5-7.001
Establishment
The General Litigation Section was created by Order of June 28, 1960,
consolidating the Trial Section and the Water Resources Section, as modified
by the ENRD Directive 14-86 of April 28, 1986, consolidating the Indian
Claims Section into it.
5-7.100
Area of Responsibility
The General Litigation Section handles all pending and contemplated
cases, matters and proceedings in the trial courts, assigned to the
Environment and Natural Resources Division, except condemnation proceedings
brought by the United States and matters specifically assigned to the
Indian Resources Section, the Wildlife and Marine Resources Section, the
Environmental Crimes Section, Environmental Defense Section, and the
Environmental Enforcement Section.
5-7.120
Statutes Administered
The General Litigation Section supervises and conducts litigation
arising under several different classes of statutes, described below, and
also under treaties and agreements with Indians, Executive Orders, common
law, and the laws of various states. The listing is not exhaustive, but
illustrative, and contains the primary statutes under which litigation
arises.
- Civil construction and operation of projects
and facilities.
Chief among these statutes are: 1) the Federal-Aid
Highway Act of 1958, 72 Stat. 885, as amended, 23 U.S.C. Sec. 101 et
seq., 2) Flood Control Act of 1938, 52 Stat. 1215, as amended,
33 U.S.C. Sec. 701b et seq., and other civil works authorities of
the U.S. Army Corps of Engineers, some of which are codified at 33 U.S.C.
Sec. 540 et seq.; 3) Airport and Airway Development Act of 1970, 84
Stat. 220, as amended, 49 U.S.C. Sec. 1711 et seq.; Housing
and Community Development Act of 1974, 88 Stat. 633, 42 U.S.C. Sec. 5301
et seq.
National Environmental Policy Act and similar
procedural and review statutes. Regardless of the agency involved: 1)
the National Environmental Policy Act of 1969, 42 U.S.C. Sec. 4321 et
seq.; 2) the National Historic Preservation Act of 1966, as amended,
16 U.S.C. Sec. 470 et seq. (for all such cases, see USAM 5-7.300); and 3) Fish and Wildlife
Coordination Act, 16 U.S.C. Secs. 661 to 666c, except sec. 666a (see
USAM 5-10.120).
Federal Land Management. The statutes under which the Bureau of
Land Management, the Forest Service, the Fish and Wildlife Service and the
National Park Service administer lands and resources under their
jurisdiction, excepting those matters related to wildlife management
delegated to the Wildlife and Marine Resources Section (see USAM 5-10.100). Chief among these statutes
are: 1) (Bureau of Land Management) Federal Land Policy and Management Act,
43 U.S.C. Sec. 1701 et seq., Taylor Grazing Act of 1934, 43 U.S.C.
Sec. 315 et seq.; 2) (Forest Service) "Organic Act of 1897", 16
U.S.C. Sec. 471 et seq., Weeks Act of 1911 (eastern acquired lands
forests), found in part at 16 U.S.C. Secs. 513 to 519, 36 Stat. 961,
National Forest Management Act, 16 U.S.C. Sec. 1601 et seq.; 3)
(Fish and Wildlife Service) National Wildlife Refuge System Administration
Act, as amended, 16 U.S.C. Secs. 668dd and 668ee; 4) (National Park
Service) National Park Service Act, 16 U.S.C. Secs. 1 to 4, and the
authorizing statutes for individual units of the National Park System, 16
U.S.C. Secs. 21 through 460mm, and the Historic Sites, Buildings and
Antiquities Act of 1935, 16 U.S.C. Secs. 461 to 467.
Mineral exploration and development. Statutes governing mineral
activity on federal lands: 1) General Mining Law of 1872, as
amended, 30 U.S.C. Sec. 22 et seq., 2) Mineral Leasing Act of
1920, as amended, 30 U.S.C. Sec. 181 et seq., 3) Mineral
Leasing Act for Acquired Lands, 30 U.S.C. Sec. 351 et seq., 4) Outer
Continental Shelf Lands Act, 43 U.S.C. Sec. 1331 et seq., 5) Federal
Oil and Gas Royalty Management Act of 1982, 30 U.S.C. Sec. 1701 et
seq.
Indian cases. 1) Suits by Indian tribes, individuals or
allottees against the United States under treaties and agreements with
Indians, and in the administration of statutes governing Indian lands,
Indian resources, Indian assistance programs, and actions with respect to
tribal self-government, and 2) Alaska Native Claims Settlement Act, 43
U.S.C. Sec. 1601 et seq.
Water Rights and Projects. 1) Reclamation Act of 1902, as
amended, 43 U.S.C. Sec. 431 et seq., and other project auth
orizations of the Bureau of Reclamation; and 2) McCarran Act of 1952, 43
U.S.C. Sec. 666, involving adjudication of federal water rights in state
courts, except for Indian water rights (see USAM 5-5.100).
Boundaries, Quiet Title and Navigation. 1) Quiet Title Act,
as amended, 28 U.S.C. Sec. 2409a, including suits by states regarding
navigability under the Equal Footing doctrine, 2) Sections 9 and 11 of the
Rivers and Harbors Act of 1899, 33 U.S.C. Secs. 401, 404, and 3) Submerged
Lands Act of 1953, 43 U.S.C. Sec. 1301 et seq.
Other statutes of general applicability. 1) Tucker Act, 28
U.S.C. Secs. 1346(a)(2) and 1491 (for all matters within the responsibility
of the Environment and Natural Resources Division (USAM 5-1.100)), 2) Surface Mining Control and
Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et seq., 3) Coastal
Zone Management Act, 16 U.S.C. Sec. 1 415 et seq., 4) Alaska
National Interest Lands Conservation Act of 1980, Pub.L. No. 96-487, and 5)
Wilderness Act of 1964, 16 U.S.C. Sec. 1131 et seq.
[cited in USAM 5-7.300;
USAM 5-10.100;
USAM 5-10.120]
5-7.200
Organization
The Section is administered by a Chief, a Deputy Chief, and three
Assistant Chiefs. Information related to any matter in the section may be
sought by calling any of these five at 202-305-0440. The work load is
assigned according to experience, expertise and workload. The section has
distributed to United States Attorneys' offices a listing of the expertise
of section personnel. Information on a specific case should be sought from
the attorney assigned. Information on case assignment is available from the
docket clerk, 202-305-0489.
5-7.300
Processing and Handling CasesSpecial
Provisions
- National Historic Preservation Act.
The Department of Justice has
agreed, pursuant to 16 U.S.C. Sec. 470k, to notify the Advisory Council on
Historic Preservation of all cases involving the National Historic
Preservation Act, 16 U.S.C. Sec. 470 et seq., or regulations promulgated
thereunder (36 C.F.R. Part 800). The Advisory Council will rarely be a party
to the litigation, but the Council is charged, inter alia , with advising
the President and Congress on matters relating to historic preservation and
with reviewing federal, federally assisted, and federally licensed
undertakings affecting cultural properties.
- Many of these cases involve proposed alterations to, or demolition of,
historic structures, and may originate as temporary restraining orders. It
is especially important, therefore, that the Section receive early notice of
these cases, so that it can then notify the Advisory Council. Accordingly,
upon receipt of any complaint raising an issue under the National Historic
Preservation Act, the United States Attorney's Office should call the
attorney assigned to the case in the Department of Justice in Washington,
D.C. who will then notify the Council. Most of the cases involving the Act
or regulations are within the jurisdiction of the General Litigation
Section, Environment and Natural Resources Division, 202-305-0440. In the
event a request for a temporary restraining order is filed before the case
is assigned to a General Litigation attorney, the Chief of that Section
should be notified.
- Biotechnology Litigation.
Litigation involving biotechnology and
its environmental implications is handled in the Environment and Natural
Resources Division. Within the Division, the caseswhether filed by
complaints in the district courts or by petitions for review in the courts
of appealsare assigned to a team of attorneys from the Division,
usually from General Litigation Section (see USAM 5-7.120), Environmental Defense Section
(see USAM 5-6.130), or the Wildlife
and Marine Resources Section (see USAM
5-10.120), as appropriate, depending on the statutes identified and
claims raised. If such litigation is filed in your district, please contact
the chief of any of the above-stated sections who will contact the other
appropriate sections.
[cited in USAM 5-7.120;
USAM 5-10.120]
5-7.310
Authority of United States Attorneys to Initiate and Defend Actions
Without Prior Authorization, i.e., Direct Referral Cases
The authority of United States Attorneys to initiate cases under the
supervision of the General Litigation Section is set forth in USAM 5-1.310.
5-7.311
Actions to Recover Money to be Instituted Only
Where a Judgment is Collectible
No action for the recovery of money only shall be instituted unless the
referring agency supplies satisfactory proof that a judgment, if recovered,
would be collectible.
5-7.312
Authority of United States Attorneys to Defend
Actions Without Prior Authorization
United States Attorneys are hereby authorized to act in the following
matters, in response to service on the United States, without assignment of
the case from the Environment and Natural Resources Division, in the
following cases:
- Actions under 28 U.S.C. Sec. 2410 affecting property in which the
United States has a lien, except where the lien is a tax lien. See
Title 6-TAX DIVISION, USAM. See also Environment and Natural
Resources Division Directive No. 9-68 (August 5, 1968): "Procedure for the
Handling of Condemnation Actions against the United States under or
purportedly under Title 28 U.S.C. Sec. 2410."
- Suits for judicial review of decisions of the Department of the Interior
regarding the probate or estate administration of deceased Indians'
interests in trust or allotted land.
- Actions to recover possession of, or quiet title to, property from
tenants, squatters, trespasse rs, or others, and actions to enjoin
trespasses on federal property.
- Actions to collect costs of Forest Fire suppression and other damages
resulting from such fires.
5-7.320
Actions Not Subject to Direct Referral to United States Attorney
Responsibility for the handling of cases under the supervision of the
General Litigation Section is assigned by the Chief of the Section under the
provisions of USAM 5-1.326.
5-7.321
Prior Authorization Needed to Initiate Action
Except for cases authorized to be filed by USAM 5-1.310 no case under the supervision of
the General Litigation Section may be initiated by a United States Attorney
without the prior authorization of the Assistant Attorney General.
5-7.500
District Court LitigationGenerally
The general instructions set forth in USAM
5-5.100 et seq., with respect to the handling of litigation apply
in every respect to the litigation of the General Litigation Section.
Particularly, it is of the utmost importance that complaints filed against
the federal government and federal officials in matters relating to the area
of responsibility of the General Litigation Section be transmitted promptly
to the Chief of the Section.
5-7.520
Lis Pendens
Whenever required by the nature of the case, the attorney assigned to
the case shall, or assure that the agency shall, file or record a notice of
the pendency of the action or lis pendens among the proper local records,
except in those jurisdictions where the law is settled that the
commencement of the action is notice to all persons affected.
5-7.530
Judgments
United States Attorneys should note and comply with the instructions
relating to the recording, collection and enforcement of judgments set forth
in USAM 5-5.151 through 5-5.156.
5-7.600
Settlement and Dismissal of CasesGenerally
Except with respect to direct referral cases (discussed in USAM 5-7.630) no claim or case under the
jurisdiction of the General Litigation Section may be settled or dismissed
without specific or delegated authority from the Assistant Attorney General.
See USAM 5-5.210 et seq.
[cited in USAM 5-5.210;
USAM 5-8.600]
5-7.620
Transmittal of Compromise Offer to General
Litigation SectionRecommendations With Respect to Acceptance
Any offer to settle or dismiss an action shall be transmitted to the
Chief of the General Litigation Section for referral to the Assistant
Attorney General or for such other action as may be directed by regulation.
Such offers should be accompanied by the written comments and
recommendation of the referring agency and the United States Attorney. In
emergency situations, such as with settlement offers received during trial,
settlement offers dealing exclusively with monetary damages or penalties
may be communicated to the Chief of the General Litigation Section by
telephone.
The recommendation should be guided by the principles
that compromise offers cannot be accepted unless (a) there is doubt as to
whether judgment can be secured for an amount larger than that offered or
(b) because the probable cost of collection exceeds the difference between
the amount offered and the amount recoverable.
5-7.630
Authority of United States Attorneys to Settle
or
Dismiss Direct Referral Cases
The authority of United States Attorneys to settle or dismiss direct
referral cases under the supervision of the General Litigation Section is
set forth in USAM 5-5.230.
[cited in USAM 5-7.600]
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