The First 100 Years of the 

Environment and Natural Resources Division 

National Archives Photo National Archives Photo 

Public Lands and 

National Treasures 
Before the Division: Federal Land Use and 1 Distribution in the 18th and 19th Centuries

vii Foreword

9 Creating the Public Lands Division

13 The Early Years of the Public Lands Division

Contents 

National Archives Photo 
23 The 1930s and 1940s: The New Lands Division

The 1950s and 1960s: The Land and Natural 

Resources Division 33

39 The Rise of Environmental Law

49 The 1980s: The Division Expands

The Modern Era: The Environment and Natural 

Resources Division 70

89 Acknowledgements and References US Army Photo 

USGS Photo 
National Archives Photo 

NPS Photo 

EPA Photo 

National Archives Photo 
National Archives Photo 

ENRD Photo 

FOREWORD 

This year, the Environment and Natural Resources Division of 

the Department of Justice celebrates the one hundredth anniversary of its creation. Originally named the “Public Lands Division,” 

the Division was created on November 16, 1909 to handle on behalf of the United States “[a]ll suits and proceedings concerning 

the enforcement of the Public Land law,” including suits related to Indian lands. 

Over the years, representing the United States with respect to issues of public lands 

and Indian affairs has remained among the Division’s core responsibilities. But as 

the United States has changed and developed over the last one hundred years, so 

too has the Division expanded and changed its mission and responsibilities. The 

Division today represents the United States regarding issues as diverse as climate 

change, oil and gas leasing, water rights, endangered species, cleanup of hazardous 

waste sites, acquisition of land, Indian matters, and the management of the nearly 

650 million acres of land owned by the United States. 

The history of the Division necessarily mirrors the country’s changing relationship with public lands, natural resources, and the environment. At the beginning of 

the twentieth century, the United States government and its citizenry were coming 

to the realization that the country’s resources were limited, and that the generous 

land and resource distribution systems of the previous century could not continue. 

In its early years, the Division represented the United States in many suits to assert 

government claims over mineral resources and public lands, and to acquire lands 

needed for the public good. In the New Deal era, as the federal government’s role 

in society expanded, the Division took on new responsibilities – acquiring land for 

dam and reservoir sites for the largest reclamation, irrigation and hydroelectric 

power projects in the nation’s history, for wetlands and grazing districts, and for 

John C. Cruden 

Acting Assistant Attorney General 
massive flood control projects, such as the Ohio River Basin program. During the 

Second World War, the Division provided critical support for the country’s military 

effort, acquiring millions of acres of land to create military bases, establish training 

facilities, and secure resources needed for the war. 

Beginning in the 1960s and 1970s, the nation turned its attention to the need to 

preserve and protect our environment and natural resources, resulting in an explosion of new legislation that set in motion the environmental part of the Division’s 

responsibilities. The Division’s mission and workload transformed with the passage 

of statutes such as the National Environmental Policy Act, the Clean Water Act, the 

Clean Air Act, and the Endangered Species Act, and the creation of what is now 

one of the Division’s largest client agencies, the Environmental Protection Agency. 

The Division has led the way in developing the law under these and many other 

environmental statutes, and today, more than half of the Division’s 420 attorneys 

enforce or defend agency actions related to these environmental statutes. At the 

same time, the Division has not ignored its traditional responsibilities and continues 

its active and vigorous representation of the United States’ interests with respect to 

Indian tribes, public lands and resources, and the acquisition of land for the public 

good. 

In 2009, a range of new environmental legislation is pending before Congress, 

and the Division is playing an active role in the development of new laws that will 

present opportunities and challenges for the Division’s work in the future. The 

pressures on the nation’s environment and natural resources are ever-increasing, 

and the challenges of how to protect these resources become ever more complex. 

The talents and dedication of the Division’s staff will continue to allow the United 

States to rise to these challenges and help ensure a healthier environment and a 

prosperous nation in the years ahead. 

This history attempts to recount some of the accomplishments of this Division. 

It is only a summary; the Division has litigated tens of thousands of cases throughout its one hundred years, including leading Supreme Court cases. We act to memorialize the work of the thousands of attorneys and staff that have diligently served 

the interests of the United States over the last one hundred years. Through the exceptional work of the Division’s staff, the history of the United States has been al-
tered. 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. As said by Attorney General Robert F. Kennedy, “Few will have the greatness to bend history itself, but each of us can work to 

change a small portion of events, and in the total of all those acts will be written the 

history of this generation.” The Environment and Natural Resources Division, 

through countless efforts large and small, has made a significant contribution to the 

history of this generation and generations to come. For this, the Division, its employees past and present, and its friends and supporters, can be proud. 

This history will provide a valuable resource for the Division in the future. 

Through this history, we can better understand the background and purposes for 

the work we do today, and develop ways to do our mission even more effectively in 

the future. 

The compilation of this history, as well as the other Centennial celebration 

events and materials would not have been possible without the work of many people. I would particularly like to recognize and thank Eileen Sobeck, the Division’s 

former Deputy Assistant Attorney General who is now the Deputy Assistant Secretary for Fish, Wildlife, and Parks at the Department of the Interior. Eileen provided 

strong leadership and inspiration for this project and the Division’s Centennial celebration, and took on the important task of collecting and recording the recollections of each of the living Assistant Attorneys General of the Division. I would also 

like to recognize Polly Milius, Amber Blaha, Katie Duncan, and Stacy Stoller of the 

Law and Policy Section and Bob Bruffy and Betsy Preston of the Executive Office 

for their significant contributions to this project, as well as the efforts of many others, inside and outside of the Division, who have helped make the Division’s Centennial celebration so meaningful. The major credit for this history, however, goes 

to Amber Blaha, without whose vision and perseverance this document would not 

have come to be. To all of you, I give my thanks. 

October 1, 2009 John C. Cruden 

 Acting Assistant Attorney General 
Before the 
 Division 

Federal Land Use 

and Distribution 

in the 18th and 19th 

Centuries 
3 

A lthough the Public Lands Division – now known as the 

Environment and Natural Resources Division – was not established 

in the Department of Justice until 1909, its origins are intertwined with the United 

States’ relationship with public lands and Indian lands, and the federal government’s attempts to balance public versus private uses of these resources. An understanding of the early years of the Division must start with this history. 

At its founding, the United States occupied 568 million acres, which was soon 

augmented by the Louisiana Purchase (1803), the purchase of Florida (1819), the 

annexation of Texas (1845) and the Oregon Territory (1846), the Mexican Cession 

(including California) (1848), and the Alaska Purchase (1867). Under the Articles of 

Confederation and later the Constitution, much of the land not included within the 

boundaries of the original thirteen states became public domain, owned and administered by the national government. Early laws only permitted the purchase of large 

tracts of land from the government, favoring wealthy speculators over individual 

farmers, but beginning in 1800, Congress passed a series of statutes that slowly reduced the minimum purchase amount and price of land, moving toward the democratic policy of widespread private ownership of land. 

The Homestead Act of 1862 granted 160 acres of land to settlers in the western 

United States in return for productive activity on the land. The Homestead Act was 

followed by a series of statutes that encouraged the acquisition and cultivation of 

western public lands by private individuals and companies, including the Timber 

Culture Act of 1873, the Desert Land Act of 1877, and the Timber and Stone Act 

of 1878. These statutes offered land at a low cost, with the condition that the buyer 

plant trees or irrigate the land. 

Graft and corruption often tainted disposal of the public land in the late nineteenth century, and land speculation – the accumulation and subsequent resale of 

property at a profit – by companies and individuals became an established form of 

enterprise throughout this time period. The large-scale movement of settlers onto 

public lands resulted in legal disputes over contract terms, settlement amounts, and 

fraudulent transactions. 

The largest grants of land from the federal government went to railroads to en-
4 

courage construction of the transcontinental lines. Altogether, between 1850 and 

1871, railroads received an estimated 175 million acres of public land. Although 

those grants generally restricted timber cutting and mineral extraction on adjacent 

public lands, railroads often ignored such restrictions. The railroads also sold railroad grant land in violation of the restrictions imposed by the federal grant, resulting in litigation . 

By the mid-1800s, 

the discovery of valuable minerals in western territories and 

states, much of whose 

area remained under 

federal control, necessitated that federal 

laws specify access to 

resources under public 

lands. Though not permitted by federal law, the practice of open mining on public 

lands had become universal in the West. At the end of the Civil War, some eastern 

congressmen regarded western miners as squatters who were robbing the public 

patrimony, and proposed seizure of the western mines to pay the huge war debt. 

Western representatives successfully argued that western miners and prospectors 

were performing valuable services by promoting commerce and settling new territory, and in 1865, Congress passed a law that instructed courts deciding questions 

of contested mining rights to ignore federal ownership and defer to the miners in 

actual possession of the ground. With the passage of the General Mining Act of 

1872, discoverers were granted rights to stake mining claims to gold, silver, cinnabar 

(the principal ore of mercury), copper, and “other valuable deposits.” Subsequently, 

new federal lawsuits arose out of disputes over compliance with that law. 

During the rapid occupation of the public lands in the nineteenth century, 

American Indians were displaced as settlers moved into the Indians’ historical territory. Through treaties and the operation of the General Allotment Act of 1887 and 

tribe-specific legislation, millions of acres of land were moved from Native 

Joining the tracks for the first transcontinental railroad. 

Promontory, Utah Territory, 1869. 

National Archives Photo 
5 

American to federal control. In treaties 

and agreements with Native American 

tribes, the United States affirmed reservations and assumed obligations, including monetary restitution for land, 

resettlement of tribal populations in 

designated locations, and services to be 

provided in those locations. The government’s compliance with and efforts 

to protect the lands and resources reserved by these treaties would later be 

litigated in thousands of lawsuits. 

 National land policy, which had 

been focused on getting public land 

into private hands quickly, easily, and 

cheaply, began to change around 1890 

as a new conservation movement was 

taking hold in the United States. The 

Forest Reservation Act of 1891 permitted restricting timber lands from 

private entry, and that same year, the 

Yellowstone Timberland Reserve (now 

the Shoshone National Forest) was set 

aside, creating the first national forest. 

In 1872, Yellowstone National Park 

was established as the first national 

park in the world, and numerous other 

national parks followed, including Sequoia National Park and Yosemite National Park in 1890, Mount Rainier National Park in 1899, and Mesa Verde in 

1906. 

John Muir (1838-1914) was a Scottish-born American naturalist, author, geologist, and pioneering advocate of preservation of wilderness. From 1868 on, he spent all of his free time 

relentlessly exploring the Yosemite region in California, climbing 

its peaks, and writing about his experiences. In 1892, he and 

his friends banded together to form a club that would “make 

the mountains glad” – the Sierra Club. The club immediately 

began opposing efforts to reduce the size of Yosemite National 

Park and worked to raise awareness about the rampant exploitation of Yosemite Valley’s resources and the impacts of livestock. The new Sierra Club wanted Yosemite Valley, which was 

still managed by the State of California, transferred to the federal government to permanently protect its pristine beauty. 

In 1903, President Theodore Roosevelt accompanied Muir 

on a visit to Yosemite. Roosevelt slipped away from the presidential entourage, and with only a few Park staff accompanying 

them, the President and Muir set up camp at the base of a giant sequoia and talked late into the night. The next day, the 

pair rode through the 

backcountry of Yosemite, 

stopping that night to 

camp near Glacier Point, 

where they were dusted 

with a light snowfall as 

they slept. Roosevelt was 

staggered by the majesty 

of the park and the 

mighty forests, and declared that this had been 

“the grandest day of my 

life.” 

Muir’s efforts to convince the President to preserve Yosemite Valley were rewarded in 1905 when Congress transferred 

Yosemite Valley and the Mariposa Woods to federal control. In 

1908, Roosevelt paid tribute to Muir by naming a redwood forest north of San Francisco “Muir Woods” and designating it as a 

national monument. 

Historical Photo 
6 

The presidency of Theodore Roosevelt, from 1901-09, marked a new stage in 

public land preservation policy, with Roosevelt declaring in his first message to 

Congress that “forest reserves and water problems are the most vital concerns of 

the United States.” Between 1901 and 1907, some 95 million acres went under federal protection by executive order of the President. The purposes of this expanded 

protection were both economic and environmental: Roosevelt set aside land for 

parks, game reserves, dam sites, and other public purposes, and the federal 

The Role of Gifford Pinchot 

Professional forester Gifford Pinchot (1865-1946) was perhaps the single most influential person in 

the transition of public land policy from distribution, the predominant approach to public lands in the 

19th century, to a type of conservation that stressed multipurpose management. Pinchot was named 

head of the Department of Agriculture’s Forestry Division in 1898, and in 1905, President Theodore Roosevelt named Pinchot the first head of the newly-established Forestry Service. 

 Pinchot’s conservation philosophy, in which Roosevelt generally concurred, was 

one that placed human access to natural resource as the top priority. Pinchot 

said, “The object of our forest policy is not to preserve the forests because they 

are beautiful....or because they are refuges for the wild creatures of the wilderness....” Instead, next to “the making of prosperous homes,” “every other consideration becomes secondary.” Based on Pinchot’s conservation views and his expansive view of presidential power, Roosevelt withdrew an estimated 234 million 

acres of land from private access, of which about 148 million was forests. About 

76 million acres was identified for future coal extraction. Pinchot’s plan for the forests was private development, under set terms, in exchange for a fee. His utilitarian approach 

differed strongly from that of his contemporary, John Muir, who advocated the preservation of natural areas for their own sake and for their 

spiritual value to mankind. 

When William Howard Taft succeeded Roosevelt in 1909, he brought 

with him a more conservative view of presidential power. Accordingly, 

Taft’s secretary of the interior, Richard Ballinger, restored some of the 

land that Roosevelt had withdrawn, incurring the displeasure of Pinchot. 

When Pinchot became involved in a dispute with Ballinger and Taft over 

the firing of a General Land Office official and issued a public statement 

harshly criticizing Interior Department policies, Taft sought and received 

his resignation. Nevertheless, Pinchot’s multiple-use approach to conservation dominated public land policy during most of the twentieth century. 

Historical Photo 

T. Roosevelt and Pinchot. 

Historical Photo 
government reserved phosphate deposits, oil, coal, and grazing lands. Gifford Pinchot became the first head of the Forest Service in 1905 and influenced the Roosevelt policy of acquiring forests and other lands for preservation but also for profitable management. Roosevelt asserted that the executive branch had broad authority 

to withdraw land from the overall public domain. Although a stricter construction 

of presidential authority was seen in the administration of Roosevelt’s successor, 

William Howard Taft, the concept of setting aside public lands for economic and 

non-economic uses remained a strong element of public policy – and the subject of 

federal litigation – throughout the twentieth century. 
To waste, to destroy, our natural 

resources, to skin and exhaust the land 

instead of using it so as to increase its 

usefulness, will result in undermining in the days of our children 

the very prosperity which we ought by right to hand down to them 

amplified and developed. 

Theodore Roosevelt 

Message to Congress, Dec. 3, 1907 

Roosevelt’s public land policies were a direct response to the haphazard landuse policies of the previous century. As Assistant Attorney General Carl McFarland 

later reflected, “The nation had been lavish in the dispensation of its landed wealth, 

and was confronted with the realization that little remained of a great patrimony. 

Finally, in recent years, prodigal methods of cultivation and exploitation received 

tardy notice.” In keeping with this change in national and presidential attitudes, at 

the beginning of the twentieth century, the federal government increased its focus 

on legal methods of protecting the nation’s resources. 
9 

Creating the 

Public Lands Division 
10 

C ongress created the position of Attorney General in 1789, but from 

this date until 1870, the Attorney General was supported by no cabinet department. In 1870, Congress established the Department of Justice together 

with the Office of Solicitor General to assist the Attorney General and directed U.S. 

Attorneys, who since the Judiciary Act of 1789 had functioned independently of the 

Attorney General as chief prosecutors in federal judicial districts, to report to the 

Attorney General. Certain attorneys at other federal agencies were also instructed to 

report to the Attorney General. The new department was authorized to hire two 

Assistant Attorneys General and clerical help. 

In the late 1800s, federal prosecutions related to the illegal removal of timber, 

grazing, and enclosure of public lands steadily increased. In the 1890s, major federal 

cases were brought against railroads and lumber companies challenging the terms of 

use of their land grants. Many resource-related disputes, particularly those related to 

water, were delegated to the U.S. Attorneys for prosecution, and other cases were 

handled by attorneys at the Department of the Interior or other cabinet departments. 

In the early 1900s, increasing litigation involving federal interests put new organizational pressure on the still small Department of Justice. In 1908, the Department had only two Assistant Attorneys General, one who handled Native American 

litigation claims and the other responsible for “the business of the Department of 

Justice in the Court of Claims.” The need for expansion and specialization in handling the nation’s legal work resulted in a series of changes in the Department, including the creation of a dedicated group of attorneys to handle antitrust matters in 

1903 and the creation of a new “special agent force,” which eventually became the 

FBI, in 1908. 

By 1908, the Department of Justice was also seeking to centralize more operations in the Main Justice Department, as opposed to the U.S. Attorneys’ Offices. 

Among other changes, in that year U.S. Attorneys’ Offices were instructed to report 

information on land and timber suits and title suits to the Attorney General’s office, 

which would then prepare a consolidated report for the General Land Office. 

However, much of the government’s legal business was still handled by 
11 

Solicitors and “Assistant Attorney Generals” assigned to particular federal agencies. In a May 

1909 memorandum to the Attorney General, Justice Department attorney M.C. Burch discussed 

the lack of centralization of the government’s 

legal business, noting that each agency had developed its own significant corps of attorneys, 

“practically independent from this Department.” 

The Department of the Interior’s General Land 

Office, Indian Bureau, and Reclamation Bureau, 

and the Agriculture Department’s Bureau of 

Forestry each had its own law division that litigated in federal courts. The law department of 

the Interior Department was described by Burch 

as “the cause of more loss and damage to the 

United States than any other, because greater 

opportunities therefor have occurred.” That 

office has “issued already about thirty-five 

bound volumes of decisions and opinions on 

land matters, a considerable portion of which 

are very bad, and from the evil effects 

of which the United States will not 

recover in generations.” 

 Attorney General Charles Bonaparte 

(1906-09) also noted the increasing frequency of private “acquisition of title to 

public lands in direct violation of the 

plainly expressed intent of the statutes,” 

and the Justice Department’s obligation “to 

remedy these evils and protect the public 

domain.” In 1909, the Department’s land fraud litigations recovered $311,700 in 

payments and penalties and 315,200 acres of illegally patented public land. 

George Wickersham 

1911 Lands Division Payroll 
12 

 In response to these concerns as well as the need to “properly 

attend to the enormous and increasing volume of business relating 

to the public lands of the United States, and of Indian affairs,” Attorney General George Wickersham (1909-1913 ) established “The 

Public Lands Division” by order dated November 16, 1909. The 

new Division was assigned responsibility for “[a]ll suits and proceedings concerning the enforcement of the Public Land law, including suits or proceedings to set aside conveyances of allotted 

lands.” Ernest Knaebel, special assistant to the Attorney General, 

was designated to lead the Division, and the Attorney General’s 

Order transferred five additional attorneys and three stenographers 

to the Division . 

 The Division’s six attorneys were responsible for all public land 

law (including water rights cases), both civil and criminal, and regardless of “whether the land be open to entry under the general 

land laws, or reserved for public purposes, or lands devoted to the 

uses of tribal or individual Indians, including actions to recover 

rents and royalties.” Certain Indian cases were initially reserved for 

another Assistant Attorney General, Charles Russell. 

 By 1910, the Attorney General noted in his report to Congress 

that “the extent, variety, 

and importance of the 

work assigned to this division are so great that the 

attorney in charge should 

have the rank of assistant 

attorney general, and I 

recommend the creation 

of that office.” Ernest 

Knaebel was officially nominated to be 

Assistant Attorney General (AAG) by 

President Taft on April 28, 1911 and was confirmed on May 9, 1911 . 

Ernest Knaebel 

June 14, 1872 – February 19, 1947 

After receiving his law degree from Yale 

University, Ernest Knaebel practiced 

law in New York, New York, and Denver, 

Colorado. He served as U.S. Attorney in 

Denver from 1902 until 1907, when he 

became a special assistant to the Attorney General. After serving as the first 

Assistant Attorney General of the Public 

Lands Division, he became the eleventh reporter of decisions 

of the U.S. Supreme Court, a position he held from 1916 until 

1944, making him the Court’s longest serving reporter. 
The Early Years of the 

Public Lands Division 
14 

I n the Division’s first years, it focused on cases involving set-asides of 

water resources for irrigation and reclamation, Indian water rights, 

unlawful incursions into national forests by power companies, unlawful enclosure 

of federal land, invalidation of patents granted to railroads for western land known 

to hold minerals, and reversal of land grants to the Territory of New Mexico. 

At the end of 1910, the Public Lands Division had pending 2,459 civil and 466 

criminal cases related to federal land, of which more than half involved Native 

Americans. That year, the Division initiated 480 civil cases for the recovery of 

about 500,000 acres of federal land and more than $2 million in cash, as well as 252 

civil cases related to Native American land disputes. Another 543 civil, 117 criminal 

and 1,109 Native American cases were 

opened in 1911. In the Annual Reports of 

the Attorney General for 1910 and 1911, Attorney General Wickersham appealed for 

an increased staff to deal with the Public 

Lands Division’s workload, particularly 

with respect to Indian land matters. 

Taking on the Railroads 

The restoration of federal land deemed to have been acquired fraudulently by 

private parties was an immediate priority for the new Public Lands Division. In 

1909, the Division brought the first in a series of suits against the Oregon and California Railroad Company and numerous other parties who had purchased land in 

Oregon granted to the railroad by the government. The Supreme Court’s decision 

in Oregon & California Railroad Company v. United States, 238 U.S. 393 (1915), failed to 

restore the 2.7 million acres of land which the railroad allegedly had sold or utilized 

in violation of the terms of its federal grant, but the court froze sales of the unsold 

land and in 1916, Congress remanded title to that land to the United States. 

Recovery of mineral- and oil-containing land from railroads was also the subject 

of many Division suits. In 1910, the Division began a series of cases against the 

In 1911, Attorney General Wickersham reported that, 

because of the increased workload of the Department 

of Justice, he had to “increase the hours of attendance 

of the clerical force at the department half an hour, 

making the prescribed hours from 9 a.m. to 5 p.m. 

daily, except during the three summer months.” He 

continued, “The professional members of the department know no hours; they have toiled early and late.” 
15 

Southern Pacific Railroad seeking restitution of land in Southern California patented to the railroad as non-mineral land but containing valuable deposits of oil and 

other materials. In 1916, the active cases involved about 150,000 acres of land 

worth an estimated $500 million. In the first of the cases, Southern Pacific Railroad Co. 

v. U.S., 200 U.S. 341 (1906), the Supreme Court supported the government’s claim 

of fraudulent acquisition and returned the land to federal control. However, in 

other cases, such as Burke v. Southern Pacific, 234 U.S. 669 (1914) (handled by Division attorneys Ernest Knaebel and B.D. Townsend), the courts found no fraudulent 

intent and the railroad’s land patent was upheld. 

Railroad land cases continued well into the 20th century and often involved issues of first impression concerning Indian title. The Division was involved in a series of suits involving the Northern Pacific Railroad Company in which the United 

States sought title to about 2.75 million acres of land in the Northwest claimed by 

the railroad on the basis of federal land grants in 1864 and 1870. These included 

lands that the Supreme Court held to be part of the Yakima Indian Reservation, 

thus invalidating the railroad’s patent. See Northern Pacific R. Co. v. United States, 227 

U.S. 355 (1913) (argued by AAG Ernest Knaebel). Many of these cases set significant precedents, such as Great Northern Railway Company v. United States, 315 U.S. 262 

(1942), in which the Court affirmed that land grants to railroads permitted only a 

surface right-of-way and not any extraction of minerals from the land granted. 

From Giveaways to Take-Backs – The Division Defends Presidential 

Set Asides of Public Land 

Another critical legal issue facing the new Division was the scope of Presidential authority to withdraw public lands and mineral rights from private use. In response to rising demand for fuel oil, the petroleum industry turned its attention to 

new exploration and drilling on western public lands. At the time, the General Mining Act of 1872 and other statutes established that public lands containing minerals 

(such as gold, silver, copper, and lead, as well as oil and other fossil fuels) were 

open to exploration. 

This “open-access” policy quickly had significant effects. On September 17, 
16 

National Archives Photo 

1909, the director of the U.S. Geological Survey reported to the Secretary of the 

Interior that companies acting under the General Mining Act were claiming the petroleum deposits of the public lands in California at such a rate that it would “be 

impossible for the people of the United States to continue ownership of oil lands 

for more than a few months.” In light of the Navy’s rapidly increasing demand for 

fuel oil, “the Government will be obliged to repurchase the very oil that it has practically given away.” As a result, on September 27, 1909, President Taft issued a 

proclamation that temporarily withdrew from private entry three million 

acres of oil-bearing lands 

in California and Wyoming. Uncertain of his 

constitutional authority 

to reserve federal lands 

from public use, Taft 

asked Congress to ratify 

his decision. Congress responded the following year by enacting the Pickett Act, 

which authorized Presidential withdrawals, but did not retroactively approve Presidential land reservations that were made before the effective date of the statute. 

In Wyoming, prospectors entered an area of the public lands that had been 

withdrawn by President Taft’s proclamation and discovered oil. They assigned their 

interest in the oil and land to Midwest Oil Company, which extracted about 50,000 

barrels. Upon learning of the illegal drilling, the Public Lands Division sued to recover the land and for an accounting of the oil that had already been pumped out. 

Midwest defended itself on the grounds that the President’s withdrawal of the land 

from entry and location under the General Mining Law was unconstitutional. 

The case reached the Supreme Court, where the United States was represented 

by Solicitor General John W. Davis and AAG Knaebel. In United States v. Midwest 

Oil Company, 236 U.S. 459 (1915), the Supreme Court upheld the President’s authority to prohibit private entities from purchasing mineral rights to particular public 

lands, relying on implied congressional acquiescence in this long-standing presidenSettlers line up to secure claims to government lands, 

Lakeview, Oregon, October 26, 1907. 
17 

tial practice. This case was followed by the Mineral Leasing Act of 1920, which 

changed the open-access and free-extraction policies with respect to deposits of oil, 

natural gas, and certain other minerals, and allowed government leases to include 

conditions to protect the environment, limit resource exploitation, and collect royalties. 

Presidential withdrawals continued to be mired in controversy for several decades. President Taft set aside federal land in Elk Hills, California, as oil reserves for 

the use of the Navy, and President Wilson set aside land in Wyoming, known as 

Teapot Dome, for the same purpose. In 1922, President Harding’s Secretary of the 

Interior Albert Fall leased the oil 

fields to private oil companies without competitive bidding, setting off 

the “Teapot Dome” scandal that 

tarnished the Harding administration and led to a series of lawsuits 

by the Public Lands Division against 

the oil companies. After a long period of litigation, in 1927, the Supreme Court held that the oil leases 

had been corruptly obtained and 

invalidated the leases, returning the 

reserves to federal control. Pan American Petroleum & Transp. Co. v. United States, 273 

U.S. 456 (1927); Mammoth Oil Co. v. United States, 275 U.S. 13 (1927). 

Entering the Fray of Water Resource Disputes 

Water rights cases also occupied the Division in its earliest days, and have maintained a consistent presence on the Division’s docket to the present day. By 1900, 

the platforms of both major political parties supported federal projects to “reclaim” 

arid lands for agricultural use. The Reclamation Act of 1902 established the Reclamation Service to study irrigation proposals in the federal lands of 16 states, and by 

1909, about 30 such projects were underway. In 1908, the Supreme Court decided 

Senate Photo 

Senate Committee hearings on the Teapot Dome oil leases, 1924. 
18 

Winters v. United States, 207 U.S. 564 (1908), which held that agreements and treaties 

establishing Indian reservations contained an implied reserved right to the amount 

of river water necessary to support the purposes of the reservation. Recognizing 

that adjudication of water resources was becoming a critical and controversial issue 

as the development of the West accelerated, Attorney General Wickersham’s original assignment for the Public Lands Division included “questions involving water 

rights of the United States or of Indians.” 

 In his annual report for 1912, Attorney General James McReynolds noted that 

“the growing importance of irrigation in the arid and semiarid States has already led 

to the appropriation of most of the available surplus waters. . . .” As a result, he 

said, “the Government has found . . . that the assertion of its rights in behalf of reclamation projects is complicated by the rival claims of others. Litigation, therefore, 

in nearly every instance will become inevitable, and upon the results of the litigation 

may depend the fortunes of the projects affected thereby. Those who are familiar 

with this kind of litigation are aware that it is usually tedious, expensive, and complex.” In 1913, the Public Lands Division assigned two specialized attorneys to represent the government in water resource-related issues. By 1926, AAG Bertice Parmenter (1925-29) reported that some 30 federal cases involving irrigation in the 

West or the Southwest were being handled by the Division, not counting numerous 

suits brought by the Public Lands Division to protect the water rights of Native 

Americans. 

The Division represented federal and Native American interests in the case of 

U.S. v. Hope Community Ditch, which yielded important new precedents for dealing 

with complex water disputes, including the expansion of the authority of special 

masters. After nearly 20 years of litigation, the special master’s final 1933 decision in 

the case, a landmark that came to be known as the Hope Decree, distributed river 

water in New Mexico among numerous claimants, including Native American tribes 

and the interests of the United States’ Carlsbad irrigation project. 

The Division was also involved from the beginning in a long-running dispute 

over the water rights to the Colorado River, the major source of water for crop irrigation and drinking water for southern California and the southwestern states. In 

1922, seven states in the watershed reached a water apportionment agreement, the 
1914 Grand Canyon and Colorado River Map USGW Archives 
20 

Colorado River Compact, which set conditions for major federal water projects 

such as the Hoover Dam. The agreement has been the basis of a series of federal 

lawsuits between Arizona, which did not ratify the compact until 1944 and contested interpretations of its distribution language, and California, a major beneficiary 

of the agreement. In 1952, Arizona filed an original action in the Supreme Court 

against California seeking a division of the waters of the Colorado River. The 

United States intervened to protect federal water rights, including reserved water 

rights held for the benefit of five Indian reservations. Because Native American and 

conservation interests, a water-resource treaty with Mexico, federal agency interests, 

and federal reclamation projects also were vitally involved in the distribution conflict, the Division has participated in negotiations and litigation to establish appropriate distribution over the decades, including Supreme Court cases in 1931, 1936, 

1963, 1983, and 2000. The case continued until 2005, when the Supreme Court issued an order approving a water rights settlement between Arizona, California, the 

United States and the Quechan Tribe. 

Representing the United States in Dealings with Native Americans 

From its inception, the Public Lands Division assumed responsibility for civil 

cases related to Native American land claims and for representing the United States 

in its trust capacity with respect to Indian tribes. The General Allotment Act of 

1887 sought to assimilate Native Americans into the national economy and culture 

by providing individual Native Americans with a property interest in formerly tribal 

lands. Particularly when inherited parcels contained oil or other valuable resources, 

many Native Americans required the assistance of federal litigation to prevent swindles or reverse frauds. In response, in 1910, an attorney in the Public Lands Division was specifically tasked with protecting Native Americans against fraud, and in 

subsequent years, special counsels were hired to handle land cases involving particular tribes. 

In the first years of the Division, it was involved in many suits to cancel unlawful deeds and leases of Indian allotments. For example, the Division successfully 

prosecuted many suits to reverse forged, fraudulent, and otherwise illegal deeds and 
21 

mortgages for Seminole Indian lands in Oklahoma, under which the Attorney General reported those Indians “were being ruthlessly deprived of their lands.” Similar 

suits seeking to reverse fraudulent transfers were brought in the first decade of the 

Division on behalf of the Kickapoo Indians, the Quapaw Indians, and the Chippewa Indians on the White Earth Reservation. 

By 1921, a substantial block of cases (248 of 301) brought in 1908 to restore 

title to lands illegally obtained from the Five Civilized Tribes in Oklahoma had been 

resolved. A number of other “illegal allotment” cases continued on behalf of Native 

Americans throughout the 1920s. In the same period, the Division brought numerous cases in the U.S. Court of Claims to protect Native American access to water 

and to collect debts owed to tribes for the use of water on reservations. 

One-Called-From-A-Distance (Midwewinind), 

a Chippewa from White Earth Reservation, 

Minnesota, 1894 .

National Archives Photo 
22 

One notable case that the Division was involved in was the dispute over the lands and fortune of Jackson Barnett, known at the 

time as the “world’s richest Indian.” Jackson Barnett was an eccentric Oklahoma Creek Indian who was 

living in relative poverty on land allotted to him under the Dawes Act. 

Around 1912, oil was discovered on 

his property, suddenly giving him 

thousands of dollars in monthly income. Despite this newfound wealth, 

Barnett refused to leave his home or change his 

mode of living. A local probate court declared him 

incompetent and appointed a guardian. 

After he became wealthy, the federal government put Barnett’s land and assets under the 

supervision of a federal Indian agent, touching 

off disputes with the State over guardianship. The 

situation was further complicated when Anna 

Lowe, a single mother from Kansas, reportedly 

drove to his home in a taxicab, found the aged 

millionaire, abducted him across the Kansas line, 

and married him. Arguing that Ms. Lowe was taking advantage of Mr. Barnett, the Bureau of Indian Affairs tried to nullify the marriage, seeing 

her as, in the words of one official, an 

“adventuress of the most dangerous type.” After 

his marriage, Barnett apparently created two 

trust funds of $550,000 each, one to go to his 

wife at his death and the second for the use and 

benefit of Bacone College in Muskogee, Oklahoma. The trust fund arrangement was approved 

by the Department of the Interior, but subsequently attacked by AAG Bertice Parmenter and 

the Department of Justice on the grounds that 

Barnett did not knowingly make these donations. 

This created significant conflict between the Departments of Justice and the Interior. As a native 

Oklahoman, AAG Parmenter took a 

deep interest in the Barnett case and 

hired his former law partner, Charles 

Selby (also of Oklahoma), as chief 

counsel. 

 A tangle of lawsuits, contradictory 

positions by federal agencies, Senate 

hearings, and a public relations fiasco followed. In 1926, Harold 

McGugin, Ms. Lowe’s lawyer, appealed to President Coolidge, arguing that Senator Pine of Oklahoma had improperly influenced 

AAG Parmenter to intervene against the Interior 

Department’s settlement of the case. He demanded the resignation of Parmenter as Assistant Attorney General, while Senator Pine demanded the resignation of Indian Commissioner 

Burke, who had approved the Barnett donations. 

Eventually, a federal court held that Barnett’s 

donations to his wife and Bacone College were 

void, and ordered Barnett’s estate turned over to 

the Department of the Interior for administration 

on the ground that the aged Barnett was incompetent and had married an adventuress. Barnett 

and his wife moved to Los Angeles and took up 

residence in a palatial home on Wilshire Boulevard, but the litigation continued, meriting its own 

paragraph in the Report of the Attorney General 

for 1933. A federal judge later held that the marriage of Ms. Lowe and Barnett was void, but allowed Barnett to employ his wife as a housekeeper at $2500 per month. Barnett is reported 

to have spent his days directing traffic on Wilshire Boulevard from the curb in front of his mansion until his death in 1934. 

“The World’s Richest Indian” 
The 1930s — 1940s: 

The New Lands Division 
I n 1933, Attorney General Homer Cummings undertook a complete 

reassessment of the Division’s functions and changed its name from 

the Public Lands Division to the Lands Division. That year, the Division had 

57 employees and was organized into one group of lawyers dealing specifically 

with government land acquisition (by purchase and condemnation), and a 

second group of lawyers dealing with all other matters. However, the Division 

did not handle every case within its jurisdiction. Many 

complex cases were still contracted out to special counsel 

from other agencies. 
25 

The Division acquired responsibility for negotiation, value estimation, and litigation of federal land acquisition and condemnation in 1922; prior to this date, land 

acquisition issues were handled by others in the Department of Justice, including a 

separate Attorney in Charge of Titles and Condemnations. However, until the 

1930s, land acquisition was a relatively small portion of the Division’s workload, 

involving approximately 400 title opinions per year and acquisitions valued at approximately $3 million annually. 

Beginning in the 1930s, the federal government began acquiring land to support 

New Deal policies to resettle impoverished farmers, build large-scale irrigation projects, and establish new national parks. Many parcels of land were acquired for conservation purposes, as part of the New Deal emphasis on natural resource recovery. 

Notable condemnation proceedings during fiscal year 1931 alone included the land 

for the new Department of Justice building, the Botanic Gardens, the National Arboretum, the Rock Creek and Potomac Parkway, Bolling Air Force Base, and the 

extension of the Library of Congress. In 1935, the Division was involved in land 

acquisition or title work for the creation of Shenandoah, Great Smoky Mountains, 

and Mammoth Cave National Parks. 

By 1937, the government’s annual land acquisitions through the Lands Division 

had doubled. That year about 9,000 court cases were based 

on contested valuation amounts for federal property condemnations. The new AAG, Carl McFarland (1937-39), 

reported to the Attorney General that the Lands Division 

was “staggering under an increased load of title work.” 

 This work, along with an increasing workload in other 

areas of the Division, necessitated the addition of hundreds 

of attorneys to the Division throughout the 1930s. The Division jumped in size from 57 employees in 1933 to 500 

employees in 1939, 225 of whom were stationed in field 

offices in nearly every state in the country. AAG Norman 

Littell explained this expansion in his annual report for 

1939: “This increase both in functions and personnel can only be understood in the 

light of a marked reversal of national policy from that of settling and disposing of 

Women Attorneys Join the Division 

An organizational chart from July 1937 lists 

at least five female attorneys in the Title 

Section’s Washington, D.C. and field offices, as well as one woman listed under 

“attorneys and law clerks” assigned to the 

Appellate Section. According to some 

observers, land acquisition was considered 

socially acceptable work for female attorneys in this time period, and as late as 

the 1960s, most of the few female attorneys in the Division did title and land 

acquisition work. 
26 

the public domain as rapidly as possible during the first 100 years or more of our 

history, to a policy of acquiring for salvage and conservation lands depleted by years 

of prodigal waste and soil exploitation.” 

Under the leadership of AAG Carl McFarland, six separate sections were established in 1937. The Trial Section, headed by Charles E. Collett, dealt with all court 

cases except those relating to 

condemnation – mainly with 

public lands and Indian matters. Some 4,423 cases were 

on the Trial Section’s docket 

in mid-1937, and another 

3,712 had begun by mid1938. Teams of five or six 

attorneys were assigned to 

large matters, including the 

Northern Pacific case, the 

Standard Oil case, and Indian claims. 

The Condemnation Section served the constantly 

expanding federal land acquisition program. The section had 1,838 active cases in 

mid-1937, and another 1,864 were filed in the following year. The Title Section, led 

by Allen E. Denton, examined title validity for lands purchased by the government, 

aside from condemnations. In that year, the section approved titles on 11,268 tracts. 

The Condemnation and Title Sections had field offices in 39 states, plus Washington, D.C., each with several attorneys and clerical staff. 

The Legislation and General Section, led by Frank Chambers, analyzed laws and 

potential legislation having potential impact on the Division’s activity. The Appellate Section, led by C.W. Leaphart, handled all matters in the intermediate courts of 

appeals, and assisted the Solicitor General with cases in the Supreme Court. There 

Carl McFarland not only served as Assistant Attorney General of the Lands Division from 1937-39, 

he also played a significant role in President Roosevelt’s efforts to protect New Deal legislation 

from reversal by the Supreme Court. Most notably, 

McFarland was one of the chief designers of the 

“Court-Packing Plan,” which was aimed at altering 

the structure of the Supreme Court itself by permitting the President to appoint additional Justices to the Court once a sitting Justice reached 

the age of 70 and had ten years of service on the Court. The plan generated much controversy and ultimately failed. 

***** 

When Carl McFarland began his tenure as AAG in 1937, he reported 

to the Attorney General that the rapid expansion of Division personnel had 

not been matched by expansion in office space, and that “five or six attorneys crowded into a single room – indeed, nine people and part of the 

library were located in the offices designed for the head of the division.” 

He sought to remedy this and other administrative challenges brought 

about by the Division’s rapidly increasing workload. 
27 

were four attorneys and law clerks assigned to the Section. Between mid-1937 and 

mid-1938, the Division handled 109 appellate cases. The Administrative Section, 

headed by Mac Asbill, supported the Division, and handled budget, personnel, 

physical facilities, supplies, and supervision of the stenographic pool. 

The Division in Wartime 

 The Division’s increased land acquisition efforts of the 

New Deal era set the stage for even greater land acquisition 

required by the United States’ participation in World War 

II. Early in his term, AAG Norman Littell (1939-44) made 

several additional reforms of the Lands Division. He obtained legislation that expedited the Attorney General’s title 

approval procedure, eliminating delays in land acquisition. And, claiming that 269 

different condemnation procedures had been identified in various jurisdictions, he 

lobbied for, but did not achieve, a uniform condemnation standard. Littell also lent 

staff to the Office of the Quartermaster General’s Real Estate Branch and other 

agencies of the War Department to streamline those overworked agencies’ acquisition operations. Littell’s organizational reforms proved essential as land acquisition 

went from a peacetime to a wartime footing . 

In the years following the attack on Pearl Harbor in December 1941, the Lands Division became “the biggest real estate office of any time or 

any place,” overseeing the acquisition of more 

than 20 million acres of land – an area approximately the size of Massachusetts, Connecticut, 

Rhode Island, Delaware, and most of New Jersey. 

The land was used for airports, naval stations, 

fleet bases, bombing fields, proving grounds, and 

other national defense installations. A total of 

18,160 cases emanated from federal condemna- FWS Photo 

WWII weapons production 

In 1939, Roger Marquis joined the Appellate section. He was appointed Appellate 

Section Chief in 1945, and served in that 

position until his retirement in 1969. Westlaw lists him as having argued or participated in the briefing of 1,085 federal court 

cases and 42 state court cases, the highest 

number of Westlaw hits for any Appellate 

Section attorney. He was an authority on 

condemnation law and authored large parts 

of the Division’s condemnation handbook. 
28 

tions in this period, resulting in payment of about $520 million. More than 3,000 

cases remained pending in early 1948. 

The Division’s average time to acquire land, from receipt of the agency request 

The Tenure of Norman Littell

In early 1939, upon the resignation of AAG Carl McFarland, 

President Roosevelt replaced 

him with Norman Littell, a successful lawyer in Washington 

State who had served as a special assistant to the U.S. Attorney 

General and argued numerous 

cases before the Supreme Court 

during the 1930s. In his first annual report, Littell was strongly 

critical of United States land policy through the early 1930s. He 

opined that the disastrous 

droughts of the early 1930s 

resulted from improvident allocation of public lands, which in turn 

resulted in improper cultivation, 

overgrazing, and the destruction 

of wildlife habitat. He reported a 

significant turnaround under the 

Roosevelt administration, as “the 

problem of arresting this waste 

of land resources has been vigorously attacked.” Littell noted that 

the Lands Division was responsible for the litigation aspects of 

Roosevelt’s conservation and 

resettlement programs. 

Littell developed a number of 

conflicts with Attorney General 

Francis Biddle and others in the 

Roosevelt administration, including regarding the 1943 leasing 

of the Elk Hills oil reserve in California. Littell declared the Elk 

Hills deal, a 1942 contract 

signed by the Navy to allow Standard Oil Company to take more 

than $30,000,000 worth of oil 

from the Elk Hills Reserve, illegal 

and invalid because it disproportionately benefitted the oil company. Littell further alienated 

influential administration figures 

by contributing substantial material to the U.S. Senate’s Special 

Committee to Investigate the 

National Defense Program, 

better known as the Truman 

Committee, which exposed many 

instances of fraud and mismanagement in wartime military 

procurement. 

On November 18, 1944, 

Attorney General Biddle asked 

Littell to resign on the grounds 

that they were “personally incompatible.” This created much 

controversy, as several in Congress came to Littell’s defense, 

describing him as “one of the 

most outstanding and fearless 

public servants in the entire 

American Government.” As 

Time magazine reported in 

1944, “Instead of his resignation, Littell wrote out a withering 

12,000-word blast at his boss” 

charging that the Attorney 

General “was guilty of ‘confusion 

[and] superficiality of mind . . . 

frustration . . . personal vanity . . . 

devious ways . . . petty, personal 

animosity, and . . . intimate 

connections’ with Lobbyist 

Tommy Corcoran to the detriment of the public interest.” He 

also alleged that Corcoran was 

influencing Biddle to pressure 

Littell to settle cases on terms 

unfavorable to the government. 

On November 30, 1944, President Roosevelt found that 

Littell’s public statements constituted insubordination, and 

removed him from office. 
29 

to obtaining possession, was reported to be just over four days. In less than 24 

hours turnaround, the Division obtained a condemnation order for the Stevens Hotel in Chicago, Illinois, for use as an Army Signal Corps training school. Now the 

Hilton Chicago, the hotel was originally owned by the family of Justice John Paul 

Stevens, and with 3000 rooms was then one of the biggest hotels in the world. The 

Division was involved in the acquisition of many high-profile military sites, including the land for the Los Alamos Laboratory in New Mexico and the Oak Ridge 

Laboratory in Tennessee, integral to the highly-classified Manhattan Project. 

During World War II, the Lands Division was the largest division of the Department of Justice, and second in size only to the Federal Bureau of Investigation 

among Department components. At that point the Division employed more than 

500 lawyers and operated offices in every state of the union. Between 1939 and 

1944, the Division’s annual budget increased from slightly more than $1 million to 

more than $4 million. 

In the years immediately following World War II, the Division’s land acquisition activities decreased significantly. In 1946, AAG David Bazelon (1946-47) conThe Main Justice Building 

The Main Department of Justice building was designed by the Philadelphia 

architectural firm Zantzinger, Borie and Medary and was constructed 

between 1931 and 1935. It is distinguished by its Art Deco 

architectural elements, innovative use of aluminum for 

details that were traditionally cast in bronze, and sixtyeight murals completed between 1935 and 

1941 depicting scenes of daily life from 

throughout American history and 

symbolic interpretations or 

allegorical themes relating 

to the role of justice in our 

society. The offices of 

ENRD’s Assistant Attorney 

General are on the second 

floor near the Great Hall. 
30 

solidated the Title and Condemnation Sections into one, designated as the Land 

Acquisition Section. In 1952, the section had 47 attorneys and 32 clerical employees. Most of its cases involved acquisitions for flood control, river improvement, 

and reclamation on behalf of the Department of Defense and the Department of 

the Interior. 

The Indian Claims Commission 

When Attorney General Homer Cummings reorganized the Department in 

1933, responsibility for Claims Court suits by Indian tribes against the United States 

for land compensation was transferred from the Department’s Court of Claims Division to the Lands Division. The number of these cases rose steadily throughout 

the 1920s and 1930s. During AAG Harry 

Blair’s tenure (1933-1937), the Division was 

handling over one hundred cases by Indian 

tribes against the United States, with claims 

totaling over $3 billion. The tribes argued that 

their lands had been taken away without sufficient payment, or that money received in payment had not been used for the tribes’ benefit, 

or that the United States did not provide the 

lands or materials promised in various treaties. 

Many of these cases involved counterclaims by 

the United States arguing that it had, in some cases, supplied more than what was 

promised the tribes by treaty. In 1935, in the case of U.S. v. Creek Nation, the Supreme Court upheld the Creek land claim and rejected the government’s assertion that the Tribe should have contested an improper transfer of land at 

the time it occurred. United States v. Creek Nation, 295 U.S. 103 (1935). 

 Many grievances of Native Americans arising from the government’s alleged failure to honor the terms of treaties and agreements 

initially went unheard, because the litigation of such claims required 

that the tribe obtain a special jurisdictional act of Congress. As a 

Felix Cohen’s 

Handbook of Federal Indian Law 

In late 1938, AAG McFarland and Charles E. Collett, the 

Chief of the Trial Section, asked Felix Solomon Cohen of 

the Department of the Interior to compile a survey of 

Federal Indian Law. Initially, the compilation of Federal 

Indian Law was a collaborative effort between DOJ and 

DOI, and McFarland and Collett anticipated that it would 

assist attorneys in the Department of Justice in defending cases against Indians. Interior published the first 

edition of The Handbook of Federal Indian Law in 1941. 

National Archives Photo 
31 

result, legislation was introduced in Congress in 1935 to create an Indian Claims 

Commission. 

In 1946, Congress enacted the Indian Claims Commission Act (ICCA), establishing the Indian Claims Commission to resolve existing tribal claims. The ICCA 

was an historic attempt to compensate tribes for past wrongs suffered at the hands 

of the United States. The Act permitted tribes to bring legal and equitable claims, as 

well as claims that the United States had not acted “fairly and honorably,” lifting 

time bars to such claims. From the tribal perspective, however, the ICCA fell short 

of remedying past wrongs by providing solely for monetary awards, rather than allowing the return or replacement of tribal lands that had been lost. Appeals of ICC 

decisions could be brought before the United States Court of Claims (known prior 

to 1948 as the Court of Claims), with the possibility of a final appeal before the Supreme Court. 

In the Attorney General’s annual report for 1948, AAG A. Devitt Vanech (1947

-51) reported that the Division had 26 pending Indian claims cases whose claims he 

estimated to total nearly the “astronomical” amount of $5 billion. By 1953, more 

than 400 cases had been filed. Between 1946 and 1953, these cases were handled by 

the Trial Section, but in 1953, in response to the increasing number of cases, the 

Division created an Indian Claims Section to represent the government in cases 

brought before the ICC. An important and complex aspect of the Section’s work 

was estimating land values and resolving conflicts between the estimates of its experts and those of the plaintiffs, often dealing with claims dating from agreements 

or events of the previous century. For example, in the 1948 case of Osage Tribe of 

Indians v. United States, the United States was represented before the ICC by AAG 

Vanech and Indian Claims Section attorney Ralph A. Barney. The ICC ruled that 

the tribe was owed about $777,000 because the government’s payment for the land 

in 1865 did not represent its true value. 

The number of outstanding ICC cases increased slightly through the 1950s, 

reaching 463 in 1960, as the pace of case resolutions remained between eight and 

fifteen per year. 
32 

 

A 1943 memo from T.C. Quinn to “All employees in the 

Department of Justice Building” admonishes: “Request that no 

silverware or china be taken from the cafeteria except in an 

emergency and that all employees now having some in their 

offices will return it as soon as possible; it is further requested 

that the practice of securing ‘double desserts’ per person be 

discontinued.” 

Double Desserts 
The 1950s and 1960s: 

The Land and Natural 

Resources Division 

National Archives Photo 
34 

B y 1953, the Division consisted of the Assistant Attorney General, 

one Assistant, and six sections – the Trial Section, the Appellate Section, the Legislation and General Section, the Appraisal Section, the Land Acquisition Section and the Administrative Section. That year, under AAG Perry W. Morton (1953-1961), the Lands Division underwent several organizational changes. The 

Water Resources Section was established to represent the government in water 

rights-related litigation and provide expertise on interstate water issues and federal 

water-related legislation. The Division also closed all of its field offices as part of 

the Department of Justice’s policy to consolidate local and regional cases in the offices of the U.S. Attorneys. Beginning with that realignment, Division land attorneys were assigned to the U.S. Attorneys’ Offices to 

handle condemnation cases. The Indian Claims Section was also established in 1953. 

Due to this restructuring, between 1953 and 

1955 the Division’s personnel decreased by more 

than 50 percent, from 444 to 209. By 1957, the Division had only three attorneys in field offices. The 

number of attorneys continued to decrease over the 

subsequent years, and in 1960 the Washington office 

reported 101 attorneys and 111 clerical staff, with 

seven attorneys and four staff people in the field. 

In 1960, the Water Resources and Trial Sections 

were combined into the General Litigation Section, 

which retained distinct Water Resources and General 

Trial units. Division staffing decreased slightly in the 

1960s, reaching 197 (of whom 96 were attorneys) in 

1966. In 1963, AAG Ramsey Clark (1961-65) eliminated the Legislation and General Section, distributing its functions and personnel 

between the General Litigation and Administrative Sections. The Division also began publication of the Lands Division Journal in this year, which included articles 

on the substantive areas of law handled by the Division. 

During his tenure as AAG 

of the Lands Division 

(1961-65), Ramsey Clark 

was assigned by Attorney 

General Robert F. Kennedy 

to handle many sensitive 

civil rights matters unrelated 

to the work of the Division. 

Kennedy sent Clark to investigate the state of desegregation in the South and 

to compile a report of civil rights conditions there. 

Clark’s memo to Kennedy suggested that it was 

time for the federal government to enact sweeping 

civil rights legislation, providing an outline of sorts 

for what would become the Civil Rights Act of 

1964. President Lyndon Johnson appointed Clark 

Deputy Attorney General in 1965 and Attorney 

General in 1967. He continued to be involved in 

drafting civil rights legislation and helped to ensure the passage of the 1968 Civil Rights Act. 
Order redesignating the Lands Division as the 

Land and Natural Resources Division. October 8, 1965. 

Excerpts from the staff 

notification and press release 

announcing the Division name 

change. October 11, 1965. 
36 

In 1965, at the request of AAG Edwin Weisl (1965-67), the Lands Division was 

redesignated as the Land and Natural Resources Division by Attorney General 

Katzenbach. At the time, the Division employed 100 attorneys. 

A Deputy Assistant Attorney General (DAAG) was appointed in 1968 when 

Glen E. Taylor filled the position under AAG Clyde Martz (1967-69). He was succeeded by Walter Kiechel, Jr., former Chief of the General Litigation Section. 

Land Acquisition in the 1950s and 60s 

The Korean Conflict, which began in 1951, caused a dramatic increase in land 

acquisition. In 1954, about one-half of land acquisitions were defense-related. 

The early 1950s also saw a proliferation of a new type of land condemnation 

case, whose purpose was to clear airspace adjacent to newly constructed military 

airports. The acquisition of an estate in land to ensure adequate clearance for the 

lower approach and takeoff patterns of modern aircraft, called an avigation easement, required evaluation and compensation for significant tracts of privately 

owned land. Because air traffic involves a broad range of impediments to private 

activity, assessment of compensation for this type of estate proved more complex 

than for conventional estates acquired by land condemnation. Similar problems 

arose at new missile sites. 

Changes in Technology 

Until 2001, all Main Justice offices had sinks. Because of the use of carbon paper until the 1970s, 

all DOJ employees had a need to frequently wash their hands. 

In 1969, all work was typed on IBM Selectric typewriters. As late as the mid-1970s, attorneys 

hand wrote their briefs, which the secretaries then typed and retyped to integrate attorney edits. In 

the 1980s, the Division obtained IBM typewriters that were attached to an 8” floppy disk reader, so 

that text could be saved and edited. Under AAG Jim Moorman (1978-81), the Division obtained 28 

Lexitrons, dedicated word processing microcomputers that used 5 1⁄4” floppy discs. 

In 1972, the Division had only one copy machine, which did not collate. The Administrative Officer 

of the Division approved each copy made. Permission was also required to make a long distance telephone call. 
37 

A second new category of land condemnation developed from the Federal Aid 

Highway Act of 1956, which allowed the Department of Commerce to acquire 

lands required for interstate highway projects in situations where a state could not 

gain access to the required land in a timely manner. As a result, private parties 

brought, and the Lands Division defended, litigation contesting the federal government’s right to condemn land on behalf of state interests and its interpretation of 

the phrase “in a timely manner.” In an early case, United States v. Certain Parcels of 

Land in Knox County Tennessee, a district court in 1959 held that national defense considerations legitimized federal condemnation of land for highways on behalf of the 

state of Tennessee. 

By the 1960s, expenditures and time spent by the Lands Division on acquisition 

of land for various purposes had increased, as the Federal Highway Act required 

extensive parcels throughout the United States and a spate of new federal office 

buildings required expensive urban property. In 1964, the government paid nearly 

$200 million for land acquired through purchase and condemnation, more than 

doubling the acreage acquired in the previous year and exceeding the totals for all 

previous postwar years. Among the three major functions of the Division in 1964 

(the others being litigation and Native American affairs), about half of its manpower was devoted to the processes supporting land acquisition, such as title examination and preparation of condemnation proceedings. 

Water Rights Cases Increase 

As reflected by the creation of a separate Water Resources Section in 1954, the 

Division experienced an increase in the number of water-related cases in the 1950s. 

In his report for 1966, AAG Edwin L. Weisl, Jr. noted that such cases normally 

were complex and moved slowly through the system; 114 such cases were pending 

at the end of the year. 

In 1963, the Supreme Court handed down another in a series of rulings on the 

dispute in Arizona v. California. The Court upheld the United States’ position that 

the contested distribution of water among watershed states and the United States 

was determined neither by the Colorado River Compact nor by state law, but by the 

Until the 1960s, 

male attorneys 

still wore white 

shirts and suits 

to work, and most 

women wore a 

hat and gloves. 
38 

specific allotments stated in the Boulder 

Canyon Project Act of 1928, as administered by the Secretary of the Interior. 

The Court also affirmed the authority 

of the United States to reserve water for 

tribes, finding that “[i]t is impossible to 

believe that when Congress created the 

great Colorado River Indian Reservation and when the Executive Department of this Nation created the other 

reservations they were unaware that 

most of these lands were of the desert 

kind – hot scorching sands – and that 

water from the river would be essential to the life of the Indian people and to the 

animals they hunted and the crops they raised.” Based on this, the Court concluded 

that “enough water was reserved to irrigate all the practicably irrigable acreage on 

the reservations” in order to meet “future as well as present needs.” AAG Ramsey 

Clark described the verdict as a major step in development of the Southwest. Motions and negotiations continued for many years thereafter, and supplementary Supreme Court decrees have altered the distribution of the Colorado River’s water 

seven times since that decision.

In the 1950s, the Division also continued to provide consultation on water resource cases, particularly on the establishment of interstate compacts specifying water rights, such as the Klamath River Basin Compact of 1957 and the Bear 

River Compact of 1958. 

In 1963, the Division assisted in obtaining a key precedent requiring 

courts to give “great deference” to the 

Secretary of the Interior’s interpretation of statutes and Executive Orders. 

Udall v. Tallman, 380 U.S. 1 (1965). 

Interior Secretary Udall later gave 

Appellate Section Chief Roger 

Marquis an autographed copy of a 

book Udall authored. Udall inscribed 

the gift with a note that, until he read 

the Appellate Section’s brief, he did 

not know the Secretary of the Interior 

possessed such vast power and 

authority. 

In 1969, Assistant Attorney General Shiro Kashiwa argues a case in 

the Supreme Court seeking the reversal of an adverse ruling in a 

condemnation case, becoming the first Japanese American and the 

first member of the Hawaii bar to represent the United States before 

the Supreme Court. 
The Rise of Envir

National Archi

A sign warning swimmers of polluted water did not discourage these bathers from an afternoon frolic in Lake Erie waters, 

August 1962. 
T he public gained increasing awareness of environmental issues in the 

1960s, spurred by events such as the 1962 publication of Rachel 

Carson’s Silent Spring, a massive oil spill off the coast of Santa Barbara, California, 

and the 1969 fires on the Cuyahoga River. As the 1960s progressed, citizen activists 

began to expand their attention from challenges to the Vietnam War and racial inequality to the state of the environment. Environmental nonprofit organizations 

were formed, and citizen groups began to challenge the supremacy of business interests in decisions about how to use the country’s natural resources and environment. An estimated 20 million Americans participated in the first Earth Day on 

April 22, 1970, a level of public support that surprised even the organizers of the 

event. 

In the 1960s, the Division began to explore the use of existing statutes to clean 

up pollution and protect natural resources, with some limited success. In 1961, the 

Division brought the first enforcement action under the 1948 Federal Water Pollution Control Act in a case against the city of St. Joseph, Missouri, for pollution of 

the Missouri River (United States v. City of St. Joseph). In response to the filing of the 

suit, the city initiated sewer improvements to abate the problem and, according to 

the 1965 annual report of AAG Weisl, this case facilitated subsequent enforcement 

of the Act by the Department of Health, Education and Welfare. 

In the 1950 and 1960s, the Department of Justice also made use of the Refuse 

Act, part of the Rivers and Harbors Act of 1899, to prosecute water pollution cases. 

The statute contains criminal enforcement provisions, and the Criminal Division of 

the Department of Justice brought a number of prosecutions under this law, including a suit to enjoin the unpermitted deposit of industrial waste into the Calumet 

River in Indiana, a case that led to the Supreme Court’s decision in United States v. 

Republic Steel Corp., 362 U.S. 482 (1960), upholding the principle that industrial waste 

that clogs a river constitutes an prohibited obstruction to navigation under the Act. 

This holding was extended in United States v. Standard Oil Co., 384 U.S. 224 (1966), 

which found that the Refuse Act prohibition on placing “any refuse matter of any 

onmental Law 

ives Photo
41 

kind” in a navigable water should be interpreted broadly and includes gasoline and 

other inadvertently discharged valuable product. In reaching this conclusion, the 

Court noted that “[t]his case comes to us at a time in the Nation’s history when 

there is greater concern than ever over pollution – one of the main threats to our 

free-flowing rivers and to our lakes as well,” and that “[w]e cannot construe section 

13 of the Rivers and Harbors Act in a vacuum.” 

During the 1960s, the Justice Department used the Refuse Act and related statutes as a basis for criminal charges against polluters approximately 400 times. In 

1970, the Division issued to U.S. Attorneys’ 

Offices Guidelines for Litigation Under the Refuse 

Act, which encouraged the use of the Act to 

punish significant accidental or infrequent discharges, but not continuing discharges that are 

the result of manufacturing. This latter type of 

discharge was under the purview of the Federal Water Pollution Control Administration 

(part of the Department of Health, Education, 

and Welfare) and its successor agency, the 

Federal Water Quality Administration (part of 

the Department of the Interior), which eventually developed a permit process. 

 In 1968, at the request of the Secretary of 

Health, Education, and Welfare, the Division 

brought a test case under the Federal Clean Air 

Act, United States v. Bishop Processing Co. (D. Md. 1968), to enjoin the company from 

emitting air pollution that moved across state lines. The constitutionality of the Act 

was upheld, and the pollution was eventually abated by consent decree. 

By 1969, expanding public support began to yield more focused, powerful laws 

which addressed administrative agency decisional processes, substantive environmental protection, and the allocation and disposition of federal resources on the 

public lands. That year, Congress passed the National Environmental Policy Act 

(NEPA), which established a national environmental policy and required the conAAG Shiro Kashiwa and DAAG Walter 

Kiechel, Jr. give personal attention to the 

pollution issues handled by the Lands 

Division in this photo made for the 1969 

Attorney General’s Annual Report.

Reprinted from Attorney General’s Annual Report (1969) 
42 

sideration by federal agencies of environmental values in 

environmental impact statements before undertaking 

major projects. NEPA became a major tool for those 

attempting to halt projects which altered the natural environment, on the ground that environmental impacts 

were inadequately considered. 

This wave of new legislation continued in 1970 with 

the enactment of the modern Clean Air Act. The Environmental Protection Agency was also established that 

year, creating what is now one of the Division’s most 

significant client agencies. The Federal Water Pollution 

Control Act followed (1972), along with Coastal Zone 

Management Act (1972), the Marine Mammal Protection 

Act (1972), the Endangered Species Act (1973), the Safe 

Drinking Water Act (1974), the Toxic Substances Control Act (1976), the Federal Land Policy and Management Act (1976), the National Forest Management Act 

(1976), the Magnuson Fishery Conservation and Management Act (1976), the Resource Conservation and Recovery Act (1976), the Surface Mining Control and Reclamation Act (1977), and the 

Public Rangelands Improvement Act (1978). 

The passage of these statutes and their successors dramatically transformed the 

work of the Division in two ways. First, for those environmental statutes which 

provided for civil and criminal enforcement, those functions became some of the 

Division’s major occupations. Second, many of these laws provided grounds for 

challenging the decisionmaking 

processes of federal agencies. 

Defending agency decisionmaking 

under these statutes and their implementing regulations also grew to 

occupy a significant portion of the 

Division’s time and resources. 

Deputy Assistant Attorney General Walter 

Kiechel opened a January 14, 1972 speech: 

“The question posed by the title of this 

speech is: What’s to Come in the Environmental Field? Without resort to a crystal ball 

or other aids to prognostication, I can say in 

answer, ‘A great deal of litigation!’” 

Kathryn “Kay” Oberly joined the Appellate Section in 1974 and was quickly recognized for 

her outstanding work in a number of areas, 

including Indian fishing rights, wildlife protection, and the navigational servitude. While still 

in the Appellate Section, she was permitted by 

the Solicitor General to argue an important 

navigational servitude case in the Supreme 

Court – Kaiser Aetna, Inc. v. United States, 444 

U.S. 164 (1979). Kay went on to serve as an 

Assistant to the Solicitor General. She is currently a judge on the District of Columbia Court 

of Appeals and was chosen to swear in Secretary of State Hillary Clinton. 

Senate Photo 
43 

Formation of the Pollution Control Section 

 On October 1, 1970, AAG Kashiwa created a 

new Pollution Control Section and assigned it responsibility for both civil and criminal enforcement 

actions by the United States to abate air, water, and 

other types of pollution. The Section also handled 

defensive litigation for agency rulemakings. Attorneys from the General Litigation Section and the 

Department’s Criminal Division were transferred to 

staff the new section. In the early 1970s, the Section 

was headed by Martin Green. The Attorney General 

officially assigned responsibility for both civil and 

criminal enforcement of the environmental laws to 

the Division in 1971. 

 In 1970, the Division litigated its first civil cases 

based on the Refuse Act, including a suit to protect 

lower Biscayne Bay, Florida, from thermal pollution 

from a power plant (United States v. Florida Power and 

Light Co. (S.D. Fla. 1970)), and a suit to enjoin a steel 

company’s discharge of toxic wastes (United States v. 

Armco Steel Co. (S.D. Tex. 1971)). These Refuse Act 

cases continued in 1971, with approximately 54 new 

civil enforcement actions filed that year. AAG Kent 

Frizzell (1972-73) reported that in the first two years 

of civil Refuse Act lawsuits, every case resulted in 

either immediate cessation of pollution activity or 

commitments by the polluter to amend its practices 

to comply with standards issued by the Environmental Protection Agency. 

 The passage of the Federal Water Pollution Control Act (also known as the Clean Water Act) in 1972 

SOME MEMORIES FROM THE 

POLLUTION CONTROL SECTION 

IN THE 1970s 

By Raymond W. Mushal 

The days of the Pollution Control Section (1970-

81) were before the time of electronic communications within the Department. Within the 

Division, everything moved by messenger. 

Prepare a document, put a buckslip on it, stick 

it in a holed enveloped, and put it in the Out 

box. Periodically throughout the day, messengers rotated through the Division emptying the 

Out boxes and filling the In boxes. The messenger from that period who sticks in my mind was 

Carlos, who was with us in 1974-1975. That 

was when I was courting – look it up in an old 

dictionary, youngsters – Barbara Cantey, who 

was the AAG’s Administrative Assistant. 

Wishing to avoid any attention to our developing 

relationship, we kept a very low profile. Only 

Carlos realized that a great deal of message 

traffic went back and forth between us at our 

opposite ends of the hall. Sometimes in those 

envelopes were personal messages; other 

times the Post crossword puzzle when one of us 

got stuck on a word; occasionally a bone for 

Barbara’s dog. Carlos helped us keep our secret 

until we went off on our afternoon coffee break 

and got married on Friday, August 15, 1975, at 

Saint John’s Church on Lafayette Square. Only 

on the following Monday was our relationship 

revealed to others in the Division, taking them 

entirely by surprise. Main Justice is not necessarily the cold and unromantic place that it 

appears from the outside. 

— Ray Mushal joined the Pollution Control Section as 

an Honors Graduate in August 1973. He is currently a 

Senior Counsel in the Environmental Crimes Section. 
44 

granted substantial new enforcement authority to the federal government, but resulted in a short-term drop in enforcement actions while the Division and EPA 

handled large numbers of petitions for review of agency action (108 under the 

Clean Water Act in 1974 alone). 

The Pollution Control Section also was responsible for wetlands protection, 

another environmental issue that received increased attention in the 1970s. In the 

mid-1970s, a series of U.S. district court rulings in southern Florida, the northeastern United States, and the on west coast extended federal authority to enjoin dredging and filling of tidal wetlands. The District of Columbia District Court ruling in 

NRDC v. Callaway (1975) forced the U.S. Army Corps of Engineers to expand its 

definition of “navigable waters” under the Federal Water Pollution Control Act, 

therefore expanding the regulatory sweep of that law and allowing the federal government to exercise increased jurisdiction. 

 NEPA – Making New Law 

In the Attorney General’s annual report for 1970, AAG Kashiwa noted a wide 

variety of new cases brought by groups to block projects deemed harmful to the 

environment, as well as an increase in the environmental content of the Division’s 

normal legislative activities. In the early 1970s, in addition to its usual docket of 

public lands and Indian cases, the General Litigation 

Section, headed by Floyd France, increasingly was 

occupied with cases involving environmental protection. Environmental groups used the newly-passed 

National Environmental Policy Act to challenge 

many agency actions, and Division cases included 

attempts to block timber sales in Alaska and Colorado, the development of mineral deposits in national 

forests in Minnesota and West Virginia, construction 

of the Trans-Alaska Pipeline to move oil from 

Alaska’s north slope to an ice-free shipping point, 

and a cross-Florida barge canal. 

Reprinted from Attorney General’s Annual Report (1970) 

Lands Division AAG Shiro Kashiwa discusses an 

environmental study on Alaska with staff members.
45 

The Division’s earliest cases under NEPA included Committee for Nuclear Responsibility, Inc. v. Seaborg (D.C. Cir. 1971), Calvert Cliffs Coordinating Committee, Inc. v. U.S. 

Atomic Energy Commission, (D.C. Cir. 1971), and West Virginia Highlands Conservancy v. 

Island Creek Coal Co. (4th Cir. 1971). Committee for Nuclear Responsibility, involving a 

challenge to an underground nuclear test explosion on the Alaskan island of Amchitka, was also the Division’s first major case involving tension between national 

security needs and compliance with environmental laws. The Division argued three 

appeals in two weeks, ultimately persuading the D.C. Circuit to allow the test to go 

forward. The Supreme Court denied a stay of the decision 

after a rare Saturday morning argument . 

 In 1976, the Supreme Court decided one of its first major cases under NEPA, Kleppe v. Sierra Club, 427 U.S. 390 

(1976). In that case, which was handled by the Division in 

the trial and lower appellate courts, environmental groups 

argued that the Department of the Interior and other federal agencies were required to prepare a regionwide, comprehensive environmental impact statement for developing 

coal reserves on federally owned or controlled land in the 

Northern Great Plains region. The Court held that such a 

statement was not required absent an existing proposal for regionwide action. It 

also articulated the oft-repeated standard that the “only role for a court is to insure 

that the agency has taken a ‘hard look’ at environmental consequences.” The Division was also responsible for trial and appellate work leading to Andrus v. Sierra 

Club, 442 U.S. 347 (1979), in which the Supreme Court found that substantial deference was due to CEQ’s interpretation of NEPA, and that appropriations requests 

by federal agencies were not subject to NEPA’s requirements. 

In 1980, AAG Moorman reported that the General Litigation Section had over 

300 cases pending under NEPA, describing these as “typically fast-moving through 

the trial and appellate courts” and consuming “much attorney time.” In 1979, the 

Council on Environmental Quality promulgated new NEPA regulations applicable 

to all federal agencies, and the Division saw a slight rise in NEPA suits in subsequent years, with 350 cases pending in the Division in 1984. 

In a 1969 internal memorandum, Assistant 

Attorney General Shiro Kashiwa commented 

on press reports that President Nixon wished 

to focus on environmental issues, and 

observed a “change in the thinking throughout the country” regarding the importance of 

the environment. Kashiwa noted, “[e]ven in 

the applications of honor students for positions in Justice a greater percentage now 

prefer a position in Land and Natural 

Resources instead of the other Divisions 

they heretofore preferred.” 
46 

Defending Agencies and Environmental Laws 

In the 1970s and early 1980s, EPA focused its efforts on promulgating regulations to implement the new environmental laws. During this period, the Division 

defended EPA in numerous suits challenging the agency’s rulemakings or failure to 

meet statutory deadlines. The judicial review provisions in the new laws helped 

usher in a new era of constitutional and administrative 

law in which courts sought to balance the principle of 

deference to agency decisions with the public’s interest in 

a clean and healthy environment. 

Of particular importance was the development of the 

law of standing, as citizens’ groups and corporations asserted the right to challenge agency actions in the federal 

courts. The Division defended the Departments of the 

Interior and Agriculture in Sierra Club v. Hickel (9th Cir. 

1970), a challenge to the permits required for implementation of a plan by Walt Disney Productions to build a 

large ski resort in Mineral King Valley in the Sequoia National Forest in California, as well as a road to the resort 

that would traverse a portion of Sequoia National Park. 

The appellate court found that the Sierra Club had not 

proved that its members would be harmed by the resort, 

and on appeal, the Supreme Court upheld the determination that the Sierra Club 

lacked standing. The Court also affirmed that citizens’ groups did not need to demonstrate an economic interest in a dispute to establish standing – the injury in question “may reflect aesthetic, conservational, and recreational” values as well, thus 

opening the courts to other citizen suits to protect environmental interests. 

AAG Hank Habicht (1983-87) described the Division in the 1980s as 

“assum[ing] a more aggressive litigation posture in successfully protecting important 

federal initiatives from legal challenge and defending against demands for attorneys’ 

fees where the government has prevailed on all issues in dispute.” This included a 

more aggressive use of defenses such as lack of standing, ripeness, and mootness. 

Spam Wellington 

In the 1970s, the Appellate Section’s 

Ed Shawaker handled the appeals of 

some of the Division’s most difficult 

Indian law issues, including the status 

of Eastern tribes and reservation 

boundary issues. He participated in 

landmark Supreme Court cases 

involving Indian law, including Ramah 

Navajo School Bd., Inc. v. Bureau of 

Revenue of New Mexico, 458 U.S. 832 

(1982) and Duro v. Reina, 495 U.S. 

676 (1990). Shawaker is equally wellknown among his colleagues for the 

famous “Spam Wellington” he brought 

to many Appellate Section potluck 

gatherings. 
A tower of smoke rises from a Chevron oil well 

platform in the Gulf of Mexico, following a 

dynamite explosion to extinguish month-long 

fires that burned in 1970. Thousands of barrels 

of oil leaked into Gulf waters as a result of the 

disaster, threatening oyster beds, shrimp and 

fish as well as the Louisiana coastline. 

The United States charged Chevron with failing 

to install required safety devices. Chevron 

pleaded no contest to the charges, and the 

court imposed a $1,000,0000 fine, at the time 

the largest penalty imposed by a court on an 

American company. 

National Archives Photo 
48 

In the late 1980s, Division attorneys defended a challenge to the Bureau of 

Land Management’s land withdrawal program under NEPA that led to the Supreme Court decision in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

This case was followed by Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), a challenge to the Department of the Interior’s Endangered Species Act regulations. In 

that case (argued by Edwin Kneedler, who has argued over 100 cases before the 

Supreme Court, including many on behalf of the Division), the Court found that 

the plaintiffs did not assert sufficiently imminent injury to establish standing, nor 

was their claimed injury redressable. These cases, among others, established the 

contours of the modern law of standing. 

The Division also emerged as a key player in the development of administrative 

law. Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), considered by many legal scholars to be one of the 

most important administrative law decisions 

in the modern era, originated in the Division 

as a challenge to an EPA regulation 

implementing the Clean Air Act. The case 

established the principle that federal courts, 

in reviewing a statutory interpretation by an 

administrative agency, should not substitute 

their own judgment for the agency’s, but 

rather should accept the agency’s interpretation as long as it is reasonable and Congress 

has expressed no clearly stated intent to 

the contrary. 

The Division also litigated Chemical Manufacturers Association v. NRDC, 470 U.S. 

116 (1985), which defended EPA regulations implementing the Clean Water Act. 

The Court’s decision was instrumental in solidifying the principle of administrative 

law that great deference is due to an agency’s interpretation of the statutes it administers. To this day, the Division continues to be involved in many cases addressing 

important issues of administrative law. 

Ed Clark became the Section Chief of the 

Appellate Section in 1969, and Ray Zagone 

was the single Assistant Section Chief 

through much of the period. Attorneys from 

this period recall regular morning coffee get

-togethers to discuss cases, report on oral 

arguments, and discuss where to have 

lunch and what to order. The Appellate Section found itself on the cutting edge of the 

new field of environmental law, and to stay 

on top of quickly evolving law, attorneys 

collected notebooks of Division briefs and 

judicial opinions and shared ideas and information with each other.
49 

A fter several years of sorting out the scope of the enforcement authority and litigating challenges to the new laws, by 1979, the Division was beginning to settle into its new role of enforcing environmental laws. To 

support this mission, the Division grew substantially between 1978 and 1980, from 

243 employees (137 attorneys) to 339 employees (196 attorneys). 

By 1979, under AAG James Moorman (1977-81), the Land and Natural Resources Division added two additional Deputy Assistant Attorneys General and divided supervisory responsibility for the Division’s sections among the three 

DAAGs: Anthony Liotta, Angus MacBeth, and Sanford Sagalkin. Three new sections also were added in 1979: the Wildlife Section, the Policy, Legislation, and Special Litigation Section, and the Hazardous Waste Section. 

The new Wildlife Section, headed by Ken Berlin, was assigned civil and criminal 

jurisdiction over wildlife laws, particularly those dealing with the illegal trade in 

wildlife and plants. 

The new Policy, Legislation, and Special Litigation Section (PLSL), headed by J. 

Vance Hughes, and later by Larry Wallace (1982-84), consolidated policy formation 

functions with the legislative functions previously filled by the Division’s legislative 

assistant. The Section was also responsible for developing litigation strategies for 

unique legal problems, in cooperation with other sections of the Division. An early 

example of this cooperative approach was the coordination of the various provisions of federal law that dealt in some way with the issue of storage and disposal of 

hazardous waste. 

One of the first products of PLSL was a June 1979 study, “The Superfund Concept: Report of the Interagency Task Force on Compensation and Liability for 

The 1980s: 

The Division Expands 
A junk pile on the bank of a stream 

in Junction City, Oregon adding to 

the pollution which flows into the 

nearby Willamette River.

National Archives Photo 
51 

Releases of Hazardous Substances.” The report constituted the most comprehensive analysis to date of the legal issues concerning the control of toxic wastes, and 

would help inform the Carter administration’s position on the proposed Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 

commonly known as Superfund, which was signed in 1980. PLSL also was responsible for reporting on proposed legislation of interest and tracking the progress of 

existing bills. 

The Hazardous Waste Section was added in 1979, in the words of AAG James 

Moorman, “to develop an aggressive and effective litigation program to deal with 

hazardous waste disposal problems.” An additional mandate of 

the new Section, which had 13 attorneys, was to defend challenges to hazardous waste regulations under the 1976 Resource 

Conservation and Recovery Act (RCRA). The Section was led by 

Anthony (Tony) Roisman. 

 In its first year, the Hazardous Waste Section worked with 

EPA to investigate 167 sites under RCRA and filed over 50 new 

hazardous waste-related complaints. The best known case in the 

Hazardous Waste Section’s first year was that of Love Canal in 

Niagara Falls, New York. In 1982, Love Canal became one of the 

original sites for application of the new Superfund law . 

 In 1980, AAG Moorman created a new Environmental Enforcement Section, and appointed Steve Ramsey as its Chief. At 

its inception, EES had 15 attorneys and 15 support staff. The 

Section’s main clients were the Army Corps of Engineers and 

EPA. The Section was tasked with bringing natural resource damage actions on behalf of federal agencies such as the Departments of Agriculture, 

Commerce, Defense, Energy, and the Interior, claims against private parties for 

contamination of public lands, and suits seeking compensation on behalf of the 

Coast Guard for cleanup of oil spills. In the 1980s, the Section used the Clean Water Act to ensure that publicly-owned sewage treatment plants attained an adequate 

level of sewage treatment prior to discharging to rivers and streams. Cases against 

large municipalities such as Washington, D.C., Philadelphia, Boston, Miami, St. 

Love Canal resident protests toxic 

dangers 

Photo: EPA 
52 

Louis, Denver, and San Francisco were brought throughout the late 1980s and early 

1990s. 

Also in 1980, AAG Moorman created an Energy Conservation Section, led by 

Section Chief Kathryn Oberly, to coordinate and consolidate the Division’s increasing and diversified energy-related caseload. The Section was responsible for conducting litigation based on the several statutes under the umbrella National Energy 

Act of 1978, including challenges to the constitutionality of those statutes. 

At the end of 1980, the Division was comprised of twelve litigating sections: the 

Pollution Control Section (headed by Donald Stever), the Environmental Enforcement Section (headed by Steve Ramsey), the Hazardous Waste Section (headed by 

Tony Roisman), the Wildlife Section (headed by Ken Berlin), the Appellate Section 

(headed by Peter Steenland), the Marine Resources Section (headed by Bruce Rashkow), the General Litigation Section (headed by Lois Schiffer), the Energy Conservation Section (headed by Kay Oberly), the Indian Resources Section (headed by 

Myles Flint), the Land Acquisition Section (headed by Gerald Levin), the Indian 

Claims Section (headed by Donald Mileur and then Dick Beal), and the Policy, Legislation, and Special Litigation Section (headed by Vance Hughes). Two nonlitigating sections aided the work of the Division. The Appraisal Section (headed by Norman Lauer) provided assistance in land acquisition matters, and the Administrative 

Section (headed by Allen Smith) handled internal management, fiscal matters, and 

litigation support services. The Division had field offices in Anchorage, Alaska; 

Denver, Colorado; Miami, Florida; New York, New York; and Portland, Oregon. 

In 1981, the Office of Management and Budget of the new Reagan Administration froze all positions in the executive branch, eliminating the funding for 50 positions obtained by AAG Moorman to support the sections created in 1979 and 1980. 

AAG Carol Dinkins (1981-83) again reorganized the Division, eliminating the 

short-lived Energy Section and transferring its functions to the General Litigation 

Section. The Marine Resources Section was merged with the Wildlife Section into a 

new Wildlife and Marine Resources Section, which handled all fisheries and wildlife 

work. The Marine Resources Section’s submerged lands, coastal zone and outer 

continental shelf oil and gas leasing work was assigned to the General Litigation 

Section. 
53 

The Pollution Control Section was renamed the Environmental Defense Section, and was led by Don Stever (1981-82), followed by Jose Allen (1982-84) and 

Margaret Strand (1984-91). The Environmental Defense Section’s mandate was to 

defend federal agencies against litigation challenging decisions and regulations under the environmental laws. At the urging of Section Chief Don Stever, the wetlands protection function of the former Pollution Control Section remained with 

the Environmental Defense Section after the 1981 reorganization. The Hazardous 

Waste Section was eliminated, and its affirmative litigation was transferred to the 

Environmental Enforcement Section and its defensive litigation to the Environmental Defense Section. 

AAG Dinkins named Mary Walker and F. Henry “Hank” Habicht II as politically-appointed DAAGs. After Carol Dinkins’ elevation to Deputy Attorney General, Hank Habicht was nominated in 1983 by President Reagan to serve as Assistant Attorney General. He named Mitt Spears and Roger Marzulla, and then Tom 

Hookano, as political DAAGs. Habicht’s subsequently moved to be Deputy EPA 

Administrator, and Roger Marzulla became AAG in 1988. Mary Mann, James 

Byrnes, and Richard Leon served as DAAGs under AAG Marzulla. Donald Carr 

served as Acting AAG at the end of the Reagan administration. 

Civil Superfund Enforcement – Polluter Pays 

In 1980, in response to threats to human health and the environment posed by 

abandoned toxic waste disposal sites, Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), popularly 

known as Superfund. The statute taxed the petroleum and petrochemical industries 

to create a fund to clean up hazardous waste sites, and empowered the United 

States to recover cleanup costs from persons responsible for the contamination. 

CERCLA became an important statute for the Division, as it required civil judicial 

enforcement to both obtain cleanup and reimbursement for EPA’s costs. 

The Division’s first CERCLA case, United States v. Hooker Chemicals (W.D.N.Y. 

1982), helped establish CERCLA’s liability and cost recovery standards, and recovered $129 million in EPA cleanup costs. United States v. Chem-Dyne Corp. (S.D. Ohio 
 In the fall of 1977, Lois Gibbs, a 27-year-old housewife in 

Niagara Falls, New York, whose son Michael had serious health 

problems, became aware that many other local residents suffered from health problems as well, including birth defects, 

mental retardation, respiratory problems, leukemia, and nervous disorders. Mrs. Gibbs and her neighbors soon learned that their homes and the local school had been built 

over a giant former hazardous waste landfill. The site, originally a mile-long trench dug by the entrepreneur William Love in a failed attempt to construct a shipping canal that would bypass Niagara Falls, was used for decades by the Hooker Chemical Company to dispose of waste chemicals from its nearby chemical plant. During 

the summer of 1978, Lois Gibbs and her neighbors formed the Love Canal Homeowners’ Association and successfully focused national media attention on their plight. In August of that year, both the state and federal governments declared health emergencies at Love Canal, which provided funds for residents to relocate. 

 The Division played a key role in 

formulating the federal government’s 

response to the Love Canal disaster. 

In 1978, when EPA first began investigating Love Canal, the Division’s Policy, Legislation, and Special Litigation 

Section worked with Congress to draft 

the Comprehensive Environmental 

Response, Compensation, and Liability Act (“CERCLA”), known as the 

Superfund law, which provides funds 

for the cleanup of hazardous waste 

sites and liability provisions authorizing the government to recover 

cleanup costs from parties responsible for the contamination. The Division’s Hazardous Waste Section (and later, the Environmental Enforcement Section (EES)), in concert with the 

State of New York, brought a CERCLA cost-recovery action against Hooker Chemical in 1979. The Division’s civil 

prosecution of that case helped establish favorable legal standards still in use today, and the eventual settlement for $129 million in cleanup costs stands as one of the Division’s landmark achievements. In the 1980s, 

EES brought an action against Hooker under the Resource Conservation and Recovery Act (“RCRA”), alleging 

Hooker’s improper storage of hazardous wastes at the Love Canal site. In 2004, EPA declared the Love Canal 

cleanup complete. 

The Love Canal disaster awakened America to the unfolding environmental and health problem caused by decades of neglect in the disposal of 

toxic substances. It became one of the first cases in which the Division used 

the government’s authorities under Superfund to help remedy the plight of 

communities damaged by the irresponsible disposal of hazardous wastes, 

and in the process, helped establish the Division’s expertise in working with 

Congress to address environmental problems. 

LOVE 

Evacuated Home Photo: EPA 

Love Canal Cleanup Photo: EPA 
55 

1983), another early landmark Superfund case brought by EES, established that 

CERCLA imposed joint and several liability on responsible parties. 

In 1983, the Environmental Enforcement and Environmental Defense Sections 

cooperatively litigated on behalf of the Army, and against Shell Oil Company, over 

the cleanup of the Rocky Mountain Arsenal, a former military chemical weapons 

manufacturing center near Denver, Colorado. The Rocky Mountain Arsenal case 

established further CERCLA cost recovery precedent, and was one of the first cases 

in which the Enforcement and Defense Sections worked together to allocate 

cleanup costs between the United States and a private party at a former defense facility. Career DAAGs Myles Flint, Nancy Firestone, and John Cruden led successive 

negotiating teams on the case. 

United States v. Hardage, an early landmark CERCLA case, helped establish the 

model that would guide CERCLA enforcement against private parties – cleanups 

funded by the Superfund or administratively ordered by EPA, followed by EES 

cost-recovery actions against the liable and economically viable parties. When Hardage was affirmed in the Tenth Circuit in 1992, the decision established a guiding 

precedent for the recovery of environmental response costs incurred by the United 

States. EES also persuaded the courts, in cases such as United States v. Western Processing Co. (W.D. Wash. 1986), to limit judicial review of EPA’s selections of response 

actions to the agency’s administrative record using an arbitrary and capricious standard. 

In 1986, Division attorneys, led by PLSL Chief Ann Shields and EES Deputy 

Chief Nancy Firestone, worked closely with Congress and EPA (led by Linda 

Fisher) to obtain reauthorization of CERCLA. The Superfund Amendments and 

Reauthorization Act of 1986 (SARA) gave EPA new enforcement authorities, and 

codified the principle of record review that EES had successfully argued in Western 

Processing and other cases. 

Working principally with the Interior and Agriculture Departments and the 

National Oceanic and Atmospheric Administration, EES under Section Chief 

David Buente (1984-89) and John Cruden (1991-95) also established favorable legal 

standards for natural resource damages cases under CERCLA. Four landmark cases 

in this area were the New Bedford Harbor case (D. Mass), involving releases of haz-
ardous substances in New Bedford Harbor in Massachusetts, the Montrose Chemical 

case (C.D. Cal.), involving damages to the marine environment from the disposal of 

DDT and PCBs off the coast of southern California, United States v. Exxon (D. 

Alaska), involving damages from the Exxon Valdez oil spill, and United States v. 

Asarco (D. Idaho), involving natural resource damages to Idaho’s Coeur d’Alene 

Basin from the disposal of hazardous mine wastes and mill tailings. 

Over time, the Division’s enforcement work under CERCLA evolved – from 

making new law under a novel statute, to the litigation of factually complex and sciExxon Valdez 

In the early morning hours of March 24, 1989, the Exxon Valdez oil tanker ran aground on Bligh Reef in the waters of Prince William Sound, spilling 11 million gallons of crude oil into pristine waters, fouling hundreds of 

miles of coast line, and killing thousands of migratory birds, fish, and other wildlife. The criminal prosecution, led 

by ECS Assistant Chief Charles DeMonaco, and the civil action, 

led by EES Assistant Chief William Brighton, that followed were 

among the Division’s biggest cases. In October 1991, in the 

largest environmental settlement in United States history, the Division obtained guilty pleas from Exxon 

Corporation for water pollution and migratory bird 

crimes. The combined criminal and civil settlement of $1.125 billion included $250 million in criminal fines and restitution, and almost a billion dollars for the recovery of 

environmental response costs and 

natural resource damages. 

EVOSTC 
57 

entifically challenging cases under more established principles of law. Cases became 

more sophisticated, relying more often on the testimony of technical and scientific 

experts to unravel increasingly complex scenarios. EES’s CERCLA practice also 

expanded to cover an increasing number of natural resource damages cases, as well 

as referrals from agencies, such as the Department of Agriculture’s Forest Service, 

with younger and less-developed CERCLA programs. Since CERCLA’s enactment, 

cases brought and successfully resolved by EES have resulted in the cleanup of 

hundreds of Superfund sites and the recovery of billions of dollars in cleanup costs. 

Criminal Enforcement of the Environmental Laws 

In the 1970s, the Division’s Pollution Control Section was responsible for both 

civil and criminal enforcement of the environmental laws. The early environmental 

laws, however, contained only misdemeanor criminal provisions, and thus were infrequently used by Department of Justice prosecutors. The Division initially 

brought criminal cases involving illegal discharges into public sewer systems, including prosecutions in the mid-1970s of Allied Chemical for discharging the pesticide 

kepone into the public sewer system of Hopewell, Virginia. The illegal discharge 

resulted in the total disruption of the sewer system, injuries to workers, and the 

contamination of the James River so severe that fishing was banned for a decade. 

In 1980, the Resource Conservation and Recovery Act Amendments added felony provisions to that statute. In November 1982, the Division created an Environmental Crimes Unit within EES to specialize in the prosecution of environmental 

crimes and thus help deter violations of environmental requirements. The new unit 

worked with the FBI and the criminal investigators of EPA’s newly formed Criminal Enforcement Division, as well as with U.S. Attorneys’ Offices. Between 1983 

and 1985, 123 indictments were returned, usually against individuals responsible for 

illegally dumping hazardous waste. In 1987, the Clean Water Act was amended to 

include felony violations. 

The work of the Environmental Crimes Unit increased throughout the 1980s. 

In response, in 1987 the Division created a separate Environmental Crimes Section, 

led by Judson Starr, to prosecute criminal violations of federal environmental stat-
58 

utes and coordinate the work of U.S. Attorney’s offices in this area. During this 

time period, the Division successfully prosecuted the massive Exxon Valdez oil spill 

case. In 1988, Joseph (Jerry) Block became Acting Chief of ECS, followed in 1991 

by Neil Cartusciello. 

In 1992, the House Energy and Commerce Subcommittee held hearings on 

EPA’s criminal enforcement program that included scrutiny of DOJ environmental 

prosecutions. In 1993, the Associate Attorney General created an Internal Review 

Committee to examine the environmental crimes program, and in 1994, that committee submitted a lengthy report. The report emphasized that ECS should devote 

more of its resources to policy development and coordinating policy with EPA, 

U.S. Attorneys’ Offices, and others, a recommendation that helped to shape the 

modern role of the Section. Ronald Sarachan became Chief of ECS in 1994 and 

began the process of working collaboratively with USAOs, creating the wellregarded Environmental Crimes Policy Committee. 

Protecting Wildlife and Marine Resources 

In the 1970s, the Division took on the significant new function of protecting 

the United States’ interests in marine and wildlife resources using an array of new 

and older statutes. This was accomplished through the creation of two new sections. The Marine Resources Section was created by AAG Kashiwa in 1969 “in recognition of the growing importance of the Outer Continental Shelf.” The Section, 

led by experienced Appellate Section attorney George Swarth, was involved in 

original suits in the Supreme Court to fix federal-state offshore boundaries. 

Typically, state boundaries – and mineral rights – extend three nautical miles 

offshore. More seaward resources are strictly federal. The states have argued for the 

most seaward possible resolutions to boundary disputes. Litigation in these cases is 

conducted as a Supreme Court original action, tried before a Special Master appointed by the Court, and ultimately resolved by the Court itself through the application of law to facts found by the Special Master. More than 17 such cases have 

been litigated in the last half century, some continuing for up to 15 years and involving many billions of dollars in mineral receipts. 
59 

In its first few years, the Marine Resources Section handled 

litigation including United States v. 

Louisiana, 394 U.S. 11 (1969), involving oil and gas royalties of 

over a billion dollars, and United 

States v. Maine, 395 U.S. 955 

(1969), involving the determination of boundaries between thirteen Atlantic Coast States and the 

federal government. Because of 

the valuable resources found in 

off-shore areas, the Lands Division Journal described this as “the most important 

area of litigation, at least in terms of economic impact upon the United States, ever 

handled by the Department of Justice.” In later 

years, the Marine Resources Section established 

federal control of large stretches of valuable offshore territory in cases against the states of California and Louisiana because of the skillful advocacy 

of Division attorney Mike Reed, along with Louis 

Claiborne and Jeff Minear of the Solicitor General’s 

office. 

 In 1978, amendments to the Outer Continental 

Shelf Lands Act thrust the Marine Resources Section into a new round of litigation in lower courts 

involving the government’s oil and gas leasing 

rights on the Outer Continental Shelf. Attorneys 

from the Section defended a series of challenges, 

both to the Secretary of the Interior’s Outer Continental Shelf Oil and Gas Leasing Program and to 

individual lease sales from Alaska to California to New England . 

Offshore issues would continue to play a significant role in the Division’s work 

Rapid-Fire Filings 

In 1982, as the Reagan Administration 

expanded oil and gas leasing on the outer 

continental shelf, the Appellate Section 

faced an increasing number of fast-paced 

challenges to the lease sales. In preparation for a possible injunction against sale of 

leases offshore of California, Appellate 

Section Chief Peter Steenland and Section 

administrative assistant Catherine “Doodie” 

Barbour traveled to Los Angeles with a 

Lexitron, one of the first generation of word 

processors. After the district court enjoined 

the sale, they rapidly filed motions to stay 

with three Circuit Judges in different 

locations, a possible land speed record 

for rapid multi-district filings. 

Photograph of Platform Holly, South Ellwood Offshore 

Oil Field, near Santa Barbara, California 

US DOE 
60 

throughout the 1980s, and to the present day. 

For example, in Amoco Production Co. v. Village of 

Gambell, 480 U.S. 531 (1987) (argued by AAG 

Habicht), the Supreme Court denied an effort by 

Alaskan native villages to enjoin the Secretary of 

the Interior’s sale of oil and gas leases for federally-owned lands on the outer continental shelf 

of Alaska. 

The Marine Resources Section also was responsible for litigation regarding conservation of 

marine mammals and the management of fisheries within the 200-mile coastal fishery zone under the Magnuson Act, the Marine Mammal Protection Act, and the Endangered Species Act. 

The fisheries management docket included the 

defense of fisheries management plans adopted 

by local councils and approved by the Secretary 

of Commerce. 

To enforce non-marine wildlife laws, AAG 

Moorman created the Wildlife Section in 1979. 

The Section was tasked with “seek[ing] stiff penalties for persons who engage in illegal wildlife or 

plant trade including jail sentences for principal 

violators,” and initially had eight attorneys, handling criminal and civil litigation, including the 

illegal importation of wildlife. In its first year, the 

Section initiated 50 investigations and achieved 

18 convictions for illegal wildlife trade, exposing 

a multimillion-dollar illegal trade in wildlife. 

Cases were often prosecuted jointly with U.S. 

Attorneys, and relied heavily on statutes such as 

the Lacey Act . 

John F. Lacey (1848-1936) was 

an unlikely patron of environmental causes. Lacey was a conservative Republican Congressman from Iowa, but became a 

partner with President Theodore 

Roosevelt to enact several important conservation laws. Two of the statutes he spearheaded – the Lacey Act and the Antiquities Act – are 

particularly important to the work of the Division. 

At the turn of the century, the passenger pigeon 

was being hunted to extinction, and populations of 

other birds were in decline due to the trade in feathers 

for women’s hats and other purposes. The Lacey Bird 

and Game Act of 1900 prohibited interstate transport of wild animals or birds killed in violation of state 

or territorial law. The statute still serves as a principal 

wildlife enforcement statute for the Division, and was 

recently amended to add enforcement provisions with 

respect to plants, providing for the first time legal tools 

to address illegal logging and timber trafficking. LPS 

and ECS attorneys played a key role in obtaining these 

amendments, and continue to be involved in their 

implementation. 

In 1906, Lacey’s support was also critical to the 

passage of the Antiquities Act. Although the statute 

was originally meant to prevent vandals from looting 

Indian ruins, it granted authority to the President to set 

aside parcels of public land, authority that was later 

used for other purposes. Theodore Roosevelt used the 

Act to protect the Grand Canyon; Franklin Roosevelt 

used it to protect the Grand Tetons, Jimmy Carter used 

it to protect 15 sites in Alaska, Bill Clinton used it to 

create the Grand Staircase-Escalante National Monument in Utah, and George W. Bush used it to create the 

Papahânaumokuâkea (Northwest Hawaiian Islands) 

Marine National Monument. Many of these proclamations have resulted in litigation handled by the Division. 
61 

In 1981, as part of the reorganization undertaken by AAG Carol Dinkins, the 

Marine Resources and Wildlife Sections merged into the new Wildlife and Marine 

Resources Section (WMRS) and continued to prosecute wildlife offenses, but also 

took on the marine mammal and fisheries work of the former Marine Resources 

Section as well as defensive cases under the wildlife and fisheries statutes. This new 

Section was led by a series of chiefs in its first decade, including Ken Berlin (1981), 

Kathryn Fuller (1981-82), Vance Hughes (1982-83), Donald Carr (1983-88), and 

James Kilbourne (1989-94). 

Significant cases brought in the 1980s included Operation Falcon, an investigation into the illegal taking and trading of falcons and other raptors on a domestic 

and international scale, and which resulted in the indictment of more than 40 individuals, including a Saudi Arabian prince. The Section also brought a series of indictments under Operation Trophy Kill, which involved illegal hunts in Yellowstone National Park and in Mexico which were uncovered when the hunters 

brought their trophies for taxidermy. Other affirmative work in the Section’s early 

years included fishery enforcement actions, including the first enforcement cases 

against foreign fishing vessels utilizing the assertion of federal authority to 200 

miles off the U.S. coastline. The Division established the United States’ right to use 

seizure and forfeiture of foreign vessels as an enforcement tool, setting a critical 

precedent for future enforcement efforts. 

In the late 1980s, the Wildlife and Marine Resources Section’s efforts turned 

increasingly towards civil defensive work, primarily defending agency action as 

complying with the Endangered Species Act. Many of these cases involved threshold challenges of standing by citizen group plaintiffs, and resulted in Supreme 

Court cases such as Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), and Bennett v. 

Spear, 520 U.S. 154 (1997). The growth in ESA defensive cases was reflective of the 

increasing number of species added to the list of threatened or endangered species. 

When the precursor to the ESA was passed in 1966 (The Endangered Species Preservation Act) there were 77 species protected under the Act. By 1973, there were 

312 listed species. As of October 2009, there were 1,321 domestic and 576 foreign 

species listed as either endangered or threatened, with the vast majority listed as endangered. 
Credit: :Phil Million /USFWS
63 

As civil defensive cases dominated the Wildlife and Marine Resources Section’s 

workload, the character of the cases changed, revealing the growing conflict across 

the country between species protection and resource development. The majority of 

species become protected due to loss of habitat, and for many species, resource development has been a major cause of habitat loss. ESA Section 7 requires federal 

agencies to consult with the National Marine Fisheries Service or the United States 

Fish and Wildlife Service if they are proposing an action that may affect a listed species or its designated habitat. Thus, WMRS’s Section 7 docket grew to include cases 

involving conflicts between commercial interests and endangered species, such as 

A Modern Day Walden 

A park in Austin, Texas has been the focus of years of litigation over use and management of the spring-fed 

Barton Springs Pool. The pool is an untreated pool created when Barton Creek was dammed in the 1920s, and it 

has been a center of Austin recreation ever since. In 1946, an aquatic salamander was discovered living in the 

springs and pool and was named the Barton Springs Salamander. The species was listed as endangered in 

1997. 

In 1998, citizens seeking to protect the salamander brought suit against the City of Austin and the U.S. Fish 

and Wildlife Service (represented by the Division), seeking to enjoin pool use and related activities. District Court 

Judge Sam Sparks found that the City was protecting the species while allowing for regulated use, and denied 

the request – in verse: 

Barton Springs is a true Austin shrine, 

A hundred years of swimming sublime. 

Now the plaintiffs say swimmers must go 

‘Cause of “stress” to critters, 50 or so. 

They want no cleaning ‘cause of these bottom feeders 

Saying it's the law from our Congressional leaders. 

But really nothing has changed in all these years 

Despite federal laws and these plaintiffs’ fears. 

Both salamander and swimmer enjoy the springs that are cool, 

And cleaning is necessary for both species in the pool. 

The City is doing its best with full federal support, 

So no temporary injunction shall issue from this Court. 

Therefore, today, Austin’s citizens get away with a rhyme; 

But, the truth is, they might not be so lucky the next time. 

The Endangered Species Act in its extreme makes no sense. 

Only Congress can change it to make this problem past tense. 

Hamilton v. City of Austin, 8 F. Supp. 2d 886, 888 (W.D. Tx. 1998). 

USGS Photo

Barton Springs Salamander
64 

commercial fishing and bycatch of protected sea 

turtles, oil and gas leasing’s impacts on various 

species, and highway development fragmenting 

habitat . 

Indian Affairs – the Trust Responsibility 

In 1974, as federal Indian policy moved toward engendering tribal sovereignty and selfdetermination, the Division created a new Indian 

Resources Section to represent the United States 

in its trust capacity for Indian tribes and their 

members. IRS started with 175 cases and 10 attorneys transferred from the General Litigation Section, and by late 1977 had 260 cases pending. In 

the 1970s and 1980s, the Section was led by Chiefs 

Myles Flint, Rembert Gaddy, and Hank Meshorer. 

The Indian Resources Section specialized in 

defending the natural resources rights of Native 

Americans against state claims, particularly those 

dealing with water rights. In other cases, the Section functioned as amicus curiae on legal questions 

dealing with Native American rights. In 1986, the 

Section had active litigation with 10 states and negotiations with seven regarding water rights questions. 

The Indian Resources Section was involved 

for many years in a longstanding land dispute between the Hopi and Navajo tribes of Arizona. 

Hopi complaints against Navajo expansion into 

their tribal lands had begun in the nineteenth century, and were exacerbated by a series of federal 

A BRIEF HISTORY OF THE 

NAVAJO-HOPI LAND DISPUTE 

1868 

1882

1980

1884

1930

1900

1962

Trial Exhibit 
65 

actions altering the boundaries of the Tribes’ 

reservations. In 1991, the Ninth Circuit, after 

hearing oral argument in a Division case involving Navajos living on land that had been 

partitioned to the Hopi Tribe under earlier 

legislation, ordered the United States, the Navajo Nation, and the Hopi Tribe into mediation regarding this 100-year old land dispute 

between the Tribes. A new Appellate Section 

attorney, Katherine Hazard, was assigned to 

the mediation, which became an intensive five

-year proess. Despite predictions that this 

long-running and bitter controversy could never be settled, the parties (with personal participation by Attorney General Janet Reno) managed to reach the settlement which embodied in the Navajo-Hopi Land Dispute Settlement Act of 1996 . 

The Division was also involved in numerous other disputes regarding the scope 

of tribal land and jurisdiction, many of which reached the Supreme Court. In Montana v. United States, 450 U.S. 544 (1981), the Court limited, with two exceptions, 

tribal authority over non-Indians on non-Indian fee land within a reservation. In 

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), New Mexico claimed concurrent jurisdiction to regulate hunting and fishing by non-Indians on the Mescalero Apache Reservation. The Supreme Court held that concurrent jurisdiction by 

both the State and Tribe would interfere with the comprehensive tribal regulatory 

scheme and threaten Congress’ commitment to the encouragement of tribal selfsufficiency and economic development, and recognized “the Tribe’s unquestioned 

authority to regulate the use of its resources by members and nonmembers.” 

In the 1980s, gaming became increasingly significant in Indian country, as various court cases tested the bounds of tribal and state sovereignty to authorize and 

regulate gaming enterprises. The Indian Gaming Regulatory Act was passed in 

1988, providing a new regulatory framework for Indian gaming operations, but also 

generating disputes and litigation that would be handled by the Indian Resources 

and General Litigation Sections. 

From 1972-1976, the Department of the 

Interior and the Department of Justice 

filed “split briefs,” addressing “both sides” 

of an issue when there was a divergence 

between the interests of an Indian tribe 

and a federal agency. These briefs provided two conflicting sets of arguments: 

those of the Department of Justice, 

representing the federal interest, and 

those of the Department of the Interior, 

representing the Indian interest. The 

Justice Department filed split briefs in 

six cases; in all of them, the pro-Indian 

position eventually prevailed. 
66 

The Division continued to have an active docket defending Indian claims cases. 

Although it was originally chartered to expire in 1962, the Indian Claims Commission continued operations through 1978 because of the unforeseen volume and 

complexity of its cases. At that point, 546 cases had been completed, nearly every 

recognized tribe had filed at least one claim, and monetary awards exceeded $800 

million. In the last decade of the ICC, the resolution of claims proceeded at the 

same slow pace as in the 1960s. The Division reported in 1970 that between 1946 

and 1970, court judgments totaling $169 million had been reached for tribal land 

claims, covering a total of 341 million acres. The Commission also recognized Native American claims to an additional 145 million acres.

Between 1972 and 1977, the ICC rendered an average of 10 final decisions per 

year. In 1978, some 68 unresolved cases were transferred from the ICC to the U.S. 

Court of Claims, where the Indian Claims Section continued to represent the 

United States. The Division sought to settle remaining cases in the 1980s under 

Section Chiefs Richard Beal (1980-83) and James Brookshire (1983-85), and in 

1986, the Division’s Indian Claims Section was merged into the General Litigation 

Section. At the time, there were about 30 ICC cases remaining. 

Water Rights Disputes 

In the 1980s, the United States was increasingly a party to water rights adjudications in states in which the federal government owned significant parcels of land. 

Particularly in the water-starved West, states began bringing suits against the United 

States based on 43 U.S.C. 666 (the McCarran Amendment), which eliminated the 

sovereign immunity of the federal government for purposes of joinder to comprehensive general stream adjudications commenced by states contesting federal sovereignty over water resources. The General Litigation Section, which was led in this 

time period by Section Chiefs Myles Flint (1981-84), Jose Allen (1984-85), and William Cohen (1985-2000), represented federal non-Indian interests in such litigation. 

The Indian Resources Section represented federal Indian interests. 

In 1976, in Cappaert v. United States, 426 U.S. 128 (1976), a case handled by the 

Division with the Solicitor General’s Office, the Supreme Court held that when the 

United States reserves land for a public purpose, by implication it reserves the mini-
67 

mal water rights sufficient to support the primary purpose of the reservation, including groundwater. 

In Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), 

the Supreme Court affirmed the jurisdiction of state courts over the adjudication of 

all water rights claimed by the United States, whether on behalf of a particular federal agency or on behalf of tribes, so long as the action to which the United States 

was to be joined constituted a general stream adjudication. Because water conflicts 

were often in the western 

United States, the Division’s Denver field office 

came to defend U.S. interests in these general 

stream adjudications. 

 Aspects of the Arizona-California dispute 

over Colorado River water also continued 

through the last decades 

of the twentieth century. 

In 1984 and 1987, the Supreme Court and the Ninth Circuit, respectively, reached 

decisions dealing with federal claims to Colorado River water rights for five Indian 

reservations in Arizona. In the late 1990s, the federal government claimed water 

rights for another 25,000 acres of land on behalf of the Fort Yuma Reservation in 

Arizona. The 2000 Supreme Court decision in Arizona v. California, 530 U.S. 392 

(2000), partially supported the water claims, with a supplemental decree the same 

year specifying maximum amounts of water to be withdrawn. Although the Arizona 

Water Rights Settlement Act of 2004 resolved some of the remaining issues, the 

litigation did not conclude until 2006 when the Supreme Court issued its final decree in Arizona v. California, 547 U.S. 150 (2006). 

Water rights disputes continued to occupy a significant portion of the Division’s work throughout the 1990s and 2000s. During this period, the Snake River 

Basin Adjudication was one of the Division’s largest cases in terms of hours spent. 

The Colorado River USGS Photo 
68 

It was commenced by the State of Idaho in 1987 and included 150,000 water rights 

claims. The Division worked with the Nez Perce Tribe, the State of Idaho, and various other water users to craft an historic settlement of the competing water rights 

claims. In 2004, Congress ratified the settlement in the Snake River Water Rights 

Act. The Division, in conjunction with the other parties to the settlement, successfully defended the settlement against judicial challenges. 

The Division was also involved in the resolution of water claims to the Little 

Colorado River in Arizona. After years of negotiations – which included participation by representatives of the United States, the Zuni Indian Tribe, the State of Arizona, and neighboring non-Indian communities in the Little Colorado River Basinthe parties entered into a settlement agreement, approved by Congress, to resolve 

water rights claims in the Little Colorado Basin. The court issued the final judgment 

and decree approving the settlement agreement, which became effective in December 2006. 

Land Acquisition Work Evolves 

Although land acquisition work slowed from its peak in the 

1930s through 1950s, it continued to be a significant part of the 

Division’s caseload. During the 1980s, the Land Acquisition Section was led by Section Chief Gerald Levin, who was succeeded in 

1981 by William Kollins. The largest federal land acquisition project of the late 1970s was the National Park Service’s establishment of Big Cypress National Preserve in Florida, which Congress 

approved in 1974. The undertaking required the acquisition of 

570,000 acres of land, including more than 50,000 individual 

Washington METRO 

In the 1970s, the Land Acquisition Section handled cases on behalf of 

the Washington Metropolitan Area Transit Administration to acquire 

property needed for the construction of the Washington Metro Rail 

System. Congress authorized the initial funding for the transit system 

in 1969 with the National Capital Transportation Act. 

Subway construction in downtown 

Washington, DC. July 1972. 

Erik Calonius / EPA DOCUMERICA Collection 

(National Archives) 
69 

tracts. Begun in 1976, the acquisition process continued into the 1990s, after Congress approved the addition of 146,000 

acres in 1988. Some 3,800 tracts within the 

designated area of the preserve remained 

in private hands in 1991. The Land Acquisition Section worked with the U.S. Attorneys’ Office and the Land Resources Division of the National Park Service on this 

project, which involved many years of litigation and negotiation over contested acquisition payments and ownership in the 

vast area. 

The mid-1980s saw the conclusion of a long acquisition process of some 48,000 

acres for the expansion of Redwood National Park in California. A lengthy commission hearing (1985-87) resolved the substantial difference between the appraised 

restitution values of the Division and of three large timber companies who owned 

the condemned land. 

The reduction of federal lands also was a matter of policy discussion in the 

1980s. The Division took an active role in the establishment of standards for the 

Public Land Sale Program, begun in 1980, to sell land under the jurisdiction of the 

Bureau of Land Management. This program, which continues today, aroused opposition among environmental groups because it moved large tracts of land from public to private ownership. 

Redevelopment of Pennsylvania Avenue 

After the creation of the Pennsylvania Avenue Development Corporation in 1972, the 

Division aided in redevelopment efforts by 

representing the Corporation in both condemnation cases such as Pennsylvania Ave. 

Development Corp. v. One Parcel of Land in 

District of Columbia (D.C. Cir. 1981), and 

matters relating to historic preservation issues, such as Don't Tear It Down, Inc. v. 

Pennsylvania Ave. Development Corp. (D.C. 

Cir. 1980). By the end of the 1980s, the previously run-down area north of Pennsylvania 

Avenue was almost completely transformed 

by new and renovated buildings. 

The Berlin Bar Association 

In the late 1970s, Appellate Section Chief Peter Steenland travelled to Berlin to represent the Department 

of State in a NEPA case filed in the newly-created U.S. Court for Berlin. Peter was joined in Berlin by John 

Cruden (then a DoD attorney), Royce Lamberth (then Chief, Civil Division, U.S. Attorney’s Office), and Hank 

Shulke (Assistant U.S. Attorney) to represent the United States. Each of these individuals was admitted to 

the Court before it was terminated, and they, along with the few other members of that short-lived court, 

have formed the Berlin Bar Association and meet annually. 
The Environment and 

Natural Resources division 

The Modern Era 
71 

I n April 1990, the Division’s name was changed to the Environment and 

Natural Resources Division, reflecting the growing workload of environmental cases. President George H.W. Bush nominated Richard Stewart to serve as 

AAG, a position he held from 1989-1991. AAG Stewart expanded the Division’s 

mission to include additional international environmental activities, and added these 

responsibilities to the Policy, Legislation, and Special Litigation Section. George 

Van Cleve and Barry Hartman served as DAAGs during Stewart’s tenure. Myles 

Flint was the career Deputy from 1984 to 1994, and served as Acting AAG for a 

portion of this time. Upon Richard Stewart’s departure in 1991, Vicki O’Meara 

served as Acting AAG and Roger Clegg was a DAAG until the end of the Bush 

administration. 

ENRD Goes Global 

The Division’s international environmental program took off in the early 1990s under AAG Richard Stewart. 

PLSL (now LPS) spearheaded the Division’s involvement in international environmental policy and legislative 

matters, while litigating sections handled litigation involving international environmental issues in coordination 

with PLSL. On the policy front, PLSL attorney Annie Petsonk was a member of the U.S. Delegation to the UN 

“Earth Summit” in Rio de Janeiro, Brazil in 1992 that developed the Framework Convention on Climate Change. 

LPS attorneys have also actively participated in the negotiation of several free trade agreements (including the 

North American Free Trade Agreement (NAFTA) and the Central American/Dominican Republic Free Trade 

Agreement (CAFTA/DR)) and investment treaties, as well as in NAFTA arbitrations. LPS co-leads the United 

States’ involvement in the Enforcement Working Group established under the environmental side agreement to 

NAFTA to coordinate enforcement issues among Canada, Mexico and the U.S. In an effort to assist other countries in improving compliance with their own environmental and natural resource laws, LPS and ECS attorneys 

have engaged in a wide variety of international capacity building activities including training and assistance to 

judges, lawyers, and law enforcement officials in Mexico, El Salvador, Costa Rica, India, Hungary, and Chile, 

among others. Enforcement assistance has been provided on issues such as wildlife trafficking in Southeast 

Asia, timber trafficking in Indonesia and South America, and marine pollution in Bahrain. 

The Division has also been involved in many significant cases involving international environmental issues. 

For example, in 1990, attorneys from PLSL and the General Litigation Section successfully litigated Greenpeace 

v. Stone, a NEPA challenge to the U.S. Army’s plan to transport nerve gas from Germany to Johnston Atoll for destruction. Other examples include the Division’s successful defense against an effort to require the U.S. Trade 

Representative to prepare an EIS before submitting NAFTA to Congress for ratification, and more recent litigation 

related to environmental analyses on U.S. military operations in Japan. 
72 

During the Clinton administration, Lois 

Schiffer (a prior Chief of the General Litigation Section) served as DAAG, then Acting 

AAG, until her confirmation as AAG in 1994. 

Her politically-appointed DAAGs were Peter 

Coppelman and Jim Simon. In 1995, AAG 

Schiffer selected two career DAAGs: John 

Cruden and Nancy Firestone. In 1998, Nancy 

Firestone was selected to become a judge on 

the Court of Federal Claims, and she was replaced as DAAG by Eileen Sobeck, the Chief 

of the Wildlife and Marine Resources Section. 

During this period, Ignacia Moreno served as 

senior counselor to the AAG. From January 

2001 to January 2002, John Cruden was 

Acting AAG. 

Thomas Sansonetti was appointed by 

President Bush and became AAG in January 

2002, and his politically-appointed DAAGs 

were Kelly Johnson and Jeffrey Bossert Clark. 

Sue Ellen Wooldridge became Assistant Attorney General in 2005, and Matthew McKeown 

and Ryan Nelson served as her Deputies. 

Ronald Tenpas served as AAG from 2007 to 2009, and Michael Guzman and Jesse 

Witten were his politically-appointed Deputies. 

The Environment and Natural Resources Division underwent a few structural 

changes under AAG Tom Sansonetti. The General Litigation Section was renamed 

the Natural Resources Section in 2005, and continued under the leadership of Jack 

Haugrud. The Policy, Legislation, and Special Litigation Section was renamed the 

Law and Policy Section in 2005 and placed under direct supervision of the AAG. 

Led by Pauline Milius, the Section provides counsel to the AAG, handles policy and 

cross-cutting issues, and coordinates the Division’s legislative and international 

AAGs in the Supreme Court 

After the Division was rebuffed in the Sixth Circuit in 

its effort to hold a parent corporation liable for the 

actions of its subsidiary at a hazardous waste site, the Supreme Court 

took the case. Oral argument for the 

government was presented by AAG 

Lois Schiffer. The Court held that 

parent corporations can in some 

circumstances be made to pay for 

dumping by their subsidiaries, particularly where the 

parent is actively involved with the workings of the subsidiary’s facility. United States v. Bestfoods, 524 U.S. 51 

(1998). 

In 2004, AAG Tom Sansonetti represented the United 

States before the Supreme Court in 

Bedroc Limited v. United States, 541 

U.S. 176 (2004). The case concerned 

whether commercially valuable sand 

and gravel were “valuable minerals” 

under the Pittman Act (1919) and 

thus subject to regulation by the 

Bureau of Land Management. The Supreme Court ruled 

that sand and gravel were not commercially valuable in 

1919 but that the Pittman Act was specific to Nevada 

and did not apply to 13 other public land states. 
73 

work. The Executive Office (which until 1983 had been known as the Administrative Section) also was placed under direct supervision of the AAG. Robert Bruffy 

continued to serve as Executive Officer. Criminal prosecutors in the Wildlife and 

Marine Resources Section were also transferred 

to the Environmental Crimes Section in 2005. 

However, despite these changes, 2000-2009 was 

a period of relative stability among the career 

leadership of the Division, with two career 

DAAGs – John Cruden and Eileen Sobeck – 

serving throughout this time period and little 

turnover among section chiefs. John Cruden 

served as Acting AAG for nearly two years during this time period. 

 By 1995 the Division’s budget had increased 

to $92 million, compared with $34 million in 

1987; reimbursements from EPA for Superfund 

litigation expenses reached $33 million, three 

times the total in 1987. In 2009, the Division’s 

budget was nearly $129 million, with approximately $25 million in Superfund reimbursements. 

The Division’s Environmental Enforcement Work Matures and Grows 

 By 1999, the Clean Air Act portion of the Division’s enforcement docket had 

escalated. Working with EPA, the Environmental Enforcement Section began enforcing the Clean Air Act’s New Source Review provisions in a series of industrywide initiatives that sought emissions reductions throughout a number of industries. 

The Division initially focused on the wood products industry and obtained major 

settlements with all the major companies in that industry. The Division then concentrated on enforcement actions against oil refineries, the steel industry, ethanol 

producers, cement plants, sulfuric acid manufacturers, and facilities that use ozoneI’m Just a Bill... 

Since its creation, a key role of the Law & Policy 

Section has been to lead the Division’s review 

and analysis of legislation. As one notable example, LPS and EES attorneys labored throughout 

the 1990s on numerous legislative proposals to 

revise CERCLA. These efforts culminated in the 

adoption of the Small Business Liability Relief 

and Brownfields Revitalization Act of 2001 

which, among other things, provided certain liability relief from Superfund’s broad liability 

scheme for de minimis parties, parties unable to 

pay, and for bona fide prospective purchasers. Examples of other important legislation on 

which LPS attorneys played an active role include the Pipeline Safety Improvement Act of 

2002, which included important civil judicial enforcement provisions, and 2008 Amendments to 

the Lacey Act, which provided new authority for 

combating illegal logging. 
74 

depleting chlorofluorocarbons. During the mid-1990s, under Section Chiefs John 

Cruden and Joel Gross, EES also sought Clean Air Act compliance by the nation’s 

automakers, resulting in major national settlements with all the major manufacturers 

of heavy duty diesel truck engines. As part of this effort, in 1995, General Motors 

entered in a settlement under which it agreed to recall nearly 500,000 Cadillacs, pay 

an $11 million fine, and establish a fund to replace older buses and fleet vehicles 

with less polluting vehicles. In 1998, the Division entered into a major settlement 

with diesel engine manufacturers which included an $83 million penalty as well as 

requirements to introduce cleaner engines, recall some trucks, and conduct new 

emissions testing. 

In 1999, the Division began a well-publicized initiative to reduce emissions 

from coal-fired power plants, which are the largest stationary sources of emissions 

of sulfur dioxide and nitrogen oxides in the country. The violations at issue arose 

from companies engaging in major life extension projects on their aging facilities 

without installing required pollution controls. When settlement overtures were not 

successful, the Division initially sued seven operators of coal-fired power plants, 

and subsequently sued additional operators. While many of these cases eventually 

settled, others are still being litigated in 2009. To date, settlements have resulted in 

commitments to install approximately $11 billion worth of pollution controls, 

which will result in the removal of 2 million tons of pollution each year from the 

nation’s air. 

One such case resulted in the largest environmental settlement in history when, 

in 2008, the court entered the final consent decree in United States v. American Electric 

Power (AEP), resolving claims under the Clean Air Act’s new source review/

prevention of significant deterioration provisions. Under the decree’s terms, AEP 

will install and operate $4.7 billion worth of air pollution controls on 16 coal-fired 

power plants. When the consent decree is fully implemented, these air pollution 

controls and other measures will reduce air pollution by 813,000 tons a year compared with pre-settlement emissions, making this the largest reduction in air pollution achieved by any single settlement. AEP also paid a $15 million civil penalty and 

will spend $60 million on projects to mitigate the adverse effects of its past excess 

emissions. An unprecedented coalition of 8 states and 13 citizen groups joined the 
75 

United States in the settlement. 

 While achieving these significant results in the air arena, the Division has 

continued to vigorously litigate 

Superfund recovery cases. This is 

evidenced by the Division’s recovery in 2008 of $252.7 million, the 

highest sum in the history of the 

Superfund program, in reimbursement of the United States’ costs in 

connection with the cleanup of 

asbestos contamination in Libby, 

Montana. In the late 2000s, the 

Division also achieved a settlement 

of unprecedented size and scope 

with the General Electric Company 

(GE) to provide for cleanup of contamination from polychlorinated biphenyls 

(PCBs) that two GE plants discharged for years directly into the upper Hudson 

River. 

Under Section Chief Bruce Gelber, EES continued to achieve significant victories in its Clean Water Act enforcement work, including in 2008 the largest civil 

penalty for Clean Water Act wastewater discharge permit violations in the case of 

United States v. Massey Energy Co. The Division obtained a civil penalty of over $20 

million, and Massey, the fourth largest coal company in the United States, also 

agreed to take additional measures at its facilities nationwide to prevent an estimated 380 million pounds of sediment and other pollutants from entering the nation’s waters each year. These compliance measures are unprecedented in the coal 

mining industry. 

The Division’s wetlands enforcement also expanded in the last two decades. 

The Environmental Defense Section brought numerous enforcement actions in 

connection with the unauthorized filling of wetlands, and also defended Army 

Corps of Engineers determinations regarding whether a particular area is a “water 

of the United States” under the Clean Water Act. This practice has resulted in nuContaminated soil in Libby, Montana is covered 

with tarp 

CDC Photo 
76 

merous significant Supreme Court decisions, including United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. 

Army Corps of Engineers, 531 U.S. 159 (2001) (argued by Deputy Solicitor General 

Lawrence Wallace), and Rapanos v. United States, 547 U.S. 715 (2006). 

Environmental Crimes Pursues New Initiatives 

In the 1990s, the Environmental Crimes Section, under Section Chiefs Steven 

Solow (1997-2000) and David Uhlmann (2000-2007), undertook a vessel pollution 

initiative, prosecuting cases of illegal dumping at sea and the falsification of ship 

record books that are presented to the Coast Guard. For example, in 1999, the Division prosecuted Royal Caribbean Cruises Ltd. for illegally dumping waste oil and 

hazardous chemicals into the water and lying to the U.S. Coast Guard, resulting in a 

guilty plea to 21 felony counts and an $18 million fine. The Division’s vessel pollution initiative evolved into an established practice that continues to this day. The 

Division also launched other coordinated criminal enforcement initiatives, including 

The Cost of Callous Disregard: United States v. Elias 

In August 1996, Allan Elias, the ivy league-educated owner of a small fertilizer 

company, instructed four employees to clean out a tank that he knew had been used 

to store byproducts of a cyanide leaching process. Despite the men’s complaints about 

the fumes and requests for safety equipment, Elias insisted that they continue cleaning 

out the tank. One of the men, 20-year old Scott Dominguez, collapsed within 45 minutes of entering the tank. Because of the lack of safety equipment, his co-workers and 

rescue workers had difficulty getting him out of the tank. Elias did not disclose that 

cyanide had been in the tank, and by the time doctors administered a cyanide antidote 

kit, Dominguez had suffered severe, irreversible brain damage. 

The subsequent criminal investigation revealed that Elias had been repeatedly informed by OSHA inspectors 

of the dangers of cyanide and the rules and precautions required when dealing with it. It also revealed that Elias 

had tried to cover up his disregard of the safety requirements by backdating permits and destroying the tank. 

Working with the Idaho U.S. Attorney’s Office, ECS Assistant Chief David Uhlmann indicted Elias for illegally 

storing and treating hazardous waste and knowingly endangering employees, in violation of the Resource 

Conservation Recovery Act, and for making false statements. On May 7, 1999, after a two-and-a-half week trial, 

a federal jury took just five hours to convict Elias of all four felonies. Elias was sentenced to a prison term of 17 

years – the longest sentence ever given in the United States for an environmental crime.

Family Photo 

Scott Dominguez 
77 

an effort to stop the smuggling of ozone depleting chlorofluorocarbons (CFCs), 

which resulted in a number of successful prosecutions. 

An increasingly significant function of the Division was the interdiction of illegal smuggling of wildlife, which by 1997 was estimated to be worth $5 billion per 

year. Until 2005, criminal wildlife prosecutions were handled by the Wildlife and 

Marine Resources Section, which was led by 

Section Chiefs James Kilbourne (1989-94), 

Eileen Sobeck (1994-99), and Jean Williams 

(1999-present). The criminal prosecutors in 

WMRS were transferred to ECS in 2005, thus 

placing all of the Division’s criminal prosecutors into a single section. 

In 1996-97, the Division prosecuted individuals apprehended by the Fish and Wildlife Service’s Operation Renegade, a 

probe into international smuggling of protected exotic birds and eggs from South 

America that resulted in the conviction of 37 people. Operation Chameleon inThe Division’s Unofficial Mascot 

Outside the offices of the Assistant Attorney General 

stands the unofficial mascot of the Division – an Alaskan 

Grizzly. It was killed in Alaska by two hunters from the State 

of Florida on September 9, 1986, in violation of Alaska state 

permitting requirements. The trophy was subsequently transported back to Florida in violation of the Lacey Act. Both Florida hunters pled guilty to the Alaska state charges and received a $3,000 fine, 60 days in jail (suspended), and one 

year of probation. They also forfeited the bear. 

The bear is occasionally dressed in special attire to celebrate holidays and other significant occasions, and the story 

is told and not denied that Associate Deputy Attorney General 

David Margolis, when in the Criminal Division, was once involved in a temporary heist of the bear. Despite its lighthearted role, the bear also serves as a reminder to the Division and its visitors of one of the important missions of the 

Division – the protection of wildlife from illegal hunting. 
78 

volved a series of cases resulting from long-term undercover investigations of several international live reptile smuggling rings. These investigations resulted in the 

successful prosecution of about two dozen smugglers and reptile dealers in three 

countries, including smugglers of the highly endangered plowshare tortoise, Komodo dragon, and Madagascan tree boa. 

In 2007, the Division participated in Operation Central, an investigation that 

uncovered four sea turtle smuggling rings – two based in Mexico and two in China. 

The investigation resulted in several successful prosecutions, as well as a coordinated effort with Mexican officials to prosecute Mexican nationals involved in the 

rings. 

Also in 2007, the Environmental Crimes Section participated in the prosecution 

of British Petroleum (BP) for a 2005 explosion at the company’s Texas City refinery 

that killed 15 people, as part of the Division’s worker endangerment initiative. 

The settlement of the case called for a record fine of $50 million for felony violations of the Clean Air Act. BP also paid penalties of $20 million for felony violations of the Clean Water Act resulting from pipeline leaks in Alaska. 

Defending Agency Actions 

In the 1990s and 2000s, most significant agency regulations and actions affecting the environment were challenged in court, and the Division’s Environmental 

Defense, Natural Resources, and Wildlife and Marine Resources Sections continued 

to devote significant resources to these defensive cases. In the early 1990s, the Division expended great effort to defend EPA’s implementation of the 1990 Clean Air 

Act Amendments. Much of the litigation arose from the more than 175 deadlines 

for major regulatory action created by the Amendments. During this period, the 

Division also successfully defended EPA’s National Contingency Plan, specifying 

the manner in which hazardous waste sites throughout the country are to be 

cleaned up. In the late 1990s and early 2000s, EDS, under Section Chief Letitia 

Grishaw, successfully defended EPA’s standards for ozone (smog) and fine particulate matter (soot), upholding a critical part of EPA’s Clean Air Act program to improve the nation’s air quality. Another high-profile case handled by the Division 
79 

was Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Supreme Court found 

that EPA can regulate greenhouse gases, such as carbon dioxide, as “air pollutants” 

under the Clean Air Act. 

The Division has also defended the regulations and management programs of 

numerous other agencies in the last two decades. In the wildlife realm, the Division 

has defended the National Marine Fisheries Service’s actions to manage ocean commercial fishing under the Magnuson-Stevens Fishery Conservation and Management Act, including successful defenses of the Service’s emergency closure of a 

shark fishery where NMFS determined that overharvesting had occurred and the 

Service’s establishment of measures to end overfishing of a variety of fish species. 

The Division’s Wildlife and Marine Resources Section also maintained a busy docket 

defending the Fish and Wildlife Service’s actions under the Endangered Species Act, including extensive litigation throughout the 

1990s and 2000s concerning the recovery plan 

and eventual delisting of the Northern Rocky 

Mountain Gray Wolf. The Division’s Natural 

Resources Section also has had success in defending a variety of land management plans 

and decisions, from the Forest Service’s timber management plans to the Bureau of Land 

Management’s grazing plans and methods of 

operating reclamation projects. 

 The Environmental Defense Section also 

worked with EES to develop CERCLA’s legal 

standards through its defense of the Department of Defense and other agencies with respect to site cleanups at federal facilities, including former defense facilities. In particular, the cleanup at the Hanford Nuclear Reservation in Hanford, Washington, 

stands among the most technically complex and legally challenging environmental 

cleanups in history. EDS has also developed the law governing CERCLA’s equitaProtecting Endangered Species 

From Habitat Degradation 

Appellate Section Attorney Ellen Durkee got 

the honor of having the first published opinion 

in the new West F.3d Reporter, as a split panel 

of the D.C. Circuit upheld the Fish and Wildlife 

Service’s broad definition of “harm” as used in 

the Endangered Species Act to include habitat 

degradation. Sweet Home v. Babbitt, 1 F.3d 1 

(D.C. Cir. 1993). Then, after rehearing was 

denied once, Judge Williams changed his mind 

and the panel substituted a new opinion 

finding that this broad definition contradicts 

the statute. The Supreme Court eventually 

agreed with the position of the United States, 

and held that including habitat degradation 

in the definition of harm is a permissible 

construction of the statute. Babbitt v. Sweet 

Home Chapter of Communities for a Great 

Oregon, 515 U.S. 687 (1995). 
80 

ble allocation of response costs among responsible parties. Most recently, in United 

States v. Atlantic Research Corporation, 551 U.S. 128 (2007), the Supreme Court gave 

other parties the ability to bring a CERCLA action. 

CERCLA defendants have, of course, fought to limit the statute’s reach. Most 

recently, in the litigation to clean up PCBs from New York’s Hudson River, and in 

actions at other sites, the Enforcement, Defense, and Appellate Sections coordinated the Division’s response to the argument that EPA administrative cleanup orders violate due process. In General Electric v. EPA, the U.S. District Court for the 

District of Columbia has held that EPA’s administrative cleanup orders were constitutionally sound. An appeal is pending in the D.C. Circuit. 

Never Cry Wolf 

The grey wolf once roamed over nearly all of North America, but by the 1930s the wolves 

were facing extinction and had disappeared from the northern Rocky Mountain states of Montana, Idaho, and Wyoming. The Fish and Wildlife Service (FWS) extended Endangered Species 

Act protection to the wolf in 1974, and in 1987, FWS developed a wolf recovery plan to reintroduce the grey wolf experimentally in Central Idaho, and in and around Yellowstone National Park. 

In 1995, the first wolves were introduced into Yellowstone Park. Today grey wolves occupy 

nearly every suitable habitat in the northern Rocky Mountains. There are approximately 1,645 

wolves in 217 packs, with 95 of those packs classified as breeding pairs. The reintroduction 

program succeeded beyond expectations, and represents a remarkable wildlife conservation 

success story. 

The Division has successfully defended the 

reintroduction program in several cases. When 

the District Court in Wyoming invalidated the 

program following a trial in an action brought by 

western farm bureaus and other groups, the 

Appellate Section obtained a key reversal in the 

Tenth Circuit in Wyoming Farm Bureau v. Babbitt. 

The Division also prevailed on a Fifth Amendment 

takings claim against FWS based on damages 

allegedly caused by reintroduced wolves, and has 

defended recent FWS rules to remove the reintroduced and stable grey wolf populations from 

protection under the Endangered Species Act. US FWS Photo 
81 

Land Acquisition Work Continues 

Much of the Division’s land acquisition work continues to support the nation’s 

national security and military readiness. In the 2000s, under Section Chief Virginia 

Butler, the Land Acquisition Section brought suits to acquire land in support of a 

variety of national security functions, including the expansion of the National Defense University and Fort McNair 

and the acquisition of a security 

buffer for the U.S. Southern Command headquarters in Florida. In the 

late 2000s, working with several U.S. 

Attorneys’ Offices, the Division initiated 400 eminent domain cases on 

behalf of the Department of Homeland Security to acquire permanent 

interests in privately-owned lands 

along the United States/Mexico border needed to meet a congressional 

mandate for fence construction. 

Defending Tribal and Federal Interests 

In the 1990s and 2000s, the Indian Resources Section under Section Chiefs 

James Clear and Craig Alexander continued to litigate a variety of cases involving 

Indian issues, including a series of significant cases addressing tribal fishing rights 

under treaties. Treaty rights disputes with the State of Washington have spanned 

more than two decades, involved more than 17 tribes, and have been to the Supreme Court numerous times. The Division also litigated Indian treaty rights disputes with the State of Michigan over more than three decades, resulting in a series 

of settlement agreements. 

Most recently, the Division handled the treaty rights case of United States v. Oregon. Many years ago, the United States prevailed in establishing the treaty fishing 

rights of four Columbia River Basin tribes. The taking of those fish, however, imBorder fence under construction south of San Diego near 

Smuggler Gulch ENRD Photo 
82 

pacts anadromous fish species that are listed pursuant to the Endangered Species 

Act. The parties, after a decade of negotiations, concluded the Management Agreement for Fish Harvests on the Columbia and Snake Rivers in Washington, Oregon 

and Idaho for 2008-2017, consistent with the Endangered Species Act. This plan will improve fish habitat and allow the tribes 

to increase their catch as the populations of threatened species 

increase. The Division also intervened in a series of land claim 

cases on behalf of New York tribes, including the Cayuga, 

Oneida, Mohawk, and Seneca Indians. These cases resulted in 

several trials, the Supreme Court case of City of Sherrill v. Oneida 

Indian Nation (argued by Malcolm L. Stewart of the Solicitor 

General’s Office, who has handled many of the Division’s cases 

in the Supreme Court), and numerous appellate cases, and 

raised issues that are still pending before the federal courts. 

With Indian gaming revenue at tribal casinos exceeding the 

combined revenue of Nevada and Atlantic City casinos, the Division continues to be involved in high-profile litigation defending the Secretary of the Interior’s actions related to Indian gaming. In the 2000s, the Division successfully defended a challenge 

to the constitutionality of regulations implementing federal Indian gaming laws. In three separate actions, the Division successfully opposed emergency injunctive relief seeking to prevent 

a tribal-state compact from going into effect in the State of 

Florida and secured language that gives the Interior Secretary 

discretion and flexibility in the Department’s sensitive role in 

approving tribal-state compacts. 

The Division’s Natural Resources and Indian Resources 

Sections also continue their work to secure critical water rights 

for the United States and on behalf of tribes. In 2008, the Division participated in the signing of the Truckee River Operating 

Agreement, the culmination of 15 years of negotiations. In addition to enhancing drought protection for the Cities of Reno and 

Sometimes Division attorneys have had 

to take unusual tacks to win a case. For 

example, United States v. Alaska, 521 

U.S. 1 (1996), an original action in the 

Supreme Court, determined the StateFederal boundary along the Arctic Ocean 

coast, including division of the vast 

Prudhoe Bay oil fields. One issue was 

whether an offshore feature, known as 

Dinkum Sands, qualified as an island. If it was, Alaska held title to it 

and the surrounding 28 square nautical 

miles. If it wasn’t, those rights belonged 

to the federal government. $67 million 

in cash paid for the underlying oil and 

gas leases, and possible future royalties 

hung in the balance. NRS attorneys 

Charles ASpinner@ Findlay and Mike 

Reed hosted the Supreme Court=s 

Special Master on a Aview@ of Dinkum 

Sands. On a calm Alaska day, 7 miles 

offshore in the Arctic Ocean, Spinner 

and his team of hearty compatriots 

safely navigated their fragile dinghy 

directly over Alaska=s alleged island 

while the Special Master unsuccessfully 

tried to locate it with an oar. Following a 

total of six weeks of trial, and Supreme 

Court review, the federal government 

prevailed in all but two of the issues in 

contention and was awarded a total of 

$1.5 billion in lease revenues and vast 

areas of submerged lands along the 

Arctic coast, including the lagoons of the 

Arctic National Wildlife Refuge. 
83 

Sparks and securing Congressional approval of the interstate allocation between 

Nevada and California of the waters of Lake Tahoe and the Truckee and Carson 

Rivers, the Agreement provides significant environmental benefits through more 

flexible and coordinated reservoir operations. This flexibility allows water to be 

stored and released for the benefit of threatened and endangered fish species in 

Pyramid Lake, water quality in the lower Truckee River, and instream flows on the 

Truckee River and tributaries under the California Guidelines. 

A New Era of Tribal Trust Cases 

In 1996, a group of individual Indian money (IIM) account-holders brought a 

case, Cobell v. Babbitt, in the U.S. District Court for the District of Columbia, demanding that the Departments of the Interior and Treasury provide a “full and 

complete” historical accounting of their IIM accounts. The Cobell case was handled 

by the Environment and Natural Resources Division until 2001, when it was transferred to the Civil Division, where it resides today. 

Between January 2002 and December 2008, numerous tribes filed cases in the 

federal district courts in the District of Columbia and Oklahoma and in the U.S. 

Court of Federal Claims, demanding not only complete accountings of their trust 

funds and resources and but also damages for the government’s alleged mismanagement of these funds and resources. Since 2002, the government has settled a number of tribal trust cases or portions of thereof, and it has litigated a number of other 

cases. These cases are handled by the Natural Resources Section, and there are currently approximately 100 such cases pending. 

The Rise of Interdisciplinary Cases 

In the 1990s, the Division saw an increasing number of complex cases that implicated numerous statutes and issues and required coordination among sections, as 

well as with federal, state, local, tribal, nonprofit, and industry interests. Harvesting 

of old growth timber on public lands in the Northwest became a major issue for the 

Division in the early 1990s. By 1992, increased concern over biodiversity and endangered species such as the spotted owl yielded numerous lawsuits and court in-
84 

junctions that blocked harvesting and aroused bitter feelings. The Clinton administration sought to formulate a new ecosystem-wide approach to these issues, with 

the goal of lifting injunctions and resuming commercial activity under acceptable 

environmental conditions, and attorneys from the Natural Resources and Wildlife 

Sections were regularly consulted to address the difficult legal issues involved with 

its development. The Northwest Forest Plan of 1994 established standards and 

guidelines to address the competing needs of forest habitat protection and commercial timber harvesting on 24.5 million acres managed by the Bureau of Land Management and the Forest Service. The Plan was successfully defended by a multisection Division litigation team against challenges from both environmental and 

timber industry groups, a victory which AAG Lois Schiffer characterized as “a milestone in the Division’s history.” 

Many of the Division’s water-related cases also involve complex issues regarding the interests of water users, tribes, and the protection of endangered species, 

and thus demand the attention of attorneys from multiple sections within the Division. For example, litigation regarding the Bureau of Reclamation’s management of 

A Dinosaur Named “Sue” 

In 1993, Appellate Section attorney Ed 

Shawaker persuaded the Eighth Circuit Court of 

Appeals that a remarkably complete Tyrannosaurus Rex fossil nicknamed “Sue,” which had been 

excavated from land held by the United States, 

still belonged to the United States, on the theory 

that the fossil was “land” rather than “personal 

property” before it was excavated. Black Hills 

Institute of Geological Research v. South Dakota 

School of Mines and Technology, 12 F.3d 737 

(8th Cir. 1993). 

Tyrannosaur "Sue" at the Field Museum, Chicago. 

 

Used with permission: 

© The Field Museum, #GN89677_42c. 
85 

the Klamath Project, a federal 

reclamation project at the southern end of the Klamath River 

along the Oregon and California 

border, as well as the operations 

of several dams on the river operated by PacifiCorp, has been 

ongoing for several decades. The 

river provides habitat for endangered salmon species, and its 

management has been the subject 

of recurring disputes between 

Indian tribes, environmentalists, 

farmers, fishermen, and others. 

The protection of salmon 

species has been an issue in numerous other pieces of litigation 

handled by the Division from the 

1990s through the present day, 

including challenges to the listing 

and management of salmon on 

the Columbia/Snake River systems and challenges to the management of the Central Valley 

Project in California . 

The Division also defended the 

Navy’s use of sonar in training exercises 

off the coast of California in a case involving alleged violations of the National Environmental Policy Act, the Endangered Species Act, and the Marine Mammal Protection Act. This case necessitated 

the work of attorneys from the Wildlife and Marine Resources Section, the Natural 

Resources Section, and the Appellate Section, and eventually resulted in a favorable 

In May 2008, polar bears were listed as threatened 

under the Endangered Species Act, due to the loss 

of sea ice threatening polar bear habitat. 

Defending the Constitutionality of the 

Endangered Species Act 

The Supreme Court’s decision in United 

States v. Lopez, 514 U.S. 549 (1995), reinvigorated challenges by property owners and 

others contending that Congress lacks power 

to regulate under the Commerce Clause 

based on the need to protect endangered or 

threatened species, where those species are 

not traded in interstate commerce. In a series 

of cases in different circuits, some over vigorous dissents, the Division managed to fend 

off these Commerce Clause challenges to the 

constitutionality of the ESA in protecting species ranging from the charismatic - Gibbs v. 

Babbitt, 214 F.3d 483 (4th Cir. 2000) (red 

wolf) – to the homely - Rancho Viejo, LLC v. 

Norton, 323 F.3d 1062 (D.C. Cir. 2003) 

(arroyo southwestern toad) – to the creepy - 

GDF Realty Investments, Ltd. v. Norton, 326 

F.3d 622 (5th Cir. 

2003) (various species of cave-dwelling 

bugs) - to the just plain 

weird - National Ass'n of 

Home Builders v. Babbitt, 130 

F.3d 1041 (D.C. Cir. 1997) 

(Delhi Sands Flower-Loving Fly). 

Photo: house.gov 
86 

Supreme Court decision in Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 

365 (2008). 

On the enforcement side, the use of multi-media inspections and nationwide 

enforcement goals initiated by EPA resulted in enforcement actions with multiple 

statutes, numerous facilities, and involving many states. The Division has formed 

teams including representatives from both enforcement and defensive sections to 

coordinate Division litigation and legislative positions on emerging legal issues, 

such as the response to Supreme Court decisions interpreting CERCLA and wetlands jurisdiction. 

Multi-statute, multi-agency cases often require the Division to use creative approaches, both in its internal management of cases that do not fit neatly within a 

single section’s mission, and in dealing with the many issues and parties interested 

in the case. The Division has adapted by creating cross-section case teams in order 

to bring all of the Division’s expertise to bear on a particular case. Through alternative dispute resolution and other methods, the Division has also sought to ensure 

that, where possible, the various federal and non-federal interests in the resolution 

of a particular case are harmonized in a way that produces a result that is in the best 

interests of the United States as a nation. 

Conclusion 

Throughout its history, the Division has been involved in nearly all of the important cases interpreting environmental, natural resources, lands, Indian, and wildlife law. The Division continues to litigate the most significant cases in these fields, 

with involvement in nine cases before the Supreme Court in the 2008 Term alone. 

The Division handles cases involving more than 150 different statutes, has more 

than 6,000 active cases, and represents virtually every federal agency in courts all 

over the United States and its territories and possessions. The current caseload of 

the Division is too expansive to be fully reflected in this document, but will surely 

influence the development of environmental, natural resources, and Indian law in 

the years to come. 

Today, the Division is led by an Assistant Attorney General, assisted by four 
87 

Deputy Assistant Attorneys General, two of whom are career appointments (as of 

this writing, only one of these positions is filled, by John Cruden). The Division is 

organized into nine litigating sections: Appellate (led by James Kilbourne), Environmental Enforcement (led by Bruce Gelber), Environmental Defense (led by 

Letitia Grishaw), Indian Resources (led by Craig Alexander), Land Acquisition (led 

by Virginia Butler), Law and Policy (led by Pauline Milius), Natural Resources (led 

by Jack Haugrud), Environmental Crimes (led by Stacey Mitchell), and Wildlife and 

Marine Resources (led by Jean Williams), as well as an Executive Office (led by 

Robert Bruffy). It has offices in Washington, D.C., Anchorage, Boston, Denver, 

Sacramento, San Francisco and Seattle, and a staff of more than 600 people. 

In 2009, the Division was ranked first among agency subcomponents by the 

Partnership for Public Service’s Best Places to Work in the Federal Government 

survey, reflecting a high degree of satisfaction among its employees. This is attributable, in part, to the important mission of the Division and the commitment of its 

The Division Remembers... 

Several ENRD conferences rooms have been 

named in memory of individuals who contributed 

greatly to the work of the Division. 

 The Anne Almy Conference 

Room, Main Justice 2333, is 

named for a former staff lawyer, Assistant Chief, and Deputy Chief of the Appellate Section who handled many court 

of appeals arguments, provided advice on countless 

other matters, and worked 

closely with the Solicitor General’s Office on ENRD’s Supreme Court cases. Anne 

joined the Appellate Section 

through the Attorney General’s Honor Graduate program after clerking for First Circuit Chief Judge Frank 

S. Coffin of Maine, and spent her entire career with 

ENRD. Anne unerringly could identify the dispositive 

issue in any appeal, and provided painfully candid and 

unvarnished case assessments to anyone with the 

nerve to ask. She was unique, incredibly colorful, and 

a visionary in predicting the major themes in environmental litigation. A 100% New Englander, Anne inspired, scared, and endeared herself to a generation 

of Appellate Section attorneys. After she passed away 

from cancer in 1997, members of the Section 

commissioned a portrait of Anne which hangs in the 

conference room. 

The Conference Room at Patrick Henry Building 

8203 is named for David W. Zugschwerdt, an attorney 

in the Environmental Defense Section who switched 

to environmental law after what amounted to a complete career in EEO enforcement. Reveling in his 

iconoclastic demeanor, David loved to contest what 

Anne Almy portrait 
88 

employees to serving the interests of the United States and its citizens, particularly 

by protecting the nation’s health, welfare, and natural resources. 

Because of the Division’s work, our nation has cleaner air to breathe, cleaner 

rivers and lakes in which to fish or swim, safer water to drink, and fewer toxic 

chemicals polluting the land. Treasures such as our national parks, national forests, 

and public lands and resources have been preserved for future generations. The nation’s security has been enhanced, through defense of military programs and the 

acquisition of needed land. The United States’ priorities and programs with respect 

to lands, Indians, and the environment, though evolving over time, have been defended and upheld by the Division. 

The Division’s priorities will doubtless continue to change as new needs and 

challenges arise in the United States and around the globe. The Division and its 

employees stand ready to meet these challenges as the Division enters its second 

century. 

he considered “conventional wisdom,” and was often 

proved right in the end. “Zuggy” brought his considerable talents to any number of the Section's practice 

areas, with a particular focus on defending challenges 

to EPA’s handling of radionuclides. David was recognized for his efforts on the Section’s behalf on any 

number of occasions, including posthumously for his 

work on United States v. Monsanto. Ever the loyal 

workaholic, David collapsed in an airport while on 

Government business and passed away in June 1996 

following heart surgery. He is missed by those who 

knew him here in the Division and by the two 

daughters who were always his pride, joy, and first 

priority. 

An Environmental Enforcement Section Conference Room, Patrick Henry Building 8502, is named in 

memory of Drenaye L. Houston, a trial attorney and 

then senior attorney in the Section from 1989-1997 

and 1999-2006. A graduate of the University of South 

Carolina law school, Drenaye joined the Section in 

1989 through the Honor Graduate program. She 

litigated several ground-breaking RCRA, CERCLA, 

Clean Air Act, and Clean Water Act cases during her 

tenure, including the landmark United States v. Colonial Pipeline, a major Clean Water Act case against a 

pipeline company for devasting oil spills in several 

states. Drenaye and her team on Colonial received the 

John Marshall award for alternative dispute resolution 

for the outstanding settlement, which included a 

record-breaking $34 million civil penalty and injunctive relief to prevent future spills. Drenaye was a 

brilliant attorney, a model of integrity and dedication 

to the Division’s mission, a person of great kindness, 

and a very dear friend to her colleagues in EES. 

Drenaye died on January 3, 2006, at the age of 42, 

after a heroic struggle with cancer. 
89 

A References cknowledgements 

About This History 

This document is intended to provide some record of the history of the Environment & Natural Resources Division from 1909-2009. While every attempt has 

been made to verify facts, the accuracy of all of the statements herein should be 

independently verified. If you have any corrections to this History, or stories or 

other historical material that you would like to share with the Division, please email us at enrd100@usdoj.gov or visit the Division’s website at: 

http://www.justice.gov/enrd/Anniversary/Memories.html. 

This document is intended to provide a general background and overview of 

the Division, and is not intended to be authoritative on any specific issue. It is not 

intended to provide policy or position statements or interpret case law, and should 

not be used in this manner. The statements herein do not necessarily represent the 

position of the Department of Justice or the United States. Furthermore, we recognized that there is a conflict of interest in the writing of one’s own history, and this 

document may suffer from this and other limitations. As such, it is not intended to 

be a scholarly analysis or critique of the Division’s work. 

Due to space and other considerations, there are many significant cases, imporand 
90 

tant individuals, and parts of the Division’s history that are not reflected in this History. A more complete view of the work of the Division may be obtained by visiting the Division’s Centennial website at http://www.justice.gov/enrd/

Anniversary/index.html, where you will find biographies of former AAGs, in-depth 

histories of each section, and other information. 

This document is the result of the work of many people. Former Deputy Assistant Attorney General Eileen Sobeck conceived of the Centennial project, and 

spearheaded it for many months, with the support of AAG Ron Tenpas. Acting 

AAG John Cruden has provided critical support for the project, as well as helpful 

comments on this History. The Executive Office, including Bob Bruffy, Donna 

Whitaker, Marcia Jordan-Burke, John White, Lisa Nasberg, Lisa Daniels, Gerardo 

Since 2003, ENRD has teamed up with 

the non-profit Washington Parks & 

People to celebrate Earth Day with a 

community service project at Marvin 

Gaye Park in Washington, D.C. In 2009, 

almost 150 ENRD employees participated by planting trees, clearing trash 

from the park and Watts Branch 

Stream, pulling weeds, and preparing 

the community garden for planting. 

Attorney General Eric Holder planted a 

tree and dedicated a memorial to 

Martin Luther King, Jr., who visited the 

park in 1961. 
91 

Despian, and Betsy Preston, provided critical support throughout the project. Betsy 

Preston deserves particular recognition for all her work on the Centennial celebration, including handling the layout of this document. 

Much of the initial research and drafting of this document was done by Glenn 

Curtis and his colleagues at the Library of Congress. Within the Division, the text 

was prepared by the Law & Policy Section, principally Amber Blaha, Pauline Milius, 

Stacy Stoller, and Katie Duncan. Numerous individuals within the Division aided in 

this effort by providing additional text, comments, corrections, and other support: 

in particular, David Shilton; Section Chiefs Craig Alexander, Virginia Butler, Bruce 

Gelber, Letty Grishaw, Jack Haugrud, Jim Kilbourne, Stacey Mitchell, and Jean Williams; Division employees Wells Burgess, Sean Carman, Fred Disheroon, Andrew 

Goldsmith, Lisa Jones, Billy Lazarus, Andrew Mergen, Ray Mushal, Gayatri Patel, 

Andrew Satten, Justin Smith, Christopher Vaden, and Karen Wardzinski, as well as 

former Division attorney Richard Lazarus. 

Former AAGs Ramsey Clark, Kent Frizzell, Wallace Johnson, Peter Taft, James 

Moorman, Carol Dinkins, Hank Habicht, Roger Marzulla, Richard Stewart, Lois 

Schiffer, Tom Sansonetti, and Sue Ellen Wooldridge, as well as Myles Flint, Peter 

Steenland, Dolores Steenland, Catherine Barbour, Diane Stone, Marcia Jordan 

Burke, Earl Thornton, Donald Carr, and Barbara Cantey generously gave of their 

time to participate in interviews regarding their recollections of the Division. 

To all of you, the Division gives its thanks. 
92 

References

A critical source for this document, particularly regarding the early years of the 

Division, was the Annual Report of the Attorney General of the United States for 

the years 1908 through 1993. These reports include a section on the Division, and 

provided valuable insight into the priorities of the Division, its structure, and what 

its leadership viewed as its most important cases. For 1999-2008, the annual Accomplishments Report of the Division provided information about the Division’s 

work. 

This history also relies on documents related to the Division and the Department of Justice that are kept in the files of the National Archives, as well as the files 

maintained by the Division. 

A third source of information that informed this history were interviews with 

each of the living former Assistant Attorneys General. They were generous with 

their time and provided helpful background information. 
93 

Other sources consulted or relied upon include: 

Neal Devins and Michael Herz, “Government Lawyering: The Battle that Never 

Was: Congress, the White House, and Agency Litigating Authority,” 61 Law & 

Contemp. Prob. 205, 220-22 (1998). 

James Easby-Smith, The Department of Justice: Its History and Functions, W.H. Lowdermilk & Co., 1904. 

Sewall Key and Francis A. LeSourd, The Struggle of the Attorney General to Retain His 

Powers, 1937. 

Christopher McGrory Klyza, Who Controls Public Lands? Mining, Forestry and Grazing 

Policies, 1870-1990, University of North Carolina Press, 1996. 

Richard J. Lazarus, The Making of Environmental Law, The University of Chicago 

Press, 2004. 

Normal Littell, My Roosevelt Years, ed. Jonathon Dembo, University of Washington 

Press, 1987. 
94 

Norman Littell, testimony to House Appropriations Committee, 1940, document 

H855. 

Nancy Oestreich Lurie, “The Indian Claims Commission,” Annals of the American 

Academy of Political and Social Science, March 1978. 

The National Parks: America’s Best Idea website, http://www.pbs.org/

nationalparks/history/ 

H.D. Rosenthal, Their Day in Court: A History of the Indian Claims Commission, Garland, 

1990. 

Lois Schiffer, “Statement of Lois J. Schiffer, Assistant Attorney General, Environmental and Natural Resources Division, United States Department of Justice, 

before the Committee On Environment And Public Works, United States 

Senate, Concerning Enforcement of Environmental Laws, June 10, 1997,” 

http://epw.senate.gov/105th/doj_6-10.htm 

U.S. Army, “Rocky Mountain Arsenal History,” http://www.rma.army.mil/site/

hist1.html 

 

 

Francis J. Kearful 

1917-1919 

Frank K. Nebeker 

1919-1920 

William D. Riter

1921-1924 

Ira K. Wells 

1924-1925 

Bertice M. Parmenter 

1925-1929 

Seth W. Richardson 

1929-1933 

Harry W. Blair 

1933-1937 

Carl McFarland

1937-1939 

Norman Littell 

1939-1944 

David L. Bazelon 

1946-1947 

Leslie C. Garnett

1920-1921 

Ernest Knaebel 

1911-1916 

ENRD Assistant Attorneys General 
 

 

 

William A. Underhill 

1951-1952 

James M. McInerney 

1952-1953 

Perry W. Morton 

1953-1961 

Augustus Vaneck 

1947-1951 

Ramsey Clark 

19651-1965 

Edwin L. Weisl, Jr. 

1965-1967 

Clyde O. Martz 

1967-1969 

Shiro Kashiwa 

1969-1972 

Kent Frizzell 

1972-1973 

Wallace Johnson 

1973-1975 

Peter Taft 

1975-1977 

James W. Moorman 

1977-1981 

ENRD Assistant Attorneys General 
 

 

 

Carol Dinkins

1981-1983 

F. Henry Habicht, II 

1983-1987 

Roger J. Marzulla 

1988-1989 

Richard B. Stewart

1989-1991 

Lois Jane Schiffer 

1993-2001 

Thomas L. Sansonetti

2001-2005 

Ronald J. Tenpas 

2007-2009 

ENRD Assistant Attorneys General 

Sue Ellen Wooldridge 

2005-2007 
 

 

Raymond Mushal John Webb 

Senior Counsel, ECS Branch Chief, ECS 

Diane Stone 

Unit Chief, EES 

Catherine Barbour 

Director, EO 

Dolores Steenland 

Director, EO 

James Eaton 

Senior Appraiser 

Land Acquisition Section 

Phillip Brooks 

Special Counsel to the Chief 

Environmental Enforcement Section 

Elizabeth Mitchell 

Staff Attorney 

National Oceanic and Atmospheric Administration 

Dianne Shawley 

Senior Counsel 

Environmental Enforcement Section 

Andrew Walch 

Senior Litigation Counsel 

Natural Resources Section Myles E. Flint 

Deputy Assistant 

Attorney General 

ENRD 

Charles W. “Spinner” Findlay, III 

Assistant Chief 

Natural Resources Section 

Dinah Bear 

General Counsel 

Council on Environmental Quality 

2007 

2008 

2006 

2004 

2002 

2000 

2005 

2003 

2001 

1999 

MUSKIE—CHAFEE AWARD RECIPIENTS 

The ENRD Muskie-Chafee Award honors a federal employee who has made significant 

contributions through government service to protecting the environment, public lands, 

and natural resources, and the fulfillment of our nation’s responsibilities to Native 

Americans. The award is named for two leaders of the modern environmental movement, 

Senators Edmund S. Muskie and John H. Chafee. 

2009 

Edwin Kneedler 

Deputy Solicitor General 

Solicitor General’s Office