐

tional, and religious uses of the national parks and national forests; and actions to recover royalties

and revenues from exploitation of natural resources.  ENRD represents all the land management

agencies of the United States including, for instance, the Forest Service, the National Park Service,

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

ment of Transportation, and the Department of Defense.  The Natural Resources Section is primarily

responsible for these cases.

The Division’s Wildlife and Marine Resources Section is responsible for civil cases arising under the

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

Species Act (ESA), which protects endangered and threatened animals and plants, and the Marine

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

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

ple, people who are found smuggling wildlife and plants into the United States.  The main federal

agencies that ENRD represents in this area are FWS and the National Marine Fisheries Service

(NMFS).

ENRD cases frequently involve allegations that a federal program or action violates constitutional

provisions or environmental statutes.  Examples include regulatory takings cases, in which the plain‐

tiff claims he or she has been deprived of property without just compensation by a federal program

or activity, or suits alleging that a federal agency has failed to comply with the National Environ‐

mental Policy Act (NEPA) by, for instance, failing to issue an environmental impact statement (EIS).  

Both takings and NEPA cases can affect vital federal programs such as the nation’s defense capabili‐

ties (including military preparedness exercises, weapons programs, and military research), National

Aeronautics and Space Administration programs, recombinant DNA research, and beneficial recrea‐

tional opportunities such as the rails‐to‐trails program.  These cases also involve challenges to regula‐

tions promulgated to implement the nation’s anti‐pollution statutes, such as the CAA and the CWA,

or activities at federal facilities that are claimed to violate such statutes.  The Division’s main clients

in this area include the Department of Defense and EPA.  The Natural Resources Section and the   

Environmental Defense Section share responsibility for handling these cases.

“Perhaps the most important function of the Division is one that

runs through all of its specific practice areas—the fair administra‐

tion of justice.  As the Supreme Court described United States

Attorneys long ago, government lawyers are representatives ‘not

of an ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation

to govern at all; and whose interest, therefore...is not that it shall

win a case, but that justice shall be done.’ ”

Eric H. Holder

Attorney General  of the United States

On the Occasion of ENRD’s Centennial Celebration
12 introduction and overview

Another portion of the Division’s caseload consists of non‐discretionary eminent domain litigation.  

This important work, undertaken with congressional direction or authority, involves the acquisition

of land for projects such as national parks or the construction of federal buildings including court‐

houses, and for national security‐related purposes.  ENRD’s 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 fish‐

ing rights, among others.  ENRD’s Natural Resources Section also defends claims asserted by Indian

tribes against the United States on grounds that the United States has failed to live up to its obliga‐

tions to the tribes.  The main federal agency that the Division represents in connection with this

work is the Bureau of Indian Affairs in the Department of the Interior.

ENRD’s Appellate Section handles the initial appeals of all cases litigated by Division attorneys in the

trial courts, and works closely with the Department of Justice’s Office of the Solicitor General on

ENRD cases that reach the U.S. Supreme Court.  In addition, the Division supports the work of the

Assistant Attorney General in the development of policy concerning the enforcement of the nation’s

environmental laws, reviewing and commenting on legislation that would affect the work of the  

Division, reviewing litigation filed under the various citizen suit provisions in the environmental laws,

and evaluating and responding to requests that the United States participate as an amicus in various

matters.  Most of this work is handled by the Law and Policy Section.

FISCAL YEAR 2009 ACCOMPLISHMENTS

Last year, the Division achieved significant victories for the American people in the many practice

areas for which it has responsibility.  This report summarizes key accomplishments thematically:   

protecting our nation’s air, land, and water; ensuring cleanup of oil and hazardous waste; promoting

responsible stewardship of America’s wildlife and natural resources; criminally enforcing our nation’s

pollution and wildlife laws; defending vital federal programs and interests; promoting national secu‐

rity and military preparedness; protecting Indian resources and resolving Indian issues; and support‐

ing the Division’s litigators.
introduction and overview 13

FISCAL YEAR 2009 ACCOMPLISHMENTS REPRESENT OUR

WORK WITH A VARIETY OF CLIENT AGENCIES
TheDivision reached an important milestone in 2009:  the one hundredth anniversary ofits founding.  In

1789, Congress created the position of Attorney General and established independently operatingU.S.   

Attorneys.  In 1870, Congress established theDepartment of Justice to assistthe Attorney General and    

directed theU.S. Attorneys to reportto the Attorney General.  From 1870 to 1909, a few assistant attorneys

general and solicitors assigned to federal agencies thatfunctioned largely independent oftheDepartment

handled theU.S. government’s legal business related to public lands and Indian affairs.  Thatfact, along

with the increasing volume ofthis work, led Attorney General George Wickersham to create the “Public

LandsDivision” in an order datedNovember16,1909.  Overtime,theDivision grew from a staff of six attor‐

neys to its present size.

The history oftheDivision mirrors the country’s evolving relationshipwith public lands, naturalresources,

and the environment.  While retaining its core responsibilities to representtheUnited States with respectto

Indian tribes, public lands and resources, and the acquisition ofland forthe public good,theDivision incre‐

mentally assumed new responsibilities to supportthe expansion ofthe federal government’s role in society

during theNew Deal era,to assist civilian and military efforts during World WarII, and to preserve and     

protect our environmental and naturalresources beginning in the 1960s.  Through the work ofthousands

of attorneys and other staff,theDivision has litigated numerous significant matters.  TheDivision has been

involved in nearly all ofthe important cases influencing and developing public lands, Indian, naturalre‐

sources, and environmental law.

During 2009, ENRDembraced multiple opportunities to celebrate its

rich history, vital mission, and dedicated employees.

ENRD‘s 100th Anniversarywebsite (http://www.justice.gov/enrd/

Anniversary/index.html) highlights theDivision’s history as well as   

centennial celebration events throughout 2009. The website describes

the evolution of each oftheDivision’s nine litigating sections, along

with noteworthy cases emerging from its docketto shape and define

the areas oflaw in which theDivision practices.  The site also discusses

the history of Division resources and management, and features an

area in which users may share theirfavoriteDivision memories.

ENRDresearched and compiled a history oftheDivision entitled Public

Lands andNational Treasures:  The First100 Years ofthe Environment&

NaturalResourcesDivision.  This booklet,which is posted on the anni‐

versarywebsite, describes the transition ofthe Public LandsDivision to

the LandsDivision in 1933;to the Land andNaturalResourcesDivision in

1965; and to the Environment andNatural ResourcesDivision in 1990.

            

EPA Administrator Lisa Jackson

ENRD Anniversary Speaker Series

DOJ Photo

COMMEMORATING THE CENTENNIAL

OF THE ENVIRONMENT AND     

NATURAL RESOURCES DIVISION
enrd centennial anniversary 15

100th Anniversary events were held throughoutthe year.  The 100th Anniversary Speaker Series brought

to theDepartmentleading voices on topics ofimportance to environmental and naturalresources work.  

ENRDEarthDay 2009 combined theDivision’s annual Earth Day service project at Martin Gaye Park in

Washington,D.C., with centennialfunctions, including the dedication of a park memorialto Martin Luther

King, Jr., by Attorney General EricHolder and Senator Durbin.  Over six years, ENRDhas spent more than

2,800 hours atthe park and planted more than 800 trees.

The Centennial Celebration, which was held on    

November16, 2009, capped offthe year’s events,

bringing together nearly 750Division employees,

alumni, and friends, who enjoyed a special program

atthe Atrium Ballroom ofthe Ronald Reagan Build‐

ing in Washington,D.C.  Twelve current and former

Assistant Attorneys General attended the event:  

Ramsey Clark, Kent Frizzell, Wallace Johnson, Peter

Taft, James W. Moorman, Carol Dinkins, F.Henry

Habicht, II, Richard B. Stewart, Lois Jane Schiffer,   

Thomas L. Sansonetti, Ronald J. Tenpas, and Ignacia  

S. Moreno.  Collectively,they led theDivision for

nearly 50 years and their presence made the day even

more memorable.

“On this day, it is especially appropriate to acknowledge the Division’s career

employees, who are the heart and soul of the Division.  Each of you plays an   

important role in accomplishing the Division’s vital work.”

Ignacia S. Moreno, Assistant Attorney General

On the Occasion of  ENRD’s Centennial Celebration

“It has been a great privilege to work with the Environment and Natural          

Resources Division over the years.   I’ve witnessed your talents, your hard work,

and your dedication to making the nation a better place in which to live.”

Edwin Kneedler, Deputy Solicitor General

2009 Recipient, ENRD Muskie‐Chafee Award

On the Occasion of  ENRD’s Centennial Celebration

“Through the exceptional work of the Division’s staff, the history of the United

States has been altered.  Lands have been preserved, species have been saved

from extinction, the land, air, and water have been made cleaner, and the        

interests and prosperity of the United States have been advanced.”

John C. Cruden, Deputy Assistant Attorney General

“Foreword” to Public Lands and National Treasures:  

The First 100 Years of the Environment & Natural Resources Division

Attorney General Holder, Assistant Attorney General

Moreno, and former ENRD Assistant Attorneys General

at the Centennial Celebration program.

DOJ Photo
REDUCING AIR POLLUTION FROM POWER PLANTS

ENRD continued to litigate civil claims under the CAA against operators of coal‐fired electric power

generating plants.  Violations in these cases arise from companies engaging in major life‐extension

projects on aging facilities without installing required state‐of‐the‐art pollution controls, resulting in

excess air pollution that has degraded forests, damaged waterways, contaminated reservoirs, and

adversely affected the health of the elderly, the young, and asthma sufferers.  As of last year, 18 of

these matters have settled on terms that will result in reductions of over 2 million tons of sulfur diox‐

ide (SO2) and nitrogen oxide (NOx) each year once

the nearly $12 billion in required pollution controls

are fully functioning.

In fiscal year 2009, the Division obtained two more

settlements under this initiative in United States v.

Salt River Project (SRP) and United States v.          

Kentucky Utilities Co. (KU).  Under the SRP consent

decree, the project will install and operate $426

million worth of air pollution controls at its plant in

St. Johns, Arizona.  Under the KU consent decree,

the company will install and operate $135 million

worth of air pollution controls on the largest gener‐

ating unit at its plant in Mercer County, Kentucky.  

ully implemented, these air pollution        

controls and other measures will collectively reduce air pollution by more than 52,000 tons every

year compared with pre‐settlement emissions.  SRP and KU also paid civil penalties of $950,000 and

$1.4 million, respectively, and will spend $4 million and $3 million on projects to mitigate the adverse

effects of past excess emissions.

ADDRESSING AIR POLLUTION FROM OIL REFINERIES

The Division also made progress last year in its national civil enforcement initiative to combat CAA

violations in the petroleum refining industry in the case of United States v. Frontier Refining Co.  With

this settlement, the petroleum refinery enforcement initiative has produced settlements or other

court orders that have addressed more than 88% of the nation's refining capacity, and will reduce air

pollutants by more than 337,000 tons annually.  The Frontier settlement secures the installation of

more than $127 million in pollution controls that will result in the reduction of more than 6,000 tons

per year of harmful air pollutants, when fully implemented.  The defendants also agreed to pay a civil

penalty of $1.23 million and spend $1.3 million on projects to mitigate the harmful effects of past

unlawful emissions.

PROTECTING OUR NATION’S             

AIR, LAND, AND WATER

Coal‐Fired Power Plant ENRD Trial Exhibit Photo

When f
protecting air, land, and water 17

The provisions of two previous consent decrees entered under this initiative were successfully      

enforced this year.  Such actions are critically important because they ensure that the nation’s air

quality continues to improve and deter further noncompliance.  In September 2009, a district court

in Indiana entered an important amendment

to the original consent decree in United States

v. BP Products North America, Inc., resolving

claims associated with BP’s Texas City, Texas

refinery.  Under the settlement, BP will spend

more than $161 million to take measures to

prevent noncompliance and mitigate excess

emissions resulting from past violations.  BP

will pay a civil penalty of $12 million and spend

$6 million on an additional mitigation project.  

Pursuant to a stipulation and agreement filed

with the court in December 2008 in United

States v. ExxonMobil Corp., ExxonMobil paid

$6.1  million in stipulated penalties for violat‐

ing the terms of a 2005 consent decree.  The    

violations concerned unauthorized combus‐

tion of sulfur‐containing fuel gas streams at its Baytown, Texas refinery.

REDUCING AIR POLLUTION FROM THE  

CEMENT INDUSTRY

The Division has begun taking civil enforcement actions against

cement manufacturers whose operation of cement kilns result

in unauthorized emissions of harmful air pollutants.  The larg‐

est settlement yet in the cement kiln enforcement initiative

was achieved in United States v. Cemex California Cement, L.L.C.  

Pursuant to the consent decree, Cemex will undertake injunc‐

tive relief to meet stringent new emission limits for NOx, which

will reduce these emissions by nearly 40% per year, as well as

new limits for SO2 and carbon monoxide at its Victorville, Cali‐

fornia cement plant.  The cost of the injunctive relief is more

than $7 million, and Cemex paid a $2 million civil penalty.

At the beginning of the fiscal year, a district court in Illinois  

entered a consent decree in United States v. St. Mary’s Cement,

Inc., resolving the Division’s CAA claims concerning unauthor‐

ized emissions of NOx from St. Mary’s Dixon, Illinois cement

plant.  Under the decree, St. Mary’s Cement will take measures to reduce emissions on three of its

kilns, shut down a fourth kiln, and pay a civil penalty of $800,000.

Chalmette Refining FEMA Photo

Cement Plant
18 protecting air, land, and water

ENSURING THE INTEGRITY OF  

MUNICIPAL WASTEWATER TREATMENT SYSTEMS

Through its aggressive national civil enforcement program under the CWA to ensure the integrity of

municipal wastewater treatment systems, ENRD has continued to protect the nation's waterways.   

Since January 2006, courts have entered almost a dozen settlements in these cases, requiring long‐

term control measures estimated to cost approximately $5 billion.

In 2009, the Division achieved a significant settlement resolving CWA violations in the Nashville,   

Tennessee metropolitan area in the case of United States v. Metropolitan Nashville & Davidson

County.  Under the terms of the decree, Nashville will spend approximately $400 million to upgrade

its aging sewer system and bring it into compliance with the CWA, thereby reducing the discharge of

untreated sewage to local waterways by hundreds of millions of gallons per year.  In April 2009, a

district court in Kentucky entered an amend‐

ment to a 2005 consent decree in United States

v. Louisville & Jefferson County Metropolitan  

Sewage Dist. to address unauthorized discharges

from its sanitary sewer system occurring after

entry of the decree.  Pursuant to the terms of

the amendment, Louisville will spend an addi‐

tional $400 million to take measures to avoid

future noncompliance with the CWA.

Consent decrees entered in United States v. City

of Portsmouth and United States v. City of Inde‐

pendence require those cities to spend $75      

er Overflow   EPA Photo million and $35 million, respectively, to make

improvements to their wastewater collection

systems to eliminate unauthorized discharges of sewage into local waterways.  The consent decree

in United States v. City of Ironton requires Ironton to separate its storm and sanitary sewers over an

18‐year period at an estimated cost of $18 million.  In August 2009, the district court in New Hamp‐

shire entered a consent decree in United States v. City of Lebanon that requires Lebanon to spend

more than $30 million to eliminate unauthorized wet weather discharges from its combined sanitary

and stormwater collection system.

PROTECTING THE NATION’S WATERS AND WETLANDS

In fiscal year 2009, the Division obtained a number of favorable settlements in civil enforcement   

actions brought under the CWA to protect the nation's waters and wetlands.  In United States v.

Johnson, ENRD sued an Arizona land developer and a contractor for CWA violations in bulldozing,

filling, and diverting approximately five miles of the lower Santa Cruz River and a major tributary, the

Los Robles Wash, without a permit from the Corps.  In December 2008, the district court in Arizona

entered a consent decree which enjoins the defendants from discharging pollutants in violation of

Sanitary Sew
protecting air, land, and water 19

the CWA and required them to pay a combined

$1.25 million civil penalty, one of the largest pen‐

alties in the history of the wetlands program.

On September 24, 2009, the district court in Ne‐

vada entered a consent decree in United States

v. Union Pacific R.R. Co., a CWA civil enforcement

action involving unauthorized discharges of

dredged and fill material and stormwater stem‐

ming from Union Pacific’s extensive track repair,

flood control, and stream rechannelization ac‐

tivities.  The consent decree requires Union Pa‐

cific to pay a civil penalty of $800,000; remove

unauthorized dredge‐and‐fill materials; restore

stream channels and revegetate wetlands; and

eradicate tamarisk, an invasive, non‐native plant.

In United States v. Savoy Senior Housing Corp., ENRD negotiated a consent decree to resolve claims

that defendants discharged sediment into waters of the United States without a permit at the Lib‐

erty Village site in Campbell County, Virginia.  In March 2009, the district court entered a consent  

decree under which the defendants will pay $300,000 in civil penalties and $1,070,000 to fund resto‐

ration work on the Liberty Village site and purchase stream and wetland restoration in the region.

United States v. Rapanos was a CWA civil enforcement action for unauthorized discharge of fill mate‐

rial into waters of the United States at several locations in Michigan.  In 2006, the U.S. Supreme

Court vacated a judgment in favor of the government and remanded the case for reconsideration of

whether defendants’ property falls within the scope of federally protected waters.  On remand, the

Division negotiated a consent decree, under which the defendants will perform mitigation and pay a

$150,000 civil penalty.  Among other things, defendants are required to record conservation ease‐

ments on 135 acres of land (including 53 acres of wetland) at two of the three violation sites.

In March 2009, ENRD and a lumber

company owning over 25,000 acres

of land in Louisiana’s Atchafalaya  

Basin negotiated a settlement of two

eminent domain cases the Division

brought at the request of the Corps

to acquire environmental protection

easements over the land.  The ease‐

ments are a component of the

Atchafalaya Basin Floodway System

and preclude new construction as

well as harvesting of certain trees.

Wetlands EPA Photo

Atchafalaya Basin, Louisiana USACE Photo
20 protecting air, land, and water

REDUCING AIR AND WATER POLLUTION    

AT OTHER DIVERSE FACILITIES

          

In fiscal year 2009, the Division improved the nation's air and water quality by concluding civil en‐

forcement actions against other facilities in diverse industries.  In total, recoveries valued at more

than $2.3 billion in injunctive relief, more than $68 million in civil penalties, and $20.3 million in sup‐

plemental environmental projects were obtained.  (A supplemental environmental project is an envi‐

ronmentally beneficial project that a defendant agrees to undertake in settlement of a civil penalty

action that has a sufficient nexus to the alleged violation, but that the defendant is not otherwise

legally required to perform.)  The industries agreeing to settle their noncompliance with the CAA and

CWA included the third largest coal producer in the eastern United States, four natural gas produc‐

ers, two sulfuric acid manufacturers, a food processor, a New England bus operator, and a hard rock

mining company, among others.

Injunctive relief was obtained from three pipeline owners and/or operators for civil violations of the

CWA resulting from unauthorized spills into waters of the United States.  District courts in North

Carolina, Texas, and Kansas entered consent decrees in United States v Plantation Pipeline Co., United

States v. Explorer Pipeline Co., and United States v. Magellan Ammonia Pipeline, respectively.  Planta‐

tion resolved claims in connection with four separate fuel pipeline spills in Virginia, North Carolina,

and Georgia.  Explorer resolved claims regarding the spill of jet fuel into a tributary of the Trinity

River near Livingston, Texas.  Magellan resolved claims concerning two spills of anhydrous ammonia

from a pipeline, one occurring in Nebraska and the other in Kansas.  Each defendant took corrective

measures to address its respective spills and/or is undertaking measures needed to prevent future

spills.  Collectively, the companies will pay civil penalties totaling $7.675 million.

WORKING WITH COMPANIES THAT SELF‐REPORT  

ENVIRONMENTAL VIOLATIONS

ENRD obtained the largest settlement ever under EPA’s Audit Policy in the case of United States v.

Invista, S.A.R.L.  EPA’s Audit Policy, which was launched in 1995, provides incentives to companies

that voluntarily discover, promptly disclose, and expeditiously correct environmental violations,   

according to its terms.  Under the consent decree, Invista will pay a $1.7 million civil penalty and

spend an estimated $500 million to correct the self‐reported violations discovered at facilities in

seven states.  The company, a multinational manufacturer of a wide range of polymer‐based fibers,

disclosed more than 680 violations of water, emergency planning and preparedness, hazardous

waste, and pesticide regulations to EPA after auditing 12 facilities that it acquired from DuPont.    

Consistent with the Audit Policy, the United States waived a portion of the potential penalty in this

case.
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 cleanup

costs.  ENRD also recovers Natural Resource Damages

(NRD) on behalf of federal trustee agencies.  In fiscal year

2009, the Division secured the commitment of responsible

parties to clean up hazardous waste sites at costs estimated

in excess of $272 million; and recovered approximately $178

million for the Superfund to finance future cleanups and

more than $13 million in NRD.  Examples of major Superfund

cases include:  United States v. Beckman‐Coulter (under the

terms of a consent decree entered in June 2009, approxi‐

mately 300 defendants will pay the United States and New

Jersey $69 million in cleanup costs, pay more than $3 million

in NRD, and purchase a $27 million annuity for future

cleanup work and costs at the Combe Fill South Superfund

Site in Morris County, New Jersey); United States v. Ameri‐

can Hoechst Corp. and United States v. A.R. Sandri, Inc. (pursuant to two consent decrees entered in

March 2009, 49 parties to the Hoechst decree will perform a $46 million cleanup, which 208 parties

to the Sandri decree will contribute to, and parties to both decrees will reimburse the United States

almost 90% of $13 million in past cleanup costs and pay almost 90% of the estimated $3.325 million in

NRD at the Solvents Recovery Service of New England Superfund Site in Southington, Connecticut);

and United States v. Handy & Harman (under the terms of a consent decree entered in January 2009,

13 parties will spend $29 million to complete the cleanup of chemical wastes and other contaminants

at the Shpack Landfill Superfund Site in Norton and Attleboro, Massachusetts, and pay up to an addi‐

tional $2.9 million to EPA for its costs in overseeing the work).

LITIGATING THE CONSTITUTIONALITY OF THE SUPERFUND LAW

Goodrich Corp. v. EPA involved EPA’s issuance of a CERCLA removal order that required Goodrich to

investigate groundwater contamination in Rialto, California.  Goodrich asserted that EPA’s “pattern

and practice” of using such orders violates the Due Process Clause, and that a CERCLA judicial review

provision does not prevent courts from hearing such programmatic claims.  The district court re‐

jected Goodrich’s challenge, finding that it lacked jurisdiction to hear the claim.  The Ninth Circuit

affirmed.

ENSURING CLEANUP OF  

OIL AND HAZARDOUS WASTE
2

PROTECTING THE PUBLIC FISC AGAINST EXCESSIVE CLAIMS

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

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

being remediated.  The Division seeks to settle those cases where a fair apportionment of cleanup

costs can be reached.

ENRD obtained favorable settle‐

ments that ensure the United States

will pay an appropriate share of

cleanup costs in CERCLA contribu‐

tion cases in which the United States

is a liable party.  In fiscal year 2009,

these include such multi‐million dol‐

lar settlements as Steadfast Insur‐

ance Co. v. United States (response

costs incurred at the Whittaker‐

Bermite facility in Santa Clarita, Cali‐

fornia); GTE Operations Support, Inc.

(remediation of a former electronic

warfare development and testing

site in Mountain View, California);

Carolina Power & Light Co. and Con‐

solidation Coal Co. (claims for re‐

moval work at the Ward Trans‐

former Superfund Site in North Caro‐

lina); Maxxam Group, Inc. v. United

States (cleanup costs at the Unex‐

celled Manufacturing Co. Site in

Cranbury, New Jersey); United States

v. City of Attleboro (response costs

relating to chemical contamination

at the Shpack Dump Superfund Site

in Norton and Attleboro, Massachu‐

setts); and United States v. Ashland,

Inc. (response actions at the Chemi‐

cal Commodities Superfund Site in

Olathe, Kansas).

The Division also negotiated a consent decree in Atlantic Research Corp. v. United States, an action

for response costs associated with cleanup of pollutants allegedly released during the plaintiff’s

manufacture of rocket motors for the U.S. Army at the former Highland Industrial Park facility in

Camden, Arkansas.

2 cleanup of oil and hazardous waste

WARD TRANSFORMER SITE

Site in October 2009 EPA Photo

Site Before Remediation EPA Photo
cleanup of oil and hazardous waste 23

PROTECTING THE GOVERNMENT FROM  

UNWARRANTED NRD CLAIMS

State of Ohio v. Department of Energy concerned claims for NRD under CERCLA in connection with

the release of hazardous and radioactive material at the Department of Energy's (DOE) Feed Mate‐

rial Production Center, a former uranium processing facility in Fernald, Ohio.  The Division negotiated

a consent decree requiring DOE to pay $13.75 million in damages and assessment costs, record an

environmental covenant restricting most types of future development at the site, and implement a

natural resource restoration plan committing DOE to maintain a series of natural resource restora‐

tion projects at the site.

The Division resolved two long‐running claims for NRD in Colorado v. United States and United States

v. Shell Oil Co., arising out of alleged contamination at the Rocky Mountain Arsenal near Denver,

Colorado.  In February 2009, the district court entered a settlement agreement and consent decree

under which the United States will pay Colorado $7.4 million, following Shell’s agreement to pay the

state $10 million for NRD, and undertake certain other monetary and property donations.

ENFORCING CLEANUP OBLIGATIONS IN BANKRUPTCY CASES

The Division’s bankruptcy practice has continued to grow, and this year we achieved notable success

in several proceedings.  In these cases, ENRD files claims to protect environmental obligations owed

to the United States when a responsible party goes into bankruptcy.

In the largest recovery of money for hazardous waste cleanup ever, debtor American Smelting and

Refining Company, L.L.C. (Asarco) paid $1.79 billion pursuant to its confirmed bankruptcy reorganiza‐

tion in In re ASARCO, L.L.C.  The Division, in coordination and collaboration with 19 states, completed

a four‐year odyssey through the courts when the final plan of reorganization was confirmed by the

bankruptcy court in the Southern District of Texas

Image of a Site Covered by the Asarco Bankruptcy Plan:  East

Helena Superfund Site, Operable Unit 2  (the City of East Helena

and Nearby Residential Subdivisions, Rural Developments, and

Undeveloped Land) EPA Graphic

Image of a Site Covered by the Asarco Bankruptcy Plan: East

Helena Superfund Site, Operable Unit 2 (the City of East Helena

and Nearby Residential Subdivisions, Rural Developments, and

Undeveloped Land) EPA Graphic

in November 2009 and consummated in Decem‐

ber 2009.  The plan incorporated all of the

environmental settlements previously ap‐

proved by the bankruptcy court.  Pursuant to

the reorganization plan, the United States

received $776 million, which will be used to

fund cleanups at more than 35 different sites;

the Coeur d’Alene Work Trust was paid $436

million to fund cleanup and restoration work

in Idaho’s Coeur d’Alene Basin; 3 custodial

trusts were paid a total of approximately $261

million to fund cleanup and restoration work

at 24 sites in 13 states; and payments totaling

in excess of $321 million were paid to 14 states

to fund environmental settlement obligations

at over 36 individual sites.
24 cleanup of oil and hazardous waste

Tailings Piles at the VAG Mine Site

EPA Photo

VAG Mine Site in Vermont

EPA Photo

In In re G‐1 Holdings, Inc., the bankruptcy court in New Jersey entered a consent decree and settle‐

ment agreement with the debtor (formerly known as the GAF Corporation) in September 2009,

which resolved the United States’ proofs of claim with respect to 13 sites, including the Vermont  

Asbestos Group Mine Site (VAG site), and the largest chrysotile asbestos mine and mill in the coun‐

try. The VAG site, the most significant of the contaminated sites covered by the decree, is a 1,673‐

acre abandoned mine site in Vermont with two towering piles of asbestos‐containing mine and mill

tailings, which attract hikers, rock collectors, and ATV enthusiasts, activities which may cause expo‐

sure to airborne asbestos.  Under the terms of the decree, the debtor agreed to take immediate

steps to construct barriers preventing public access, provide on‐site monitoring, and secure the mill

buildings, and will perform future work.  G‐1 will also reimburse the United States and the State of

Vermont up to $25.8 million for future cleanup costs at the VAG site and pay $850,000 for damages

to local wetlands and waterways contaminated by the VAG site.

In April 2009, more than five years after the date of the debtor’s petition for bankruptcy in In re

Jorge Ortiz Romany, the bankruptcy court in Puerto Rico approved a proposed distribution to the

United States of nearly $5 million, which represents the judgment entered by the court against the

debtor in United States v. JG‐24, Inc.  During the intervening five years, the debtor attempted multiple

times to procedurally thwart the United States’ collection of the judgment, and unlawfully trans‐

ferred assets during the course of the proceedings.  The United States, however, was able to dis‐

cover sufficient assets to pay all creditors in full, plus interest.
DEFENDING THE COLUMBIA

RIVER POWER SYSTEM’S

PROTECTION OF                 

ENDANGERED SALMON

The Federal Columbia River Power System

(FCRPS) is managed by the Corps and the  

Bureau of Reclamation of the Department of

the Interior.  It operates 31 dams in the Co‐

lumbia River Basin that, through the Bonne‐

ville Power Administration, provide the Pa‐

cific Northwest with over 50% of its electrical

power.  Two cases, National Wildlife Fed’n v. NMFS and American Rivers v. NOAA, challenge the 2008

biological opinion issued by NMFS under the ESA, specifying operating parameters for the FCRPS to

protect the Columbia River Basin’s 13 species of anadromous fish, including endangered wild salmon.

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

opinion in this matter.  The 2008 biological opinion is the subject of the current litigation in which

summary judgment briefing and argument extended through 2008 and into early 2009.  In 2009, the

district court in Oregon solicited the new Administration’s view on the adequacy of the 2008 biologi‐

cal opinion.  Over the next six months, ENRD attorneys coordinated a comprehensive review by the

defendant federal agencies.  National Oceanic and Atmospheric Administration Administrator Dr.

Jane Lubchenco personally participated in the review.  In September 2009, ENRD advised the court

of the Administration’s position supporting the 2008 biological opinion.

LITIGATING THE  

POLAR BEAR LISTING DECISION

In May 2008, FWS listed the polar bear as a threatened species

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

tic warming caused by man‐made climate change.  The listing

included a “4(d)” rule clarifying that the “takings” prohibitions

of the ESA did not apply to the polar bear outside its immediate

range.  By fall 2008, 10 suits challenging the listing had been

Columbia River Salmon DOE  Photo

Polar Bears US FWS Photo

PROMOTING RESPONSIBLE           

STEWARDSHIP OF AMERICA’S       

WILDLIFE AND NATURAL RESOURCES
26 stewardship of wildlife and natural resources

filed by environmental groups, oil and gas industry representatives, and the State of Alaska.  ENRD

successfully supported the Multi‐District Panel’s consolidation of the cases in the district court in D.C.   

In In re Polar Bear Endangered Species Litigation, the Division will defend competing and multiple

claims against the listing, the 4(d) rule, and the FWS decision banning the importation of polar bear

trophies taken but not imported prior to the listing.  At their heart, the claims will test national and

international scientific findings related to climate change on which the polar bear listing is based.

LITIGATING OTHER DECISIONS UNDER THE ESA

Every year, plaintiffs claim that agencies have failed to adequately consider their obligations for   

species protection.  In fiscal year 2009, the Division successfully defended a number of these cases.

The Ninth Circuit, for example, upheld two NMFS decisions:

‐‐In Trout Unlimited v. Lohn, the Ninth Circuit reversed a district court judgment holding invalid

NMFS’s 2005 Hatchery Listing Policy and decision to downlist the Upper Columbia River steelhead

ESU from endangered to threatened status.  (An “evolutionary significant unit” or “ESU” is a distinct

group of Pacific salmon or steelhead which NMFS considers a “species” under the ESA.)  The court

concluded that the Hatchery Listing Policy is entitled to Chevron deference and reflected a permissi‐

ble interpretation of the statute.  The Ninth Circuit also repeatedly deferred to NMFS’s scientific

judgment on several issues.  The court rejected the claim that NMFS should have split the natural

and hatchery fish into separate ESUs, explaining that the initial decision regarding the ESU composi‐

tion is analytically distinct from the ESU listing decision.  The court also held that NMFS properly

based the listing decision on the status of the entire ESU, including hatchery fish, and that the policy

is consistent with the ESA goal of preserving natural populations because it mandates a complex

evaluation process that considers both positive and negative effects of hatchery fish on the viability

of natural populations.

‐‐The court affirmed a district court judgment which upheld NMFS’s listing of 16 Distinct Population

Segments (DPS) of West Coast salmon in Alsea Valley Alliance v. Lautenbacher.  The court rejected

challenges that NMFS had improperly distinguished between hatchery and naturally spawned fish in

the listings and in protective regulations for threatened DPSs.  The Ninth Circuit also rejected the

plaintiffs’ assertion that NMFS cannot designate a DPS unless the members thereof interbreed with

reasonable regularity.  The court found that NMFS’s construction of the ESA, which focused on re‐

productive isolation rather than  frequency of interbreeding, was a permissible construction entitled

to Chevron deference.

The Division obtained successful results in district courts in response to many such challenges.  These

included Palouse Prairie Found. v. Salazar (FWS’s decision not to list the giant Palouse earthworm was

affirmed, with the court deferring to its evaluation of mostly circumstantial evidence); Fisher v. Sala‐

zar (FWS could designate as critical habitat for the Perdido Key Beach Mouse land currently unoccu‐

pied by the mouse that nevertheless provides habitat connectivity); Northwest Envtl. Defense Ctr. v.

USACOE (NMFS’s biological opinion for the Corps’ permit for a boat dock on Portland’s Willamette

River reasonably utilized science‐based proxy to calculate impacts on salmon); Heartwood v. Agpaoa

(the Forest Service adequately determined that it was not required to reinitiate consultation on a
stewardship of wildlife and natural resources 27

timber salvage project and its potential White Noise Syndrome impacts on the Indiana Bat); Wild Fish

Conservancy v. Salazar (FWS’s biological opinion rationally concluded that operation of a fish hatch‐

ery was not likely to harm resident bull trout); and Butte Environmental Council v. USACOE (FWS’s bio‐

logical opinion on the Corps’ permit for a business park development appropriately considered the

effects of impacts to small acreage of critical habitat on critical habitat as a whole).  

ENSURING THAT THE LIMITATIONS OF FEDERAL JURISDICTION   

IN WILDLIFE CASES ARE ENFORCED

The Administrative Procedure Act (APA) and other special review provisions circumscribe federal

jurisdiction, as do the requirements of standing and other jurisdictional prerequisites.  In 2009, the

Division successfully asserted these threshold defenses in numerous wildlife cases, including Fisher v.

Salazar (private landowners lacked standing to challenge a critical habitat designation where they

alleged no injury specific to themselves); Dow Agroscience, L.L.C.  v. National Marine Fisheries Service

(Dow’s challenge to a NMFS biological opinion on the effects of pesticide registrations on salmon

was dismissed on jurisdictional grounds); Fisheries Survival Fund v. Locke (fishermen association’s

challenge to a NMFS biological opinion was moot after NMFS amended the opinion to address its

concern); La Jolla Friends of the Seals v. NOAA (a NMFS decision not to enforce the MMPA against

San Diego’s seal dispersal program at the city’s historic children’s pool was committed to agency  

discretion); Center for Biological Diversity v. Chertoff (claims that the Coast Guard must consult with

NMFS under the ESA on shipping traffic management actions were dismissed as time‐barred and not

ripe for review); Center for Biological Diversity v. BLM (challenge to Army plans to translocate endan‐

gered tortoises was dismissed as not ripe for review); Moden v. FWS (FWS’s five‐year status reviews

required by the ESA were not subject to judicial review under the APA or the citizen‐suit mandatory

duty provision); WildEarth Guardians v. Kempthorne (FWS’s determination not to “emergency” list

species was committed to agency discretion and not reviewable); and Appalachian Voices v. Bodman

(plaintiffs lacked standing to assert claim that Internal Revenue Service/DOE tax credits for clean

coal projects were subject to ESA consultation where there was no causal link between the tax cred‐

its and any actual project).

DEFENDING NMFS’S OCEAN  

HARVEST MANAGEMENT

The Magnuson Stevens Fishery Conservation and

Management Act charges NMFS with the difficult task

of managing ocean commercial fishing to provide for

conservation and sustainable fishing while, at the

same time, optimizing yield.  In 2009, ENRD success‐

fully defended NMFS’s balancing of these often‐

competing objectives.  In Commonwealth of Massa‐

chusetts v. Gutierrez, for example, the district court in

A Landing Net Massachusetts upheld NMFS’s management meas‐ Is Hauled in NOAA Photo
28 stewardship of wildlife and natural resources

ures fo

tuna fishing cl

efforts was up

NMFS’s allocat

fisheries.

r a mixed‐stock fishery.  In Blue Ocean Inst. v. Gutierrez, NMFS’s decision not to implement

osures due to increased bycatch resulting from a redistribution of regional fishing    

held.  Finally, in Fishermen’s Finest v. Gutierrez, the district court in Washington upheld

ion of catch among various types of fishing vessels for the Bering Sea/Aleutian Islands

Black Canyon of the Gunnison National Park, Colorado
stewardship of wildlife and natural resources 29

SECURING CRITICAL WATER RIGHTS AND WATER SUPPLIES

The Colorado Water Court approved a settlement in fiscal year 2009 that consummated 30 years of

effort to establish water rights for the Black Canyon of the Gunnison National Park.  The Black Can‐

yon sits astride the Gunnison River in west‐central Colorado.  With spectacular gorges carved by the

river’s flows over millions of years, the canyon is noted for its narrowness, depth, ruggedness, and

great expanse of sheer walls.  The settlement will enable the National Park Service to ensure that

the water resources of the Black Canyon are protected for future generations while also promoting

the interests of other federal agencies on the Gunnison, including the Bureau of Reclamation, which

operates the Aspinall Unit, a federal reclamation project located upstream of the park; the Western

Area Power Administration, which administers the hydropower generated by the Aspinall Unit; BLM,

which administers recreational rafting in the Gunnison Gorge National Recreation Area downstream

of the park; and FWS, which seeks flows for protection of the downstream habitat of several endan‐

gered species of fish.  

RESTORING CRITICAL NATURAL RESOURCES AND ECOSYSTEMS

In 2009, the Division secured dismissal of Miccosukee Tribe of Indians v. U.S. Army Corps of Eng’rs and

Miccosukee Tribe of Indians v. Peters, which were challenges under NEPA, the Everglades National

Park Protection and Expansion Act of 1989, and the Water Resources Development Act of 2000, to

the relocation of the Tamiami Trail along the northern boundary of Everglades National Park by the

Department of Transportation and the Corps as part of the long‐planned “Modified Water Deliver‐

ies” Everglades restoration project.  With this dismissal, the project can go forward, including con‐

struction of a one‐mile bridge and other roadway modifications that will allow increased water flows

to the 1.3 million‐acre Everglades National Park, the largest and most important subtropical wilder‐

ness in North America.  The Division also continued to contribute to the restoration and protection

of the Everglades ecosystem by acquiring

lands within Everglades National Park and

the Big Cypress National Preserve.

Acting on behalf of the U.S. Forest Service,

ENRD exercised the United States’ power

of eminent domain to acquire mineral inter‐

ests beneath over 99,000 acres of the Valles    

Caldera National Preserve in New Mexico.      

Owners of the mineral interests sought compen‐

sation of roughly $30,300,000.  In December

2009, in the case of United States v. 99,223.7238

Acres of Land in Sandoval and Rio Arriba Counties

and J.B. Harrell, the district court determined that

the fair market value of the property was

$3,800,000. Valles Caldera National Preserve

Valles Caldera Trust Photo
30 stewardship of wildlife and natural resources

LITIGATING FEDERAL LAND MANAGEMENT  

PROGRAMS AND POLICIES

The federal government manages vast swaths of land for a variety of purposes, including timber

management in national forests, recreation in national parks, and resource development and grazing

on public lands.  Land management programs and policies often are the focus of competing       

interests for the use of public lands and become the subject of litigation.

The Sierra Nevada region of California poses one of the most vexing land management problems in

the nation.  On the one hand, a legacy of aggressive fire suppression has left over 8 of the 11 million

federal acres in the area in a state of unnatural forest density.  Without thinning of the forests, these

areas and nearby communities face risk of catastrophic wildfire.  On the other hand, many of the

same areas in need of thinning provide habitat to the California spotted owl and other rare old‐

forest species.  Moreover, the area is home to numerous communities with a long history of depend‐

ence on the timber industry.  In 2004, the Forest Service issued a Region‐wide Forest Plan Amend‐

ment (known as the 2004 Framework) intended to allow needed fuel reduction while still protecting

the habitat of old‐forest dependant species.  The Division has been largely successful in defending

the 2004 Framework in a series of lawsuits brought by the State of California, the timber industry,

and environmental groups.  Most recently, a district court in California allowed the Forest Service to

continue implementing thinning projects pursuant to the 2004 Framework while remedying limited

errors in the EIS for the 2004 Framework.  This victory has saved the agency millions of dollars in

planning costs and, more importantly, allowed the agency to continue moving forward with much

needed fire reduction projects.  In a related matter, Sierra Forest Legacy v. Forest Service, a district

court in California upheld the Forest Service’s Region‐wide Forest Plan Amendment to modify the list

of species that the agency monitors under the 2004 Framework to ensure forest health.

The Division’s successful  

efforts in defending Forest

Service decisions are high‐

lighted in two cases related

to the Chequamegon‐Nicolet

National Forest (CNNF) in

Wisconsin, Habitat Educ. Ctr.

v. U.S. Forest Service ((I) and

(II)).  In these two cases, the

plaintiffs alleged that the

Forest Service violated NEPA

and the National Forest  

Management Act (NFMA) in

approving the Twentymile

Project and the Fishbone

Project.  Both projects in‐

volved implementation of

The Chequamegon National Forest
stewardship of wildlife and natural resources 31

the CNNF Forest Plan, which provides a framework for a holistic approach to forest management

and includes an emphasis on restoration of forest health and age and species diversity.  A district

court in Wisconsin upheld the Forest Service’s approach in both cases.  As to both projects, the court

found that the agency had considered a reasonable range of alternatives based on the purposes and

needs for the projects; responded adequately to responsible, opposing scientific views; and relied

properly on the forest’s habitat modeling, which satisfied NFMA’s requirement to provide for diver‐

sity.  The Twentymile and Fishbone Projects were the first under the CNNF’s new plan so the deci‐

sions pave the way for the forest to meet the desired conditions.

ENRD concluded litigation in two cases regarding National Park Service management of the Yosem‐

ite National Park.  In Friends of Yosemite Valley v. Salazar and Friends of Yosemite Valley v. Jarvis, the

parties executed a settlement agreement in September 2009 that resolved this decade‐long dispute

over the National Park Service’s compliance with the Wild and Scenic Rivers Act and NEPA in devel‐

oping the Merced Wild and Scenic River Plan for Yosemite National Park.  The settlement will allow

the park to proceed with critical repair and rehabilitation of park facilities while it prepares a new

comprehensive management plan for the Merced River.  

PROTECTING PUBLIC LANDS

FROM GRAZING VIOLATIONS

In United States v. Hage, the Division filed trespass

claims in federal district court against several indi‐

viduals and corporations who had longstanding  

histories of grazing cattle without authorization on

BLM and Forest Service lands in Nevada.  The defen‐

dants in this litigation have been parties to several

lawsuits challenging the government’s sovereignty

over the public lands and seek compensation for

the alleged Fifth Amendment takings resulting from

the management of the public land.  ENRD achieved

a settlement with two of the defendants in which

they agreed to cease all illegal grazing activities,

Map

acknowledge federal authority over those lands,

FS

remove structures that were impermissibly placed

US

on the property, and pay fines for past violations.  

This significant agreement has provided the impetus for other defendants in this case to explore

possible settlement, as well as helped to discourage others from undertaking similar illegal grazing

activities.

Livestock grazing on federal lands in the southwest is a particularly contentious issue.  In a case aris‐

ing out of the Gila National Forest in New Mexico, the Forest Service’s handling of its management

responsibilities relating to livestock grazing has been validated.  In McKeen v. U.S. Forest Service, a

district court upheld the Forest Service’s decision to sanction a term permit holder with a permanent
32 stewardship of wildlife and natural resources

25% reduction in his permitted livestock numbers for repeated violations of his permit requirements.  

The court rejected the permit holder’s claims that he had not been given sufficient notice of the   

violations and opportunities to cure, despite numerous attempts by the agency to get him to take

the steps necessary to protect resources on the grazing allotment.  

DEFENDING LIVESTOCK GRAZING DECISIONS TO RENEW PERMITS

In WildEarth Guardians v. U.S. Forest Service, a district court upheld the agency’s analysis and applica‐

tion of factors for invoking a categorical exclusion from NEPA in renewing term permits for 26 graz‐

ing allotments.  In addition, the court held that the Forest Service had properly considered and     

addressed the potential effects of livestock grazing on species listed under the ESA.  

DEFENDING SUBSISTENCE DETERMINATIONS IN ALASKA

District court decisions in two related cases have upheld the designation of certain navigable waters

in Alaska as public lands for purposes of the statutory subsistence‐use priority.  In 1999, the Secretar‐

ies of Agriculture and the Interior identified certain navigable waters in Alaska as public lands for  

Courtesy of Karl Musser USGS Data
stewardship of wildlife and natural resources 33

purposes of implementing the subsistence use priority under the Alaska National Interest Lands  

Conservation Act.  The Secretaries made the designations pursuant to an earlier Ninth Circuit ruling

that public lands for purposes of the subsistence use priority include navigable waters in which the

United States holds reserved water rights as determined by the Secretaries.  In Katie John v. United

States, subsistence users sought to expand the Secretaries’ designations by claiming that they

should have included waters which are adjacent to national parks, forests, wildlife refuges, and other

federal reservations, and on or adjacent to Alaska native allotments.  In State of Alaska v. Salazar, on

the other hand, the state sought to restrict the determinations, contending that the Secretaries   

improperly found that the United States reserved water rights in tidally influenced waters on pri‐

vately owned lands within federal reservations, lands adjacent to federal reservations, and lands  

selected by, but not yet conveyed to, the state or Alaska Native Corporations.  The district court   

rejected the plaintiffs’ contentions in both cases, and appeals are pending.

DEFENDING REGULATION OF FISHERIES  

AGAINST ABORIGINAL CLAIMS

In Native Village of Eyak v. Gutierrez, Alaska natives challenged the Secretary of Commerce’s halibut

and sablefish fishing regulations, asserting unextinguished, nonexclusive, aboriginal fishing and

hunting rights to portions of the Gulf of Alaska and Lower Cook Inlet.  Following a two‐week trial,

the court ruled in favor of the Department of Commerce.  The plaintiffs have appealed.

DEFENDING COALBED METHANE DEVELOPMENT  

UNDER FEDERAL LEASES

The Division prevailed in four cases challenging coalbed methane development.  Two of the cases

challenge development in south central Wyoming.  In Natural Resources Defense Council v. Salazar,

the plaintiffs alleged inadequate environmental assessments of two plans of development providing

for 90 wells and adoption of development plans that are inconsistent with the applicable land use

plan.  In Theodore Roosevelt Conservation P’ship v. BLM, the plaintiffs challenged the adequacy of a

programmatic EIS for a plan to drill 2,000 wells and alleged that the plan is inconsistent with the land

use plan and fails to apply multiple‐use principles.  The court granted the United States’ motion for

summary judgment in both cases, and the plaintiffs have appealed.  The plaintiffs in two other cases,

American Lands Alliance v. BLM and Western Organization of Resource Councils v. BLM, challenged

coalbed methane development in Wyoming’s Powder River Basin, which includes almost eight      

million acres of federal, state, and private lands.  The plaintiffs alleged numerous deficiencies in

BLM’s programmatic EIS, prepared in cooperation with the Forest Service and the State of       

Wyoming.  The court upheld the analysis, finding that BLM had taken a hard look at the impacts in

compliance with NEPA.
REDUCING POLLUTION FROM OCEAN‐GOING VESSELS

Over the past 10 years, the criminal penalties imposed in vessel pollution cases prosecuted by ENRD

have totaled more than $216 million, and responsible shipboard officers and shore‐side officials have

been sentenced to more than 20 years of incarceration.  This year, the Division continued its success

in prosecuting deliberate violations, as the representative cases below illustrate.

In January 2009, the Second Circuit affirmed the convic‐

tion in United States v. Ionia Mgmt., S.A., of a shipping

company for failure to maintain an accurate oil record

book relating to discharges of pollution from a vessel it

managed.  The Act to Prevent Pollution from Ships (the

act or APPS), which implements an international protocol

on oil pollution, and its regulations prohibit vessels from

discharging oil above certain limits.  The act and regula‐

tions also require all vessels, both foreign and domestic,

to maintain an accurate oil record book showing dis‐

charges of oil from the vessel.  The M/T Kriton, a foreign‐

flag vessel managed by Ionia Management, S.A., dis‐

charged oil in excess of allowable amounts.  The vessel’s

crew then made false entries in the oil record book to

hide the impermissible discharges.  When the vessel     

entered U.S. port, it was investigated and charged with

failure to maintain an accurate oil record book.  On       

appeal, the defendant company argued that the require‐

ment to maintain an accurate record book only applied to

discharges occurring in U.S. waters.  The court of appeals

disagreed, holding that the record book must be accurate

when the vessel is in U.S. waters and must reflect dis‐

charges occurring inside and outside U.S. waters.  Among

other things, the court of appeals also held that the      

defendant corporation could be held liable under a respondeat superior theory of liability.  The     

Second Circuit’s APPS ruling upholds keystones of the government’s initiative to prosecute owners

and operators of vessels that pollute at sea in violation of international and domestic standards.

2 CRIMINALLY ENFORCING  

OUR NATION’S POLLUTION  

AND WILDLIFE LAWS

THE PROBLEM OF  

VESSEL POLLUTION  

EVERY YEAR...

the intentional, illegal dis‐

charge of oil from vessels  is

equal to  

8 times  

the amount of oil spilled by

the Exxon Valdez  

(11 million gallons)  

— 2002 Report of the Maritime Transport   

Committee of the Organisation for Economic  

Co‐operation and Development  
criminally enforcing pollution and wildlife laws 35

The defendant, a Greek shipping operator, pleaded guilty to and was sentenced for numerous viola‐

tions in United States v. Polembros Shipping, Ltd.  The charges included two counts of APPS, one

count for failing to maintain an accu‐

rate oil record book for the cargo

ship M/V Theotokos and the other for

Shipping Vessel USCG Photo

the carrying of fuel oil in a tank for‐

ward of the collision barrier; viola‐

tions of the Nonindigenous Aquatic

Nuisance Prevention and Control Act

(NANPCA) by failing to maintain ac‐

curate ballast water records; viola‐

tions of the Ports of Waterways

Safety Act (PWSA) by failing to     

report the hazardous condition of

the crack on the rudder stem of the

ship; and making false statements by

concealing the fact that fuel oil was

leaking into the forepeak ballast

tank.  The company was sentenced

Shipping Vessel USCG Photo to pay a $2.7 million fine and

$100,000 to fund research of marine invasive species, and to complete a three‐year term of proba‐

tion.  Additionally, the ship’s master was sentenced to serve 10 months’ incarceration, and two other

crew members were ordered to serve probation for crimes including APPS, PWSA, and NANPCA   

violations, obstruction, and false statement violations.

A jury convicted the defendant corporation and two engineers of APPS and false statement viola‐

tions for their actions surrounding the overboard discharge of bilge waste using a bypass valve in

United States v. General Maritime Mgmt.  The corporation was sentenced to pay a $1 million fine,

serve a five‐year term of probation, and implement an environmental compliance plan (ECP).  The

engineers were sentenced to a total

of 9 months’ incarceration, followed

by five years’ probation, and to pay

$1,000 in fines.

In United States v. Fleet Mgmt., Ltd.,

the defendant, a Hong Kong ship

management company, pleaded guilty

to CWA violations, obstruction, and

false statements surrounding the re‐

lease of more than 50,000 gallons of

heavy fuel oil from the M/V Cosco Bu‐

san, which crashed into the San Fran‐

cisco Bay Bridge in 2007.  The ship’s

Damage to the Bay Bridge USCG Photo
36 criminally enforcing pollution and wildlife laws

Aerial View of Seekonk River

ENRD Trial Exhibit Photo

captain pleaded guilty to a negligent violation of the Oil Pollution Act (OPA) and to a violation of the

Migratory Bird Treaty Act (MBTA) for causing the deaths of more than 2,000 protected migratory

birds, and was sentenced to serve 10 months’ incarceration followed by a 1‐year term of probation.

Guilty pleas were also entered in five additional cases involving vessel operators and crew members

in United States v. Consultores De Navegacion; United States v. STX Pan Co.; United States v. Dalnave

Navigation, Inc.; United States v. Hiong Guan Navegacion Japan Co.; and United States v. Holy House

Shipping.  These companies and individuals were sentenced to pay $7.43 million in fines, $1.35 million

in community service, and 6 months’ incarceration, with each serving a term of probation for crimes

including conspiracy, APPS, false statements, obstruction, and oil record book violations.  

PROSECUTING HAZARDOUS WASTE VIOLATIONS

In United States v. Southern Union Co., stored gas regulators that contained mercury were removed

from customer’s homes and improperly stored by the corporate defendant.  Vandals broke into the

facility in Pawtucket, on the edge of the Seekonk River, and damaged some of the containers, result‐

ing in mercury being spilled around the facility and in a nearby apartment complex.   Southern Union

was convicted by a jury of one RCRA storage violation.  The company was sentenced to pay a $6 million
criminally enforcing pollution and wildlife laws 37

fine and $12 million in community service payments, and to

complete a two‐year term of probation.

Defendant Robert Webb, owner of Alliance Environmental,

Inc., failed to properly store waste accumulated from his

methamphetamine laboratory cleanup business and

pleaded guilty to two RCRA storage violations in United

States v. Webb.  He was sentenced to serve a year of incar‐

ceration, followed by a three‐year term of probation, pay

$71,000 in restitution, and perform community service.  

PROSECUTING CWA VIOLATIONS

In United States v. ExxonMobil Corp., ExxonMobil Pipeline, a subsidiary of ExxonMobil Corp., failed to

replace a known defective valve and coupling on a pipeline at its oil terminal, which resulted in a spill

of 2,500 gallons of kerosene and 12,700 gallons of diesel fuel.  ExxonMobil pleaded guilty to a CWA

violation; and was sentenced to pay a $6.1 million fine, complete a three‐year term of probation, and

implement an ECP.  Of the $6.1 million

fine, $4.6 million was designated to

restore wetlands and improve water

quality in Massachusetts.

The corporate defendant accepted

millions of gallons of liquid industrial

waste that it could not adequately

store or treat and discharged directly

to the Detroit sanitary sewer system in

United States v. Comprehensive Envi‐

ronmental Solution, Inc.  The company

pleaded guilty to CWA and false state‐

ment violations and was sentenced to

pay a $750,000 fine, complete a five‐

year term of probation, and imple‐ Fuel Spill USCG Photo ment an ECP.  Of the $750,000 fine,

$150,000 will help restore the environment and wildlife habitat along the Detroit River.   A jury con‐

victed three company officials and a fourth official pleaded guilty to crimes including CWA, conspir‐

acy, and false statement violations.  They were sentenced to a total of 42 months’ incarceration fol‐

lowed by probation.

Guilty pleas were also entered in United States v. Johnson Matthey, Inc.; United States v. Corn; United

States v. California Shellfish Co.; United States v. Cypress Bayou Industrial Painting, Inc.; and United

States v. Gauntt.  These companies and individuals were sentenced to serve a total of one year of

imprisonment and nine months’ home confinement, pay $3,143,200 in fines, and each serve a term of

probation for CWA and false statement violations.  

Improper Waste Storage EPA Photo
38 criminally enforcing pollution and wildlife laws

PROTECTING THE ENVIRONMENT, PUBLIC HEALTH,  

AND WORKER SAFETY

In United States v. BP Products North America (BPPNA), the corporate defendant pleaded guilty to a

felony CAA violation that triggered an explosion at BP’s Texas City refinery killing 15 people and caus‐

ing serious injury to at least 170 employees.  BPPNA was sentenced to pay a $50 million fine and com‐

plete a three‐year term of probation.

Evidence adduced at trial in United States v. Atlantic States Cast Iron Pipe Co. established manage‐

ment practices that led to an extraordinary history of environmental violations, workplace injuries

and fatalities, and obstruction of justice.  The corporate defendant and four managers were con‐

victed at trial of conspiracy, obstruction, and substantive CWA and CAA violations.  Atlantic States

was sentenced to pay an $8 million fine and complete a four‐year term of probation with a court‐

ordered monitor, while the four managers were sentenced to a total of more than 12 years’ incar‐

ceration with each serving a term of probation.

Refinery Explosion Refinery Explosion
criminally enforcing pollution and wildlife laws 39

In United States v. Wood, defendant John Wood, owner of J&W Construction, pleaded guilty to con‐

spiracy, mail fraud, and contempt related to illegal asbestos removal.  Wood was sentenced to serve

48 months’ incarceration and pay $800,000 in restitution.  Co‐defendant Curt Collins pleaded guilty

to conspiracy and mail fraud, and was sentenced to serve 24 months’ incarceration and to pay

$100,000 in restitution.  A second co‐defendant, Mark Desnoyers, was convicted by a jury of conspir‐

acy, aiding and abetting CAA violations, mail fraud, and two false statement violations.  

KEEPING NUCLEAR POWER SAFE

Defendant Andrew Siemaszko, a systems engi‐

neer with FirstEnergy Nuclear Operating Co., was

convicted by a jury in United States v. Siemaszko

of three false statement violations for his role in  

a scheme to keep information from the Nuclear

Regulatory Commission.  Siemaszko was sen‐

tenced to pay a fine and complete a three‐year

term of probation.  Previously, co‐defendant

David Geisen was convicted by a jury of conceal‐

ment and false statement violations, and sen‐

tenced to serve four months’ home detention.  

PROSECUTING ILLEGAL HUNTING AND FISHING

In United States v. Nelson, the Division successfully prosecuted 14 individuals and 3 corporations    

involved in illegally harvesting from the Chesapeake Bay and selling millions of dollars worth of

striped bass.  The investigation, known as the “Interstate Watershed Task Force,” was a long‐term

undercover operation that conducted purchases and sales of the fish.  To date, the defendants have

pleaded guilty to charges including Lacey Act, conspiracy, and false labeling violations, and have

been sentenced to serve more than 43 months’ incarceration, pay $208,000 in fines and $461,000 in

restitution, and each serve a term of probation.

Twelve individuals and companies, thus far, have been convicted in United States v. Virginia Star of

conspiracy and false labeling violations in a scheme to avoid paying an anti‐dumping duty or tariff by

falsely labeling basa, or Vietnamese catfish, as sole for import, and then selling it in the United States

at below market prices.  The defendants have been sentenced to serve more than 18 years’ incar‐

ceration, pay $381,000 in fines and more than $12 million in forfeited assets, and serve probation.

In United States v. Hooton, defendant Harry Hooton, a big‐game operator, and his two sons pleaded

guilty to conspiracy to violate the Lacey Act for illegally guiding clients on brown bear hunts on     

federal property.  Hooton was sentenced to pay a $41,000 fine and $30,000 in restitution.  His sons

were previously sentenced to serve a total of three months’ home confinement, followed by a term

of probation, and to pay a $50,000 fine.  

Davis‐Besse Plant ENRD Trial Exhibit Photo
40 criminally enforcing pollution and wildlife laws

PROSECUTING ILLEGAL WILDLIFE TRAFFICKING

In United States v. Soliz, defendant Rene Soliz, a U.S. Border

Patrol agent, pleaded guilty to a Lacey Act violation for at‐

tempting to receive 15 Tanzanian leopard tortoises that were

transported to the United States in violation of the Convention

on International Trade in Endangered Species of Wild Flora and

Fauna (CITES).  Soliz was sentenced to pay a fine, complete a

three‐year term of probation, and resign his position.

Defendant Jerry Mason pleaded guilty in United States v. Mason

o an ESA violation for attempting to smuggle the hides and a

kull from two leopards into the United States using false CITES

permits.  Mason was sentenced to pay a $10,000 fine, make a

$10,000 community service payment, and complete a four‐year

term of probation.  Co‐defendant Jan Swart previously pleaded

guilty to smuggling violations and was sentenced to 18 months’

incarceration.  A second co‐defendant, Steve Popovich,

pleaded guilty to a Lacey Act violation and was sentenced to

pay a fine and complete an 18‐month term of probation.

In United States v. Salabye, defendant Cedrick Salabye pleaded

guilty to violating the Bald and Golden Eagle Protection Act for

selling bald eagle parts and feathers and was sentenced to

serve 6 months’ home confinement, followed by a 5‐year term

of probation, and  complete 150 hours of community service.  

PROSECUTING SMUGGLERS OF  

INTERNATIONALLY PROTECTED WOOD

The corporate defendant in United States v. Style Craft Furniture pleaded guilty to smuggling interna‐

tionally protected ramin wood, and was sentenced to pay a $40,000 fine and complete a three‐year

term of probation.  Ramin wood is found in the tropical forests in Southeast Asia, and is critical to

the habitat of endangered orangutans.

PROSECUTING THE KILLING OF MIGRATORY BIRDS

In United States v. ExxonMobil Corp., the corporate defendant pleaded guilty to 5 misdemeanor     

violations of the MBTA in connection with the deaths of approximately 85 protected birds, including

waterfowl, hawks, and owls.  The company was sentenced to pay a $400,000 fine and a $200,000

community service payment, and to implement an ECP.

Tanzanian Leopard Tortoises t

US FWS Photo s

Bald Eagle Carcass

Courtesy of Hillsborough County Sheriff’s Office
LITIGATING THE LIMITATIONS OF FEDERAL JURISDICTION

To bring cases in federal court, litigants must demonstrate, among other things, that they have

standing.  In Summers v. Earth Island Inst., the Department prevailed in its view that the plaintiff    

environmental groups lacked standing to challenge Forest Service procedural regulations, absent a

live dispute over a concrete application of those regulations to a specific project.  The Ninth Circuit

had held that the plaintiffs could not bring a facial challenge to the validity of regulations that had

not been applied to a site‐specific project that injured them, but could contest two of the regulations

that had been applied to a project even though that project was subsequently withdrawn.  The U.S.

Supreme Court reversed, stating:  “We know of no precedent for the proposition that when a plain‐

tiff has sued to challenge the lawfulness of certain action or threatened action but has settled that

suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract),

apart from any concrete application that threatens imminent harm to his interests.”

GIVING PROPER DEFERENCE TO AGENCY INTERPRETATIONS

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the U.S. Supreme Court reversed the

Ninth Circuit, which had held that Coeur Alaska must obtain a CWA National Pollutant Discharge

Elimination System (NPDES) section 402 permit for the operation of the Kensington Gold Mine in

southeast Alaska where Coeur had applied for and received a CWA section 404 dredge‐and‐fill       

permit from the Corps for the dis‐

charge of fill material into waters of

the United States.  Coeur proposed to

use a froth‐flotation milling method in

its mining operation in which water

and chemicals are mixed with exca‐

vated rock causing gold‐bearing ore to

float to the top where it can be

skimmed off.   The Court agreed with

the agency’s position that, because

the discharge was fill under the agen‐

cies’ fill rule, section 404 was the

proper permitting scheme.  The Court

agreed that the Corps has exclusive

authority over discharges of “dredged

or fill material,” and EPA may not regu‐

late any discharges that meet this defi‐

nition.  The Court found the CWA and Kensington Mine Millsite USACE Photo

DEFENDING VITAL FEDERAL             

PROGRAMS AND INTERESTS
42 defending federal programs and interests

the agencies’ regulations ambiguous as to whether standards governing NPDES permits must be

applied to discharges of fill material; and deferred to a subsequent interpretation issued by EPA and

the Corps in an unpublished memorandum, which the Court found to be consistent with the statute

and the agencies’ regulations.

DEFENDING EPA’S DISCRETION TO DECIDE WHETHER TO EMPLOY

COST‐BENEFIT ANALYSES IN FORMULATING REGULATIONS

The U.S. Supreme Court in Entergy Corp. v. Riverkeeper upheld EPA’s construction of CWA section 316

(b) – which requires that cooling water intake structures employ the “best technology available for

minimizing adverse environmental impact”– to allow, though not necessarily to require, the use of a

cost‐benefit analysis in determining the technology that must be employed.  The case affirms the

considerable discretion EPA has in choosing how to proceed to regulate, and whether to employ a

cost‐benefit analysis in the development of such regulations, in the face of an ambiguous statute.

LITIGATING EPA’S AIR QUALITY DESIGNATIONS AND  

CLASSIFICATIONS FOR THE FINE PARTICULATE MATTER  

AIR QUALITY STANDARD

In Catawba County v. EPA, the D.C. Circuit upheld virtually every aspect of EPA’s extensive CAA rule‐

making designating and classifying areas of the nation as either meeting or not meeting the National

Ambient Air Quality Standards for fine particulate matter.  In its ruling, the court noted the particular

deference that is due to an agency’s technical and scientific judgments and specifically acknowl‐

edged the thoroughness of EPA’s analysis in making the designations and classifications.

DEFENDING EPA’S IMPLEMENTATION OF THE EIGHT‐HOUR AIR

QUALITY STANDARD FOR OZONE

After years of litigation over the eight‐hour ozone air quality standard established by EPA under the

CAA in 1997, the D.C. Circuit paved the way in Natural Resources Defense Council v. EPA for more   

complete implementation of that standard by upholding nearly every aspect of EPA’s phase II rule

for implementing the standard.  Among other things, the court upheld EPA’s interpretation of how

reasonably available control technology requirements are to apply in certain areas of the country

and EPA’s determination that areas with a moderate or higher nonattainment designation that had

not met the statutory requirement for a 15% reduction of volatile organic compounds emissions for

the 1‐hour standard would have to meet that requirement for the 8‐hour standard.  
defending federal programs and interests 43

LITIGATING EPA’S TREATMENT OF EXCEPTIONAL EVENTS IN      

REVIEWING AIR QUALITY MONITORING DATA

In Natural Resources Defense Council v. EPA, the D.C. Circuit upheld EPA’s CAA rule that governs when

exceptional events such as high levels of pollution resulting from wind storms may be excluded from

air quality monitoring data in determining whether an area satisfies federal air quality standards.   

DEFENDING EPA’S REGULATION OF  

AGRICULTURAL EMISSIONS IN THE SAN JOAQUIN VALLEY

In a series of cases styled Latino Issues Forum v. EPA, the Ninth Circuit upheld EPA’s approach to deal‐

ing with the complex issue of how to bring one of the nation’s largest agricultural areas into compli‐

ance with federal air quality standards for coarse particulate matter without unduly hampering this

vital and varied industry.

DEFENDING CONSTITUTIONAL AND OTHER CHALLENGES TO THE

RAILS‐TO‐TRAILS PROGRAM

In the past year, the Division experienced a dramatic increase in cases seeking compensation for the

alleged taking of private property abutting former railroad rights‐of‐way to be used for trails under the

National Trails System Act (the act).  ENRD is currently defending more than 10,000 such claims by   

successors‐in‐interest to parties who conveyed rights‐of‐way to the railroads in the 19th and early 20th

centuries.  The act allows a railroad to discontinue service on a line and negotiate with a third‐party trail

operator (typically a local government or non‐profit organization) to transfer its property interest.  Al‐

though these cases present significant legal and resource challenges, three recent victories will help to

limit the bringing of future claims and protect the United States from millions of dollars in liability.  In

Fauvergue v. United States, ENRD successfully advocated before the Court of Federal Claims (CFC) for a

new legal standard in applying the statute of limitations to class actions in which class members must

opt in.  In Ladd v. United States, involving an issue of first impression, the CFC applied a more stringent

regulatory takings standard for cases where no agreement to operate a recreational trail is reached.

In Ellamae Phillips Co. v. United States, the Federal Circuit reversed a CFC decision holding the United

States liable for an uncompensated taking as a result of railbanking and trail use of a federally granted

railroad right‐of‐way pursuant to the rails‐to‐trails program.  The CFC had held that it was bound by the

Federal Circuit’s prior decision in Hash v. United Statesto hold the government liable, based on one sen‐

tence in Hash, even though the issue of liability was not presented, briefed, or argued in Hash.  Because

two other courts had reached the same conclusion, and we faced the prospect of being held liable per

se for a taking on hundreds or thousands of such claims, we brought an interlocutory appeal, arguing

that:  (1) Hash did not decide liability; and (2) Hash should be limited to its facts.  The Federal Circuit  

accepted our second argument, concluding that the liability ruling in Hash was limited to the essentially

unknown facts in that case and thus did not hold the United States liable for a taking per se.  
44 defending federal programs and interests

LITIGATING AIR TRAFFIC AND AIR COMMERCE DECISIONS

In City of Las Vegas v. United States Dep’t of Transp., the Ninth Circuit dismissed a petition for review

that challenged a Federal Aviation Administration (FAA) decision to reinstitute a previously used  

procedure on one of the runways at the Las Vegas McCarran International Airport (LAS).   The court

upheld the FAA action.  The Ninth Circuit also concluded that air traffic control activities that are   

designed to reduce delay are categorically exempt from the requirement to perform a conformity

analysis.

In County of Rockland v. United States Dep’t of Transp., the D.C. Circuit upheld Department of Trans‐

portation (DOT) action in 12 consolidated petitions for review challenging the FAA’s redesign of the

extremely complicated airspace of the New York/New Jersey/Philadelphia area.  This airspace redes‐

ign is a multi‐year project to increase efficiency and allow for the use of newer technologies to better

move air commerce through this congested area.  The petitioners raised numerous claims under

NEPA, section 4(f) of the Transportation Act, and the CAA.  The court of appeals dismissed some

claims on procedural grounds and ruled for DOT on the remaining claims.  

DEFENDING CRITICAL BORDER PATROL ACTIVITIES FROM  

FIFTH AMENDMENT TAKINGS CHALLENGES

In Otay Mesa Property, L.P. v. United States, ENRD successfully defended a suit brought by a group of

landowners along the border with Mexico, who contended that interdiction operations on their

properties by U.S. Customs and Border Protection entitled them to be compensated by the United

States.  The properties are used by illegal immigrants, requiring an around‐the‐clock presence by  

Border Patrol agents.  With the exception of the placement of a limited number of small seismic sen‐

sors on the properties for which the United States agreed to pay compensation, the court dismissed

all claims.  Had ENRD not successfully defeated these claims, it is likely that the United States would

have faced similar suits by property owners along the entire Mexican border.

DEFENDING THE PRESIDENTIAL PERMIT AUTHORIZING  

INTERNATIONAL BORDER CROSSING FOR OIL PIPELINE

The Division successfully opposed two challenges to the State Department’s issuance of a presiden‐

tial permit for the border crossing of the Keystone Pipeline, which will transport crude oil from     

Canada to refineries in the United States.  In Natural Resources Defense Council v. Department of

State, the plaintiffs claimed in the district court in D.C. that the EIS developed under NEPA for the

project failed to adequately examine impacts from operation of the pipeline, including impacts of

supplying refineries in the United States with transported oil and impacts on climate change.  In The

Sisseton – Wahpeton Oyate v. Department of State, five Indian tribes in South Dakota claimed viola‐

tion of various treaties and statutes, as well as of NEPA.  Both courts granted the United States’   

motions to dismiss because issuance of the presidential permit was not an action subject to judicial

review under the APA.
defending federal programs and interests 45

Approved Flight Pattern FAA Diagram
46 defending federal programs and interests

DEFENDING THE CORPS’ INITIATIVES IN RESPONSE TO DISASTERS

Various plaintiffs challenged the environmental review conducted by the Corps under emergency  

alternative arrangements as part of the effort to rebuild the levee system in New Orleans.  ENRD    

successfully defended against a request for emergency injunctive relief in Abadie v. Army Corps of

Eng’rs.  The district court allowed the excavation of nine areas to supply necessary fill for levee and

floodwall projects for the newly designed Hurricane Protection System in New Orleans.  In another

case, Turkey Creek Community Initiatives v. U.S. Army Corps of Eng’rs, the Division secured a dismissal

of a challenge to a regional development permit for post‐Katrina redevelopment in southern Missis‐

sippi.  The regional permit allowed expedited action to fill wetlands necessary to construct residences

to address the post‐Hurricane Katrina need for affordable housing in six severely impacted counties.

ACQUIRING PROPERTY FOR PUBLIC PURPOSES

The Division exercises the federal government's power of eminent domain to enable agencies to

acquire land for public purposes ranging from establishing national parks to building federal court‐

houses to protecting the nation’s borders.  These actions secure the Fifth Amendment guarantee of

just compensation in amounts that are fair to property owners and to taxpayers.

On behalf of the National Park Service, ENRD acquired

land underlying the crash site of United Airlines Flight

93 in Somerset County, Pennsylvania, for inclusion in

the Flight 93 National Memorial.  The case, United

States v. 275.81 Acres of Land in Stonycreek Township

and Svonavec, Inc., was filed on September 1, 2009,  

with estimated just compensation of $611,000.  Ground‐

breaking for the memorial occurred in November 2009;

the National Park Service plans to dedicate the initial

phase of the memorial on the tenth anniversary of the Flight 93 Memorial Site in Pennsylvania   

Courtesy of Joey BIs September 11, 2001 terrorist attacks.

Flooding During Hurricane Katrina (August 2005) New Floodwall in the Ninth Ward Along the  

Industrial Canal

Photos from: Building a Stronger Corps: A Snapshot of How the Corps Is  

Applying Lessons Learned from Katrina (USACE April 2009)
defending federal programs and interests 47

s Federal Courthouse in Salt Lake

e acquisition of three buildings

2.5 Square Feet of Land in Salt

review of title to real property

ds needed for federal govern‐

n reviewed title to a variety of

quired by the National Aeronau‐

; and over 66,000 square feet of

d Records Administration for the

TATES CONGRESS ON  

OURCES LEGISLATION  

D RELATED MATTERS

responds to relevant legislative

Division witnesses before con‐

roposals implementing settle‐

is the San Joaquin River Restora‐

the Division negotiated a settle‐

he State of California and the  

uin River, California’s second‐

ng with the Department of the

Interior, assisted in craft‐

ing legislation to imple‐

ment the settlement

agreement, which was

enacted into law in

March 2009 as part of

the Omnibus Public Land

Management Act of

2009.

San Joaquin River Channel

Showing Interim Flows  

Released Under the  

Settlement   

Courtesy of the San Joaquin

River Restoration Program  

In fiscal year 2009, the Division facilitated the expansion of the Mos

City, Utah, by the General Services Administration (GSA), through th

and associated parking valued at $7,500,000 in United States v. 29,12

Lake City and Shubrick Building, L.L.C.

The Division also exercises the Attorney General’s responsibility for

before it is purchased by federal agencies, thereby ensuring that lan

ment use are acquired free of liens and defects.  In 2009, the Divisio

federal acquisitions, including 12 acres of land in Cleveland, Ohio, ac

tics and Space Administration for its John H. Glenn Research Center

land in Boston, Massachusetts, acquired by the National Archives an

John F. Kennedy Library.  

WORKING WITH THE UNITED S

ENVIRONMENTAL AND NATURAL RES

AN

Through the Department's Office of Legislative Affairs, the Division

proposals and congressional requests, prepares for appearances of

gressional committees, and drafts legislative proposals, including p

ments of Division litigation.  An example of this work from last year

tion Settlement Act.  After eighteen years of contentious litigation,

ment that delineates a monumental intergovernmental project by t

Bureau of Reclamation to restore flows in 153 miles of the San Joaq

longest river, below the Friant Dam east of Fresno.  The Division, alo
48 defending federal programs and interests

ENFORCING ENVIRONMENTAL LAW THROUGH  

INTERNATIONAL CAPACITY BUILDING

Attorneys from the Division speak at conferences in foreign countries and provide training on a vari‐

ety of subjects pertaining to civil and criminal environmental enforcement.  This year, ENRD engaged

in capacity building with Costa Rica, El Salvador, Mexico, Canada, China, Indonesia, Malaysia, Viet‐

nam, Thailand, South Africa, Austria, Italy, Switzerland, Belgium, and Great Britain.

The State Department has provided ENRD with funding under the Central America‐Dominican       

Republic‐United States Environmental Cooperation Agreement to implement a training program for

judges in Central America on handling environmental enforcement cases.  In fiscal year 2009, attor‐

neys from the Division, in consultation with judges from EPA’s Environmental Appeals Board, pro‐

vided training for judges in El Salvador and Costa Rica.  Division attorneys also provided training to

judges in Thailand on handling claims for natural resource damages and to judges and law enforce‐

ment officials in Vietnam on prosecution of wildlife trafficking cases.  Managing attorneys from the

Environmental Crimes and Environmental Enforcement Sections spoke on environmental enforce‐

ment issues at conferences in Rome, Italy, and Johannesburg, South Africa, and met with counter‐

parts from prosecutors’ offices and environmental ministries during their travels.

The Division also continued to disseminate information to government officials and representatives

from industry and non‐governmental organizations regarding the 2008 amendments to the Lacey

Act, which added enforcement tools to combat trafficking in illegally harvested timber and wood

products made from such timber.  Division attorneys spoke on this topic at conferences and meet‐

ings in Indonesia, Malaysia, China, Great Britain, Austria, and Belgium as well as at numerous gather‐

ings in the United States.  

PROTECTING THE INTERESTS OF THE UNITED STATES IN  

LITIGATION INVOLVING THIRD PARTIES

The Division at times participates as amicus curiae in cases in which the United States is not a party

to protect the interests of the United States and its component agencies.  The Division filed briefs in

a number of such proceedings in the past year.   One example is IBGA, L.L.C. v. Ulster County.  The

Western Mohegan Tribe and Nation of New York, which is not a federally recognized Indian tribe,

sought a declaration that it was exempt from paying taxes due to its status as a “sovereign Indian

Nation.”  As amicus, the United States argued in favor of dismissal of the case, in part because the

acknowledgment of Indian tribes should be conducted through Interior’s formal acknowledgment

process.  Adopting many of the arguments made by the United States, the district court dismissed

the complaint, finding that there was no case or controversy and that it would not exercise jurisdic‐

tion under the Declaratory Judgment Act given the potentially broad impacts of a decision recogniz‐

ing the group as an Indian tribe.   
PROMOTING NATIONAL SECURITY

AND MILITARY PREPAREDNESS

PROTECTING THE U.S. NAVY’S ABILITY TO USE  

SONAR IN TRAINING EXERCISES

In fiscal year 2009, ENRD successfully resolved three cases challenging the U.S. Navy’s use of mid‐

frequency sonar in the world’s oceans.  As in years past, no significant Navy training opportunities

were precluded by this litigation.   NRDC v. Winter challenged the Navy’s non‐combat use of mid‐

frequency sonar worldwide.  NRDC v. Department of the

Navy and Ocean Mammal Institute v. Gates challenged Navy

sonar use in exercises off the coasts of southern California

and Hawaii, respectively. The litigation culminated in U.S.

Supreme Court review of a Ninth Circuit preliminary injunc‐

tion in NRDC v. Winter halting Navy sonar exercises off the

coast of southern California.  The Division worked closely

with

Humpback Whale NOAA Photo befo Humpback Whale NOAA Photo

the Solicitor General’s Office to prepare the case      

re the Supreme Court.

In NRDC v. Winter, a district court initially issued a broad preliminary injunction prohibiting the Navy

from using sonar during submarine warfare training exercises in the Southern California Operating

Area.  The Division obtained a stay pending appeal from the Ninth Circuit that allowed the Navy to

continue training.  Thereafter, the Ninth Circuit ruled that the district court in issuing the injunction

had not conducted a proper balancing of the interests involved and remanded the case.  When the

district court on remand issued a modified preliminary injunction that still significantly  impaired

training, the Division filed a second ap‐

peal.  The Ninth Circuit affirmed the

modified injunction, but also entered

another stay allowing the United States

to seek U.S. Supreme Court review.  In

November 2008, the Supreme Court

reversed and vacated the district

court's modified preliminary injunction.  

In an opinion written by Chief Justice

Roberts, the Court concluded that the

Ninth Circuit employed an incorrect

standard for assessing the irreparable

harm prong of the preliminary injunc‐

tion standard, finding that a party seek‐

ing a preliminary injunction cannot sim‐

ply show a “possibility of irreparable USS USS Stennis Stennis Center for Public Service Leadership Photo Stennis Stennis Center for Public Service Leadership Photo

PROMOTING NATIONAL SECURITY

AND MILITARY PREPAREDNESS
50 national security and military preparedness

harm” but must show that “irreparable harm is likely.”  The Court further found that the district

court erred in its balancing of the harms to plaintiffs and the harm to the Navy.  The Court concluded

that a proper consideration of these factors on the record before the district court required the de‐

nial of injunctive relief, which allowed the Navy training exercises to continue.  The Winter decision

was a significant ruling not only for the Navy’s military readiness, but also with regard to the Court’s

interpretation of the appropriate standard for issuance of an injunction.  The Court rejected the stan‐

dard utilized by the Ninth Circuit in this case, which had been very problematic for defense of other

ENRD cases.

Following the Supreme Court’s decision, the parties negotiated a settlement of the litigation.  In ex‐

change for dismissal of the worldwide sonar challenge, the Navy agreed to spend $14.75 million over

the course of three years to fund marine mammal research and affirmed its intention to adhere to its

ongoing range‐wide environmental compliance schedule for completing NEPA, MMPA, and ESA   

review on all major training ranges.

DEFENDING ARMY MODERNIZATION PLANS

After nearly two years of negotiations, the district court approved the parties’ settlement agree‐

ment in Office of Hawaiian Affairs v. Gates, concluding litigation over the Department of the Army’s

compliance with the National Historic Preservation Act and Native American Graves Protection and

Repatriation Act for its “Stryker conversion” activity at its facilities in Hawaii, a key component of

the Army’s 30‐year modernization plan.  The agreement removed obstacles to the Army’s efforts to

provide training and weapons systems needed by the troops of the 2d Brigade, 25th Infantry Division

deployed to Iraq and Afghanistan.

Training Area in Hawaii US Army Photo
national security and military preparedness 51

DEFENDING THE MODERNIZATION OF THE  

NATION’S NUCLEAR WEAPONS COMPLEX

As the nation consolidates and modernizes its nuclear weapons capability, the Division is handling

litigation challenging the planning and construction of smaller, more efficient manufacturing facili‐

ties.  For example, in Natural Resources Defense Council v. Chu, ENRD successfully defended the pro‐

posed relocation of a National Nuclear Security Administration (NNSA) facility for the manufacture

of non‐nuclear components of nuclear weapons.  The current facility is an aging World War II‐era  

facility that was much larger than needed for a modern nuclear complex.  The NNSA partnered with

the GSA to procure a much smaller, more efficient, and more flexible facility that was in line with

NNSA’s goals for a modern, streamlined manufacturing complex.  The plaintiff claimed that NNSA

failed to adequately analyze the potential environmental impacts of the new facility, including the

cleanup and final closure of the old facility.  The Division obtained judgment in favor of NNSA and

GSA on all claims, paving the way for the project to move forward.  When the project is completed,  

it is expected that it will save the government nearly $100 million annually as a result of the de‐

creased maintenance costs and greater efficiency of the new, smaller facility.

DEFENDING SAFE DISPOSAL OF OBSOLETE CHEMICAL WEAPONS

In August 2009, after six years of litigation, the district court granted judgment in favor of the United

States in Chemical Weapons Working Group v. Defense, rejecting a challenge to the U.S. Army’s com‐

pliance with NEPA for chemical weapons incineration at Anniston Army Depot in Alabama and three

other locations.  The dismissal removes an obstacle to the Army’s efforts to fulfill the United States’

obligations under an international treaty providing for the safe disposal of chemical weapon stock‐

piles.

In Colorado Department of Public Health and Environment v. United States, the State of Colorado at‐

tempted to enforce a provision of the state’s hazardous waste storage regulations against the

Army’s Pueblo Chemical Depot.  The state sought an injunction requiring the Army to destroy the

portion of the nation’s stockpile of chemical weapons located at Pueblo Chemical Depot on a sched‐

ule mandated by the state.  The district court ruled in favor of the Army, finding that the state’s

claims were preempted by the federal laws addressing management and destruction of stockpiled

chemical weapons.  

SUPPORTING THE STRATEGIC BORDER INITIATIVE AND  

SECURING THE NATION’S BORDER

In 2007, Congress mandated construction offencing and related infrastructure at multiple points along the

United States‐Mexico borderin orderto enhance domestic security by curtailing smuggling, drug traffick‐

ing, and illegal immigration.  TheDivision isworking closely with theDepartment ofHomeland Security and

the Corps to facilitate land acquisitions necessary forthe construction.  This effort has required acquisition

by eminent domain of over 300 parcels ofland located in Texas,New Mexico, Arizona, and California.
52 national security and military preparedness

As additional border security measures, the Division also brought eminent domain cases at the      

request of GSA to enable expansion and renovation of the Nogales/Mariposa Port of Entry in Arizona

and the San Ysidro Port of Entry near San Diego, California.  

ACQUIRING ADDITIONAL PROPERTY TO  

IMPROVE MILITARY PREPAREDNESS AND NATIONAL SECURITY

The Division exercised the federal government's power of eminent domain this year to acquire land

for such diverse military installations as the U.S. Southern Command Headquarters in Florida, El

Centro Naval Air Facility in California, Marine Corps Air Station Cherry Point in North Carolina, Eielson

Air Force Base in Alaska, the Vancouver Army Reserve Center in Washington, Helemano Military   

Reservation in Hawaii, and Gowen Field Training Area in Idaho.

ENRD also supported the critical mission of providing for armed forces veterans by reviewing and

approving title for multiple medical facilities and national cemeteries at the request of the U.S.      

Department of Veterans Affairs during 2009.  

US Border Fence: Rio Grande Valley, Texas ENRD Photo
PROTECTING 4 national security and military INDIAN preparednessRESOURCES AND

RESOLVING INDIAN ISSUES

PROTECTING INDIAN RESOURCES AND 

RESOLVING INDIAN ISSUES

NAVIGATING THE TRIBAL ACKNOWLEDGMENT PROCESS

The Department of the Interior decides whether a group should be federally recognized as a tribe.  

Such a determination means the group becomes sovereign over its members and internal disputes.  

A federally recognized tribe receives certain federal benefits and may no longer be subject to state

civil regulatory laws on its lands.  Federal recognition allows a tribe to establish Indian gaming activi‐

ties consistent with federal law.

ENRD handled several cases this past year upholding the Department of the Interior’s decisions.  In

The Shinnecock Indian Nation v. Salazar, a state‐recognized tribe filed suit seeking to be placed on the

list of federally recognized tribes.  The district court dismissed three of the four claims for lack of  

jurisdiction.  ENRD reached a settlement with the plaintiff to stay the case, allowing Interior to de‐

cide the petition for recognition on an expedited schedule.  In Schaghticoke Tribal Nation v. Kemp‐

thorne, the Second Circuit, in a per curiam decision, affirmed a district court ruling on the reasonable‐

ness of the Secretary of the Interior’s decision that the Schaghticoke Tribal Nation was not entitled

to acknowledgment as an Indian tribe.  The court rejected the Schaghticoke’s claim that the decision

resulted from a massive, public effort by the state to influence the Secretary’s decision.  In McCrary v.

Ivanof Bay Village, a district court dismissed a challenge to the authority of the Department of the

Interior to recognize Ivanof Bay, an Alaska native village, as a federally recognized tribe.

DEFENDING TRIBAL AND FEDERAL INTERESTS IN  

WATER ADJUDICATIONS

The Division continued to successfully represent the interests of Indian tribes in complex water

rights settlements and adjudications.  The Division worked with the Shoshone‐Paiute Tribes, which

straddle the border of Idaho and Nevada, and third parties to resolve the tribes’ water rights claims

in Nevada.  Congress approved

this agreement through enact‐

ment in 2009 of the “Shoshone‐

Paiute Tribes of Duck Valley    

Water Rights Settlement Act.”  

The settlement protects tribal

water rights and authorizes    

approximately $60 million to  

rehabilitate and maintain the

Duck Valley Irrigation Project

and to enhance fish and wildlife

habitat.

Duck Valley Indian Reservation

USGS  Map
54 protecting indian resources

PROTECTING TRIBAL HUNTING, FISHING, AND GATHERING RIGHTS

The Division litigates to preserve treaty‐

protected tribal hunting, fishing, and

gathering rights.  In United States v. Wash‐

ington, the United States joined tribal

plaintiffs in claiming that culverts owned

and maintained by the State of Washing‐

ton block salmon and other anadromous

fish from accessing habitat and violate

the tribes’ treaty fishing rights.  In 2007,

the district court ruled in favor of the

tribes and United States, holding that the

treaties impose “a duty upon 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.”  The Division

and the tribes went to trial last year seek‐

ing to establish the number of culverts in

violation of the tribal fishing right and the

standard to which the culverts must be

maintained.  The court has not yet ruled

on these issues.

UPHOLDING AUTHORITY TO ACQUIRE LAND IN TRUST FOR TRIBES

ENRD continues to defend successfully the Department of the Interior’s authority to acquire land in

trust for tribes.  For example, in State of New York v. Salazar, a district court rejected numerous     

constitutional and statutory challenges raised by opponents to a proposed trust land acquisition for

the Oneida Indian Nation of New York.  Courts also upheld agency decisions related to the acquisi‐

tion of trust lands for tribes in Butte County v. Hogen; Stop the Casino 101 Coalition v. Salazar; and

Patchak v. Salazar.

DEFENDING AGENCY LAND HOLDINGS

The Division had favorable outcomes last year in three disputes challenging the validity of land trans‐

actions and holdings by federal agencies related to Indian disputes going back as far as a century.  

ENRD secured a dismissal in Cheyenne‐Arapaho v. United States, protecting the major grazing re‐

search facility of the Department of Agriculture and the El Reno Federal Penitentiary of the Bureau

of Prisons.  The tribes had sued under the Quiet Title Act (QTA) seeking a declaratory judgment that

This Poorly Designed Culvert in Washington Is Too Small,

Causing Serious Erosion at the Outfall, and  Resulting in a  

Culvert That Now Perches Several Feet Above Stream

Level, Making It Impossible for Salmon to Reach  

Upstream Habitats.

ENRD Trial Exhibit  
protecting indian resources   55

they had a reversionary beneficial interest in the 9,493‐acre Fort Reno Military Reserve west of   

Oklahoma City that had been part of the tribes’ 1869 Executive Order Reservation.  The tribes were

held to have been on notice that the United States claimed title to Fort Reno when Congress trans‐

ferred jurisdiction over 1,000 acres of Fort Reno to the Bureau of Prisons in 1937 and transferred the

balance to the Department of Agriculture in 1948 for use in civilian agricultural research.

In Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. United States Army Corps of Eng’rs, the

tribe brought suit against the Corps seeking a declaration that the 1889 Act of Congress dissolving

their prior reservation never took effect and an order compelling the Corps to evaluate federally

owned properties within the former reservation for inclusion in the National Register of Historic

Places.  The D.C. Circuit affirmed the district court's decision, holding that the Indian Claims Commis‐

sion Act's statute of limitations barred the tribe's claims and that the Corps did not have a duty un‐

der the National Historic Preservation Act to evaluate federally owned properties for inclusion on

the National Register of Historic Places.

In Mesa Grande Band v. Salazar, the tribe sought to compel the Secretary of the Interior under the

APA to invalidate land patents issued to a neighboring tribe in 1893 and have the patents reissued in

the tribe’s name.  The court held that the QTA preserves the United States’ immunity from chal‐

lenges to lands held in trust for Indians, but also that the claims accrued well outside the QTA’s         

12‐year statute of limitations.
56 protecting indian resources

DEFENDING AGAINST TRIBAL AND  

INDIVIDUAL INDIAN BREACH‐OF‐TRUST CLAIMS

The Division represents the United States in nearly 100 cases brought by Indian tribes demanding

accountings and damages based on claims of breach of trust and mismanagement relating to funds

and nonmonetary assets (such as timber rights, oil and gas rights, grazing, mining, and other inter‐

ests) on some 45 million acres of land held in trust for the benefit of the tribes.  Many of these cases

are in settlement negotiations or formal alternative dispute resolution (ADR) processes while others

are in litigation.  The cases are factually and legally complex and cover many decades of economic

activity and resource management on tribal trust lands.  The Division has balanced its duties to      

defend client programs with its obligation to make whole any tribes wronged by asset management

practices.

In United States v. Navajo Nation, the U.S. Supreme Court unanimously reversed the Federal Circuit’s

judgment that the United States was liable for up to $600 million for an alleged breach of the Secre‐

tary of the Interior’s trust duties in approving amendments to a Navajo coal lease.  The tribe claimed

damages for the Secretary’s decision not to impose a royalty rate increase on a Navajo coal lease as

requested by the tribe, but instead to order the parties to the lease to attempt a negotiated amend‐

ment to a broad range of coal lease terms, and later to approve the negotiated lease amendments.  

In a 2003 decision, the Supreme Court held that the Indian Mineral Leasing Act, which governed the

lease, did not create trust duties that could have given rise to the tribe’s claim for compensation.  

The Federal Circuit held on remand that a claim could still proceed because the complaint alleged

violations of other statutes ‐‐ the Navajo‐Hopi Rehabilitation Act, Surface Mining Control and Recla‐

mation Act, and Federal Oil and Gas Royalty Management Act ‐‐ that created trust duties.  Finding

violations of specific provisions of the three statutes, and of common law duties arising from

“comprehensive control” over Indian coal leasing, the Federal Circuit held that the United States

was liable to the tribe in damages.  The Supreme Court again reversed, holding that the statutes   

relied on by the Federal Circuit did not apply to the conduct challenged.  It held that in the absence

of a “specific, applicable, trust‐creating statute or regulation that the Government violated . . .      

neither the Government’s ‘control’ over coal nor common‐law trust principles matter.”

In another case, plaintiffs sought, in damages from the United States, millions of dollars generated

from the use of tribal land, mostly through casino gaming, by three federally recognized tribes – the

Shakopee Mdewakanton Sioux (Dakota) Community, the Prairie Island Indian Community, and the

Lower Sioux Indian Community.  Twenty thousand putative, individual descendants of the Mdewa‐

kanton Sioux in Minnesota claimed damages from alleged breaches of fiduciary duty and contract by

the United States through mismanagement of the assignment system on lands purchased for support

of certain Mdewakanton Sioux individuals in 1890s.  The Federal Circuit decided two questions that

the Court of Federal Claims had certified for review following interim rulings that were adverse to the

United States.  First, the Federal Circuit determined that 1888, 1889, and 1890 appropriation acts    

created neither rights of inheritance in properties purchased for Mdewakanton families nor any trust

relationship with the families.  The court ruled that the expenditure of funds pursuant to the acts was

within the scope of the Secretary’s discretion to spend appropriated funds.  Second, the Federal    
protecting indian resources   57

Circuit ruled that a 1980 act converted United States’ interests in lands into a trust for three Mdewa‐

kanton communities whereby the United States would hold legal title and the communities would

hold equitable title to the relevant lands.  The court decided that any interest held by the Mdewakan‐

tons was, in any event, terminated by the 1980 act.  This ruling both preserved the public fisc and pre‐

vented the undermining of the viability and membership determinations of the three tribes.

LITIGATING CASES UNDER THE INDIAN GAMING LAWS

ENRD continues to be involved in litigation defending the Secretary of the Interior's actions related

to Indian gaming.  The Division secured the dismissal of Alabama v. Salazar, which challenged the

constitutionality of regulations implementing federal Indian gaming laws.  In another notable suc‐

cess, the Ninth Circuit determined in North County Community Alliance v. Salazar that enforcement of

the Indian lands requirement of the Indian Gaming Regulatory Act may be undertaken only by the

National Indian Gaming Commission (NIGC) and states – not private citizens like the North County

Community Alliance.  This opinion prevented a private party from usurping the enforcement discre‐

tion vested in the NIGC or the state.

INTERPRETING THE APOLOGY TO NATIVE HAWAIIANS

In Hawaii v. Office of Hawaiian Affairs, the U.S. Supreme Court in a unanimous opinion agreed with

the position of the United States that a 1993 federal enactment known as the "Apology Resolution,"

in which Congress apologized for the role that the United States played in overthrowing the Hawai‐

ian monarchy in the late 19th century, did not strip Hawaii of its authority to alienate its sovereign

territory, which authority was granted to Hawaii in the 1959 federal act that admitted Hawaii into the

Union as a state.  The Supreme Court of Hawaii had relied on the Apology Resolution to issue an   

injunction prohibiting

Hawaii from alienating

that land pending reso‐

lution of native Hawai‐

ians' land claims that the

court described as

"unrelinquished."

Purpose of the Apology Resolution

To Acknowledge the 100th Anniversary of the January 17, 1893           

Overthrow of the Kingdom of Hawaii, and to Offer an Apology

to Native Hawaiians on Behalf of the United States for the

Overthrow of the Kingdom of Hawaii.

Pub. L. 103‐150 (November 23, 1993)
SUPPORTING THE   

DIVISION’S LITIGATORS

IMPROVING DOCUMENT HANDLING

The Division is continually working to improve its ability to collect, produce, and preserve needed

documents.  It has established cooperative working relationships with client agency staff to develop

standard procedures for document collection and production efforts supporting litigation.  This    

collaborative approach has streamlined the exchange of information with agencies and fostered

more efficient and timely document processing.   In fiscal year 2009, ENRD also developed training

for agency staff on the new provisions of the Federal Rules of Civil Procedure affecting document

collection, retention, and preservation.  The Division also rolled out new software designed to assist

attorneys with electronic privilege reviews by identifying duplicate and near‐duplicate documents,

and quickly highlighting the differences.  The software will save time and, by grouping similar docu‐

ments together, help to ensure consistency in document treatment.

MANAGING ITS FINANCIAL RESOURCES

The Division received top marks last year on its fiscal responsibility and performance management

scorecard in every rating category for which it is monitored.  Additionally, as part of the Depart‐

ment’s Offices, Boards and Divisions (OBDs) community, ENRD earned a clean audit opinion for the

fiscal year 2009 Consolidated Financial Statements.  During the course of the annual audit of the  

Department’s financial statements, the auditors noted that ENRD and the other OBDs had no signifi‐

cant deficiencies in financial information system internal controls.  The Division adroitly managed a

very active Expert Witness Program.  In fiscal year 2009, ENRD’s Office of the Comptroller issued 385

new expert witness contracts, obligating more than $36 million.

EXPANDING AND UPGRADING  

TECHNOLOGY SERVICES AND RESOURCES

In 2009, ENRD installed new desktop personal computers (PC) on every employee’s desk, complet‐

ing the third and final phase of the JCON4 implementation.  The PC employs a new operating system

and includes a fast dual core CPU, increased memory, and a large flat screen monitor.  It is one of the

highest performing and most energy‐efficient PCs in the Department, meeting the standards for  

Energy Star, EPEAT Gold (Environmental Product Environmental Assessment Tool), and the EU     

Restrictions on Hazardous Substances.  At the time the PCs were installed in their offices this year,   

Division attorneys were eligible to receive new government laptops.  These lightweight laptops

meet all IT security requirements, and provide attorneys with wireless remote access while away

from the office.
supporting the division’s litigators 59

GREENING THE DIVISION

Over the past year, the Greening the Government (GtG) Committee has continued to work actively

on environmental and sustainability issues in ENRD.   In January 2009, the Division became a partner

in the ABA‐EPA Law Office Climate Challenge, having adopted and instituted ENRD‐wide, best paper

management practices.  These practices include purchasing office paper with at least 30% recycled

content, recycling discarded office paper, and using double‐

sided copying and printing for most documents.  In April

2009, the GtG Committee unveiled an internal website fea‐

turing GtG best practices and providing information about

its current activities.   Last June, the GtG Committee estab‐

lished a prototype “Reuse Center” to encourage employ‐

ees to reuse supplies for projects.  These centers have now

been set up in many of the common areas throughout

ENRD, including copy and mailrooms.  The GtG Committee

has also established best practices for reuse of supplies.  

Last September, the GtG Committee launched a bicycle  

subsidy commuter program.  A change in Internal Revenue Service provisions effective in January

2009 made it possible for employers to offer a bicycle subsidy to employees.  ENRD received Depart‐

ment authorization to develop a pilot program that would provide such benefits to its bicycle      

commuters.  Under the program, bicycle commuters can receive up to $20 each month of non‐taxed

income for the purchase, improvement, repair, and storage of bicycles used regularly to commute to

work.  Commuters can elect to receive either a bicycle subsidy or Metro benefits for any given

month.  Also in September, the GtG Committee worked with the Executive Office to assure adequate

recycling opportunities for employees during the Division’s Annual Office Cleanup Day.  The Commit‐

tee used the Cleanup Day to advertise and fill the coffers of the Reuse Centers.
notes

page 32.  The map of the Gulf of Alaska was prepared by Karl Musser from USGS data and has been licensed for free use

exclusively under a Creative Commons Attribution‐Share Alike 2.5 Generic License.  Use of this map does not constitute

endorsement of this report.

page 46.  The photograph of the Flight 93 Memorial Site in Pennsylvania is provided courtesy of Joey Bls exclusively under

a GNU Free Documentation License.  Use of this photograph does not constitute endorsement of this report.