UNITED STATES DEPARTMENT OF JUSTICE
ENVIRONMENT AND NATURAL RESOURCES
DIVISION
FISCAL YEAR 2004
SUMMARY OF LITIGATION ACCOMPLISHMENTS
CONTENTS
FOREWORD
CRIMINAL ENFORCEMENT OF OUR NATION'S ENVIRONMENTAL
LAWS
PROTECTING THE AIR, LAND AND WATER
ENSURING CLEANUP OF HAZARDOUS WASTE
PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA'S NATURAL
RESOURCES
PROMOTING NATIONAL SECURITY AND MILITARY PREPAREDNESS
DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS
PROTECTING INDIAN RESOURCES AND RESOLVING INDIAN
ISSUES
SUPPORTING THE DIVISION'S LITIGATORS
FOREWORD
I am pleased
to present the Environment and Natural Resources Division’s (“ENRD”)
Accomplishments Report for Fiscal Year 2004. The Division continues to work
tirelessly to enforce and defend America's environmental laws, ensuring the
air we breathe is clean, the water we drink pure, and the majestic American
landscape preserved for generations to come. This year produced even more record-breaking
accomplishments of which all Americans can be proud. The Division again secured
cleanup costs, civil penalties and criminal fines for the United States Treasury
that far exceeded ENRD’s budget and provided incalculable benefits for
human health and the environment.
Thanks to vigorous enforcement of existing laws, polluters across the nation
agreed to spend in excess of $4 billion in the last fiscal year – topping
the previous record of just over $3 billion in fiscal year 2002 – to
take corrective measures protecting the nation’s health, welfare and
environment. The last two fiscal years were also record-breaking periods for
assessment of civil penalties. In fiscal year 2004, courts imposed more than
$181 million in fines for violations in environmental cases, second only to
fiscal year 2003’s recovery of $203 million, which was itself almost
$80 million more than any previous year in ENRD’s enforcement history.
The Division also obtained the largest civil penalty settlement ever in a wetlands
enforcement case brought on behalf of the Environmental Protection Agency.
The Division’s accomplishments in the environmental area cannot be
summed up simply in numerical terms: ENRD also achieved immediate, on-the-ground
benefits for the American people. For example, in Massachusetts a local power
plant agreed to a settlement that will improve air quality significantly for
Boston school children and North Shore commuters, as well as restore a salt
marsh in Chelsea and construct a new commuter bike path. Among the projects
to which plant owner Exelon Mystic LLC committed is retrofitting 500 Boston
school buses with pollution control equipment, to be supplied by the company
with ultra low-polluting diesel fuel. This project alone will benefit more
than 28,000 school children who ride the buses every day, reduce tailpipe emissions
by more than 90 percent, and make Boston the first major American city to have
retrofitted its entire school bus fleet.
Nor can the Division’s accomplishments be summed up solely by reference
to its criminal and civil enforcement actions. Much of ENRD’s workload
continued to be non-discretionary cases, whether in the form of defending EPA
regulations or other federal agency decisions, or bringing eminent domain actions
pursuant to Congressional direction. These cases, along with our litigation
regarding Indian issues, repeatedly put our lawyers on the cutting edge of
the law. As evidence of this, eight of the eighty-one cases accepted by the
Supreme Court for argument in the last term were Division cases. And, as evidence
of the quality of the Division’s work, the position advanced by ENRD
on behalf of the United States prevailed in all but one of those cases decided
by the Court.
I have had the privilege of serving as Assistant Attorney General for the Environment
and Natural Resources Division for almost three years now, and I can readily
say it has been one of the most challenging yet rewarding positions I have
held in my legal career. Hardly a week goes by without one or more Division
cases featuring prominently in the media or without meetings in which difficult
decisions must be made. What makes the challenge a pleasure is the opportunity
to work with such a wonderful group of people. The Division’s lawyers
and support staff bring intelligence and dedication to their cases, making
my job immeasurably easier. They have served the American people well and I
am proud to serve with them.
Thomas L. Sansonetti
Assistant Attorney General
Environment and Natural Resources Division
December 2004
CRIMINAL ENFORCEMENT OF OUR NATION'S ENVIRONMENTAL
LAWS
Transportation of Hazardous Materials. The
Departments of Justice and Transportation completed the first full year of
this joint effort to combat illegal shipment of hazardous materials by air,
highway, rail
and water. The "hazmat" initiative is addressing critical homeland security issues
as well as the significant public health and environmental consequences of crimes
involving transportation of hazardous materials. In United States v. Emery
Worldwide Airlines, the defendant pled guilty to a twelve-count information
charging felony violations of the Hazardous Materials Transportation Act and
was sentenced to pay a $6 million fine, complete a three-year term probation,
and initiate an environmental compliance program. Emery specializes in shipping
heavy cargo by air and land, including hazardous materials. DOT regulations require
the operator of an aircraft transporting an item classified as hazmat to give
the pilot written notification. Audits conducted by Emery revealed the company
was not following proper procedures, but did not take constructive steps to correct
the problem for well over a
year.
In United States v. Solar International and Shipping, the defendant
company, and Hung Tao Chou and Chin Wang, two of its employees, were indicted
and charged with conspiracy to make false statements and with use of a
false emergency response telephone number on paperwork that accompanied
numerous containers of hazardous materials shipped in 1998 and 1999 in
violation of the Hazardous Materials Transportation Safety Act ("HMTSA").
All three defendants were further charged with substantive HMTSA violations,
and Solar and Chin Wang were also charged with false statement violations.
Vessel Pollution Enforcement. The Vessel Pollution Initiative
is an ongoing, concentrated effort to prevent vessels from illegally discharging
pollutants into the oceans, coastal waters and inland waterways. Since
1990, over 135 environmental prosecutions have resulted from such illegal
activity. The Vessel Pollution Initiative contributed to a number of important
new prosecutions again this year. In United States v. OMI Corporation,
the company pled guilty to falsifying documents in an effort to cover up
illegal dumping of thousands of gallons of waste oil at sea in violation
of the Act to Prevent Pollution from Ships ("APPS"). The company was sentenced
to pay a $4.2 million dollar fine, half of which went to a crew member
whistleblower, and will also serve three years' probation. Connecticut-based
OMI operated the M.T. Guadalupe, a tanker that carried various
types of petroleum products, including jet and diesel fuel. The captain
and chief engineer of the M.T. Guadalupe previously pled guilty
to falsifying the ship's oil record book, to asking crew members to lie
to the U.S. Coast Guard, and to asking engineers to conceal illegal oil
discharge bypass pipes used during a five-month period in 2001.
Similarly, in United States v. Sabine Transportation Co., Iowa-based
Sabine pled guilty to eight APPS violations, including the illegal dumping
of 440 tons of diesel-contaminated grain, oil-contaminated bilge waste,
and contaminated diesel fuel and plastic waste, as well as a failure to
notify and two false oil record violations. The company was sentenced to
pay a $2 million fine with $1 million to be paid to three employee whistleblowers.
Sabine operated a fleet of eight U.S.-flagged ships engaged in similar
discharge violations on the high seas.
Combating Worker Endangerment. In United States
v. Atlantic States Cast Iron Pipe Company, a Division of McWane, Inc.,
et al., the company and five current or former managers and supervisors
were charged in a 35-count indictment with conspiracy to violate the
Clean Water Act ("CWA") and the Clean Air Act ("CAA"), to making false
statements and to obstructing the Environmental Protection Agency ("EPA")
and the Occupational Safety and Health Administration ("OSHA") and to
defeating the lawful purpose of OSHA and EPA. Atlantic States manufactured
ductile cast iron pipes for the water and sewer industry at its Phillipsburg,
New Jersey facility. The superseding indictment charges the defendants
with routinely violating their CWA permits by discharging petroleum-contaminated
water and paint into storm drains leading to the Delaware River; repeatedly
violating their CAA permits by, among other things, burning tires and
excessive amounts of hazardous waste paint; systematically altering accident
scenes and plant conditions in preparation for OSHA inspections; and
routinely misleading federal, state, and local officials investigating
environmental and worker safety violations.
ENRD's Environmental Crimes
Section convicted 19 individuals and corporations for fraudulently obtaining
training certificates required to conduct asbestos and lead paint remediation
and for using the certificates to win lucrative abatement contracts at
federal facilities, schools, hospitals and other public buildings. In United
States v. Ethel Holmes, the jury convicted the defendant on 12 counts
of conspiracy, mail fraud and false claims following a week-long trial.
Holmes was president of Holmes Environmental, Inc., an asbestos and lead
abatement contractor that obtained false training certificates to enable
its employees to perform abatement work at the Pentagon and other facilities.
The company from which the certificates were purchased had previously
been sentenced to a $30,000 fine and two years' probation. That company's
owner was sentenced to 15 months imprisonment followed by three years'
supervised release.
Other asbestos certificate
prosecutions yielded guilty pleas to false statement charges. Those cases
include United States v. Marcor Remediation, (company and general
manager); United States v. Macsons, Inc., (company and contract
representative); United States v. Potomac Abatement, Inc., (company
and operations manager); and United States v. ETMS, (company,
president and vice-president). Fines imposed in the four cases totaled
$292,000; $100,000 in restitution was also ordered to be paid.
Prosecuting Hazardous
Waste and Clean Air Act Violations. In United States v. Rhodia Inc.,
the defendant company pled guilty to two Resource Conservation and
Recovery Act ("RCRA")
storage violations and was sentenced to pay a $16.2 million fine, $1.8
million in restitution, and to perform 1,000 hours of community service.
Rhodia operated the Silver Bow Plant in Montana, which manufactured elemental
phosphorus, the waste from which spontaneously ignites when exposed to
air. From January 1999 until August 2000, Rhodia illegally stored carbon
brick and precipitator dust contaminated with elemental phosphorus. The
company also illegally stored elemental phosphorus sludge. Rhodia was
ordered to clean up the now defunct plant and was placed on a five-year
term of probation.
United States v. Hormoz
Pourat, another hazardous waste prosecution,
resulted in a guilty plea to RCRA and conspiracy violations. Mr. Pourat
was a vice-president of AAD Distribution and Dry Cleaning Services,
one of the largest handlers of dry cleaning waste in California before
it was shut down in January 2001. Between January 1999 and July 2000,
Mr. Pourat admitted to storing drums of tetrachloroethylene (PERC)
waste at AAD after the facility had exceeded its storage permit limit.
Mr. Pourat pled guilty to a similar scheme at Right Choice, Inc., where
he served as manager. He was sentenced to serve 37 months' incarceration,
pay $1.29 million in cleanup costs, and complete a three-year term
probation.
In United States v. John
Littlehale, Mr. Littlehale, a vice-president of Multi-Color Corporation,
falsely represented that a new press in Scottsburg, Indiana was not
in operation, and when it was working, claimed proper air pollution
control devices had been installed when he knew this was not true.
Mr. Littlehale pled guilty to making a false statement in violation
of the Clean Air Act and was sentenced to serve 18 months' incarceration,
pay a $4,000 fine, and perform 50 hours of community service. A co-defendant
pled guilty to misprison of a felony, the knowing concealment of and
failure to report a felony committed by another, and was sentenced
to serve six months of home detention as part of a five-year term probation
and ordered to perform 500 hours of community service.
Prosecuting
Environmental Fraud. In United States v. William Murphy,
defendant Murphy pled guilty to 28 counts of counterfeiting and misbranding
pesticides and was sentenced to serve 41 months incarceration, three
years' supervised release, and pay $45,305 in restitution to the Alabama
Department of Agriculture. Mr. Murphy, operating under the company
name Sierra Chemical, sold these pesticides to municipalities in Alabama
and Florida for mosquito eradication in connection with West Nile Virus.
In United States v. Thomas
Michael Hayes, the defendant was convicted of conspiracy to violate
the Clean Air Act, making false statements to the EPA, mail fraud and
obstruction of justice. He was sentenced to 57 months' incarceration
and three years supervised release, and required to pay a $1,000 fine.
Mr. Hayes was a vice-president of Saybolt Inc., which performed sampling
and analysis of petroleum products. Mr. Hayes ordered the destruction
of laboratory data falsified by company executives. He was convicted
of carrying out the conspiracy at Saybolt's New Jersey and Massachusetts
facilities.
Enforcing
Wildlife Protection Laws.
In United States v. Marousz
Chomicz, the defendant pled guilty to a four-count information
charging him with smuggling and Lacey Act violations. Mr. Chomicz,
president of a caviar company located in Poland, was part of a conspiracy
in which couriers were paid to smuggle black market caviar from Europe
to Miami without import documents required under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora ("CITES").
Mr. Chomicz was directly responsible for the smuggling of 619 kilograms
of caviar worth as much as $1.8 million. He was sentenced to 30 months'
incarceration.
Another such prosecution was United
States v. Leong Tian Kum, in which the defendant pled guilty to
smuggling protected reptiles into the United States and laundering
money from his smuggling activities. Mr. Kum used overnight delivery
services to ship to the United States wildlife declared as handicrafts,
art or stuffed animals. Federal
agents intercepted over 170 tortoises, turtles, tree monitors, water
dragons and other protected animals valued as high as $200,000. These
animals are protected by CITES and may only be traded when accompanied
by proper permits. Mr. Kum's co-defendant, Reid Turkowski, also was
convicted and sentenced to 10 months imprisonment. Turkowski was the
owner of Captive Bred Specialities, which purchased reptiles from Mr.
Kum for resale at reptile shows in the Midwest. A second confederate
of Mr. Kum, Singapore-resident Lawrence Wee Soon Chye, was sentenced
to 37 months imprisonment for illegally shipping animals from Singapore
and Bangkok to customers in the United States identified through the
Internet.
In United States v. Mississippi
Potash, Inc., the defendant company pled guilty to "taking" (i.e.,
killing) migratory birds in violation of the Migratory Bird Treaty
Act ("MBTA") and was ordered to pay a $15,000 fine. The company had
illegally discharged waste products from its mining operations in Carlsbad,
New Mexico, into Laguna Toston, a natural playa lake. The waste products
included significant amounts of sodium salts which can be fatal to
migratory birds. The company was also required to fund a remediation
plan by placing $237,500 in escrow.
The defendant in United
States v. Phelps Dodge Morenci, Inc., also pled guilty to violating
the MBTA by taking migratory birds illegally, and was sentenced to
pay a $15,000 fine and undertake a corrective action plan to prevent
bird deaths. In addition, the company agreed
to donate $10,000 to one or more federally-licensed bird rehabilitators
to care for sick and/or injured birds and to fund a study of projects
to create or enhance migratory bird habitat within the Gila/Salt/Verde
River Ecosystem. Some of the impounded waters discharged during the
mining process at the Morenci Mine site contained acid and other chemical
solutions harmful and at times fatal to migratory birds. Dead birds
were found near these impoundments.
PROTECTING THE AIR, LAND AND WATER
Reducing
Air Pollution from Coal-Fired
Power Plants. The Division continues to litigate vigorously Clean Air
Act cases against operators of coal-fired electric power generating plants. Violations
arise when companies engage in major life extending projects on aging facilities
without first installing state of the art pollution controls, as the law requires.
These violations result in tens of millions of tons of excess air pollution which
adversely affect the health of the elderly, the young and asthma sufferers and
lead to forest degradation, waterway damage and reservoir contamination. The
settlements achieved to date by the Division with operators of coal-fired power
plants will remove 688,000 tons
of pollutants from the air annually.
In January 2004, the Division
expanded its enforcement initiative by suing East Kentucky Power Cooperative,
which emits over 85,000 tons of sulfur dioxide and nitrogen oxides each
year. In June 2004, the Division sued the South Carolina Public Service
Authority and simultaneously lodged a settlement under which that utility
will spend over $400 million to reduce its pollutant emissions by more
than 69,000 tons per year, pay a $2 million civil penalty, and perform
$4.5 million in environmental mitigation projects.
In September 2004, the Division
sued Mirant Mid-Atlantic Corp. and lodged a settlement under which that
company will spend over $130 million to reduce emissions of nitrogen
oxides by over 28,000 tons a year, pay a $500,000 civil penalty and perform
$1 million in mitigation projects. The Division also entered into an
alternative dispute resolution process in the largest of the power plant
cases filed to date, United States v. American Electric Power Co., and
reactivated litigation in United States v. Alabama Power Co.,
which had been administratively stayed by the court.
Addressing Air Pollution
from Oil Refineries. The Division also made significant progress
this year in its national initiative to combat Clean Air Act violations
within the petroleum refining industry. Among other accomplishments,
the Division secured comprehensive settlements with Chevron U.S.A.,
Inc. and CITGO Petroleum Corp. The Chevron settlement covers operations
at five petroleum refineries in four states. Mississippi, Utah, Hawaii
and the Bay Area Air Quality Management District in California participated
as plaintiff-intervenors in the settlement. Under the settlement, Chevron
will undertake specified measures to reduce pollution, including implementation
of innovative technologies to reduce emissions of nitrogen oxides and
sulfur dioxide from refinery processes by approximately 9,600 tons
per year at an estimated cost in excess of $275 million. Chevron will
also pay a civil penalty of $3.5 million and spend at least $4.55 million
to perform supplemental environmental projects ("SEPs").
A proposed consent decree settlement
with CITGO Petroleum Corporation requires CITGO to spend an estimated
$320 million to install and operate innovative technologies to reduce
pollutants at refineries in Illinois, Louisiana, Texas, New Jersey and
Georgia. These controls are expected to reduce emissions of nitrogen
oxides by more than 7,000 tons and emissions of sulfur dioxides by more
than 23,000 tons a year. The decree also requires CITGO to pay a $3.6
million civil penalty and spend at least $5 million on a SEP to further
reduce nitrogen oxide emissions. With these additional settlements, the
Division's initiative will have addressed more than 40% of the nation's
refining capacity and will reduce air pollutants by more than 166,000
tons per year.
Reducing Air Pollution
at Other Diverse Industrial Facilities. The Division made
additional significant gains in improving the nation's air quality
by concluding enforcement actions against facilities operating in diverse
industries including wood cabinet manufacturing (United States
v. Capital Cabinet Corp.), molybdenum and copper mining (United
States v. Phelps Dodge Sierrita), refrigeration manufacturing
(United States v. True Manufacturing), silica sand processing
(United States v. J.R. Simplot Company) and steel mills (United
States v. CF&I Steel, L.P., d/b/a Rocky Mountain Steel Mills).
Those efforts addressing Clean Air Act violations resulted in the United
States securing commitments by defendants to perform $2.57 million
in facility improvements, to undertake SEPs in local communities valued
at $400,000, and to pay more than $6.6 million in civil penalties.
Innovative Pollution
Controls to Reduce Air Pollution at Commercial Egg Production Facilities. In
an unprecedented Clean Air Act settlement, Buckeye Egg Farm, L.P.,
Ohio's largest commercial chicken egg producer (responsible for 4%
of the nation's total production in 2002), agreed to install and test
innovative pollution controls at its three giant Ohio facilities to
dramatically cut air emissions of particulate matter and ammonia. Particulate
matter has been linked to aggravated asthma,
breathing difficulties, and
chronic bronchitis, among other ailments. Ammonia is a serious lung irritant.
The combined particulate matter and ammonia controls are also expected
to reduce fly infestations, the subject of repeated state and private
litigation. The settlement ensures that families residing near the massive
farms will see continuing improvement in the air they breathe. Buckeye
will also pay a civil penalty of approximately $880,600.
Upholding EPA's Clean
Air Act Regulatory Program. The Division had numerous successes
in defending EPA's regulatory program under the Clean Air Act. Most
notably, in Alaska Department of Environmental Conservation v.
EPA, the Division obtained a favorable appellate ruling upholding
EPA's authority to issue findings of noncompliance and a stop construction
order with respect to a prevention of significant deterioration ("PSD")
permit issued by Alaska for a new diesel generator at a major zinc
mine. The decision was affirmed by the Supreme Court, which sustained
EPA's interpretation of the Clean Air Act as granting the agency authority
to block construction of a major new pollutant-emitting facility permitted
under a state implementation plan-approved program where EPA found
the state's determination of "best available control technology" unreasonable.
Upholding EPA Actions
on State Implementation Plans. The Division also obtained
multiple rulings upholding EPA decisions involving implementation of
air quality standards in various parts of the country through the state
implementation plan ("SIP") process. In Environmental Defense v.
EPA, the Court of Appeals for the Second Circuit upheld EPA's
full approval of the New York portion of the New York City area SIP
and attainment demonstration for the one-hour ozone standard. Rejecting
numerous claims that EPA had not properly interpreted or applied statutory
requirements, the court upheld EPA's interpretation and application
of the statute.
Similarly, in BCCA Appeal
Group v. EPA, the Fifth Circuit rejected multiple petitions for
review of related EPA actions regarding the ozone attainment SIP for
Houston. The court found EPA's reliance on the state's photochemical
grid modeling was neither arbitrary nor capricious because the model
provided a reasonable indication, supported by the record, that the
measures and procedures in the SIP would lead to attainment of the
ozone standard.
In Sierra Club v. EPA,
the Seventh Circuit Court of Appeals rejected petitions for review of
a final rule determining that the St. Louis ozone nonattainment area
had attained one-hour ozone National Ambient Air Quality Standards ("NAAQS")
and approving the implementation plan for the area. And in Greenbaum
v. EPA, the Sixth Circuit upheld EPA's decision to redesignate Cuyahoga
and Jefferson Counties, Ohio, to attainment status for particulate matter.
Ensuring the Integrity
of Municipal Wastewater Treatment Systems. At ENRD's request,
the District Court for the Southern District of Ohio entered two consent
decrees that will require the Metropolitan Sewer District of Greater
Cincinnati to spend more than one billion dollars to bring its aging
sewer system into compliance with the Clean Water Act. For years, Cincinnati
and Hamilton County illegally discharged untreated sewage through overflow
pipes from sanitary sewers and outfalls ("sanitary sewer overflows," or "SSOs")
when it rained. Additionally, inadequate capacity in those portions
of the sewer collection system that also accept storm water ("combined
sewer overflows," or "CSOs") caused the discharge of an estimated six
billion gallons of untreated sewage each year, much of which found
its way into residents' yards and basements. The two decrees will bring
about CSO and SSO compliance and require defendants to implement a
comprehensive program to prevent, clean up, and compensate homeowners
for sewage entering their basements. The decrees also require the defendants
to pay $1.2 million in civil penalties and undertake SEPs valued at
$5.3 million. The State of Ohio joined in the settlement.
Also, in one of the largest
sewage cases in our nation's history, the United States and a coalition
of co-plaintiffs reached a $2 billion settlement with the City of Los
Angeles resolving years of sewage spills. Los Angeles operates the largest
sewage collection system in the country with approximately 6,500 miles
of lines. The consent decree, a groundbreaking effort to address all
causes of sewage spills and odors in the City, requires Los Angeles to
repair and replace its aging infrastructure and to work proactively to
prevent future problems. In addition to the injunctive relief, the proposed
decree requires the city to perform $8.5 million in SEPs and pay civil
penalties of $1.6 million.
Courts also entered consent
decrees settling Clean Water Act violations arising from operation of
wastewater collection and treatment systems with five smaller municipalities
during the past year: Lebanon, Missouri; Branford, Connecticut; South
Haven, Indiana; and Williamstown and North Adams, Massachusetts. The
consent decrees provide for the governments to spend approximately $22
million in injunctive relief to bring their sewage treatment systems
into compliance with the CWA, to pay civil penalties totaling $722,000
and to perform SEPs worth $364,000.
Conserving the Nation's
Wetlands. Working in concert with various U.S. Attorney's
Offices, the Division has continued to take successful enforcement
action where unlawful discharge of dredged or fill material has damaged
or destroyed wetlands and waterways. Most notably, in August 2004,
ENRD lodged a proposed consent decree resolving an enforcement action
for the unauthorized discharge of fill material in wetlands and other
waters of the United States at a private ski and golf resort near Yellowstone
National Park. The defendants' violations had adversely affected several
tributary streams of the Gallatin River, a world-renowned fishery.
The settlement calls for the Yellowstone Mountain Club to pay a $1.8
million civil penalty, the largest ever in an EPA wetlands enforcement
case. Defendants will also restore damaged wetlands and create new
ones as mitigation. Overall, the Division's wetlands enforcement efforts
yielded assessments of civil penalties exceeding $2.9 million.
Controlling Storm Water
Run-off at Construction Sites. In a strong start to a new
national initiative designed to assure compliance with Clean Water
Act provisions governing discharge of storm water from large construction
sites, the Division lodged a consent decree with the nation's largest
retailer and one of the country's largest commercial developers, Wal-Mart
Stores, Inc. The decree resolved claims that Wal-Mart violated the
CWA's provisions at 24 locations in nine states. Wal-Mart builds more
than 200 stores each year across the United States. Runoff from construction
sites is a primary contributor to the impairment of water quality in
our nation. The United States was joined in the settlement by the States
of Tennessee and Utah. Under the proposed decree, Wal-Mart will pay
a civil penalty of $3.1 million, undertake a SEP to protect sensitive
wetlands or waterways, and implement a substantial compliance program
that includes requirements for construction planning, training, inspections
and record keeping. The settlement with Wal-Mart will serve as a model
in ongoing negotiations with other large commercial and residential
developers who engage regularly in substantial construction activities.
Continuing Progress
to Clean up Contaminated River Systems. The Division made
significant progress in efforts to secure four river cleanups that
are unprecedented in scope.
Two consent decrees were entered
as part of the Division's effort to require seven paper companies to
clean up a 39-mile stretch of the Fox River flowing into Green Bay, Wisconsin,
which became contaminated with PCBs as a result of paper manufacturing,
and to pay associated natural resource damages ("NRD"). One decree requires
two companies to dredge the uppermost section of the Fox River at an
estimated cost of $66 million; a second decree recovers $10.8 million
for specified NRD projects and $1.6 million for the United States from
a third company located down river. Additionally, ENRD assisted EPA in
negotiating an administrative order on consent ("AOC") with two paper
companies that have agreed to perform the design work, estimated to cost
$20 million, for remediating the balance of the river. The eventual cleanup
and NRD restoration costs are expected to exceed one billion dollars.
Additional progress was made
in the United States' effort to secure cleanup of the Hudson River, which
is contaminated with polychlorinated biphenyls ("PCBs") discharged by
the General Electric Co. ("GE"). This year, the Division assisted EPA
in negotiating a second complex AOC, which provides for GE to develop
a multi-million dollar remedial design for dredging the river, an additional
payment of $15 million to the Superfund, and $13 million to offset government
costs of overseeing the design process. This AOC and one negotiated in
2002 collectively recover $20 million in past costs for the Superfund,
more than $15 million in government oversight costs, and, because GE
will perform millions of dollars of work under the two orders, spare
the Superfund that expenditure.
The Division also assisted
EPA in negotiating AOCs with more than 30 parties responsible for contamination
of the Passaic River in New Jersey. Collectively, the AOCs will provide
more than $10 million toward a remedial investigation/feasibility study
("RI/FS") along a 17-mile stretch of the river and the performance of
a multi-million dollar RI/FS of the Newark Bay, thus also saving Superfund
resources for other cleanups.
Another consent decree involving
river contamination was reached with Tecumseh Products Company, and will
require that company to implement an upper river cleanup effort - estimated
to cost $28 million - on the Sheboygan River in Wisconsin and reserve
all claims with respect to future work in downstream portions of the
river. The remedial work will be allowed to go forward while the parties
evaluate and negotiate their next steps. The decree also provides for
Tecumseh to reimburse the United States at least $2.1 million in past
response costs.
Restoration of River
Habitat. ENRD reached a settlement in August 2004 with eight
companies which will pay nearly $60 million to restore natural resources
in the Grand Calumet River and Indiana Harbor Canal. Although located
in one of the most heavily industrialized areas of the country, the
river and canal support a variety of fish and wildlife. Interspersed
among the area's factories, housing developments and refineries are
remnants of important natural features including globally rare dune
and swale habitat, prairie wetlands, savannas, marshes and swamps,
as well as the Indiana Dunes National Lakeshore. Federal and state
agencies worked cooperatively to determine the extent of damage from
a century of industrial releases of oil and other hazardous substances
into the waterway. The proposed settlement provides more than $53 million
to clean up, restore and protect the waterways and surrounding areas,
protect permanently 233 acres of land that contain important fish and
wildlife habitat, and pay $2.7 million to state and federal agencies
to reimburse them for damage assessment costs.
Defending EPA Standard-Setting. The
Division obtained an important ruling upholding EPA's emission standards
for engines used in the largest ocean-going vessels - including oil tankers
- in Bluewater Network v. EPA. The U.S. Court of Appeals for
the District of Columbia Circuit found that EPA reasonably limited the
rule to codifying emission standards currently used by engine manufacturers
pursuant to the International Convention for the Prevention of Pollution
from Ships ("MARPOL") treaty, and permissibly deferred consideration
of more restrictive standards until a second rulemaking to be completed
in 2007 to enable the agency to develop additional information on new
technology.
ENSURING CLEANUP OF HAZARDOUS WASTE
Conserving
Superfund Resources. Through numerous judgments and settlements,
the Division obtained commitments from responsible parties to clean
up hazardous waste sites at costs estimated in excess of $285 million
and recovered more than $92 million for the Superfund to help finance
cleanups under the Comprehensive Environmental Response, Compensation
and Liability Act
("CERCLA"). Superfund sites that will benefit include the San Gabriel Valley
site in California, Commencement Bay site in Washington, Palmerton Zinc site
in Pennsylvania, Plymouth Wood Treating Plant site in North Carolina, Liberty
Industrial Finishing site in New York and the National Southwire Aluminum site
in Kentucky. The Division also recovered more than $700,000 to restore or replace
damaged natural resources.
Five enforcement actions that
could not be settled proceeded to trial: United States v. JG-24,
Inc.; United States v. E.I. DuPont de Nemours and Company; United
States v. Pharmacia (f/k/a Monsanto); United States v. Rayonier
Inc.; and United States v. 175 Inwood Associates. The
United States prevailed on all or a portion of the issues tried in each
case. The Division also prevailed on all issues in a suit tried the previous
year, United States v. Domenic Lombardi Realty, Inc. These favorable
rulings will provide strong precedential support for future enforcement
actions.
Pursuing
Corporate Assets to Fund Cleanup Responsibilities. The Division
filed a civil complaint against three corporate defendants for CERCLA
cost recovery and declaratory relief with respect to the Waste Disposal,
Inc. Superfund site in Santa Fe Springs, California, and asserted a
fraudulent conveyance claim against two of them, Powerine Oil Company,
a defunct and insolvent refinery company that sent hazardous waste
to the site, and Energy Merchant Corporation ("EMC"), Powerine's corporate
parent and the recipient of a $12.5 million "dividend" from Powerine
that left Powerine insolvent. The Division seeks to void the purported
$12.5 million dividend under the Federal Debt Collection Procedures
Act to ensure the funds will be available for site cleanup.
Enforcing Cleanup Responsibilities
In Bankruptcy Cases. The Division's bankruptcy practice continued
to grow. This year, ENRD represented the United States in numerous
proceedings including the Kaiser Aluminum, Union Financial, Philip
Services, Fansteel, Horizon, Northwestern, Farmland, Washington Group,
Plainwell, Special Metals, GenTek, and Black Pine bankruptcies,
where debtors had significant environmental cleanup responsibilities.
The Division obtained agreements to provide more than $175 million
of funding or financial assurance for cleanup, reclamation, or natural
resource restoration work. The Division also obtained allowed general
unsecured bankruptcy claims of more than $83 million to be paid in
part by debtors under their plans of reorganization in the Washington
Group, Kaiser Aluminum, Philip Services, GC Quality, Pittsfield-Canfield,
Farmland, Bethlehem, Keysor and Burlington bankruptcies.
Of particular note this year,
the Division successfully defended against several attempts by debtors
to misuse bankruptcy law to evade legal obligations for public health
and safety protection (e.g., Philips Services, Horizon and Union
Financial) and used innovative trust instruments to provide for
cleanup of contaminated properties. In the Philips Services bankruptcy,
the United States successfully thwarted the debtor's plan to abandon
Superfund sites it owned without providing for cleanup. In lieu of abandonment,
the debtor transferred the sites to custodial trusts and agreed that
governmental parties will receive the benefit of more than $6 million
of cleanup work. Similarly, in the Union Financial bankruptcy,
the Division prevented the debtor from transferring property it owned
without funding cleanup. After expedited hearings, the debtor agreed
to provide over $14 million. In the Kaiser Aluminum bankruptcy,
the debtor agreed to transfer one of its contaminated properties to a
custodial trust that will undertake cleanup work and provide funding
to perform the work.
In these and others cases,
ENRD was able to foster settlements that harmonized bankruptcy and environmental
law. The settlements enabled large companies to avoid liquidation and
significant job loss by facilitating either reorganization or sale of
ongoing operations. A number of our settlements also avoided abandonment
of contaminated properties by debtors without provision of funding for
cleanup.
Cleaning
Up Federal Facilities. The Division successfully resolved
litigation regarding cleanup of contaminated federal facilities on
appropriate terms. In United States Department of Energy v. Curry,
DOE contested unilateral administrative orders issued by the New Mexico
Environmental Department for cleanup of the Los Alamos and Sandia National
Laboratories. Following approximately two years of negotiations, the
Division resolved the litigation through agreements that will govern
cleanup of these laboratories. Similarly, in United States v. Fitzsimmons,
ENRD negotiated a settlement between DOE and the State of Washington
that resolved two related lawsuits regarding DOE's Hanford Reservation.
This settlement established a new 10-year schedule for cleaning up
certain radioactive wastes at Hanford while eliminating outdated and
ineffective cleanup requirements DOE was alleged to have violated.
PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA'S
NATURAL RESOURCES
Everglades
Restoration. The Division continues to work toward protection
of the endangered Everglades ecosystem by acquiring land for addition
to Everglades National Park and Big Cypress National Preserve through
exercise of the power of eminent domain, as authorized by Congress and
requested by the National Park Service. Related acquisitions on behalf
of the U.S. Army Corps of Engineers took place to improve water deliveries
to the Everglades.
Defending Responsible
Natural Resource Management. The Division successfully defended
multiple emergency challenges to a succession of salvage timber sales
designed to recover burned-over timberlands in the Pacific Northwest.
The sales were in furtherance of President Bush's Healthy Forests Initiative
to reduce the risk of catastrophic wildfire and improve the overall health
and productivity of the nation's forests. The Division's victories will
permit federal agencies to pursue goals of creating jobs and boosting
local economies through salvage of millions of board feet of usable timber.
These agencies can now take steps to prevent future catastrophic fires
and restore habitats and ecosystems destroyed by the fires.
Environmental groups also challenged
the revised Tongass Land Management Plan and seven major timber sale projects
constituting the bulk of the timber available on the Tongass, alleging the
plan and projects were arbitrary and capricious and relied on incorrect
market demand projections. The Division succeeded in having that challenge
dismissed on the merits.
The Division also won a notable
victory in persuading a district court not to enjoin grazing on 1.3 million
acres in Nevada. The court was persuaded by the actions the Bureau of Land
Management ("BLM") had taken to improve conditions and reduce the amount
of grazing.
In June the Supreme Court issued
a unanimous decision in favor of the government in a dispute over the BLM's
administration of public lands in Utah. Plaintiffs in Norton v. Southern
Utah Wilderness Alliance alleged BLM was acting unlawfully by not curtailing
or eliminating off-road vehicle use in Wilderness Study Areas, areas identified
by the agency as eligible for consideration as wilderness but not yet so
designated by Congress. The Supreme Court held these claims inactionable.
Defending the U.S. Army
Corps of Engineers' Missouri River Operations. The United States
Army Corps of Engineers operates the Missouri River Main Stem System,
a network of dams and reservoirs on the Missouri River. A series of lawsuits
filed during 2002 and 2003 by states, environmental groups and commercial
interests allege the Corps' operation of the Missouri River system violates
both the Flood Control Act of 1944 and the Endangered Species Act ("ESA").
The Division obtained summary judgment favorable to the federal government
on all counts in all cases.
Water Rights Victories. The
Division secured numerous settlements protecting the water supplies and
flows necessary to maintain vital natural resources and uses of the public
lands, including national forests, parks, wildlife refuges, wild and scenic
rivers, military bases and federal reclamation projects in areas such as
the Snake River Basin in Idaho, Klamath River Basin in Oregon, and Yakima
River Basin in Washington.
PROMOTING NATIONAL SECURITY AND
MILITARY PREPAREDNESS
Promoting
National Security. The Division has been active in safeguarding
administration initiatives to support the war on terror, including the
successful defense of the construction and operation of a biological safety
laboratory against environmental challenges. The laboratory will permit
the Department of Homeland Security and other federal agencies to safely
research infectious biological agents that
pose risks to human health.
The Division also successfully
defended the Navy in a case raising National Environmental Policy Act ("NEPA")
and ESA challenges to the upgrade of the Trident missile system at Submarine
Base Bangor in Washington. The Ninth Circuit Court of Appeals agreed the
decision to site Trident missiles at Bangor was a presidential decision
not reviewable under NEPA. The court also concluded the Navy did not violate
the ESA because, given the remote possibility of an accidental explosion,
the project was unlikely to jeopardize the continued existence of any listed
species.
Defending Military Readiness: In Malaga
Makua v. Rumsfeld, a case litigated to settlement in the course of
two weeks, the Division defended the Department of Defense's live-fire
mortar and rocket training exercises at Makua Military Reservation on
the island of Oahu. Plaintiffs claimed these exercises posed a risk of
destructive fire to listed species and designated critical habitat under
the ESA. On March 19, the court temporarily enjoined mission-essential
training that would become impossible after mid-April. The Division negotiated
a settlement that allowed the Marines to train during the window of opportunity,
with certain additional safety precautions and other mitigation. An ENRD
trial attorney was present during the exercise to assist military counsel
in ensuring the agreement's terms were satisfied.
Property Acquisitions
to Improve Military Readiness and National Security. As directed
by federal agencies acting under authority of Congress, ENRD exercised
the federal government's power of eminent domain to complete several land
acquisitions for military purposes. These actions included:
United States v. 1,098.221
Acres in Duval County, Florida, and Gate Maritime Properties acquired
a port facility on Blount Island near Jacksonville, Florida, for use by
the Department of the Navy for weapons shipping around the globe. Estimated
just compensation of $101,000,000 was made immediately available to the
landowner.
United States v. 8.51 Acres
in Washington, D.C. and Riverside Associates Limited Partnership obtained
land for expansion of the National Defense University and Ft. McNair.
Estimated just compensation of $18,500,000 was made immediately available
to the landowner.
United States v. 1,402 Acres
of Land Honolulu, Hawaii and the Estate of James Campbell acquired
land needed for the U.S. Army's transformation of its 2nd Brigade,
25th Infantry Division (Light) to a Stryker Brigade Combat
Team. Estimated just compensation of $15,900,000 was made immediately
available to the landowner.
Successful Defense of
the Army's Chemical Weapons Demilitarization Program. The Division
continued to successfully defend the Army's $24 billion Chemical Weapons
Demilitarization Program. Pursuant to U.S. treaty obligations, Congress
has charged the Army with destroying certain weapons stockpiles at current
locations. The Division defended litigation related to the destruction
of chemical weapons in Alabama, Arkansas, Oregon and Utah. Of particular
note is ENRD's success in GASP v. Environmental Quality Commission
of the State of Oregon, a challenge to a state-issued hazardous waste
permit to incinerate chemical weapons at the Umatilla demilitarization
facility. After a lengthy trial (over 70 trial days), the court ruled
for the State and Army on almost all claims, thus allowing the Army to
proceed with its incineration schedule.
No Liability for Destruction
of Sudanese Industrial Plant. El-Shifa Pharmaceutical Industries
sought $50 million in compensation for destruction of an industrial plant
in Sudan by cruise missiles launched on orders of President Clinton in
response to bombing of U.S. embassies in Tanzania and Kenya by terrorists
affiliated with Al-Qaeda. The Court of Federal Claims dismissed the claim,
reasoning that federal courts have no role in setting standards by which
the president or military commanders are to measure the veracity of intelligence
gathered to determine what assets located abroad constitute enemy property.
DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS
The
Corp of Engineers' Wetlands
Protection Program. The Division successfully defended numerous cases
challenging the U.S. Army Corps of Engineers' wetlands protection and permitting
program under the Clean Water
Act. National Association of Home Builders
v. U.S. Army Corps of Engineers and National Stone, Sand and Gravel
Ass'n v.
United States Army Corps of Engineers challenged an EPA and Corps-promulgated
rule modifying the definition of "discharge
of dredged material" under the CWA. The rule clarifies the distinction between
regulable redeposits of dredged material (which may result from a variety of
mechanized earth-moving activities) and "incidental fallback," which cannot be
regulated under the CWA. The Division obtained an order dismissing those challenges
to the rule. Similarly, National Association of Home Builders et al. v. Army
Corps of Engineers presented challenges to the Corps' March 9, 2000 replacement
nationwide permits ("NWPs"). A court dismissed all the plaintiffs' complaints
for lack of jurisdiction on the ground that the NWPs are not final agency action
subject to
review.
The Division also continued a
history of successfully defending Fifth Amendment takings claims involving
permit applications necessary to dredge and fill wetlands pursuant to Section
404 of the CWA. Noteworthy victories this year included Palm Beach Isles
Associates v. United States and Bay-Houston Towing Co. v. United
States. In Palm Beach Isles, the court held the government
had demonstrated a bona fide navigational purpose in denying a permit to
fill 49 submerged acres of Lake Worth in Palm Beach, Florida, and thus there
was no taking. In Bay-Houston, the court held a property owner's
failure to wait for a final decision on his permit application rendered
his claim unripe for review, rejecting the argument that further pursuit
of the permit would constitute an exercise in futility.
In Greater Yellowstone Coalition
v. Flowers, an appellate court upheld the Corps of Engineers' issuance
of a CWA Section 404 permit. Plaintiffs had argued the Corps violated
the CWA and NEPA when it issued the permit in connection with the construction
of Canyon Club, a residential development and golf course along the Snake
River near Jackson, Wyoming.
In Protect Our Water and San
Joaquin Raptor/Wildlife Rescue Center v. Flowers, a court upheld
the Corps' issuance of a CWA Section 404 permit in connection with Phase
One of the "Diablo Grande" development project, a resort and residential
community in Stanislaus County, California. Plaintiffs had alleged the
project would result in an unpermitted taking of the endangered San Joaquin
kit fox and California red-legged frog. Similarly, in Hayward Area
Planning Association v. Norton, the court rejected claims the Corps'
permit for a residential subdivision and golf course would jeopardize
the continued existence of the Alameda whipsnake and California red-legged
frog, concluding the administrative record of the Corps and U.S. Fish
and Wildlife Service supported the "no jeopardy" determination that allowed
issuance of the permit.
Enforcing Magnuson Act
limitations on judicial review of fishery regulations. The Magnuson
Stevens Fishery Conservation and Management Act provides for special judicial
review procedures calculated to address the rapidity with which fishery
regulation changes from year to year and fisheries open and close. Cases
must be brought immediately and heard on expedited review, but plaintiffs
are expressly prohibited from seeking preliminary injunction of fishing
regulations. In two cases brought this year plaintiffs sought to circumvent
this prohibition by asking for injunctive relief under the ESA and NEPA.
The Division argued such claims could not be heard since a ruling for
plaintiffs would effectively halt fishing. Both courts presented with
the issue agreed with the Division's position.
Defending
the Fish and Wildlife Service's Habitat Conservation Program. The
U.S. Fish and Wildife Service has developed an ESA habitat conservation
permit ("HCP") program encouraging private landowners to contribute to
species conservation while providing certainty against prosecution to
those landowners desirous of developing their property. Plaintiffs in California
Native Plant Society v. Norton challenged the permit for a Carroll
Canyon development issued pursuant to a complicated, regional multispecies
HCP in the San Diego area. The court held the agency had wide latitude
to decide the best scientific and commercial data available and in general
deferred to FWS judgment. In National Wildlife Federation v. Norton plaintiffs
challenged an HCP and associated incidental take permit issued for the
Metro Air Park project near Sacramento. The court again deferred to the
Service's judgment regarding the level of mitigation and funding in the
HCP and further held the Service's interpretation of the requirement to
minimize and mitigate to the "maximum extent practicable" under ESA was
entitled to deference.
Maintaining the Nation's
Infrastructure. The Division opposed efforts to halt upgrade
of several of the nation's airports and operation of major dams. In City
of Olmsted Falls v. EPA, for example, ENRD defeated an action against
the Corps of Engineers and EPA challenging a permit issued under Section
404 of the Clean Water Act in connection with runway improvement at Cleveland
Hopkins International Airport in Ohio. The court issued a final opinion
and order upholding the permit.
ENRD exercised the government's
power of eminent domain to acquire transmission line easements in the western
United States on behalf of DOE's Western Area and Bonneville Power Administrations.
New transmission lines will bolster system reliability by creating redundancy
and allowing transmission of new capacity to population centers.
The Division defended successfully
a NEPA challenge to the Longhorn pipeline project, which will use a pre-existing
pipeline to transport gasoline and other petroleum products across the state
of Texas.
The Division also exercised the
federal government's power of eminent domain to assemble properties in Richmond,
Virginia for construction of a new federal courthouse; $3,029,600 in estimated
just compensation was made available to the landowners.
Protecting the Public
Fisc. A significant portion of the Division's practice includes
resolving liability of federal agencies in connection with cleanup of
contaminated facilities under CERCLA. This
year ENRD successfully defended numerous
claims of federal Superfund liability, saving the government hundreds
of millions of dollars.
Of particular note is the Division's
victory in Miami-Dade County, Florida v. United States. In 2001,
Miami-Dade County brought a lawsuit against the United States arising from
environmental contamination in and around Miami International Airport. The
county sought to hold the United States responsible for approximately $500
million in past and estimated future cleanup costs and penalties under a
variety of theories based on federal, state and local laws. After extensive
discovery the court conducted a trial during December 2003 and January 2004.
In September 2004, the court issued a lengthy order rejecting on factual
and legal grounds every claim made by the county.
In DuPont v. United States,
the Division defeated CERCLA contribution claims for costs to clean up fifteen
DuPont-owned plants based on activities during the First and Second World
Wars and the Korean War. Through orders issued in December 2003 and March
2004, the court granted judgment in favor of the United States on grounds
that DuPont had not satisfied statutory prerequisites for maintaining a
contribution action under CERCLA. These rulings disposed of a case in which
DuPont sought to have the United States pay a significant portion of the
estimated $1.5 billion cost of cleaning up the DuPont plants.
Where the government bore liability
for cleanup costs at contaminated sites, the Division negotiated appropriate
settlements providing for payment of a fair share. For example, in General
Motors Corp. v. United States, a CERCLA contribution action alleging
the United States was liable as an owner, operator and arranger for contamination
based on wartime contamination in Michigan, Indiana and New Jersey, the
Division resolved the government's liability at nine of the sixteen sites
through a settlement agreement requiring the United States to pay $890,000
of the cleanup costs (approximately 3%).
ENRD defeated an attempt to extend
CERCLA obligations to military facilities overseas. In ARC Ecology v.
Air Force and Navy, a court dismissed a complaint seeking to compel
the Air Force and Navy to perform preliminary environmental assessments
at the former Clark and Subic bases in the Philippines. The court concluded
that CERCLA does not have extraterritorial application in this context.
The Division also defended a Clean
Air Act enforcement action brought against the United States in City
of Jacksonville v. Department of the Navy. The Eleventh Circuit Court
of Appeals held the CAA federal facilities section does not waive the government's
sovereign immunity from payment of punitive fines to state and local governments,
following the Supreme Court's ruling in Department of Energy v. Ohio.
Protecting the Public
Fisc Against Invalid Fifth Amendment Takings Claims. Several
important victories by the Division helped clarify Fifth Amendment takings
law while ensuring that those who assert valid claims are justly compensated.
A notable victory was achieved through litigation in Henderson County
Drainage District v. United States, in which the United States proved
the property owner had been aware for decades of erosion of its property
along the Mississippi River. As a result, the court dismissed plaintiffs'
$200 million claim as barred by the statute of limitations.
Considerable savings to the public
fisc also have been achieved through successful use of settlement and alternative
dispute resolution in these cases. The Division achieved an important negotiated
resolution of Quinault Indian Nation v. United States, where the
plaintiff alleged taking and trust claims as a result of Fish and Wildlife
Service restrictions on timber harvest pursuant to the ESA. The Quinault
Nation sought in excess of $92 million but ultimately settled for a congressionally-appropriated
payment of $30 million plus a separate contribution from a non-governmental
party.
Resolving Claims Involving
the National Trails System. The Division continued to defend
numerous lawsuits brought by thousands of individuals throughout the United
States as a result of conversion of former railroad rights-of-way into
recreational trails in "rails-to-trails" programs. These suits allege
the conversions caused a taking of private property without just compensation
in violation of the Fifth Amendment. The Division successfully resolved
all or part of many of these suits this fiscal year, saving the United
States millions of dollars by ensuring that only plaintiffs who state
valid claims are compensated.
Protecting Federal Title
to Lands. In a long-running original action before the Supreme
Court, the Division achieved a significant victory before a special master
who recommended that title to submerged lands in Glacier Bay National
Park and around the Alexander Archipelago be deemed to belong to the United
States rather than the State of Alaska.
In another Alaska matter, ENRD
defended federal interests against the claimed right of the "Pilgrim Family" to
construct a 15-mile road across Wrangell-St. Elias National Park.
Advice and Training for
Federal Agencies. The Division provides advice and training
to other federal agencies when appropriate. This year, the Land Acquisition
Section held three training conferences for attorneys holding delegated
authority to review titles for federal land acquisitions. Approximately
250 federal employees from 11 agencies participated. Instructors were
also provided for land acquisition training sessions held by the Departments
of the Interior, Navy and Veterans Affairs.
Capacity Building for
Environmental Enforcement. ENRD has participated in a number
of programs to improve enforcement capacity around the world. These programs
have been generally sponsored or supported by other agencies and/or conducted
under the auspices of Administration initiatives such as the US Free Trade
Agreements with Chile and Morocco. They have included courses on general
civil and criminal enforcement, as well as on specific issues such as
wildlife enforcement, vessel pollution and recovery of natural resource
damages. In 2004, ENRD conducted such programs in Belgium, Canada, Chile,
China, Central and Eastern Europe, Mexico, Morocco and Thailand.
PROTECTING INDIAN RESOURCES AND RESOLVING INDIAN ISSUES
Defending
Tribal and Federal Interests in
Water Adjudications. The Division
devoted significant resources to
settling water adjudications in which the United States asserted claims on behalf
of Indian tribes and their members. These water adjudications are complex cases
involving the water rights of thousands of parties. This year the Division worked
with the Department of the Interior, the State of Idaho and the Nez Perce Tribe
to craft an
historic settlement of the Snake River Basin
Adjudication. The settlement followed eight years of contentious litigation
and difficult negotiations. The Division also worked with Interior, the State
of Arizona, the Gila River Indian Community and private water users to settle
Gila Community water claims
in In Re Gila River System and Source.
Finally, our efforts in the Klamath Basin
Adjudication and the Bitterroot Basin
Adjudication convinced the parties to settle
or withdraw sixteen claims.
Not all water adjudications are
susceptible to settlement, however. The Division won a notable litigation
victory in Matter of Applications to Change Use of Waters Within the
Pyramid Lake Valley, where we successfully defended the Pyramid Lake
Paiute Tribe's right to use its water to protect fish habitat in Pyramid
Lake rather than for irrigation.
Defending Tribal Lands. The
Division defends over 150 million acres of land held by the United States
in trust for tribes. This fiscal year the Division prevailed in United
States v. City of Tacoma, a trespass action brought against the City
for unlawfully condemning Indian lands. The trial court granted our motion
for summary judgment and the Ninth Circuit Court of Appeals affirmed. In Proschold
v. United States, the Division successfully defended the use and existence
of an easement for the benefit of a tribe in both the district and appellate
courts.
Defending the United States'
Authority to Implement Indian Policies. ENRD realized a number
of successes this year in defending federal agencies and programs intended
to further federal Indian policies. The Division obtained dismissal in Arakaki
v. Cayetano of a challenge to the constitutionality of programs serving
Native Hawaiians, including a 1920s program to set aside lands for Native
Hawaiian people. In Morris v. Tanner, the Division prevailed
in a constitutional challenge to the Indian Civil Rights Act, establishing
that Indian tribes have criminal jurisdiction over crimes committed in
Indian country by members of other tribes.
Promoting Negotiated Resolutions
of Indian Disputes. ENRD continues to promote the use of settlements
for resolving complex litigation with Indian Tribes. In Quapaw v.
Norton, the Division reached a novel agreement that funded a tribal
enterprise's project for collecting and analyzing historic documents related
to the tribe's trust funds and trust assets, thereby avoiding costly litigation
and saving the Department of the Interior from incurring the expense of
preparing an accounting that, in the tribe's view, would not have met
the tribe's needs. In Warm Springs v. Norton, the Division entered
into a comprehensive settlement of three major asset mismanagement cases,
saving the government from protracted litigation and setting the stage
for further negotiated settlements.
Defending Indian Gaming
Laws. The Division had considerable success in defending the
constitutionality of provisions of the Indian Gaming Regulatory Act ("IGRA").
In Lac Courte Oreilles Band of Lake Superior Chippewa v. Norton,
ENRD prevailed in a tribe's challenge to the constitutionality of an IGRA
provision permitting the Secretary of the Interior to take newly acquired
lands into trust for Indian gaming purposes only if the Secretary determines
gaming would be in the best interest of the tribe and not detrimental
to the surrounding community, and the governor of the relevant state concurs.
In Artichoke Joe's California Grand Casino v. Norton, the Division
prevailed in a challenge by non-Indian gambling interests, under the Equal
Protection Clause, to state compacts that authorize Indian tribes to engage
in casino gaming despite prohibition of others from engaging in such gambling.
SUPPORTING THE DIVISION'S LITIGATORS
Support
for Large Trials. For ENRD's largest cases, the Executive Office
has provided on-site trial support to the traveling trial teams. The Office
has provided a full complement of support for the Ohio Edison and Illinois
Power (Power Plants) trials, as well as the Shoshone-Arapaho and Gros
Ventre (Tribal Trust) trials. Support has included technology resources,
exhibit/document processing and management services, witness preparation,
contractor support and logistical services. Our Executive Office also
helped with
establishing "war rooms" and "mini-networks" connected to the ENRD JCON 2A computer
system for key Division trials
across the country.
Continuity of Operations.
ENRD is dedicated to meeting the Attorney General's commitment to maintain
business operations in the event of a national emergency. To that end, the
Division further strengthened our precedent-setting computer network security
protocols and initiated a continuity of operations plan. Simultaneously,
ENRD became the first litigating division with a DOJ-certified remote computer
access system. Connectivity to the Division's computer system was enabled
for key ENRD trials across the country.
