UNITED STATES DEPARTMENT OF JUSTICE
ENVIRONMENT AND NATURAL RESOURCES
DIVISION
FISCAL YEAR 2003
SUMMARY OF LITIGATION ACCOMPLISHMENTS
CONTENTS
FOREWORD
I am pleased to present the Environment and Natural Resources Division's Accomplishments
Report for Fiscal Year 2003. Once again, the Division has achieved significant victories for the
American people in the many areas for which it has responsibility, including protection of this Nation's
air, water, land, wildlife and natural resources, furthering of important federal programs, and upholding
trust obligations to Native Americans.
Tough enforcement of the environmental laws continues to be a top priority for the Division and
I am proud to announce that Fiscal Year 2003 set a record for civil penalties in our civil enforcement
cases. We obtained approximately $203 million, which is over $80 million more than any previous year
in the Division's enforcement history. Moreover, we recovered the largest civil penalty ever from a
single company - $34 million - in a lawsuit under the Oil Pollution Act.
Although penalties and fines play an important role in our environmental enforcement efforts by
deterring future violations and ensuring that wrongdoers do not profit at the expense of law-abiding
citizens, they are by no means the whole story. Through our refinery, power plant, and ethanol
initiatives, we have obtained injunctive relief that will remove hundreds of thousands of tons of air
pollutants. Through actions against pipeline operators and wastewater treatment systems, we have
obtained commitments to update and better maintain critical elements of the nation's infrastructure.
And through numerous cases, we have ensured that responsible parties will either clean up or pay for
the clean up of hazardous waste sites across the United States. These cases demonstrate our firm
commitment to the Division's civil enforcement priorities that the Attorney General announced last
spring, and we will continue to carry out that commitment.
We were also honored to have the Attorney General join us in September to announce an
important new criminal initiative, the Hazardous Materials Initiative, which joins a panoply of other
highly successful criminal initiatives that the Division has implemented. Criminal prosecutions are an
essential element of any environmental enforcement program and the Attorney General has stated
repeatedly that "all those who violate these laws are on notice: the Department of Justice will not
hesitate to seek criminal sentences where appropriate." In this context, we thank the many United
States Attorneys and the State and local enforcement officers around the country who help make our
enforcement efforts, civil as well as criminal, such a success.
Equally central to the Division's mission is our defensive and eminent domain work. Having
practiced in these areas, I have no hesitation in saying that these cases present some of the most
challenging issues that we as a Division and the nation as a whole face. The Division defends a plethora
of federal agencies when they are sued under environmental and natural resource laws, and the majority
of our docket is consumed by these non-discretionary cases. Such cases include suits against the
military in connection with training programs, against the Forest Service and the Department of the
Interior in connection with their resource management programs, and against the EPA when it
promulgates rules. Water rights adjudications are also a significant source of these cases, as are various
Indian-related lawsuits, such as those seeking to vindicate treaty rights and to establish tribal trust
obligations. In addition, property rights and valuation issues also loom large in our takings and eminent
domain caseload. In all of these cases, credit must go to the Division's attorneys and staff, who have
done an outstanding job of bringing them to a successful conclusion in the face of serious constraints on
the Division's resources.
This month marks the close of my second year as the Assistant Attorney General for the
Environment and Natural Resources Division. It has been a time filled with challenges as well as
successes, but through it all, the Division's employees have shown a skill, perseverance, and
resourcefulness that is the hallmark of all top-notch legal staff. Every day, they deliver quality legal
work for the American people. It is an honor for me to serve with such a dedicated group of
individuals and I look forward to continuing to work with them in the months to come.
Thomas L. Sansonetti
Assistant Attorney General
Environment and Natural Resources Division
December 2003
CRIMINAL ENFORCEMENT OF THE ENVIRONMENTAL AND WILDLIFE
LAWS
Hazardous Materials Initiative. The
Departments of Justice and Transportation
announced a new initiative this year to combat
the illegal shipment of hazardous materials
("hazmat.") This initiative will address critical
homeland security issues as well as the
significant public health and environmental
consequences of crimes involving the
transportation of hazmat. The initiative already
has produced results: in United States v.
Emery Worldwide Airlines, Emery, which
specializes in shipping heavy cargo, pled guilty
to felony violations of the Hazardous Materials
Transportation Act. DOT regulations require
the operator of an aircraft that transports an
item classified as hazmat to give the pilot of the
aircraft written notification that hazmat has been
loaded on board the plane. In January 1998,
Emery conducted audits that revealed they
were not following proper procedure, but they
did not take constructive steps to correct the
problem until August 1999. Emery has agreed
to pay a $6 million criminal penalty and develop
a compliance program to detect and deter
future violations.
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. Thomas Michael Hayes, in
which Hayes, a vice-president at Saybolt Inc.,
was convicted of conspiracy to falsify
laboratory results on various petroleum
products, including reformulated gasoline on
behalf of, and in conjunction with, a number of
Saybolt's clients. Another such prosecution
was United States v. Jet-Pep Inc., in which
the company pled guilty to knowingly making a
false material statement in its 1998 Annual
Report to EPA. From 1995 through 1998,
Jet-Pep failed to perform certain tests required
under regulations designed to reduce harmful
emissions caused by gasoline. The company
was sentenced to pay a $200,000 fine, and
serve three years probation.
Cracking Down on Caviar Trafficking.
Working with the Assistant United States
Attorneys Offices, Fish and Wildlife Service,
Customs Service, FBI, National Oceanic and
Atmospheric Administration, and Food and
Drug Administration, the Division embarked on
a crack down on caviar smuggling from the
Caspian Sea. This initiative has already yielded
fruit - on November 6, 2002, Viktor Tsimbal,
the former president and owner of Beluga
Caviar, Inc., was sentenced to serve 41 months
incarceration followed by two years of
supervised release. Tsimbal had pled guilty to
organizing a caviar smuggling conspiracy in
violation of wildlife protection laws, a
substantive smuggling violation, money
laundering and obstruction of justice charges.
During the course of the investigation, the
agents seized more than $500,000 worth of
caviar along with false identification labels. In
1999 alone, Tsimbal imported more
Russian-origin Beluga caviar than the entire
annual Russian export quota. Tsimbal also
forfeited $36,000 in his possession at the time
of his arrest at the Miami International Airport.
CFC Smuggling Prosecutions. The Division
continues to pursue its highly successful effort to
stem smuggling of the ozone-depleting gases
known as chlorofluorocarbons (CFCs). Ten
defendants pled guilty in United States v.
Himes, a case involving a complex,
multi-million dollar scheme to import and sell
CFCs under false pretenses and to avoid
payment of excise and income taxes from
1995-1998. Barry Himes, the lead defendant
in this conspiracy, was sentenced to serve 78
months in prison and pay $1.8 million dollars in
restitution and a fine of $12,500. Himes
previously forfeited a $3 million dollar mansion,
a BMW sedan, and a three-carat diamond ring.
Co-conspirator John Mucha was sentenced to
serve 48 months of incarceration, pay $1.2
million in restitution and forfeit his BMW sedan.
Accountant Richard Pelletier was sentenced to
serve 33 months of incarceration and pay 1.2
million in restitution. Others have been
sentenced to terms of up to 15 months
imprisonment.
Vessel Pollution Enforcement. The Vessel
Pollution Initiative is an ongoing, concentrated
effort to prevent pollution from ships into the
oceans, the coastal waters, and the inland
waterways. Since 1990, over 123
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 recent case was United
States v. Ronald Cook in which Cook was
found guilty by a jury of conspiracy, ocean
dumping, and violating the Act to Prevent
Pollution from Ships. Cook directed his
employees to dump hundreds of plastic bags
filled with asbestos into the ocean. He was
sentenced to serve 24 months imprisonment,
and three years supervised probation.
Prosecuting Fraud in the Lead and
Asbestos Abatement Industry. In United
States v. Ho, the Fifth Circuit rejected a
Commerce Clause challenge to the prosecution
of Eric Ho, a Houston, Texas, real estate
business developer, for Clean Air Act
violations related to unlawful asbestos removal
from buildings he was renovating. Ho
employed untrained illegal aliens to remove the
asbestos for $20,000, rather than pay as much
as $400,000 for asbestos removal by a trained
contractor. The Fifth Circuit rejected Ho's
argument that his prosecution was
unconstitutional because the asbestos did not
move in interstate commerce. In United States
v. Potomac Abatement, Inc., the company
and its operations manager, William Gutierrez,
pled guilty to two felony false statement counts
for purchasing false lead and asbestos
abatement certificates for approximately 60
untrained employees in order to obtain
contracts to conduct abatement of numerous
public buildings. The company was sentenced
to pay a $100,000 fine and $100,000 in
restitution, while Gutierrez was sentenced to
six months home confinement and one year
probation.
Refinery Explosion Prosecution. In United
States v. Ashland Inc., the company was
sentenced to serve five years probation and pay
$9.1 million in fines and restitution in connection
with a massive explosion at the company's
refinery that injured several employees and
firefighters. The company had pled guilty to
negligent endangerment under the Clean Air
Act because it drained hydrocarbons into a
sewer that subsequently ignited causing the
explosion. The court ordered the company to
commit to paying millions more to upgrade the
facility.
Prosecuting Pollution of Our Waterways.
We continue to prosecute vigorously those who
pollute our waterways. In United States v.
Tyson Foods Inc., the company pled guilty to
20 felony Clean Water Act violations and
agreed to pay a $5.5 million fine. Tyson also
paid $1 million in damages to the State of
Missouri in connection with a separate state
civil enforcement action, and $1 million to the
Missouri Natural Resources Protection Fund.
The company admitted that, over a four-year
period, it repeatedly discharged untreated
wastewater from its Sedalia, Missouri poultry
processing plant through storm drains into a
tributary of the Lamine River in violation of its
Clean Water Act permit. As a condition of
Tyson's three-year term of probation, the
company has agreed to have an environmental
assessment of its facility performed by an
outside auditor and to implement an enhanced
environmental management program.
In United States v. Tin Products, the
company was sentenced to a five-year term of
probation, while its vice-president, James
Goldman, and environmental supervisor,
Melanie Purvis, were sentenced to serve 18
months imprisonment and 5 months
imprisonment respectively. From March 1999
until February 2000, Tin Products discharged
toxic wastewater that killed a significant number
of fish and shut down a wastewater treatment
plant.
Prosecuting Pollution of Our Air. The EPA
has identified air pollution as a major public
health concern. In United States v. John
Littlehale, Littlehale, former Vice-President of
the Scottsburg Division of the Multi-Color
Corporation, which is one of the largest label
manufacturers in the United States, pled guilty
to making a false statement in violation of the
Clean Air Act in connection with filing of a false
construction application permit. This false
permit led to uncontrolled emissions of over
100 tons of toxic gases including toluene and
carbon tetrachloride. In a related case, United
States v. Roger Taylor, Taylor pled guilty to
misprision of a felony. Both defendants await
sentencing.
Enforcement of Wildlife Laws. The Division
continues to obtain convictions or pleas in
matters ranging from United States v. The
Peterson Companies, in which a multi-million
dollar company pled guilty to violating the Bald
and Golden Eagle Protection Act related to its
destruction of an eagle nest in developing the
National Harbor, to United States v. David
Joe Yocam, in which Yocam pled guilty to
being a felon in possession of firearms and
violating the Lacey Act in connection with his
unlawful baiting of waterfowl on his commercial
hunt club property. The Eleventh Circuit also
affirmed the convictions in United States v.
McNab of David Henson McNab, the owner
of a Honduran lobster fishing fleet, and three of
his confederates, who engaged in an extensive
operation to smuggle spiny lobsters from
Honduras to the United States. Prosecution of
these defendants helped protect lobster
fisheries and supported those in the lobster
industry who run their businesses in compliance
with the law.
PROTECTING OUR NATION'S AIR, LAND AND WATER
Reducing Air Pollution from Coal-Fired
Power Plants. During the past year, the
Division continued to litigate Clean Air Act
enforcement actions against coal-fired electric
power generating plants. The failure of these
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. As part of this
initiative, the Division concluded the liability trial
in United States v. Ohio Edison, after which it
received a very favorable ruling, and is
scheduled to begin the remedy phase in April
2004. We have also completed trial in United
States v. Illinois Power Co., but the court has
not yet issued a decision. The Division also
reached settlements with four other companies:
Virginia Electric Power Co., Wisconsin
Electric, Southern Indiana Gas & Electric Co.
and Alcoa, Inc. Collectively, these settlements
will likely reduce annual emissions of nitrogen
oxide by more than 113,000 tons per year and
emissions of sulphur dioxide by more than
300,000 tons per year. The settlements require
the defendants to spend approximately $2.1
billion to install pollution control equipment and
another $38.9 million on environmental projects
to mitigate the harm their alleged violations
caused, as well as to pay $10.6 million in civil
penalties.
Addressing Air Pollution from Oil
Refineries. The Division has moved
aggressively to protect the nation's air quality
by continuing its national enforcement initiative
to address refinery Clean Air Act violations.
Building on previous successes, we secured
comprehensive settlements with three additional
petroleum companies: Cenex, Ergon and
Coastal Eagle Point. These settlements will
reduce toxic emissions at four refineries in four
states, require the payment of $2.9 million in
civil penalties and the expenditure of an
estimated $30 million in injunctive relief. All
four states joined in these settlements. Three
settlements require the defendants to install
state-of-the-art pollution control equipment
while one defendant has agreed to surrender its
operating permit. To date, this initiative has
addressed approximately 40% of the nation's
refining capacity and will reduce air pollutants
by more than 129,000 tons a year.
Leveling the Playing Field in the Ethanol
Industry. In a strong start to this new
enforcement initiative, the Division and the
State of Minnesota entered into 12 consent
decrees resolving Clean Air Act claims against
12 Minnesota dry corn mill operators that
produce ethanol. The ethanol industry has
historically underestimated toxic emissions from
feed dryers, cooling cyclones and fuel loading
operations. To achieve compliance with Clean
Air Act New Source Review requirements, 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. These settlements were quickly
followed by a far-reaching settlement with agri-business giant Archer Daniel Midlands (ADM)
covering 52 ethanol, corn mill, and oilseed
plants in 16 states. Under the terms of the
consent decree, ADM will install state-of-the-art air pollution controls on hundreds of units,
shut down older, dirty units and accept
restrictive emission limits on others, which will
reduce harmful air emissions by 63,000 tons
per year. ADM is expected to spend $328
million on the injunctive relief and $6.363
million on other projects to improve the
environment, as well as pay a $4.6 million civil
penalty. Eleven states and three counties
joined in this settlement.
Enforcement Initiative Against Industrial
Bakeries. In the first enforcement action
taken under this initiative, the Division reached
a settlement with Earthgrains Baking Industries
which resolved violations regarding the use of
chlorofluorocarbons (CFCs). Earthgrains will
convert all of its large refrigeration units that use
ozone-depleting substances to substantially
minimize the risk of leakage of substances such
as CFCs from the units at a cost of more than
$5 million. Earthgrains will also pay $5.25
million in civil penalties.
Deterring Pipeline Spills. The Division
achieved several landmark settlements in
connection with pipeline spills this year. Two
such settlements resolved claims of gross
negligence against pipeline operators Olympic
Pipeline Co. and Shell Pipeline Co. in
connection with a major gasoline spill into a
Bellingham, Washington river, which ignited,
killing three boys and destroying natural
resources and habitat. Collectively, the
settlements require the companies to spend an
estimated $80 million on comprehensive
injunctive relief to restore and maintain 2,139
miles of pipeline running through seven states.
The companies will also pay $15 million in civil
penalties. Another settlement resolves claims
against Colonial Pipeline Company concerning
multiple spills along a pipeline spanning nine
states, including a devastating spill of 950,000
gallons of diesel fuel into the South Carolina's
Reedy River that killed 35,000 fish and other
animals and extensively damaged habitat.
Under the settlement, Colonial will undertake
comprehensive injunctive relief worth $30
million along the full length of its pipeline and
pay a $34 million civil penalty, the largest
penalty obtained against a single company
under a federal environmental statute.
The Division also settled claims against Potomac Electric Power Co. (PEPCO)
and ST Services relating to a 140,000 gallon oil spill from a ruptured pipeline
into a tributary of Maryland's Patuxent River, which affected environmentally
sensitive areas including wetlands and habitat for fish and resident and migratory
birds and prompted emergency responses from federal and state agencies. The
consent decree recovers $2.7 million for damages to natural resources and
the payment of a $2 million penalty to our co-plaintiff, the State of Maryland,
in addition to a previously issued emergency order requiring PEPCO to conduct
oil recovery operations at an estimated cost of $71 million. The Division
also obtained the largest ever civil environmental penalty in Iowa when it
settled with Koch Pipeline Company for damages caused by a ruptured pipeline
that released about 312,800 pounds of anhydrous ammonia in liquid and gas
forms. As part of the settlement, Koch agreed to pay a $1 million penalty
to the United States and $450,000 to the State of Iowa for penalties and natural
resource damages.
Ensuring the Integrity of Municipal
Wastewater Treatment Systems. The
Division lodged consent decrees with six
governmental entities - the District of Columbia
Water and Sewer District (WASA), the
Government of Guam, the Puerto Rico
Aqueduct and Sewer Authority (PRASA), the
City of Rock Island (Illinois), the City of
Waterbury (Connecticut) and the Hoosic
Water Quality District (Massachusetts) -
settling Clean Water Act violations in
connection with their operation of wastewater
collection and treatment systems. The consent
decrees provide for the governments to spend a
minimum of $360 million in injunctive relief to
bring their sewage treatment systems into
compliance with the Clean Water Act, to pay
civil penalties totaling $1.76 million and to
perform supplemental environmental projects
worth more than $3.2 million. Collectively, the
consent decrees address numerous illegal
discharges of pollutants and raw sewage into
waters of the United States. The Division also
entered into a consent decree with a privately
owned and operated wastewater treatment
plant and sanitary sewer system in South
Haven, Indiana, where EPA identified more
than 1,000 days of violations. The operator is
required to implement corrective measures
costing $7 million and will pay a $250,000 civil
penalty. Additionally, in our enforcement
action against the City of Los Angeles, we
lodged a stipulation establishing the City's
liability for 3,800 spills of raw sewage from the
City's sewage collection system, the largest
collection system in the nation.
Preserving Our Nations's Wetlands. The
Division obtained court orders requiring
violators of federal wetland laws to restore or
create more than 200 acres of wetlands and
pay over $1 million in civil penalties and. Our
success in this area included four favorable
appellate court decisions upholding Clean
Water Act regulatory jurisdiction over adjacent
wetlands and tributaries of navigable-in-fact
waters in United States v. Deaton, United
States v. Newdunn, United States v.
Rapanos, and United States v. Rueth.
Protecting Our Drinking Water Supplies.
We successfully defended the Safe Drinking
Water Act ("SDWA") against constitutional
challenge in State of Nebraska v. EPA.
Seeking to overturn EPA's rule lowering the
maximum contaminant level for arsenic in
drinking water, Nebraska argued that the
SDWA both exceeds Congress' power under
the Commerce Clause and violates the Tenth
Amendment by compelling states to regulate.
In June 2003, the court denied Nebraska's
petition for review, finding the Act to be a valid
exercise of Congress' Commerce Clause
power, and holding that it does not compel
states to pass legislation or enforce federal
standards in violation of the Tenth Amendment.
We also successfully defended EPA's rule
setting limits on the permissible level of
radionuclides in drinking water against industry
challenges in City of Waukesha v. EPA. The
D.C. Circuit found that EPA had relied on the
best available scientific evidence in setting the
standards, and had properly balanced costs
against the benefits of increased protection
afforded by the new rule.
Controlling Stormwater Discharges into
the Nation's Waters. The Division
successfully defended challenges to EPA's
regulations requiring municipalities to control
stormwater discharges. In Environmental
Defense Center v. EPA, the Ninth Circuit held
that EPA's stormwater regulations do not
violate either the First or Tenth Amendments
and that EPA had a sufficient factual basis to
require control of discharges from construction
sites as small as one acre. The Fifth Circuit in
City of Abilene, Texas v. EPA similarly ruled
that stormwater permits issued to two Texas
municipalities did not violate the Constitution by
requiring those entities to regulate discharges to
their storm sewer systems or by requiring them
to design a public education program to
minimize stormwater pollution.
Reducing Toxic Air Pollution from Cars.
The Division repelled attacks on EPA's
decision setting controls on toxic emissions
from cars. In April 2003, the court in Sierra
Club v. EPA upheld EPA's decision imposing
an "antibacksliding provision" to maintain
refiners' existing levels of voluntary
overcompliance with current toxic requirements
on their fuels, and EPA's conclusion that other
recent rules limiting vehicle emissions already
attain the greatest degree of toxics control
achievable for cars. The court held that EPA
acted within its authority and that its analysis of
the adequacy of existing controls was well
supported.
ENSURING CLEANUP OF HAZARDOUS WASTE
Conserving the Superfund through
Securing Cleanup of Hazardous Waste
Sites by Responsible Parties and
Recovering Superfund Monies Expended
for Cleanups. In a number of notable
judgments and settlements, the Division secured
the commitment of responsible parties to
cleanup of hazardous waste sites or reimburse
the United States for Superfund monies
expended to clean up sites around the nation:
California - The Division lodged five consent
decrees in connection with the Casmalia
Superfund Site, a 252-acre inoperative
commercial hazardous waste facility in Santa
Barbara County. Collectively, the settlements
provide for the payment and release of claims
against the United States in the amount of $52
million.
Idaho - We received a favorable ruling on
liability in United States v. Asarco, Inc., in
which we seek to recover response costs and
natural resource damages associated with lead,
zinc and cadmium in mining wastes deposited in
the Coeur d'Alene Basin in northern Idaho, one
of the largest Superfund sites in the nation. The
wastes have caused elevated blood lead levels
in children, and serious harm to migratory birds,
fish, and vegetation over a large area.
Illinois - The court entered a consent decree
resolving claims against NL Industries in
connection with the NL Industries/Taracorp
site, a former lead smelter. The decree
requires NL Industries to reimburse the
Superfund at least $29.78 million in response
costs. A separate group of generator parties
recently completed implementation of the
remedy at a cost of approximately $20 million.
Montana - We obtained the largest Superfund
cost recovery judgment ever obtained after trial
- over $54 million - against W.R. Grace &
Co. in connection with the Libby Asbestos Site
in Libby, Montana. EPA had removed large
amounts of asbestos, a carcinogenic substance,
from Grace's former vermiculite mining and
processing facilities and remediated asbestos-contaminated mining and process wastes that
were given to Libby homeowners for use in
their gardens and to local schools for use on
athletic tracks.
New York - The Second Circuit affirmed
Alcan Aluminum Corporation's liability for
reimbursement of costs EPA and the State of
New York incurred in cleaning up hazardous
substances at two waste sites where Alcan
disposed of more than 5 million gallons of
waste oil. Alcan claimed that the harms from
hazardous substances it disposed of were
divisible from the harms caused by others who
sent waste to the sites, but the Second Circuit
held that a responsible party arguing that it is
not liable for all costs based on a divisibility of
harms must present proof that the total impact
of all its waste is divisible from harms from
other wastes at the site. The Second Circuit's
decision is expected to be very helpful in
ensuring that responsible parties pay cleanup
costs for their wastes sent to Superfund sites.
Pennsylvania - We lodged a consent decree
with Horsehead Industries providing for its
implementation of the remedy at two operable
units and the performance of operation and
maintenance at a third operable unit at the
Palmerton Zinc Pile Superfund Site, which
operated as a zinc smelter for more than 80
years. The projected cost of this work is $28
million. Horsehead also agreed to reimburse
the Superfund $13.5 million.
Texas - In connection with the West Dallas
Lead Site, a former secondary lead smelter
operation, RSR Corporation and its
subsidiaries will pay $13.25 million to the
Superfund and perform most of the remaining
cleanup work, valued at $11.6 million.
Washington - We entered into five consent
decrees in connection with the Commencement
Bay Superfund Site, which, taken together,
require cleanup commitments of an estimated
$66.1 million, as well $28.4 million for the
Superfund in cost recovery. We also lodged
two consent decrees in connection with the
Harbor Island (Seattle) Site which has been
divided into seven operable units. In the first
consent decree, Lockheed Martin agreed to
perform the remedy for one operable unit at a
cost of $29 million. The second decree
provides that Todd Pacific Shipyards will
perform the remedy at a second operable unit
at an estimated cost of $30 million.
Wisconsin - The Division lodged a consent
decree with respect to the Sheboygen River
Superfund Site in Sheboygan, which requires
Tecumseh Products Co. to perform remedial
action addressing PCB contamination in river
sediments in the Upper River portion of the
Site, at a cost of about $28 million and to
reimburse the Superfund $2.1 million.
Pursuing Corporate Assets to Fund
Cleanup Responsibilities. In January, the
Division secured a stipulation with 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. (AMC), when it lodged a
settlement resolving this claim. Our settlement
with ASARCO requires AMC to pay $765
million - more than $100 million more than
previously proposed - for ASARCO's stock
ownership interest in the Peruvian company.
The settlement creates and funds an
independent environmental trust to be used to
pay for cleanup at sites where ASARCO is
responsible. Initial funding of the trust is valued
at $100 million and is guaranteed by AMC.
Throughout the year, the Division also represented the United States in numerous
bankruptcy proceedings where the debtor had environmental responsibilities
to fund. For example, in national bankruptcies involving such corporations
as LTV Steel, K-Mart Corporation, Bethlehem Steel, Kaiser Aluminum, Owens-Corning,
Borden Chemical, Pittsfield-Canfield Corp., Farmland Industries, Aerovox,
Inc., Laclede Steel and Western Processing, the Division secured commitments
from debtors or its parent corporation to perform an estimated $33.6 million
in corrective action and cleanup work, to make cash payments of approximately
$38.5 million, to allow administrative claims of $365,000, to allow secured
claims of $831,500, and to allow general unsecured claims of more than $48.6
million.
Defending the Scope of Hazardous Waste
Regulation Under Resource Conservation
and Recovery Act ("RCRA"). In American
Chemistry Council v. EPA, an industry group
challenged EPA's statutory authority under
RCRA to regulate as a "hazardous waste" any
substance that is either mixed with or derived
from a listed hazardous waste. In August
2003, the District of Columbia Circuit denied
the challenge, holding that EPA's interpretation
fulfills Congress's purpose of subjecting
hazardous wastes to "cradle-to-grave"
regulation in order to protect public health and
the environment.
Allowing Anthrax Contamination Cleanup
to Proceed. On September 15, 2003, the
Second Circuit affirmed the district court's
dismissal of a challenge to the Postal Service's
anthrax cleanup of the Morgan Processing
Center in midtown Manhattan. The Second
Circuit concluded that the Postal Service was
conducting an ongoing removal action that
precluded judicial review during the pendency
of the removal. This ruling will allow postal
officials to expeditiously complete the cleanup.
Defending EPA's Ability to Direct Cleanup
of Polluted Sites. In General Electric v.
EPA, General Electric sought to have declared
unconstitutional portions of CERCLA allowing
EPA to issue emergency orders directing
cleanup of polluted sites nationwide. In March
2003, the district court resoundingly rejected
General Electric's claims, thus preserving
EPA's ability to ensure that environmental
dangers can be responded to rapidly. The
Division also successfully defended challenges
to EPA's efforts to clean up widespread PCB
contamination at a contaminated site in
Bloomington, Indiana.
Apportioning Properly Cleanup Liability.
One significant portion of the Division's
practice involves resolving federal agency
responsibility for cleanup of contaminated
facilities. Of particular note in this regard is the
Division's defeat of New Mexico's claims for
more than $4 billion at the South Valley
Superfund site near Albuquerque. Despite the
ongoing groundwater cleanup being supervised
by federal and state authorities, private
attorneys hired by the State filed suit in 1999
sought to recover additional money. However,
we demonstrated that the cleanup operations
would fully restore the groundwater to drinking
water standards and that additional damages
should not be awarded for contamination below
those standards. In response, the State
dismissed all claims against the United States.
Similarly noteworthy was the court's
determination that the United States was not
liable on almost all contribution claims against
the government in connection with the multi-million dollar cleanup of the Bunker Hill mining
site in Idaho.
PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA'S NATURAL
RESOURCES AND WILDLIFE
Everglades Restoration. The Division
continued to contribute to protection of the
endangered Everglades ecosystem by acquiring
lands within Everglades National Park and Big
Cypress National Preserve, as authorized by
Congress and requested by the National Park
Service. We also continue to defend multiple
challenges to the Army Corps of Engineers'
implementation of the Everglades restoration
program. For example, in two cases brought
by the Miccosukee Tribe we faced repeated
motions in which the Tribe tried to stop the
Corps from implementing water management
plans for the Everglades ecosystem as part of
the Corps' effort to avoid jeopardy to the
endangered Cape Sable seaside sparrow. Our
success in this litigation has enabled the Corps
to continue implementing its plan to avoid
jeopardy to the endangered sparrow while also
accommodating the water-related needs of
South Florida.
Expansion of Wildlife Refuges and
National Parks. At the Fish and Wildlife
Service's request, we acquired by eminent
domain Calves Island, Connecticut, for addition
to the Stewart B. McKinney National Wildlife
Refuge. We also administer regulations
designed to ensure that federal agencies will
acquire clear title when making land purchases.
Purchases facilitated by administration of these
regulations included the National Park
Service's acquisition of 115,788 acres in
Hawaii and the Fish and Wildlife Service's
purchase of property in Maine to add to the
Rachel Carson National Wildlife Refuge.
These regulations also helped to modify
procedures for physical inspections of land in
the Bureau of Land Management's Alaska
Native allotment recovery program, which will
likely save millions of dollars in processing
costs while greatly speeding up the program.
Establishing Federal Ownership of Coastal
Submerged Lands. In a case involving
264,000 square miles of submerged lands, the
Commonwealth of the Northern Mariana
Islands sought a judgment that the
Commonwealth owns the submerged lands
underlying both a 12-mile territorial sea and a
200-mile exclusive economic zone surrounding
the Islands. The Division obtained an favorable
ruling affirming title to these lands in the United
States and holding that Congress must enact
legislation before the Commonwealth can
acquire any interest in the lands seaward of the
Commonwealth's low water mark.
Obtaining Water Rights Victories. We
secured numerous settlements that will protect
the water supplies and flows necessary to
maintain the vitality of natural resources and
uses of the public lands, national forests,
national parks, wildlife refuges, wild and scenic
rivers, military bases, and federal reclamation
projects in areas such as the Snake River Basin
in Idaho, the Klamath River Basin in Oregon,
and the Yakima River Basin in Washington.
The Division also played a key role in resolving
an original action in the Supreme Court brought
by Kansas, Nebraska and Colorado alleging
violations of the Republican River Compact.
The settlement, approved by the Supreme
Court in May, provides much needed
protection for federal reclamation and water
supply projects and creates a moratorium on
new groundwater development, stabilizing the
water supply for existing users and federal
projects. It also contemplates cooperative
rules of water administration during dry years,
thereby reducing future litigation over the
compact.
In California, working closely with officials in
the Department of the Interior, we successfully
resolved a lawsuit challenging the Secretary's
determination to limit Colorado River water
deliveries to the Imperial Irrigation District to
amounts needed for reasonable and beneficial
use in 2003. Comprehensive and historic
agreements, reached among the Department of
the Interior, four Southern California water
agencies, and the State of California, together
with implementing legislation by the California
legislature, not only resolved this lawsuit but
also created a plan for California to bring its
use of Colorado River water within its annual
apportionment of 4.4 million acre feet, honored
a 70-year old commitment to the other
Colorado River basin states, provided for
unprecedented agricultural-to-urban water
transfers, established water conservation
measures within the Imperial Irrigation District,
and protected the Salton Sea.
Advancing Responsible Timber Production
From the National Forests. The Division
took a key role in fulfilling President Bush's
commitment to timber production goals of the
Northwest Forest Plan by a creative settlement
of the last remaining challenge to the Plan with a
coalition of timber industry, local county and
labor union plaintiffs from the Pacific
Northwest. The settlement allows for the sale
of an additional 300 million board feet of timber
a year in thinning sales, provides for the testing
of new and experimental timber harvesting
systems, and contemplates the re-examination
of the legal bases for the creation of reserves on
certain Bureau of Land Management lands in
western Oregon.
Defending Federal Resource Management
Programs. The Division had several victories
this year in defending federal resource
management programs. For example, we
defeated challenges that sought to halt or alter
timber related activities, ranging from individual
timber sales in Kentucky and Washington to
broad programs integrating conservation
measures into harvest planning such as the
Indiana bat and Northern spotted owl
conservation programs. Similarly, we
continued to defend federal grazing programs,
defeating injunction motions on numerous
grazing allotments in the West. We also fended
off attempts to halt planning for oil and gas
development on Forest Service and Bureau of
Land Management lands and on the Padre
Island National Seashore.
Endangered Species Act Commerce
Clause Challenges. Recently, two courts of
appeals have rejected claims that the
Endangered Species Act's prohibitions on
taking species would violate the Commerce
Clause. In GDF Realty v. Norton, the Fifth
Circuit upheld the application of the
prohibitions to the plaintiffs' commercial
development activities in central Texas because
the development would take members of six
endangered and listed invertebrate cave
species. The court of appeals ruled that the
cave species takes may be aggregated with all
other ESA takes in determining effects on
interstate commerce because the ESA is an
economic regulatory scheme and the regulation
of intrastate takes of the cave species is an
essential part of it." And in Rancho Viejo,
LLC v. Norton, the D.C. Circuit held that the
take provision of the Endangered Species Act
- as applied to a housing development project
that would harm endangered arroyo toads -
was a constitutional exercise of Congress's
Commerce Clause power. The Court
reasoned that the housing project involved an
economic enterprise, that the relationship
between the housing development and
interstate commerce was substantial, and that
the regulated entity and activity causing the take
in this case were both commercial.
Guarding the Public Fisc Against Claims
Regarding Mineral Regulation. In several
"regulatory takings" cases we recently handled,
the Division has saved the United States tens of
millions of dollars. For instance, the holder of a
lease to drill oil and gas wells beneath the
Waste Isolation Pilot Plant in New Mexico
claimed that it was entitled to compensation due
to the delay in the government's issuance of a
drilling permit. The United States contended
that this delay was necessary to allow the
Department of Energy and the EPA time to
analyze the environmental impacts of drilling
beneath the world's only permanent storage
facility for low-grade nuclear waste. The court,
in dismissing the lawsuit, determined that the
length of the delay was not unreasonable
considering the unique circumstances. In
another "regulatory taking" matter, we
successfully defended a lawsuit brought by the
owner of a coal mining property in Kentucky
who alleged that limitations on his ability to
conduct surface mining resulted in a taking of
his property even though a portion of the
property had been designated as unsuitable for
surface mining due to contamination concerns
involving the sole source of drinking water for
the City of Middlesboro, Kentucky.
PROMOTING MILITARY PREPAREDNESS AND
NATIONAL SECURITY
Defending Military Training and
Readiness Programs. Plaintiffs alleged in two
challenges to a Navy low frequency sonar
system designed to detect the new generation
of quiet foreign submarines that the system
would have an adverse impact on marine
mammals. We obtained dismissal of one
challenge seeking to enjoin wartime use of the
system. In the other challenge, which only
challenged peacetime use of the system, we
obtained an agreement allowing the Navy to
operate the system in the western Pacific
Ocean with carve-outs for certain areas where
plaintiffs believe that densities of marine
mammals may be higher. This agreement will
enable the Navy to test and train under a wide
variety of strategic, geographical, and oceanic
conditions.
In other litigation against the Navy, we worked
with the United States Attorney's Office to win
in Ground Zero Center for Non Violent
Action v. United States Department of
Navy. Plaintiffs had claimed that the Navy
violated the Endangered Species Act and other
statutes by not examining the full environmental
effects, including accidental detonation, of
maintaining Trident D-5 missiles at Submarine
Base Bangor, which was upgrading its facilities
to accommodate the missiles. The court held
that the appropriate scope of effects had been
considered, and that the government had
complied with the ESA. And, in a long-running
case against several Defense agencies that use
the Barry Goldwater Air Force Base,
Defenders of Wildife v. Norton, we have
avoided any injunctions against the military and
had significant success in limiting renewed
challenges to the revised Endangered Species
Act consultations.
Facilitating the Army's Chemical Weapons
Demilitarization Program. We enjoyed
several victories in defending multiple lawsuits
regarding the Army's destruction of a stockpile
of thousands of tons of chemical weapons to
comply with the Chemical Weapons
Convention and to protect the public from
significant public health and safety risks
associated with continued storage of the
hazardous chemical agents. In March, the
Tenth Circuit approved the Army's authority to
continue incinerating chemical weapons at the
Tooele Chemical Agent Disposal Facility in
Utah, and in July 2003, the Division obtained
dismissal of the bulk of plaintiffs' claims
regarding Anniston Army Depot in Alabama,
thus avoiding jeopardy to the Army's ability to
meet the congressionally-mandated April 2007
deadline for destruction of all chemical
weapons in the United States. The Division
also significantly boosted the Department of
Energy's initiative to close unusable and costly
nuclear facilities by handing a resounding defeat
to a local county's attempt to stop the
deactivation of the Fast Flux Test Facility, a
research nuclear reactor which had outlived its
role in the Nation's nuclear program, and which
was costing DOE millions each month to keep
in "hot safe standby" status.
Property Acquisitions to Improve Military
Readiness and National Security. We
provided guidance in the multi-million dollar
valuation and acquisition of safety zones to
facilitate munitions handling at the Navy's
Blount Island Command in Jacksonville,
Florida. The agreement reached successfully
avoided the need for condemnation of the
safety zones. Similarly, our advice and
assistance enabled the General Services
Administration ("GSA") to increase security
measures at the Defense Intelligence Agency's
offices in Arlington, Virginia, without
condemnation. This is one of a series of GSA
acquisitions in which we are facilitating the
expansion of rights under existing leases to
satisfy new security needs. We also acquired
property located in Washington, D.C., to
provide additional security for the abutting
United States Secret Service headquarters and
assisted in securing the nation's borders by
coordinating preparation and filing of a series of
eminent domain actions in Vermont, Minnesota,
North Dakota and Montana to permit rapid
construction of new border inspection facilities
needed by the Department of Homeland
Security.
We continued to satisfy agency requests for
approval of land titles under 40 U.S.C. § 3111.
Acquisitions reviewed included an exchange of
property interests valued at $7,400,000 to
improve access security for the Nuclear
Regulatory Commission in suburban Maryland
and purchase of twenty acres in Glynn County,
Georgia, for $2,850,000 on behalf of the
Department of Homeland Security's Federal
Law Enforcement Training Center.
Guarding Against Claims From Military
Activities. Over the past year we have
successfully defended several lawsuits by
individuals who allege that actions undertaken
by the United States military have resulted in a
taking of their property without just
compensation in violation of the Fifth
Amendment. In one, the owner of a factory
located in the Sudan which was destroyed by
the Navy sought $50 million in compensation.
The United States contends that the plant was
used for the manufacture and storage of
chemical weapons and that it had ties to Osama
bin Laden. El-Shifa's claim was rejected by
the Court of Federal Claims, which held that
the constitutional right to just compensation
does not extend to claims arising out of the
destruction of a purported enemy war-making
instrumentality through American military
action. In another matter, the Division
successfully defended an attempt to certify a
class action alleging that the noise from an
increase in military overflights at Naval Air
Station Oceana prevented the residential
neighbors of the base from making use of their
property. The proposed class consisted of
approximately 30,000 individuals seeking $500
million in compensation.
DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS
Defense of Federal River Structures. In
2002-2003, the government faced major
challenges to federal flood control, irrigation,
and hydroelectric facilities operation on river
systems throughout the country. For instance,
the Division's litigators once again defeated
various efforts to enjoin or modify the
operations of the Federal Columbia River
Power System, a series of dams and reservoirs
on the Columbia and Snake Rivers which
provide approximately half of the power needs
of the Pacific Northwest. Similarly, we
defeated attempts to alter operations of the
Colorado and Klamath River projects. On the
Colorado, plaintiffs argued that the United
States should divert water from its reservoirs to
benefit species in Mexico even though that
would cause flooding in impoverished areas of
Mexico. On the Klamath, plaintiffs demanded
that more water be left in the river and shifted
away from agricultural uses despite the fact that
a National Academy of Sciences study
indicated that the river species did not need the
additional water. Perhaps most notable,
however, were the Division's efforts regarding
the Missouri River. In that case, the District of
Columbia district court issued an injunction
requiring that water levels on the Missouri be
kept low during the summer. However, a prior
conflicting ruling by the District of Nebraska
required that the levels be kept high to benefit
navigation. The Division guided the Corps
through this dilemma by convincing the Judicial
Panel on Multidistrict Litigation to transfer all of
the cases to a single judge in Minnesota,
resolving the conflicting injunctions, and
allowing the Corps to move forward with its
river operations.
Maintaining the Nation's Infrastructure.
In several different pieces of litigation, the
Division defeated efforts to halt the upgrading
of several of the nation's airports and its
operation of major dams. For example, it
successfully opposed efforts to halt construction
of runways at the Phoenix Sky Harbor
International Airport in City of Tempe,
Arizona v. FAA and Seattle-Tacoma Airport
in Airport Communities Coalition v. Corps
of Engineers, and forestalled continued efforts
to prevent expansion of the Hopkins Cleveland
International Airport in City of Olmsted Falls
v. United States. In National Wildlife
Federation v. Corps of Engineers, the district
court upheld the Corps' plans for operating
four dams along the lower Snake River in
Washington State, rejecting claims that the plan
was the cause of downstream violations of
water quality standards.
Promoting Alternative Energy Sources.
The Division successfully defended a River and
Harbors Act permit in Alliance to Protect
Nantucket Sound v. Corps, which will allow
further study of a possible wind energy facility
in the ocean waters of Nantucket Sound off the
coast of Massachusetts. The permit authorizes
a data collection tower, and may eventually
lead to the construction of a renewable energy
windmill farm comprised of 170 wind turbine
generators, which could provide up to one-third
of the electrical needs of Cape Cod in a clean
and environmentally sound manner.
Protecting Energy Policy and
Infrastructure. The Division exercised the
government's power of eminent domain to
acquire transmission line easements over 526
acres of land in California and Washington at
an estimated cost of over $2,800,000 on behalf
of the Department of Energy's Western Area
Power Administration and Bonneville Power
Administration.
Bolstering the Nation's Energy and Water
Infrastructure. The Nation's effort to
maintain secure, dependable electrical power
was significantly aided by the Division's
defense of Presidential Permits allowing two
large Mexican power plants to transport
electricity into California. The Division's
lawyers successfully persuaded the Court to
allow continued operation of the power plants
and transmission of the electricity to fulfill vital
energy needs. Also, in Georgia, we
successfully defeated attempts to block the
construction of a new water supply reservoir
that will supplement the local municipal water
supply, which would otherwise be exhausted in
2004. Another successful effort to ensure
adequate water resources came when we
successfully defeated attempts in New Jersey to
interfere with the Corps' operation of a large
multi-use reservoir that serves a variety of
important municipal and other public purposes.
Defending the Clean Water Act's Dredge
and Fill Permitting Program. On appeal to
the Fourth Circuit, the Division successfully
obtained a reversal of a district court ruling
which held, contrary to 30-years of prior
practice, that the Environmental Protection
Agency, not the Army Corps of Engineers, was
the appropriate agency to review permit
applications for the discharge of excess surface
coal mining spoil into waters of the United
States. In another appeal to the Fourth Circuit,
the court also upheld the Corps of Engineer's
authority to review a proposed Section 404
Clean Water Act discharge of fill material under
general, nationwide permit provisions, rather
than under a more time-consuming individual
permit process.
Land Acquisition Advice and Training for
Federal Agencies. In addition to providing
representation for federal agents in lawsuits, the
Division also provides advice and training to
various federal agencies when appropriate.
For example, the Division's Appraisal Unit
provided significant valuation guidance to
federal agencies over the course of the year,
including advising the Department of the
Interior in an ongoing major reorganization of
real estate appraisal functions within that
Department. Members of the unit presented
training at national and regional meetings and
seminars held by federal land acquiring
agencies, including the Bureau of Land
Management, the Fish and Wildlife Service,
and Forest Service.
Saving Taxpayers Millions in Eminent
Domain Cases. The Division successfully
defended the statutory interest rate provided by
law for exercise of the government's power of
eminent domain in 40 U.S.C. § 3116 against a
constitutional challenge. The result in this single
case saved the government as much as
$25,000,000 and established precedent for
future litigation. Similarly, we saved the federal
government approximately $2,000,000 when
we prevailed in a case stemming from the
purchase of land within an irrigation district for
expansion of the Yuma (Arizona) Marine
Corps Air Station. We successfully argued that
a formula used by the Ninth Circuit Court of
Appeals to calculate just compensation in
previous litigation involving other land in the
same irrigation district should no longer apply.
The new formula is also expected to apply to
ongoing land acquisitions for Yuma Air Station.
PROTECTING INDIAN RESOURCES 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. For example, this
year the Court approved the Warm Springs
Water Rights Agreement, which concluded a
15-year adjudication with a cooperative
conclusion. Not all water adjudications,
however, are amenable to settlement, in which
case we are prepared to litigate. We had
several significant victories in such litigation,
including Lummi Indian Nation v.
Washington, where the Court adopted the
United States' argument that reserved Indian
water rights include a right to use groundwater
and that the purposes for which Tribes may
exercise their water rights include the right to
support necessary domestic purposes. Since
the decision, we successfully have encouraged
discussions between the State and the Tribe to
mediate the resolution of this adjudication. In
the Bitterroot River Basin adjudication in
Montana, the Court adopted the United States'
position that the Tribe had not abandoned its
water rights.
Protecting Tribal Rights to Hunting and
Fishing. In United States v. Washington, the
Court approved the Shellfish Implementation
Plan negotiated among the parties, which
resolved outstanding litigation issues regarding
regulation of the shellfish habitat. In the culverts
sub-proceeding of United States v.
Washington, where the United States is
seeking relief to aid the passage of endangered
salmon through state culverts, the Court
granted the United States' motion to dismiss the
State's assertion of cross-claims on the grounds
the United States had not waived its sovereign
immunity.
Defending the United States' Ability to
Take Title to Indian Land. The Division has
had seven successes in a row in defending the
Secretary of the Interior's decisions to accept
title to Indian land and hold such land in trust
status. These cases seek to vacate not only
agency action, but to declare important federal
statutes and programs unconstitutional.
Notable successes this year included Calcieri
v. Norton, in which the court rejected a
plethora of constitutional and regulatory
challenges to the Interior Department's power
to take lands into trust that the Narragansett
Tribe seeks to use for elderly and low income
housing, and Santee Sioux v. Norton, in which
we defeated a preliminary injunction seeking to
bar Interior from taking land to be used for
economic development into trust on behalf of
the Ponca Tribe.
Defending the United States' Authority to
Implement Indian Policies. The Division had
several successes in the past year defending
federal agencies' actions. For example, in
Connecticut v. Department of Interior, the
court dismissed Connecticut and two towns'
challenge to the Secretary of the Interior's
preliminary decisions on petitions for federal
recognition by two groups of Indians and the
regulatory procedures in place for processing
recognition petitions. In South Dakota v.
Department of Transportation, the court
dismissed South Dakota challenge to a federal
policy providing for the reimbursement of taxes
collected by Indian tribes for transportation
projects on reservations. In Association of
Property Owners v. Individual Council
Members of the Suquamish Tribal Council,
we successfully defended before the Ninth
Circuit a HUD program to provide low-income
housing for Native Americans pursuant to the
Native American Housing Assistance Act.
And in Oregon v. Norton, we obtained
dismissal of a challenge that challenged the
Secretary's authority to make decisions
regarding whether trust lands could be
considered part of a Tribe's restored
reservation after recognition. Following the
grant of our motion to dismiss, the Governor
announced the State would not appeal.
Promoting Negotiated Resolutions of
Indian Disputes. The Division continues to
promote the resolution of controversial legal
disputes involving Indian land and rights through
alternative dispute resolution ("ADR"). The
goal is to resolve litigation efficiently and
favorably, but also to establish cooperation
between tribes, states, and local governments,
which will benefit all parties in their future
interactions. To that end, we served as the
mediator in Nevada v. United States, where
the State of Nevada challenged a trust
acquisition on behalf of the Fallon Paiute
Shoshone Tribe in Fallon, Nevada. We helped
negotiate a resolution that enabled the State to
dismiss its appeal of this challenge, while at the
same time creating an agreement between the
State and the Tribe for handling similar issues in
the future. We believe this is the first
negotiated resolution of a trust land challenge
between a tribe, a State, and the United States,
and will create a precedent for resolving similar
disputes in the future.
Other examples of beneficial uses of ADR in the Indian context include the
Gila River Water Adjudication, in which we worked with the parties
to craft a legislative settlement of that adjudication, and the Snake
River Basin Adjudication, in which the parties agreed to a term sheet
that will form the basis for the settlement of this complex water adjudication
that has been the subject of six years of negotiations. To further our ADR
initiative, Division managers addressed attendees at the Conference of Western
Attorney Generals and at an American Bar Association conference on ADR to
promote the use of ADR in resolving Indian disputes.
Defending and Enforcing Indian Gaming
Laws. The Division, working with United
States Attorneys, enjoyed significant success in
defending and enforcing Indian gaming laws. In
a case of first impression, the Tenth Circuit
upheld the authority of the Chairman of the
National Indian Gaming Commission
unilaterally to issue a temporary closure order
under the Indian Gaming Regulatory Act
("IGRA") to close a gaming facility that was
conducting uncompacted Class III gaming, that
is, casino-style gambling. Also, in the Eighth
Circuit, two factions of the Sac and Fox Tribe,
the elected tribal officials and a dissident group,
challenged the Chairman's temporary closure
order shutting down the Tribe's Meskwaki
Casino after the dissident group took over
control of the Casino from the elected council.
The court of appeals ruled that IGRA implicitly
forbids review of temporary closure orders and
requires that a party first take an administrative
appeal to the full Commission. These rulings
affirm the Chairman's authority to act quickly to
halt unlawful gaming practices.
We also had several successes in the district
courts. For example, in California, the Division
prevailed in a suit brought by non-Indian casino
interests from Nevada, who sought to have
Indian gaming in California declared
unconstitutional as a violation of the Equal
Protection Clause. In Wisconsin, in a suit filed
by a Tribe, we successfully defeated a
challenge under the Tenth Amendment and
other Constitutional provisions, to the Indian
Gaming Regulatory Act's prohibition against
taking of land into trust for a Tribe absent the
concurrence of the State where the land is
located. In Iowa, the Division won a court
order shutting down an illegal Indian gaming
casino that was generating more than $3
million in illegal revenues every month.
Resolving Indian Land and Mineral
Claims. In a significant victory for the
Division, the Supreme Court issued a landmark
decision for the government in a case in which
the Navajo Nation sued the United States,
seeking $600 million for an alleged breach of
trust after the Secretary of the Interior
approved amendments, previously agreed to by
the Nation, which increased the royalties a
private coal company would pay for mining
tribal coal resources. The Supreme Court
ruled that the Navajo Nation could not sue the
United States for money damages because the
Secretary has no responsibility to manage
Indian coal resources on behalf of Tribes or to
ensure that a Tribe seeking approval of a lease
obtains the highest possible return. In so ruling,
the Court recognized that important
Congressional goals of furthering Tribal self-determination would be defeated if the United
States were held accountable for decisions that
are the primary responsibility of Tribes.
In another matter, the Division devoted
significant effort in the past several years to
resolving an ongoing land dispute between
three tribes, the United States, and private
landowners involving the Arkansas River in
Oklahoma. In 1980, the Supreme Court held
that title to a 96-mile stretch of the Arkansas
Riverbed belonged to the Cherokee, Choctaw,
and Chickasaw tribes of Oklahoma. The river
changed course and much of the riverbed
became dry land occupied by private
landowners. The Tribes brought a breach of
trust action against the United States in
Cherokee Nation v. United States and sought
to file quiet title actions against the private
landowners as well. We played a significant
role in drafting settlement legislation resolving
the Tribes' claims against the United States and
compensating them while at the same time
affirming and ratifying title in the private
landowners occupying the dry riverbed lands.
Congress enacted the Cherokee, Choctaw, and
Chickasaw Land Claim Settlement Act at the
close of the 107th Congress.
Also, in Mohawk Indian Nation v. New York,
the State of New York asserted counterclaims
against the United States in a land claim,
seeking contribution from the United States for
a share of the State's liability arising out of the
State's invalid purchases of Indian lands. The
court granted the United States' motion to
dismiss these counterclaims, and denied the
State's motion for reconsideration, which will
provide valuable precedent for other such
claims. In Sands v. United States, the court
granted the United States' motion to dismiss a
claim seeking $500,000 for alleged depredation
in hunting and fishing rights on a new Mexico
Indian reservation.
SUPPORTING THE DIVISION'S LITIGATORS
Litigation Support. The Division's Office of
Litigation Support provided superb support to
some of the Division's largest and most
demanding cases. The unit worked diligently to
manage scarce funding for the Power Plants
family of cases, which have proven to be
extremely resource-intensive. We were
particularly pleased to break new ground in our
work by electronically imaging all case
documents in the recent Power Plants Ohio
Edison trial from initial acquisition through the
conduct of an electronic trial. The unit also
provided support to 23 Tribal Trust cases, in
which gathering and managing a century of
relevant documents present numerous logistical
and technical challenges. The Division
developed document exchange protocols and
technical specifications for use with the Interior
Department which greatly assisted the
development of those cases.
Technology Upgrades. The Division
provided its litigators with the latest and best
technological tools available. This year we
upgraded all desktop computer systems, at all
nationwide offices, on schedule, under budget,
and with virtually no disruption to the staff. The
upgrade provided critical new hardware, the
latest releases of Corel and Microsoft software,
and a new group of legal applications to
improve productivity. The desktop system also
includes new tools for "e-filing," a Division
Intranet, and improved security. To prepare
for the age of electronic litigation, we installed
state-of-the-art digital copiers throughout the
Division, and added large central networked
copiers, with the capability to scan documents
and create electronic documents that will be
needed for e-filing purposes.
Remote Access. The Division improved its
remote access options for litigators who
frequently travel and need alternative access to
electronic communications. We enabled a
secure network solution for Blackberry
handheld devices and installed a remote-access
system compatible with high-speed broadband
access for users to gain full network access
through cable or DSL lines from home or hotel.
Training. We coordinated the development of
several training programs and seminars at the
Office of Legal Education's National Advocacy
Center , including a new management training
course for legal division attorney-supervisors
and managers, developed in cooperation with
several other Department training coordinators.
