5-1.100
General Policy and Responsibilities
The Environment and Natural Resources Division, which was created in
1909, represents the United States, its agencies and officials in matters
relating to environmental quality, public lands and natural resources,
Indian lands and native claims, and wildlife and fishery resources. The
Division's responsibilities are varied and include both enforcement and
defensive work, in both criminal and civil cases. More specifically,
responsibilities of the Environment and Natural Resources Division are set
forth in 28 C.F.R. § 0.65.
[cited in USAM 5-12.500;
USAM 5-7.120;
USAM 5-10.500]
5-1.200
Litigation Involving the Environmental Protection Agency
With respect to any matter assigned to the Environment and Natural
Resources Division in which the Environmental Protection Agency is a party,
the Assistant Attorney General in charge of the Environment and Natural
Resources Division, and such staff as he/she may specifically designate in
writing, are authorized to exercise the functions and responsibilities
undertaken by the Attorney General in the Memorandum of Understanding
between the Department of Justice and the Environmental Protection Agency
(42 Fed.Reg. 48942), except that Subpart Y of 28 CFR Part 0 shall continue
to govern as authority to compromise and close civil claims in such
matters.
5-1.300
Supervision and Handling of Environment and
Natural
Resources Division CasesGenerally
All cases within the area of responsibility of the Environment and
Natural Resources Division are subject to the supervision and control of the
Assistant Attorney General in charge of the Environment and Natural
Resources Division. As is hereinafter more fully set forth, the
responsibilities for direct handling of cases are divided into four general
classifications: (1) cases for which authority has been delegated to the
United States Attorneys which may be directly referred to him/her by an
authorized field officer or a federal department or agency, see USAM 5-1.310; (2) cases which are delegated to
the United States Attorneys by the Assistant Attorney General of the
Division for which the United States Attorneys are assigned primary
responsibility, see USAM 5-1.323;
(3) cases which the Assistant Attorney General of the Division determines
shall be the joint responsibility of the Division and the United States
Attorney, see USAM 5-1.324; and (4)
cases for which the Division retains primary responsibility, see
USAM 5-1.325.
[cited in USAM 5-5.210;
USAM 5-5.230]
5-1.302
Pleadings To Be Signed by the Assistant Attorney General
In all civil cases where the United States is a plaintiff, other than
direct referral cases, see USAM
5-1.310 and specific cases or classes of cases the Assistant Attorney
General exempts from this requirement, arising from matters in the
litigating sections, all complaints, or agreements for entry of judgment or
dismissal shall be signed, prior to filing, by the Assistant Attorney
General, unless otherwise expressly delegated.
[cited in USAM 5-6.321;
USAM 5-8.600;
USAM 5-9.321;
USAM 5-10.321]
5-1.310
Authority of United States Attorneys to Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases
Actions which may be initiated by the United States Attorneys without
prior authorization from the Environment and Natural Resources Division are
listed in Environment and Natural Resources Division Directive No. 16-99.
The pertinent portion of the amended Directive provides generally as
follows:
AUTHORITY TO INITIATE CASES
- Delegation to United States Attorneys
- Land Cases.
- (1) United States Attorneys are hereby authorized with respect to
Environment and Natural Resources Division cases to act in matters
concerning real property of the United States, including tribal and
restricted individual Indian land, not involving new or unusual questions or
questions of water rights, on behalf of any department or agency in response
to a request in writing from a person authorized to make the request on
behalf of the field office of that department or agency ("authorized field
officer"), without prior authorization from the Environment and Natural
Resources Division, in the following described cases:
(a) Actions to recover possession of or quiet title to property from
tenants, squatters, trespassers, or others, and actions to enjoin
trespasses;
(b) Actions to recover damages resulting from trespasses when the
amount of the claim for actual damage based upon an innocent trespass
does not exceed $1,000,000, and actions to recover amounts exceeding
$1,000,000:
- (i) if the actual damages are $1,000,000 or less and applicable
state law permits the recovery of multiple damages, e.g., double or
treble, for either a willful or an innocent trespass; or
- (ii) if the actual damages are $1,000,000 or less, but the action
is for conversion to obtain recovery of the enhanced value of property
severed and removed in the trespass;
(c) Actions to collect delinquent rentals or damages for use and
occupancy of not more than $1,000,000;
(d) Actions to collect costs of forest fire suppression and other
damages resulting from such fires;
(e) Actions to collect delinquent operation and maintenance charges
accruing on Indian irrigation projects and federal reclamation projects
of not more than $1,000,000;
(f) Actions to collect loans of money or livestock made by the United
States to individual Indians without limitation on amount, including
loans made by Indian tribal organizations to individual Indians if the
loan agreements, notes and securities have been assigned by the tribal
organizations to the United States; and
(g) Actions in which the United States is named as a party pursuant to
28 U.S.C. §§ 2410(a)(3) and (4).
- (2) Before initiating proceedings pursuant to this subsection, the Unite d
States Attorney shall insure that a copy of the authorized field
officer's written request has been forwarded to the Assistant Attorney
General, Environment and Natural Resources Division, Department of
Justice, Washington, D.C. 20530.
- Other Civil Environmental
Cases.
- (1) United States Attorneys are authorized to act, without prior
authorization from the Environment and Natural Resources Division, on
behalf of the Secretary of the Army, acting through the Corps of
Engineers, in response to a request in writing from an authorized field
officer of the Corps of Engineers in the following civil environmental
cases:
(a) Civil actions involving the filling or the
deposit of dredged or fill material into, or the alteration of the
channels of, the waters of the United States, in violation of section 10
of the River and Harbor Act of 1899 (33 U.S.C. § 403), or of
section 404 of the Federal Water Pollution Control Act Amendments of
1972 ("Clean Water Act") (33 U.S.C. § 1344), or of both
statutes;
(b) Civil actions involving the discharge of refuse into the navigable
waters of the United States, and, in certain cases, their tributaries,
in violation of section 13 of the River and Harbor Act of 1899 (33
U.S.C. § 407), except for in rem actions against vessels,
which actions shall continue to be under the jurisdiction of the Civil
Division.
- (2) The authority set forth in
subparagraphs B.(1)(a) and B.(1)(b) of this paragraph is, however,
revocable on a case by case basis where, in the opinion of the Assistant
Attorney General, important or novel issues of law or policy are
involved. Generally speaking, direct referral cases are of a routine
nature and involve statutory provisions whose interpretation is well-
settled. Prior to initiating proceedings pursuant to subparagraphs
B.(1)(a) or B.(1)(b) of this paragraph, the United States Attorney shall
insur e that a copy of the authorized field officer's written request and
the litigation report has been forwarded to the Chief, Environmental
Defense Section, Environment and Natural Resources Division, Department
of Justice, Washington, D.C. 20530. United States Attorneys are
encourage to consult with the Environment and Natural Resources Division
on these cases.
- (3) United States Attorneys
are also authorized to handle the following matters without prior
authorization from the Environment and Natural Resources Division:
(a) Cases brought on behalf of the United States Coast Guard
in response to a written request from an authorized field officer,
seeking federal clean up costs or civil penalties under section 311 of
the Clean Water Act (33 U.S.C. § 1321); and Sections 1002 and
1017 of the Oil Pollution Act of 1990, 33 U.S.C. §§ 2702 and
2717, for the collection of federal clean up costs and/or the
imposition of ci vil penalties;
(b) Miscellaneous proceedings, such as warrant requests, in
assistance to agencies seeking investigative entry under section 308 of the
Clean Water Act (33 U.S.C. § 1318); sections 114 or 206 of the Clean
Air Act (42 U.S.C. §§ 7414, 7525); sections 3007 or 3013 of the
Resource Conservation and Recovery Act (42 U.S.C. §§ 6927, 6934);
section 11 of the Toxic Substances Control Act (15 U.S.C. § 2610); or
section 9 of the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. § 136g).
(c) Cases under any statute listed in USAM
5-12.100 for collection of civil penalties previously assessed by the
referring agency in an administrative proceeding where the amount of the
penalty does not exceed $1 million.
- (4) The authority
set forth in subparagraphs B.(3)(a), B.(3)(b), and B.(3)(c) of this
paragraph is, however, revocable on a case-by-case basis where, in the opinion of the Assistant Attorney General, important or novel
issues of law or policy are involved. Before initiating proceedings
pursuant to subparagraph B.(3)(a), B.(3)(b), or B.(3)(c), the United States
Attorney shall insure that a copy of the authorized field officer's written
request has been forwarded to the Chief, Environmental Enforcement Section,
Environment and Natural Resources Division, Department of Justice,
Washington, D.C. 20530.
- Wildlife and Marine Resources Cases.
United States Attorneys are authorized to act, without prior authorization
from the Environment and Natural Resources Division, on behalf of any other
department or agency in response to a direct request in writing from an
authorized field officer of the department or agency concerned, in the
following wildlife cases:
(a) Endangered Species Act of
1973, 16 U.S.C. § 1531 et seq.;
(b) Lacey Act Amendments of 1981, 16 U.S.C. § 3371 et seq., 18
U.S.C. § 42;
(c) Airborne Hunting Act, 16 U.S.C. § 742j-1;
(d) Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.;
(e) Migratory Bird Conservation Act, 16 U.S.C. §§ 715 to 715d,
715e, 715f to 715k, 715l to 715r;
(f) Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668 to
668d;
(g) Dingell-Johnson Fish Restoration Act, 16 U.S.C. §§ 777 to
777i, 777k;
(h) National Wildlife Refuge System Administration Act, 16 U.S.C.
§§ 668dd, 668ee;
(i) Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1431
et seq.;
(j) Magnuson Fishery Conservation and Management Act, 16 U.S.C. §
1801 et seq.;
(k) Whaling Convention
Act, 16 U.S.C. § 981 et seq.;
(l) Atlantic Tunas Convention Act, 16 U.S.C. § 971;
(m) Tuna Convention Act, 16 U.S.C. § 951 et seq.;
(n) Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.;
(o) Sockeye Salmon or Pink Salmon Fishing Act, 16 U.S.C. § 776 et
seq. [repealed];
(p) Fur Seal Act of 1966, 16 U.S.C. § 1151 et seq.;
(q) Protection of Sea Otters on the High Seas Act, 16 U.S.C. § 1171
et seq.;
(r) Wild Free Roaming Horses and Burros Act, 16 U.S.C. §§ 1331
to 1340;
(s) Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 to
667e;
(t) Animal Damage Control Act, 7 U.S.C. § 426 et seq.;
(u) Sponge Act, 16 U.S.C. § 781 e
t seq.;
(v) Northern Pacific Halibut Act, 16 U.S.C. § 773 et
seq.;
(w) North Pacific Fisheries Act, 16 U.S.C. § 1021 et seq.
[repealed];
- Upon receipt of referrals of any law enforcement action under the above
statutes, notice shall be given to the Wildlife and Marine Resources Section
before filing or declining to file an action, as set forth in USAM 5-10.312.
- United States Attorneys are not authorized to commence actions against
foreign vessels or foreign fishermen under the Magnuson Fishery Conservation
and Management Act, 16 U.S.C. § 1801 et seq., without prior
telephonic approval from the Section. The views of the United States
Attorney for a district to which a foreign vessel may be brought will be
ascertained in advance of seizure by the Coast Guard. The United States
Attorney should then contact the Section to discuss the complaint to be
filed, release bond and inventory arrangements.
- Delegated Cases.
- (1) Pursuant to paragraph 10 of the Memorandum of Understanding between
the Department of Justice and the Environmental Protection Agency, 42 Fed.
Reg. 48942 (1977), with respect to the handling of civil litigation on
behalf of the Environmental Protection Agency, all requests of the
Environmental Protection Agency for litigation must be submitted by the
Agency to the Assistant Attorney General, except that matters requiring an
immediate temporary restraining order may be submitted by the Regional
Administrators of the Environmental Protection Agency to a United States
Attorney and the Assistant Attorney General. Once a case has been approved
for filing, United States Attorneys are authorized, without prior approval
of the Assistant Attorney General, Environment and Natural Resources
Division, and subject to the limitations imposed by paragraph E below, to
compromise any of the following civil cases if such a case has been
delegated to the United States Attorney by the Assistant Attorney General
and has been principally prosecuted by the Office of the United States
Attorney:
(a) cases under the Safe Drinking Water Act, 42 U.S.C. § 300(f)
et seq., and § 300h-2, the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq., the Clean Air
Act, 42 U.S.C. § 7401 et seq., the Clean Water Act, 33
U.S.C. § 1251 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq.,
the Toxic Substances Control Act, 15 U.S.C. § 2601 et
seq., the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et
seq., and Section 104 (e) of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9604(e), where
the amount of the civil penalty to be paid to the United States by a
defendant, together with the cost of any Supplemental Environmental Projects
(SEPs) does not exceed $1 million and, in addition, either (i) the penalty
(not including any SEPs) is equal to or greater tha n the economic benefit
of non-compliance, or (ii) the settlement results from an inability to pay
analysis as confirmed by a qualified financial analyst;
(b) cases under Sections 112 and 113 of the Clean Air Act, 42 U.S.C.
§§ 7412 and 7413, for violations of the national emission
standards for asbestos hazardous air pollutants;
(c) cases under Section 17(a)(1) of the Toxic Substances Control Act, 15
U.S.C. § 2616(a)(1) and Section 1018(b)(2) of The Residential
Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 1018(b)(2), for
violations of the duty to disclose the presence of lead-based paint and
information concerning its hazards to prospective buyers and renters of
residential property;
(d) cases under Section 311 of the Clean Water Act, 33 U.S.C. §
1321, and Sections 1002 and 1017 of the Oil Pollution Act of 1990, 33
U.S.C. § 2702 and 2717, for recovery of costs expended by the United
States to remove oil or hazardous substances discharged into or upon the
navigable waters or adjoining shorelines, or into or upon the continuous
zones or exclusive economic zones, where such costs do not exceed $5
million, exclusive of interest, and the difference between the gross amount
of the United States' claim and the proposed settlement does not exceed $1
million.
(e) cases under any statute listed in USAM
5-12.100 to enforce requests for access to information, entry and/or
inspection and samples, or for civil penalties for noncompliance with such
requests.
- (2) United States attorneys are not authorized
to compromise claims listed above if the claim is part of lawsuit in which
claims under other statutes are also included (i.e. "multi-media"
cases).
- Limitations On Delegations
- (1) The authority to compromise cases, file suits, counterclaims, and
cross claims, close cases, or take any other action necessary to protect the
interests of the United States, delegated by paragraph B.(3), C and D.
above, may not be exercised, and the matter shall be submitted for
resolution to the Assistant Attorney General, Environment and Natural
Resources Division, when:
(a) For any reason, the proposed
action, as a practical matter, will control or adversely influence the
disposition of other claims totaling more than the respective amounts
designated in the above paragraphs;
(b) Because of a novel question of law or a question of policy
presented, or for any other reason, the proposed action should, in the
opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General, Environment and Natural Resources Division;
(c) The agency or agencies involved are opposed to the proposed action,
settlement or compromise; or
(d) The Assistant Attorney General, Environment and Natural Resources
Division, so directs.
- (2) In addition, when
constitutional questions or other significant issues arise in the course of
such litigation, or when an appeal is taken by any party, the Environment
and Natural Resources Division must be consulted.
- Authority To
Approve Federal Register Notices
- (1) Pursuant to 28 CFR § 50.7, each proposed settlement of an
action to enjoin discharges of pollutants into the environment must be
"lodged" with a court at least 30 days prior to "entry" in order to allow
for public comment. For settlements in cases handled by United States
Attorneys under paragraphs B.(3), C. and D. above, the United States
Attorneys are authorized to:
(a) To approve all Federal
Register Notices under 28 C.F.R. § 50.7 and under any statute enforced
by the Division, and to transmit those notices to the Assistant Attorney
General, Office of Legal Counsel, for publication;
(b) To determine on a case-by-case basis whether a modification to a
previously entered consent decree which had previously been noticed for
public comment, requires additional public comment; and
(c)To approve motions to enter consent decrees after public comment.
- (2) However, any motion to enter a consent decree should be referred to
the Assistant Attorney General, Environment and Natural Resources Division,
whenever there has been a significant number of comments or where any
comment raises a substantial issue that should receive the attention of the
Assistant Attorney General, or where the United States Attorney is of the
opinion that because of a question of law or policy presented, or for any
other reason, the motion should receive the attention of the Assistant
Attorney General.
- Litigation Involving The Environmental Protection Agency
All litigation involving the Environmental Protection Agency must be
conducted in accordance with the 1977 Memorandum of Understanding
between the Department of Justice and the Environmental Protection
Agency (including the time frames set forth in paragraphs 8, 9 and 10
of that document), and with the guidance and policies established by
the Environmental Protection Agency, the Environment and Natural
Resources Division and the Environmental Enforcement Section regarding
litigation of civil environmental cases. The Environmental
Enforcement Section will provide the United States Attorneys with
copies of all pertinent guidance and policies. In addition, United
States Attorneys will promptly report on the status of cases under
these delegations whenever information is needed for required reports
to client agencies, Congress, etc., or for docket reviews with
Department and Division management or with client agencies.
- Memorandum By United States Attorney Explaining Action
- For purposes of maintaining accurate information on civil environmental
case filings, judgments and settlements, whenever a United States Attorney
files a suit, settles a case, accepts a compromise or closes a claim
pursuant to the authority delegated above, a memorandum fully explaining the
basis for the action taken shall be executed and placed in the file and a
copy sent to the Section Chief, Environmental Enforcement Section.
[cited in USAM 5-1.300;
USAM 5-1.302;
USAM 5-1.322;
USAM 5-5.230;
USAM 5-7.310;
USAM 5-7.321;
USAM 5-10.310;
USAM 5-10.312;
USAM 5-10.600;
USAM 5-10.630;
USAM 5-12.100;
USAM 5-12.111;
USAM 5-12.530]
- [updated October 1999]
5-1.320
Actions Not Subject to Direct Referral to
United
States Attorneys
- Sections 5-1.321 through 5-1.326 discuss the actions not subject to
direct referral to United States Attorneys.
-
[cited in USAM 5-12.111;
USAM 5-12.320]
5-1.321
Prior Authorization Needed to Initiate Action
- Actions which may not be initiated by the United States Attorneys
without prior authorization from the Division are listed in USAM 5-2.000.
5-1.322
Assignment of Actions Generally
- All cases which are not subject to direct referral to the United States
Attorneys as set forth in USAM 5-1.310 are
initially referred to the Assistant Attorney General for review. Such
review is assigned to the appropriate Section of the Division which then
initially determines whether the case should more appropriately be: (1)
assigned to the United States Attorney, see USAM 5-1.323, (2) designated as a case to be
handled as the joint responsibility of the United States Attorney and the
Division, see USAM 5-1.324, or (3) retained
by the Division for its direct handling. See USAM 5-1.325. The costs of litigation and the
proximity of the United States Attorney to the court result in a large
percentage of cases being assigned to the United States Attorneys. However,
the nature of the issue of law involved, the relative national or financial
importance of the case, the precedential possibilities of the litigation,
and the need for the Division to retain a cadre of staff attorneys trained
in the trial of cases, are considerations in making case assignments.
-
[cited in USAM 5-6.321;
USAM 5-9.320;
USAM 5-10.320]
5-1.323
Cases Assigned to United States Attorneys
- Assignment of case responsibility to the United States Attorney is
always with the understanding that the Assistant Attorney General of the
Division has supervisory responsibility on behalf of the Attorney General
over all litigation under the jurisdiction of the Division. Where possible,
the Division will promulgate categories of cases which will be assigned to
the United States Attorneys; these assignments may distinguish between
United States Attorneys on the basis of their experience and expertise with
respect to such cases. If an assignment of any such case is made pursuant
to USAM 5-1.324 or 5-1.325, the notice of assignment to the
United States Attorney will note the exception.
- The United States Attorney shall be primarily responsible for all cases
assigned to him/her. If he/she feels that he/she cannot accept
responsibility by reason of a conflict of interest, the lack of personnel or
expertise in his/her office, or other good reasons, he/she should
immediately consult with the Chief of the appropriate Section to determine
if some other assignment of responsibility can be made.
- Regular communication should be maintained with the appropriate Section
of the Division regarding the conduct of litigation assigned to the United
States Attorneys, especially if any problems arise in connection with a
case. The Division is organized so as to maintain considerable expertise in
the particular subject matter areas under the jurisdiction of the Division
and is, therefore, in a position to provide valuable assistance to the
United States Attorney, including assistance in preparing pleadings and
briefs as well as providing general advice on the substantive law and the
handling of litigation. A copy of the final order entered in any case must
be transmitted promptly to the appropriate S ection of the Division.
-
[cited in USAM 5-1.300;
USAM 5-1.322;
USAM 5-1.324;
USAM 5-6.302]
5-1.324
Cases Assigned as a Joint Responsibility
- If the appropriate Section of the Division feels that a given case
should be handled as a joint responsibility of the United States Attorney
and the Division, the Chief of the Section shall make the assignment
initially with a written description of the expected division of work and
responsibility for the case. In the event the United States Attorney
involved is not satisfied with the assignment, he/she shall consult with
the appropriate Section Chief to resolve the assignment and/or division of
responsibility. Any remaining differences will be resolved by the
Assistant Attorney General of the Division. At least three months before
trial, a firm understanding will be reached between the Division and the
United States Attorney on trial responsibility. Either the Division or the
United States Attorney may request a change in the assignment at any time.
The Division will periodically review all joint responsibility assignments
with the objective that where Division assistance is no longer
required the case may be assigned to the United States Attorney under USAM 5-1.323.
-
[cited in USAM 5-1.300;
USAM 5-1.322;
USAM 5-1.323;
USAM 5-15.322]
5-1.325
Cases for Which the Division Is Assigned Responsibility
- If the appropriate Section of the Division feels that a given case
should be handled by staff attorneys in the Division, the Chief of the
Section will notify the United States Attorney, and the Chief of the Section
and the United States Attorney will then agree upon exactly what, if any,
support services the United States Attorney will provide to assist the staff
attorneys in handling the litigation. Again, any differences over such case
assignments and the provision of support services will be resolved by the
Assistant Attorney General in charge of the Division.
-
[cited in USAM 5-1.300;
USAM 5-1.322;
USAM 5-1.323;
USAM 5-6.302;
USAM 5-6.321]
5-1.326
Review and Change of Case Assignments
- The assignment of case responsibility to the United States Attorney may
be reviewed at any subsequent time at the request of the United States
Attorney, the client agency, or the appropriate Section, and may be changed;
a change of assignment will only be made, however, after consultation with
the United States Attorney. As with all differences between a Section of
the Division and the United States Attorney, any differences concerning
assignment or handling of cases will be resolved by the Assistant Attorney
General of the Division.
-
[cited in USAM 5-7.320;
USAM 5-9.320]
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