UNITED STATES DEPARTMENT OF JUSTICE
ENVIRONMENT AND NATURAL RESOURCES
DIVISION
FISCAL YEAR 2002
SUMMARY OF LITIGATION ACCOMPLISHMENTS
CONTENTS
FOREWORD
CRIMINAL ENFORCEMENT OF THE
ENVIRONMENTAL AND WILDLIFE LAWS
PROTECTING OUR NATION'S AIR AND WATER
ENSURING CLEANUP OF HAZARDOUS WASTE
DEFENDING VITAL FEDERAL PROGRAMS AND
INTERESTS
PROMOTING RESPONSIBLE STEWARDSHIP OF
AMERICA'S WILDLIFE AND NATURAL RESOURCES
PROTECTING INDIAN RIGHTS AND RESOLVING
INDIAN ISSUES
SUPPORTING THE DIVISION'S LITIGATORS
FOREWORD
It is my pleasure to present the Environment and Natural Resources Division's Accomplishments Report for Fiscal Year 2002, which
was a very successful year for the Division. As detailed in this report, we achieved significant victories in each of the many areas for
which we have litigating responsibility. These areas include civil and criminal enforcement of this country's environmental laws,
defense of important programs including the military's mission to ensure national security, stewardship of our natural resources and
public lands, and carrying out trust responsibilities to Native Americans.
Since taking office in January 2002, one of my top priorities has been tough enforcement of the environmental laws. Firm and fair
enforcement is an important component of environmental protection. It helps ensure that our citizens can breathe clean air, drink
pure water, and enjoy our Nation's natural resources, and that law-abiding businesses have a level economic playing field on which
to compete. We have had several major enforcement successes in the last year. These successes include criminal convictions for
fraudulent testing of underground storage tanks and for smuggling of a variety of substances, ranging from ozone-destroying
chlorofluorocarbons (CFCs) to caviar from imperiled sturgeon. In our civil enforcement cases, we have obtained injunctive relief
that will reduce air pollution by thousands of tons annually and will help promote cleaner water from Connecticut to California. We
have also ensured the cleanup of hazardous waste sites across the United States. These successes, and the Division's enforcement
work more generally, have resulted in significant gains for public health and the environment and have protected the nation's
infrastructure.
One of the cornerstones of our approach to ensuring broad-based environmental compliance is working together with the state and
local law enforcers who are on the front lines of environmental enforcement. We have brought joint enforcement actions with
virtually every state in the United States, and I am pleased to report that the Division, together with the National Association of
Attorneys General, crowned this history of partnership by hosting the first-ever joint federal-state environmental enforcement
conference in April 2002. In keeping with this approach, we have also forged relationships with our counterparts in Canada, Mexico,
and other nations to better respond to our shared environmental concerns. All of these partnerships have helped us to meet the twin
challenges of increased referrals and more complex cases.Although the public is generally familiar with the Division's role as enforcer of the environmental laws, it comes as a surprise to
many that the majority of our cases are defensive and non-discretionary. In this capacity, we have defended almost every federal
agency in cases arising from well over 70 different environmental and natural resource statutes, including the Comprehensive
Environmental Response, Compensation and Liability Act, the Clean Water Act, the National Environmental Policy Act, and the
National Forest Management Act. Through these efforts, the Division saved the American taxpayer hundreds of millions of dollars -
many times the Division's annual budget. The Department of Defense is one of our biggest clients (behind only EPA and the
Department of the Interior) in terms of attorney hours expended, and we have played a significant role in ensuring that the military
has adequate opportunity to carry out training exercises and otherwise provide for the national defense. Our eminent domain actions
are also non-discretionary, and we focused substantial effort in the last fiscal year to obtaining office space for federal workers
displaced by the tragedy of September 11, 2001.
The Division has a docket of approximately 10,175 pending matters, with cases in every judicial district in the nation, with the
districts in the western United States accounting for two-thirds of those cases. This disproportionate number can be traced in part to
the fact that most public and Indian lands are located in the West. Cases concerning these lands and their management by our
environmental and resource management agencies rank among some of the most challenging in our docket, and as a Westerner, I
applaud the work of those who put in long hours to ensure that these cases are resolved in a manner that benefits the public as a
whole. Without our hard-working attorneys and staff, we would not have had the successes described in this report.From its beginnings with only a handful of employees, the Division is now the nation's largest environmental law firm. Our
successful track record in protecting the environment, Indian rights, and the nation's natural resources, wildlife, and public lands,
along with acquiring land as required, is due to the hard work and efforts of the Division's attorneys and staff. In partnership with
our client agencies, the United States Attorney's Offices, and state and local officials around the country, we produce top quality
work in our continuing efforts to protect the environment and the people of the United States. I am proud to serve with this
outstanding staff.
Thomas L. Sansonetti
Assistant Attorney General
Environment and Natural Resources Division
January 2003
CRIMINAL ENFORCEMENT OF THE
ENVIRONMENTAL AND WILDLIFE LAWS
Vessel Pollution Enforcement Effort. The Vessel Pollution
Enforcement Initiative is an ongoing, concentrated effort to
prevent pollution from ships into the oceans, the coastal
waters and the inland waterways. Since 1990, over 70
environmental prosecutions have involved pollution from
ships, and in the past year, the work of the Vessel Pollution
Initiative has contributed to a number of important
prosecutions. One such case was United States v. Boyang
Maritime in which the company pled guilty to participating in
a long-term conspiracy designed to hide routine illegal
discharges of oil sludge and contaminated bilge water since at
least 1995. The company admitted maintaining false records,
obstructing justice, and tampering with witnesses. Boyang
Maritime will pay a $5 million fine, institute and pay for an
environmental compliance plan, and serve five years
probation. Another such prosecution was United States v.
Norwegian Cruise Line Limited (NCL), in which the world's
fourth-largest cruise line pled guilty to a felony violation of the
Act to Prevent Pollution from Ships and was sentenced to pay
a $1 million fine.
Laboratory Fraud Initiative. Laboratories are used to
analyze soil, water and other media to determine their
chemical composition, to assess whether such chemicals pose
human health risks, and to determine whether such media are
contaminated and in need of remediation. In light of this role,
maintenance of the integrity of laboratory sample tests, results,
and reports is critical. As a result, the Lab Fraud Task Force
was established to survey the problem of fraudulent laboratory
testing and to determine how best to tackle it. During the last
year, Division attorneys prosecuted several nationally
significant cases associated with the task force. These include
United States v. Kaminski, in which three executives, two
corporations, and six managers pled guilty to, and were
sentenced to prison for various charges in connection with
fraudulent testing of petroleum products, including
reformulated gasoline, and United States v. Intertek Testing
Services, in which the company was sentenced to pay a $9
million fine and serve three and a half years probation, also in
connection with a fraudulent testing scheme.
Underground Storage Tank Initiative. EPA estimates that
over one-third of the approximately one million underground
storage tanks (USTs) in the U.S. violate federal regulations.
Such tanks hold oil, gasoline, and hazardous substances and
wastes, and leaks from them threaten nearby groundwater, the
primary source of drinking water for most people. We have
prosecuted several cases of UST testing fraud, including
United States v. Tanknology in which Tanknology, the largest
UST testing company in the United States, was sentenced to
pay a $1 million fine and restitution of $1.29 million to the
United States for false UST testing. Another such prosecution
was United States v. James "Eddie" Adams, in which Adams
and his company Carolina Upgrading pled guilty in connection
with a scheme to defraud more than 400 UST owners in the
South by conducting false tests. Adams was sentenced to
serve 27 months in prison followed by three years supervised
release, and Carolina Upgrading was placed on three years
probation.
Refinery-related Prosecutions. In United States v. Ashland
Inc., the company pled guilty to negligent endangerment under
the Clean Air Act and other criminal acts in connection with
draining hydrocarbons into a sewer which burst into a fireball
that injured several firefighters. Ashland will pay a criminal
fine of $3.5 million, sponsor a workshop at a Natural
Petroleum conference dealing with the Clean Air Act's New
Source Performance Standards for petroleum wastewater
systems, publish ads in two major Twin Cities newspapers
concerning the criminal case, pay $50,000 to three local fire
departments that responded to the fire, and add another
$50,000 to its Emergency Response Team budget. Another
such prosecution was United States v. Michael Peters and
Jeffrey L. Jackson, in which two managers of an oil refinery
were convicted of conspiracy to violate the Clean Air Act,
three substantive Clean Air Act violations, and a false
statement charge. Each defendant was sentenced to serve 36
months in prison and pay a $50,000 fine.
Prosecuting Pollution of Our Rivers and Air. We are
committed to prosecuting those who despoil our rivers and air.
In United States v. Guide Corporation, the company pled
guilty to seven misdemeanor Clean Water Act violations
involving pollution of the White River in Indiana, which was
the primary source of drinking water for the region and which
killed five million fish. Guide Corp. was ordered to pay a
$1,956,000 criminal fine, forfeit $1,956,000 in assets gained
as a result of the illegal discharge, pay $275,000 in restitution,
serve five years probation, and commence a comprehensive
environmental compliance training program for all employees.
In a civil consent decree, the company agreed to pay an
additional $10,025,000 penalty.
In United States v. Koppers Industries, Inc., the company pled
guilty to two felony violations of the Clean Water Act, and
one felony violation of the Clean Air Act. These charges
resulted from hazardous air and water pollution at the
company's coke production and coal by-products facility in
Dolomite, Alabama. Koppers agreed to pay a $2.1 million
fine and $900,000 in restitution to the Black Warrior-Cahaba
Rivers Land Trust, to be placed on three years' probation, and
to implement a company-wide environmental compliance
program. A Koppers employee, J. Daniel Bell, pled guilty to
a Clean Air Act felony for falsifying discharge monitoring
reports and was sentenced to serve three years probation, six
months home confinement, and a $2000 fine.
In United States v. Truck, Trailer, and Equipment Inc., the
company and two employees pled guilty to RCRA and Clean
Water Act violations for illegally dumping waste generated by
the company into a nearby stream, wetlands, and woods. The
company was sentenced to pay a $50,000 fine and $50,000 in
restitution to the Mississippi Department of Environmental
Protection, and the employees were sentenced to serve time,
home detention, and probation.
Criminal Prosecutions for CFC Smuggling. Eleven
defendants pled guilty in United States v. Himes, a case
involving a complex, multi-million dollar scheme to import
and sell chlorofluorocarbon gases (CFCs) under false
pretenses. The purpose of the scheme was to obstruct or
defeat liability for the payment of excise and income taxes
from 1995-1998. Several defendants have been sentenced to
terms of up to 15 months imprisonment. The three principal
defendants are awaiting sentencing.
Protecting Workers and Others Exposed to Hazardous
Substances. In United States v. Keystone Environmental
Services, the company purchased false hazardous waste and
emergency response certificates for approximately 50
untrained employees in order to obtain a new contract to clean
up an oil spill in the Patuxent River. It pled guilty to a felony
false statement count and was sentenced to pay a $100,000
fine. In United States v. James T. Aneckstein, Aneckstein was
sentenced to serve 15 months imprisonment and ordered to
pay a $40,000 fine for failing to warn his tenants about lead
paint hazards and for lying and forging documents in an
attempted cover-up, while his company was sentenced to serve
three years probation. In United States v. Industrial Hygiene
Technologies Inc.(IHT), the company, its president Mark
Sovich, and vice-president Michael MacCabe pled guilty to
two felony false statements for purchasing false certificates for
themselves and for numerous employees. The untrained
employees with false certificates worked on asbestos removal
for the District of Columbia Public Schools Asbestos
Abatement Response Action Program and at the Pentagon.
Sovich and MacCabe each were ordered to serve a one-year
term of probation and pay a $50,000 fine. IHT was ordered to
pay a $100,000 fine.
Endangered Species Act Prosecutions. West Coast
Homebuilders, Inc., owned by Albert Seeno, Jr., pled guilty to
two ESA violations for intentionally draining two ponds on a
home development that contained breeding populations of
threatened red-legged frogs. Seeno directed an agent of West
Coast to drain both of the ponds after he learned from an
environmental consultant that they contained red-legged frogs.
The company was sentenced and ordered to pay $1 million in
criminal fines and restitution: a $300,000 criminal fine, a
$300,000 civil penalty, $300,000 in restitution, $75,000 to the
California Department of Fish and Game Preservation Fund
and $25,000 to the Alameda County Hazardous Materials
Program Training and resources trust account. Seeno also
agreed to preserve a 640-acre parcel of land known as Morgan
Territory Ranch that provides habitat for the frog.
In another ESA prosecution, Courtney Smith, Jr. was
sentenced to 24 months incarceration, a fine of $10,000 and
restitution in the amount of $17,500 for violations of the ESA
as well as the Lacey Act and the Native American Graves
Protection and Repatriation Act (NAGPRA) for selling Native
American remains, mounts of endangered animals and state
protected wildlife. Restitution of $17,500 was ordered as a
statutorily required cost for the re-interment of the Native
American human skulls and foot bones Smith sold in interstate
commerce. Smith's son, Courtney Smith, III was fined $7,500
and placed on probation for one year for a violation of the
Lacey Act for the offer to sell parts of an endangered
rhinoceros mount. Smith's corporation pled guilty to three
felony violations of the Lacey Act, the Archeological
Resources Act and NAGPRA, and was fined $10,000.
Bald and Golden Eagle Protection Act Prosecution. Terry
Antoine, a member of the Cowichan Band of the Salish Tribe
in British Columbia, Canada, was sentenced to 24 months in
jail and ordered to pay $147,000 in restitution for trafficking
in bald eagle parts. During 1997 and 1998, Antoine hired
shooters to kill several hundred bald eagles in Canada,
butchered them there to remove their wings, tails, feet, and
feathers, then smuggled the parts into the United States and
sold them to buyers here.
Ongoing Reptile Smuggling Ring Prosecutions. In a
prosecution jointly handled by Division prosecutors and the
U.S. Attorney's Office in the Northern District of California,
two individuals that had been indicted with Malaysian wildlife
dealer Keng Liang "Anson" Wong were sentenced after being
found guilty in connection with charges that they illegally
imported six Federal Express shipments containing over 100
animals protected by the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) and the
Endangered Species Act. Defendant Lewis, a reptile dealer in
the Phoenix area, and Defendant Paluch, a Federal Express
employee, worked together to bring packages containing
smuggled wildlife into the U.S. using false names and
addresses. They were the ninth and tenth individuals
successfully prosecuted in the Wong case thus far, bringing
the total number of felony convictions obtained to over 75.
Lewis was sentenced to 36 months imprisonment, Paluch to
24 months imprisonment.
Russian Caviar Smuggling. CITES protects sturgeon, a fish
of prehistoric origin which is killed in the process of obtaining
its roe for use in making caviar, but a major threat to its
survival is the trade in black market caviar smuggled from
Russia and other Caspian Sea nations. We have brought a
series of prosecutions against several Russian citizens for
smuggling or attempting to smuggle hundreds of pounds of
Russian caviar into the United States, resulting in guilty pleas
with jail time for all defendants. One such case involved
Viktor Tsimbal, a Russian national and the former president of
Beluga Caviar Inc., who pled guilty to charges of conspiracy,
smuggling, and money laundering. Tsimbal headed a wildlife
smuggling conspiracy in which he provided airline tickets,
hotel accommodations and money to individuals who
transported pre-packed luggage filled with black market caviar
worth hundreds of thousands of dollars from Europe to Miami.
Training in Prosecuting Poaching. We provided training
across the United States in the investigation and prosecution of
poaching offenses. This training included both outreach to a
range of investigative agencies to encourage them to identify
and prioritize these cases, as well as training for prosecutors to
ensure that the cases which are investigated and referred
receive appropriate attention.
PROTECTING OUR NATION'S AIR AND WATER
Reducing Air Pollution from Coal-Fired Power Plants.
During the past year, the Division continued to vigorously
litigate Clean Air Act enforcement actions against coal-fired
electric power generating plants. The failure of these power
plants to install emissions control technology during major
plant upgrades has resulted in tens of millions of tons of air
pollution, leading to adverse health effects on asthma
sufferers, the elderly and children, including premature deaths,
and to forest degradation, waterway damage, reservoir
contamination, and deterioration of buildings. The Division's
settlement of one of these cases (against PSEG Fossil LLC)
will achieve major reductions in New Jersey's air pollution,
reducing PSEG's annual nitrogen oxide emissions by over
80% and sulfur dioxide emissions by 90%. New Jersey was a
party to the settlement which also requires the defendant to
pay $1.4 million in civil penalties and $6 million in
environmental projects to mitigate the harm its alleged
violations had caused.
Addressing Pollution at the Nation's Oil Refineries. The
Division has moved aggressively to protect the nation's air
quality by continuing its national enforcement initiative to
address Clean Air Act violations at the nation's oil refineries.
Building on previous successes, this year we secured
comprehensive settlements with five additional petroleum
companies: Conoco, Premcor, Navajo Refining, Montana
Refinery and Murphy Oil. These settlements will reduce toxic
emissions at nine refineries in seven states, require the
payment of $13.65 million in civil penalties, and the
performance of supplemental environmental projects worth
$10.1 million. Seven states joined in these settlements. Three
settlements require the defendants to install state-of-the-art
pollution control equipment; one defendant has agreed to
surrender its operating permit. To date, this initiative has
addressed more than 40% of the nation's refining capacity.
Enforcement Initiative Against the Ethanol Industry.
Joined by the State of Minnesota, the Division lodged 12
consent decrees to resolve Clean Air Act claims against 12
Minnesota dry corn mill operators that produce ethanol in a
strong start to this new enforcement initiative. To achieve
compliance with the Clean Air Act, the settlements will
require the defendants to install state-of the-art control
technology on all units that are significant sources of pollution
and pay a civil penalty. The settlements will set the standard
for future practices in the ethanol industry, which has
historically underestimated toxic emissions from feed dryers,
cooling cyclones and fuel loading operations.
Leveling the Playing Field in the Wood Products Industry.
The Division reached a settlement with Boise Cascade
Corporation, the fifth largest engineered wood products
manufacturer in the country, successfully concluding EPA's
wood products initiative, which was the first industry-wide
effort to enforce EPA's New Source Review program under
the Clean Air Act. Having previously reached settlements
with Boise Cascade's principal competitors, this consent
decree requires it to spend an estimated $14.84 million to
install air pollution control technology at its eight facilities
located in four states. The required controls will result in
reductions of 2,166 tons per year of pollution. In addition,
Boise Cascade will pay a civil penalty of $4.35 million and
spend $2.9 million on supplemental environmental projects to
ensure that it does not reap an economic gain from its
longstanding noncompliance.
Reducing Dangerous Air Emissions at a Chemical Plant.
The Division lodged a consent decree resolving Clean Air Act
claims against Ferro Corp. for illegal emissions of the human
carcinogen ethylene dichloride at its chemical plant in
Hammond, Indiana. For two decades the facility, operated by
Ferro's Keil Chemical Division, illegally emitted excessive
levels of this hazardous pollutant. During the course of
negotiations, the offending process equipment was dismantled,
abating the risk to human health and the environment. The
consent decree obligates Ferro to pay civil penalties of $3
million, conduct an environmental audit of the facility's
remaining manufacturing processes, and perform a
brownfields clean-up project in the City of Hammond.
Protecting Human Life and the Nation's Water Supply
and Natural Resources From Grossly Negligent Facility
Operators. The Division filed complaints concerning two
incidents in which the gross negligence of a facility operator
caused the loss of human life, endangered the nation's water
supply and resulted in catastrophic damage to natural
resources and habitat. The first complaint was filed under the
Oil Pollution Act against two pipeline operators (Olympic
Pipe Line Co and Shell Pipeline Co.) for claims arising from a
major spill of gasoline into a river in Bellingham, Washington.
The gasoline ignited, killing three youngsters, and the casualty
count and property damage would have been much worse had
the spill ignited after it reached the part of the river that flows
through the center of town. The second complaint was filed
against Motiva Enterprises LLC for violations of three federal
environmental statutes stemming from a spill of concentrated
sulfuric acid and petroleum products at its Delaware City
refinery. The spill occurred after a tank containing more than
1 million gallons of spent sulphuric acid exploded, dissolving
one man and seriously injuring six others. The complaint
alleges that Motiva was guilty of gross negligence in operating
the storage tank.
Protecting the Nation's Water Supply and Natural
Resources from Hazardous Pollutants. The Division settled
claims against ExxonMobil Oil Corporation relating to a spill
of crude oil from a pipeline in Los Angeles County that fouled
a 15-mile stretch of the Santa Clara River. The spill killed
aquatic life in the River, including an endangered species of
fish, as well as causing extensive habitat damage. The
settlement requires ExxonMobil to pay the United States and
the State of California total of $4.7 million, most of which will
be used to preserve and restore habitat in the River and other
natural resources injured by the spill. The Division also
lodged a consent decree settling claims for damages to natural
resources caused by extensive PCB contamination in
sediments of Wisconsin's Fox River and Green Bay. The
settlement with one of several major parties responsible for the
contamination will provide more than $10.8 million for
extensive natural resource restoration work. Two States and
two Indian tribes joined in the settlement.
Ensuring the Integrity of Municipal Wastewater
Treatment Systems. The Division lodged consent decrees
with six municipalities - Toledo, Cincinnati, and Youngstown,
Ohio, Baltimore, Maryland, Mobile, Alabama, and Greenwich,
Connecticut - settling violations of the Clean Water Act in
connection with the cities' operation of their wastewater
collection and treatment systems. The consent decrees provide
for the cities to spend an estimated $1.780 billion dollars in
injunctive relief to bring their sewage treatment systems into
compliance with the Clean Water Act, to pay civil penalties
totaling $1.559 million and to perform supplemental
environmental projects worth at least $6.2 million.
Collectively, the consent decrees address numerous
unpermitted discharges of pollutants and raw sewage into
waters of the United States. One, with the City of Cincinnati,
is a partial consent decree intended to provide interim relief
for unauthorized discharges from its sanitary sewer system
while the city develops a comprehensive plan to address the
discharges.
Ensuring Safe Drinking Water in California. In United
States v Alisal Water Co., the Division acted aggressively to
protect the safety of drinking water supplied to residents in
Monterey County, California, when it successfully sought the
extraordinary relief of requesting a court to appoint a receiver
to take over the privately-owned drinking water companies
supplying water to them. Pending is the court's consideration
of our claim that defendants fraudulently conveyed assets into
irrevocable trusts in 1997 and our request for a civil penalty.
Securing the Second-Highest Clean Water Act Judgment.
Almost one year after a four week jury trial, a district court
awarded the United States a civil penalty of $8,244,670 in a
Clean Water Act case against Allegheny-Ludlum Co. This is
the second highest Clean Water Act judgment ever awarded to
the United States. The violations concerned unpermitted
discharges of oil and pollutants to the Allegheny and the
Kiskiminetas Rivers from five steel mills it operates outside
Pittsburgh, Pennsylvania.
Upholding EPA's Improved Standards for Smog and Soot.
The cornerstone of the Clean Air Act is its provision
governing the setting of national ambient air quality standards
for ubiquitous "conventional" pollutants such as ozone and
particulate matter. In March 2002, after four and a half years
of litigation, the D.C. Circuit upheld EPA's standards for
ozone (smog) and fine particulate matter (soot), finding that
EPA had an adequate record basis to support its regulations
reducing levels of these harmful pollutants. Once
implemented, these standards will prevent thousands of
premature deaths, reduce hospital admissions, and provide
additional protection against asthma attacks and other
respiratory illnesses caused or aggravated by smog and soot.
Reducing Pollution from Diesel-Powered Trucks and
Buses. In May 2002, the Division obtained a significant
victory in its defense of EPA's stringent new emission limits
for heavy-duty diesel truck and bus engines, and a related
requirement to significantly reduce sulfur content in diesel
fuel. The decision ratifies EPA's conclusions that the
emission reductions required for heavy-duty diesel engines are
technologically feasible, and that the reduction in diesel fuel
sulfur content will not disrupt the supply of diesel fuel. It also
clears the way for a new generation of less-polluting trucks
and buses on our nation's streets and highways.
Affirming EPA's Authority to Ensure Required Pollution
Controls. Under the Clean Air Act, states generally have
primary authority, subject to EPA oversight, for issuing
"prevention of significant deterioration" ("PSD") permits to
major new sources of air pollution. In July 2002, the Ninth
Circuit affirmed EPA's authority to issue administrative orders
and take other appropriate enforcement action to ensure that
states do not act arbitrarily in their implementation of the Act's
permitting requirements.
Preserving Our Nations's Wetlands. The Division obtained
court orders requiring violators of federal wetland laws to pay
more than $1 million in civil penalties and to restore or create
more than 150 acres of wetlands. Our success in this area
included a very favorable settlement in United States v.
Simpson, which required the violator to restore portions of the
Salmon River - a critical habitat for salmon - and adjacent
wetlands and to pay a substantial civil penalty. The Division
also successfully defended the imposition of a $4 million
stipulated penalty as a result of a developer's violation of the
terms of a consent decree related to the destruction of wetlands
in Indiana. We also coordinated the first-ever joint
state/federal conference on wetlands protection and
enforcement, in cooperation with EPA, the Army Corps of
Engineers and four State associations
Pipeline Safety. One of the few pieces of environmental
legislation to pass in 2002 was the Pipeline Infrastructure
Protection to Enhance Security and Safety Act (H.R. 3609)
This Act made important changes to the Pipeline Safety Act
that will require pipeline operators to take additional measures
to ensure the integrity of the thousands of miles of gas and
hazardous materials pipelines that cross this country and that
will strengthen our arsenal of enforcement tools to address
violations of the statute. These amendments grew in part out
of a terrible pipeline explosion in Bellingham, Washington.
The U.S. Attorney's office in Seattle led the way in
prosecuting this case. The Division and the Executive Office
of the United States Attorneys worked together to obtain
improvements to the enforcement provisions of this statute.
World Summit on Sustainable Development. We played a
significant role in formulating the U.S. position on domestic
environmental governance for the World Summit held in
South Africa this summer and conducted several courses on
enforcement at a Summit-related institute.
ENSURING CLEANUP OF HAZARDOUS WASTE
Securing Cleanup of Hazardous Waste Sites by
Responsible Parties. In four notable settlements, the
Division secured the agreement of responsible parties to
conduct both initial and final clean-up of contaminated sites
across the United States.
In Alabama, we lodged a consent decree with Pharmacia
Corporation (formerly Monsanto) and Solutia, Inc. providing
for the emergency cleanup of area residences in Anniston, a
comprehensive study and evaluation of risks to human health
caused by polychlorinated biphenyls (PCBs), establishment of
a $3.2 million foundation to assist in funding special education
needs for Anniston-area children, and the recovery of all future
response costs incurred by the United States in overseeing the
cleanup.
In New Jersey, a district court entered a consent decree
requiring Ciba Specialty Chemicals Corp. and the Novartis
Corporation to implement a source control remedy at the
Ciba-Geigy Superfund Site in Toms River. The Site is a 1300
acre parcel of land where approximately 320 acres were
devoted to the manufacture of various hazardous chemicals.
The source control remedy is estimated to cost $90 million
and, in addition to other remedial work performed by
defendants to address groundwater contamination, will bring
the total amount spent by defendants on cleanup work to an
estimated $150 million.
In California, the Division lodged the final consent decree in
connection with the Operating Industries Inc. Superfund site in
Monterey Park. The United States has entered into seven prior
consent decrees and EPA has issued two unilateral orders for
the site, a 190-acre landfill which operated from 1948 until
1984 and accepted both industrial and municipal wastes. To
date, settlements between all parties have totaled more than
$600 million. The final decree provides for the payment of
$340 million by 161 defendants and will ensure
implementation of the final phase of the cleanup.
Finally, in Montana, the court entered a consent decree
resolving the United States' claims against ARCO and five
other settling defendants for the Berkeley Pit in Butte. The
Berkeley Pit was the site of extensive open pit mining from
1955 through 1982, leaving a hole in the middle of Butte
roughly a mile wide and a half mile deep, now filled with over
25 billion gallons of highly acidic mine waste, with roughly 6
million additional gallons pouring in daily. The consent
decree requires ARCO and the other defendants to construct a
treatment plant to divert and treat the water before it is
discharged away from the Pit, either into a local stream or into
an adjacent mine leaching operation. The settlement will
recover 98% of total site remediation costs, which are
estimated at over $110 million. The State of Montana joined
the settlement.
Securing Cleanup of Hazardous Waste on Federal Land.
Three consent decrees were entered concluding the Division's
CERCLA action on behalf of the National Park Service to
secure cleanup of the Krejci Dump Site in Summit County,
Ohio. The site is located within the Cuyahoga Valley National
Park and was formerly used as an industrial dump and scrap
yard. Under the first decree, Ford Motor Co. and General
Motors Corp., who had sent waste to the site, agreed to
perform the long-term remedy valued at approximately $29
million. In the second decree, five additional companies who
sent waste to the site agreed to pay $4.3 million toward
cleanup and $477,500 toward natural resource restoration.
The third decree resolved the liability of 3M Company, the
only defendant who refused to settle prior to trial. After 3M
was adjudged liable under CERCLA for cleanup costs, it
agreed to pay the Department of Interior $15.5 million to
reimburse the government's costs.
Pursuing Corporate Assets to Fund Cleanup
Responsibilities. In June, we intervened in an ongoing
bankruptcy adversary proceeding against W.R. Grace & Co. to
set aside two corporate reorganizations that we believe
constitute fraudulent conveyances. As part of the
reorganizations, Grace transferred assets valued at between
$3.8 and $4.5 billion in exchange for a $1.2 billion capital
contribution, effectively rendering it insolvent and unable to
satisfy its environmental liabilities, including those at issue in
our CERCLA cost recovery case against Grace in connection
with the Libby Asbestos Site in Libby, Montana. At the Libby
Site, EPA has spent more than $57 million in removing large
amounts of asbestos from Grace's former vermiculite mining
and processing facilities and remedying asbestos-contaminated
mining and process wastes that were given away to Libby
homeowners for use in their gardens and to local schools for
use on athletic tracks. Several hundred Libby residents have
died from asbestos-related disease and cancer over the years,
and recent screening studies have shown that a significant
portion of the adult population in Libby has asbestos-related
scarring in their lungs. In May, the court entered a consent
decree in a related case that resolves our request for access to
certain parcels of land at the Libby Site and for a civil penalty
for Grace's failure to comply with EPA's access requests. The
consent decree provides for an allowed claim of $71,000 in
Grace's pending bankruptcy as a civil penalty and Grace's
performance of a supplemental environmental project to
provide asbestos-related health care services to Libby residents
at a cost of $2.75 million.
On August 9, 2002, the Division filed a complaint and motion
for preliminary injunction against ASARCO, Inc. to enjoin the
fraudulent transfer of ASARCO's most valuable asset - its
majority ownership interest in a Peruvian copper company - to
its parent corporation, Americas Mining Co. Our complaint
alleged that the proposed insider sale was for significantly less
than the actual market value of the stock. As a result of its
extensive mining operations, ASARCO has hundreds of
millions of dollars of environmental debts and liabilities to the
United States at numerous contaminated sites across the
country. Because the proposed sale would severely reduce
ASARCO's ability to meet those obligations, the complaint
alleged that the transfer would constitute a fraudulent
conveyance under the Federal Debt Collection Procedures Act
and Federal Priority Statute.
Also in August, a court approved our bankruptcy settlement
with debtors Fruit of the Loom, NWI Land Management, and
Velsicol Chemical Corp. Under the agreement, the debtors
will transfer the portions of seven Superfund sites that they
own to an independent custodial trust and will also dedicate
assets to fund cleanup actions and natural resource damage
restoration for the seven sites. Among the assets committed to
address these environmental liabilities are $4,292,808 in cash,
proceeds from general liability insurance claims estimated to
be worth $20 to 30 million, recoveries from preferred shares
of stock in Velsicol's parent corporation, and proceeds from
defendants' cost overrun insurance policies. Illinois,
Michigan, New Jersey, and Tennessee were also parties to the
settlement.
Paving the Way for Clean up of PCB Contamination in the
Hudson River. The Division succeeded in defeating efforts
to halt EPA's selection of a remedy for addressing extensive
PCB-contamination in the Hudson River.
Protecting EPA's Ability to Pursue Hazardous Waste
Violations. The Tenth Circuit held that EPA can maintain its
own enforcement action in a state with a federally-authorized
hazardous waste program after the state enters into a
settlement with the violator for related violations arising out of
the same set of circumstances, rejecting an Eighth Circuit
decision to the contrary.
Parent Corporation Liability Under Superfund. In one of
the first appellate cases to address the issue of when a parent
corporation is liable for waste disposal practices of its
subsidiaries under the Superfund statute, the First Circuit held
in United States v. Kayser-Roth Corporation that the district
court did not abuse its discretion in denying Kayser-Roth relief
from a 1990 declaratory judgment of liability as an operator
for releases of hazardous substances from its subsidiary's
facility.
DEFENDING VITAL FEDERAL PROGRAMS AND
INTERESTS
Promoting Military Preparedness and National Security.
Working closely with our counterparts in the military, we have
committed significant time and resources to ensure that
military training and operations are not disrupted or delayed.
We continued our unbroken record of wins at both the trial
and appellate court levels in supporting live-fire military
exercises at and around Vieques Island in Puerto Rico. We
also developed a successful defense to claims brought against
the Navy regarding its plans to expand a Trident nuclear
submarine base in Maine, committed substantial resources to
insuring that Air Force and Marine operations at Goldwater
Air Force Base in Arizona could continue after a court-ordered
remand, obtained a dismissal in a challenge to the Navy's
Littoral Warfare Advanced Development project (a sonar
testing effort designed to enhance submarine detection), and
worked closely with the Navy to craft an equitable remedy
regarding its unintentional take of migratory birds during
live-fire training activities in the Northern Marianas.
Successful Defense of the Army's Chemical Weapons
Demilitarization Program. We continue to prevail in our
defense of the Army's $15 billion Chemical Weapons
Demilitarization Program. Pursuant to the United States'
treaty obligations, Congress has charged the Army with
responsibility for destroying chemical weapon stockpiles at
their current locations. We are handling multiple pieces of
litigation related to the destruction of chemical weapons across
the country. In Alabama, we secured a voluntary dismissal of
the Alabama Governor's action to enjoin the Army's
incineration of chemical weapons, and in Arkansas, we
represented the Army as an intervener in a challenge to
state-issued permits for the Pine Bluff Chemical Agent
Disposal Facility in Little Rock. In March 2002, the court
found the decision to issue the permits to be "a thorough,
well-reasoned one and supported by substantial evidence."
We are now defending an appeal of that decision to the
Arkansas Court of Appeals.
Helping workers and Agencies affected by the Events of
September 11, 2001. We assisted the General Services
Administration by filing two cases involving condemnation of
leasehold estates in office buildings in downtown Manhattan
to house federal agencies displaced by the 9/11 atrocity.
Merely getting the cases filed, much less on the expedited
basis required by the situation, presented daunting challenges.
With telephonic and fax communication between New York
and Washington sporadic at best, we drafted the takings
documents that would normally have been the responsibility of
GSA and arranged the actual physical filing of the cases. This
effort resulted in the earliest possible housing of, and thus
resumption of work by, displaced federal agencies. During
this past fiscal year, the government has achieved a settlement
in both cases in which the landowners have agreed to accept as
just compensation the government's monthly rental payments
made to date.
Our ongoing work with GSA involves close coordination
regarding the possible use of eminent domain to institute
security measures in buildings occupied by federal workers.
Most of these buildings are under lease to the government and
the government's associated security measures now typically
involve restrictions on direct access, ID checks, use of metal
detector devices, electronic scans of vehicles entering garages,
but not all lessors have been amenable to the government
imposing these security measures in common areas, such as
building lobbies. Our work has been to draft estates, usually
appurtenant to the government's existing lease in any given
building, restricting use of the building to that which can be
made in conformity with the government's security
restrictions. Although these efforts to date have resulted in
negotiated settlements short of filing of condemnation actions,
we have several potential cases that are awaiting final
negotiation efforts between the parties. We expect this work
to grow, as well as that associated with increasing security
along the borders between the United States and Mexico and
Canada.
Protecting Energy Policy and Infrastructure. When the
Governor of South Carolina sought to halt plutonium
shipments from the Energy Department's Rocky Flats site to
its Savannah River site for long-term, secure storage, we
defeated a motion for preliminary injunction and obtained
summary judgment on behalf of the Energy Department,
thereby ensuring timely shipments that were critical to
maintaining compliance with an agreement with the State of
Colorado. The Fourth Circuit affirmed the district court's
decision. We also advanced the safety and supply of gasoline
in the Southwest by successfully defending challenges to the
construction and operation of the Longhorn pipeline, a
730-mile pipeline extending from Houston to El Paso.
Assisting the Expansion of the Cleveland International
Airport. We vindicated federal interests in proceeding with
expansion of the Hopkins Cleveland International Airport in
Ohio in City of Olmsted Falls v. United States, defeating two
separate efforts by plaintiffs to enjoin the project, and
ultimately obtaining an outright dismissal of the case.
Defending Authorizations for California Projects. We
have had good results in several cases defending federal
agency authorizations for development. For example, in a
challenge to the National Park Service's plan for the future
use of a former military base as part of the Golden Gate
National Recreation Area, including expansion of the Bay
Area Discovery Museum and construction of a visitor center
and hotel, the Court ruled for the Service, rejecting claims that
the Service had not complied with various environmental
requirements. We also prevailed against challenges to the
expansion project at the Port of Oakland. The court rejected
plaintiffs' claims that biological opinions issued by FWS and
NMFS failed to adequately consider the possible impacts of
invasive species which could potentially be introduced into the
Bay ecosystem through the discharge of ballast water. The
Court held that the federal agencies gave appropriate
consideration to the potential impacts of non-native
introductions, especially in light of the developing nature of
this area of science.
Construction of World War II Memorial. We overcame
challenges to the construction of the World War II Memorial
on the National Mall, ensuring that construction of this
important, high-profile project would continue expeditiously.
Protecting the Public Fisc. A significant portion of the
Division's practice involves resolving the liability of federal
agencies in connection with the cleanup of contaminated
facilities under the federal Superfund statute. In FY2002, the
Division successfully defended numerous claims of federal
Superfund liability at a cost savings to the government of over
$700 million, a figure seven times greater than the Division's
annual budget. Significant victories include a decision by the
Ninth Circuit overturning an award of almost $100 million
with respect to cleanup of the McColl Superfund Site in
California in United States v. Shell Oil Co, and an outright
dismissal of contribution claims against the government in
connection with the $150 million cleanup of the Summitville
Mine Site in Colorado.
Resolving Claims Based on Restrictions Resulting from the
Presence of Protected Species. In the past year, we have
successfully resolved several suits claiming that landowners
have been precluded from making productive use of their
property due to the presence of endangered species, including
the American Bald Eagle. These plaintiffs argued that these
restrictions constituted a Fifth Amendment taking of their
property and sought compensation. In each of these cases we
were able to develop a plan whereby permanent restrictions
were either lifted or reduced, enabling the landowner to
resume activities on the property and protecting the United
States from considerable monetary exposure. These cases also
resulted in favorable and precedent setting court decisions
recognizing the right of the United States to establish
reasonable regulatory processes, and to subsequently modify
an agency decision, without giving rise to a claim for
compensation.
Protecting the National "Rails-to-Trails" Program.
Through the National Trails System Act, more than 12,000
miles of recreational trails have been created from former
railroad corridors which had fallen into disuse. While this
program provides numerous benefits to communities and to
individuals, some who own property adjacent to the trails have
filed class action lawsuits contending that the creation of these
trails caused a taking of their property for which they are
entitled to compensation. While these cases present numerous
legal and logistic challenges, we have had several significant
accomplishments in the past year which have resulted in
savings of millions of dollars, while also establishing
important legal precedent that will aid in achieving a
successful result in many other rails-to-trails cases. Our
successes include favorable court decisions in a 200-person
class action in Idaho and in a multi-party claim involving
Vermont property, as well as concluding settlements in several
longstanding cases.
Appraisal Unit Accomplishments. In support of the
Division's litigation involving real property value questions,
the Appraisal Unit completed 156 appraisal reviews
concerning 226 tracts with a total estimated value of
$835,607,953.00. In addition to the appraisal reviews which
are its primary responsibility, the unit provided significant
valuation assistance to a number of client agencies over the
course of the year. Among the most notable efforts was the
assistance provided to the United States Navy concerning
several projects, including the Naval Air Station - Oceana and
the Marine Corps facility at Blount Island in the Port of
Jacksonville. Assistance was also proved to the General
Services Administration concerning first impression valuation
issues related to the Nassif Building, the headquarters facility
for the Department of Transportation. Members of the unit
participated in presentations at a number of national and
regional meetings and seminars held by such federal agencies
as the Bureau of Land Management, the Fish and Wildlife
Service, the Forest Service, and the National Park Service.
Appraisal Unit members also developed and prepared a
two-day seminar regarding The Uniform Appraisal Standards
for Federal Land Acquisitions which they presented five times
during the past year at various locations around the country.
PROMOTING RESPONSIBLE STEWARDSHIP OF
AMERICA'S WILDLIFE AND NATURAL RESOURCES
Challenge to Corps' Permitting in Panther Habitat. In one
of an increasing number of "programmatic challenges" to
agency actions, we obtained dismissal of a challenge to 23
Army Corps of Engineers' Clean Water Act nationwide
permits for projects located in potential habitat of the
endangered Florida panther. The court agreed with us that
"programmatic" claims, for example the claim that the permits
were "examples" of a program and practice of unlawful
permitting and ESA consultation on the part of the Corps and
the U.S. Fish and Wildlife Service, were precluded.
Everglades Litigation. In a challenge to the Corps of
Engineers' efforts to avoid jeopardizing the continued
existence of the Cape Sable Seaside sparrow through the
operation of the Central and South Florida Project, the court
deferred to the Corps' expertise and denied the Natural
Resources Defense Council's preliminary injunction motion.
NRDC thereafter agreed to a joint motion to stay its case while
the Army Corps completes an Environmental Impact
Statement on a water management plan. In a related case, the
court denied a series of emergency motions for preliminary
injunction seeking departure from the water levels prescribed
by the Corps to balance flood protection and sparrow
protection. Litigation continues on the merits, but the
operational plan for this year remains intact, allowing the
federal agencies to focus on future management. Finally, we
continued to contribute to protection of the unique Everglades
ecosystem by ensuring that acquisitions by eminent domain
were effected as to approximately 2800 tracts for inclusion
within the Everglades National Park and the Big Cypress
National Preserve expansions. We have also begun
preliminary work with the National Park Service on the
acquisition of outstanding mineral interests in the Everglades
National Park.
Protecting the Forest Service's Planning and Management
Authority. We overcame a challenge to the Forest Service's
new Planning Rule, which revised the guidelines for National
Forest planning decisions, and successfully defended a suit
challenging legislation which provided a grace period to
timely revise the Land and Resource Management Plans which
govern 191 million acres of National Forest lands. We also
defended against a variety of challenges the National Fire
Plan, a cabinet-level nationwide response to the devastating
wildfires that swept the National Forests of the West during
the summer of 2000. For example, by securing favorable
settlements in these challenges to the largest timber salvage
sale and burned area recovery project to date, we obtained a
result that permitted approximately half of the challenged sale
to go forward, preserving the projects' environmental and
economic benefits, including approximately 4,000 jobs and a
$77,000,000 infusion into the local economy. Concerns about
the immediate fire danger to the urban interface with
wildlands in the Black Hills National Forest also led to
successful negotiations with the State of South Dakota, local
counties, a timber industry association, and environmental
groups, resulting in a modification of the settlement in
Biodiversity Associates v. Laverty, which was then converted
into legislation signed on August 2, 2002. The legislation has
become a model for subsequent attempts to streamline
administrative processes to allow more immediate action to
mitigate fire dangers to Western communities.
In other Forest Service matters, the Division continued its
record of creative, aggressive advocacy. The failure of the
Northwest Forest Plan to deliver on the promise of sustainable
timber outputs has presented serious concerns. Following
complicated negotiations with a coalition of timber industry,
local county and labor union representatives, we negotiated a
settlement which permits the federal agencies to re-examine
one of the timber-limiting protocols of the Plan to determine
whether the environmental objectives of the provision could
be attained through less costly and time-consuming methods.
Also, in a challenge to the revised Tongass Land Management
Plan, we were able to obtain a closely tailored injunction
permitting the activities already planned by the Forest Service
to proceed, thereby avoiding the possibility of serious
economic dislocation in Southeast Alaska if timber harvesting
were halted.
In addition, the Division has successfully defended a number
of particular timber resource programs.
Water Rights Victories. A critical issue in the drought-stricken Southwest concerns the apportionment of water
among domestic users and endangered species. In Rio Grande
Silvery Minnow v. McDonald, we successfully defended the
Fish and Wildlife Service's biological opinion for the Middle
Rio Grande relating to the endangered silvery minnow,
building on a unique arrangement earlier negotiated with the
State of New Mexico. We further assisted the Bureau of
Reclamation in negotiating with the City of Albuquerque to
acquire an additional quantity of water to meet the flow
requirements for the minnow, even though it was one of the
worst drought years on record.
We also secured numerous highly favorable settlements that
will protect the water supplies and flows necessary to maintain
the vitality of natural resources and uses on the public lands,
national forests, wild and scenic rivers, military bases, and
federal reclamation projects in areas such as the Yakima River
Basin in Washington, the Klamath River Basin in Oregon, and
the Snake River Basin in Idaho.
Protecting the National Marine Fisheries Service's
(NMFS) Management Authority. The Division defended
numerous challenges from both the fishing industry and from
environmental organizations regarding NMFS' management of
commercial ocean fisheries through which NMFS seeks to
promote both conservation of the fishery and a sustained
commercial yield. On the east coast, we successfully defended
an emergency rule placing regulations on the Red Crab fishery
after two large catcher/processor vessels from Alaska
transferred to this fishery, and also NMFS' adoption of
management areas that divided lobster fisheries among New
Hampshire and other States' fishermen. We also prevailed in
Massachusetts to allow NMFS the time necessary to carry out
its self-imposed obligations to promulgate rulemakings to
protect the right whale.
On the west coast, we successfully defended NMFS' decision
to exempt certain activities from NMFS' "4(d)" rule for
threatened salmon stocks and its 1996 Framework Regulation
and 1999 Pacific whiting allocation among four Pacific Coast
Treaty Tribes.
On the international front, the court of appeals upheld the
government's implementation of a provision in the 1990
Commerce Appropriations Act that embargoes shrimp
products harvested with fishing technologies that may
adversely affect endangered sea turtles. The court held that
the law embargoes shrimp caught by vessels that do not use
Turtle Excluder Devices (TEDs) on their shrimp trawls. The
court rejected the environmental group's argument that
Congress meant to embargo all shrimp from a nation that does
not require the use of TEDs throughout its shrimp fishing
fleet.
Defending Federal Protections for Endangered Species. In
a victory for the protection of endangered species, the Ninth
Circuit held that the Endangered Species Act and the National
Wildlife Refuge System Improvement Act pre-empted a
California state initiative (Proposition 4) to the extent that it
banned the federal government's use of leg hold traps, which
were used to protect ESA-listed species.
Defending Federal Authority to Manage Public Lands. In
quiet title litigation with the State of Idaho, the Division
negotiated a settlement that resolved ownership disputes with
the State and augmented federal acreage with respect to
hundreds of islands in the Snake River in and around Deer Flat
National Wildlife Refuge. The islands that we cleared of title
questions enhanced the Refuge significantly because they offer
important habitat for migratory birds. We also successfully
defended the National Park Service's regulation banning the
use of personal watercraft outside of specially designated areas
in national parks throughout the United States.
PROTECTING INDIAN RIGHTS AND RESOLVING
INDIAN ISSUES
Defending Tribal and Federal Interests in Water
Adjudications. We had several notable successes in water
rights adjudications. These adjudications are complex,
primarily defensive cases, often involving the water rights of
thousands of parties, and we devote significant resources to
crafting settlements that balance and recognize the interests of
all parties, as opposed to litigating these cases in a winner-takes-all manner. These successes include the second largest
Indian water right settlement in the history of New Mexico
and more than thirty settlements in Montana water
adjudications. In addition, we overcame the last objections to
entry in the Montana Water Court of the Chippewa Cree
Tribe's compact on the Rocky Boy's Reservation, a settlement
negotiated by the United States, the State of Montana and the
Tribe, and subsequently ratified by Congress. Finally, we
worked with the State of Arizona, the Salt River Project, the
Zuni Tribe, and private parties to craft a legislative settlement
of the Zuni Tribe's water rights to the Little Colorado River.
Not all water adjudications, however, are amenable to
settlement. In such litigation, we had two significant victories.
In State of Washington v. James J. Acquavella, we prevailed,
following trial, establishing water rights for off-reservation
Indian lands and lands of the Bureau of Land Management. In
United States v. Adair, in Oregon the court adopted our
position regarding the quantification of tribal water rights,
upholding an approach that the Department of the Interior has
spent 12 years and millions of dollars developing.
Defending the United States' Ability to Take Title to
Indian Land. We garnered significant successes in
challenges to decisions by the Secretary of the Interior to
accept title to Indian land. These challenges seek to declare
important federal statutes and programs unconstitutional, as
well as to vacate agency action. Notable successes include:
State of Connecticut v. Norton, in which the court granted our
motion to dismiss this longstanding case after the Second
Circuit affirmed the Secretary's ability to acquire trust lands
for the Tribe; Churchill County v. Interior, in which the court
dismissed the County's challenge to the constitutionality of a
statute where Congress required the Secretary to accept certain
lands in trust; State of Nevada v. Interior, in which the court
granted our motion to dismiss, finding the State's
constitutional challenges to be frivolous, and City of Roseville
v. United States in which we successfully defended a
challenge to a recent Interior Department decision to accept
land into trust status on behalf of the United Auburn Indian
Community. These decisions established a firm groundwork
for courts to dismiss summarily these increasingly common
challenges to the Secretary's decisions.
Defending Indian Legislation and Programs. We have also
successfully defended a broad range of federal statutes and
programs protecting Indian interests. In Association of
Property Owners v. Individual Council Members of the
Suquamish Tribal Council, we successfully defended a HUD
program to provide low-income housing for Native Americans
pursuant to the Native American Housing Assistance Act. In
Hamilton v. Bush, Plaintiffs challenged the constitutionality of
the 1992 Crow Boundary Settlement Act, which settled a
long-standing dispute between Crow Tribe, the Northern
Cheyenne Tribe, and the United States regarding the proper
boundary of the two tribes' reservations, arising from a
nineteenth century surveying error of the 107th Meridian. The
court granted our motion to dismiss on the grounds that
plaintiffs lacked standing. Plaintiffs did not appeal. In
Connecticut v. Interior, we prevailed in defending the Interior
Department's discretion to regulate the process by which it
determines how to process petitions by groups to obtain
federal recognition. Finally, in Arakaki v. Cayetano, we
successfully defended a challenge to the constitutionality of
1920s legislation designed to serve Native Hawaiians.
Bringing Resolution to Indian Land Claims. We devoted
significant effort to resolving an ongoing land dispute along
the Arkansas River in Oklahoma between three tribes, the
United States, and private landowners. In a 1980 opinion, the
Supreme Court held that the title to a 96-mile stretch of the
Arkansas Riverbed belonged to the Cherokee, Choctaw, and
Chickasaw tribes of Oklahoma. Due to changes in the course
of the river, much of this riverbed had become dry land and,
although still claimed by the Tribes, was occupied by private
landowners. The Tribes brought a breach of trust action
against the United States for failure to safeguard these lands
and sought to file quiet title actions against the private
landowners as well. This year, we played a central role in
bringing about a settlement that resolved the Tribes' claims
against the United States and compensated the Tribes, while at
the same time affirming and ratifying title in the private
landowners that occupy the dry riverbed lands. In addition to
lifting any encumbrances on title, the bill settled the Tribes'
claims for significantly less than they were claiming against
the United States. Congress passed this settlement legislation
in the final days of the 107th Congress.
We also worked toward a just and expeditious resolution of
the New York Indian land claims, by advancing the view in a
suit involving the Cayuga Nation that New York State -- as the
party that violated federal law giving rise to New York land
claims -- could be held fully liable for all damages, as opposed
to innocent third party landowners. The courts have adopted
this view, and we have obtained dismissal of all parties from
the United States' complaints in the New York land claims
case with the exception of New York State. We are also
actively promoting settlement negotiations with the hopes of
reaching an agreement acceptable to all parties in other New
York land claim cases.
Discharging the Trust Responsibility to Native Americans.
We obtained good outcomes in two cases involving Tribal
allegations of resource mismanagement. In one, plaintiffs
sought damages for the alleged misappropriation of their sand
and gravel resources and mismanagement of their funds. After
we investigated the government's conduct with regard to the
resources and the funds, our attorneys persuaded the plaintiffs
to dismiss their case with prejudice. In addition to avoiding
the cost and risk of a trial, we were able to reassure the
plaintiffs about the good faith of their relationship with the
government. In the other, plaintiffs sought $131 million for
the alleged mismanagement of Tribal natural resources and
funds. On the eve of trial, we settled the matter for less than
$3 million.
We also enjoyed significant successes in other matters of
importance to the trust relationship with Native Americans.
For example, we established an important precedent in
protecting the National Indian Gaming Commission's
authority to enforce statutory requirements with regard to
Indian gaming in Native Village of Barrow v. NIGC. In that
suit, the Division convinced the Court to uphold the NIGC's
legal interpretation of the Indian Gaming Regulatory Act's
requirement that restricts Indian gaming to land over which a
Tribe exercises governmental power. In Seminole Nation v.
Norton, we vindicated the Interior Department's decision to
withhold Tribal benefits from the Seminole Nation until such
time as the Tribe reversed its decision to exclude members of
African-American descent from participating in Tribal
government. The Section's victory protected the civil rights of
Native Americans who had been illegally ousted from their
Tribe and created a significant precedent concerning the
Interior Department's authority to oversee and regulate a
Tribe's eligibility for benefits provided to federally recognized
Tribes.
SUPPORTING THE DIVISION'S LITIGATORS
Improved Litigation Support Technology. ENRD's Office
of Litigation Support has assumed the chairmanship of a
Department technology working group to review new
software. The latest project for the group has been to purchase
"enterprise licenses" for CaseSoft and Concordance. This
purchasing method, akin to buying in bulk, resulted in
significant savings to the Department. In a related effort, we
are working with the Executive Office of U.S. Attorneys to
develop software compatibility standards to ensure that
communications and work-sharing between ENRD and U.S.
Attorneys is seamless.
Upgraded Technology Infrastructure. In FY 2003, all
litigators and staff will receive new desktop computers
equipped with the newest available versions of ENRD's
standard software applications, as well as new equipment to
facilitate electronic litigation as well as desktop litigation
support software. Extensive planning has gone into this
project, network hardware and applications have been
upgraded, and new printers have been installed throughout the
Division to prepare for the roll-out of the new system next
year.
Electronic Document Management. ENRD laid the
foundation for the Division's attorneys to manage electronic
case information by implementing a pilot project to scan case-related mail as it arrives in the Division, then forwarding the
scanned images via e-mail to attorneys. This technology can
enhance mail delivery, make case-related mail available to
multiple attorneys and to those traveling, eliminate paper, and
free support staff to focus on other duties. The pilot project
was a success, and we are undertaking a cost-feasibility
analysis for full implementation in the Division. We also
opened a "scanning lab" in our Denver Field Office, similar to
the lab in Washington D.C., to scan digital images of case
related documents into databases. This will allow us to process
case documents more efficiently, and meet the new
requirements for electronic discovery and litigation in
electronic courtrooms.
Real-Time Deposition Capability. ENRD established a
facility for capturing depositions in real time. Using software
manufactured for this purpose, attorneys connect to a
deposition through video conference technology while
receiving a live feed of the transcript through an Internet
connection. Attorneys can edit, make notes and review
previous testimony in the transcript while it is being typed by
the court reporter. This capability increase productivity and
help save time and money.
ENRD's Transition to E-Filing. The Division has developed
a workgroup on electronic filing of court pleadings ("e-filing")
and arranged for staff to receive software and training.
Through our participation in the Department's E-Filing
Workgroup, we have started developing a training video,
helped other Department components move to e-filing, and
provided feedback and recommendations to the judiciary via
the Administrative Office of the Federal Courts. We have also
written an article on e-filing for the American Bar Association
which will assist in the move to electronic litigation, and
drafted statutory provisions recently enacted into law that
address these issues.